Citation Nr: 21067271 Decision Date: 11/03/21 Archive Date: 11/03/21 DOCKET NO. 17-08 203 DATE: November 3, 2021 REMANDED The claim of entitlement to service connection for vertigo, to include as due to exposure to toxic chemicals, and to include as secondary to a service-connected disability, is remanded. REASONS FOR REMAND The Veteran had honorable active duty service in the United States Navy from September 1966 to June 1970. This matter comes before the Board of Veterans' Appeals (Board) from a February 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In June 2020, the Board denied the Veteran's appeal. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). While the matter was pending before the Court, the Veteran and VA's General Counsel filed a joint motion for partial remand (JMPR). In March 2021, the Court granted the JMPR, vacated in part the Board's decision, and remanded the matter for actions consistent with the JMPR. The matter has now returned to the Board. For the reasons outlined below, the Board finds remand necessary to properly address the Court's order. The Veteran previously testified at a hearing before the undersigned Veterans Law Judge (VLJ) in March 2020. A written transcript of that hearing has been prepared and is associated with the evidence of record. The claim of entitlement to service connection for vertigo, to include as due to exposure to toxic chemicals, and to include as secondary to a service-connected disability, is remanded. The Veteran contends he has vertigo related to his active service, to include as due to exposure to toxic chemicals. According to the JMPR, the Board erred in its past decision on this matter because it did not adequately discuss potentially favorable evidence related to the Veteran's claim. Specifically, the Board failed to address: (1) a November 4, 2012 emergency department note showing that the Veteran fell from a deck and complained of dizziness; (2) a July 31, 2012 neurology note in which the Veteran denied vertigo at any time but indicated he felt his vision "shift" momentarily and had been "losing his balance at night when the lights are out" for several months; and (3) a Central Nervous System examination report of November 7, 2013, where an examiner found the Veteran's gait "abnormal" and noted that "[d]izziness and vertigo can cause instability on standing/walking." Although further delay is regrettable, the Board finds that a remand is necessary in this case to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's appeal. 38 U.S.C. § 5103A; Stegall v. West, 11 Vet. App. 268, 270-71 (1998); 38 C.F.R. § 3.159. Specifically, the Board finds a VA examination warranted to address whether the Veteran has a current disability based on the symptoms included in the above records and as described by the Veteran. The agency of original jurisdiction (AOJ) has conceded the Veteran's exposure to hexavalent chromium (chromium 6) based on his occupation in the Navy. See March 2016 rating decision. Among other conditions, the Veteran is service connected for residuals of a stroke, chronic obstructive pulmonary disease (COPD), and ischemic heart disease and ischemic cardiomyopathy, which are due to the Veteran's chromium 6 exposure. On remand, consideration of whether the Veteran's claimed vertigo is related to exposure to chromium 6 or secondarily related to a service-connected condition. The matter is REMANDED for the following action: 1. Schedule the Veteran for an examination with an appropriate clinician. The VA examiner should identify whether, during any point in the period on appeal, the Veteran has had vertigo or any such disability (e.g., chronic dizziness or a balance impairment). In assessing whether the Veteran has a current disability, the examiner must take a current and detailed lay history from the Veteran regarding the onset and course of his relevant symptoms throughout the appeal period. Further, in assessing whether the Veteran has a current disability, the examiner must conduct a thorough review of the medical evidence of record, with particular attention paid to the following: a November 4, 2012, emergency department note in which Veteran fell from a deck and complained of dizziness; a July 31, 2012, neurology note in which the Veteran denied vertigo at any time but indicated he felt his vision shift to the left for a second, and described losing his balance for several month at night when the lights were out; and a November 7, 2013 Central Nervous System examination report where the examiner found Veteran's gait "abnormal" and noted that "[d]izziness and vertigo can cause instability on standing/walking." The examiner shall then opine as to whether it is at least as likely as not (i.e., a 50 percent probability or greater) that any identified vertigo or balance disability was incurred in or aggravated by the Veteran's active duty or is otherwise etiologically related to the Veteran's active service, and if not, why not. This opinion must address whether the identified condition is at least as likely as not related to the Veteran's conceded exposure to chromium 6 and must address whether the condition is secondarily caused or aggravated by another currently service-connected condition (e.g., residuals of a stroke, COPD, or ischemic heart disease and cardiomyopathy, which are due to the Veteran's chromium 6 exposure). 2. Following completion of the foregoing, the AOJ should review the record and readjudicate the claim on appeal. If it remains denied, the AOJ should issue an appropriate supplemental statement of the case, afford the Veteran an opportunity to respond, and return the case to the Board. B. MULLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Hart, Associate Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.