Citation Nr: 21069752 Decision Date: 11/19/21 Archive Date: 11/19/21 DOCKET NO. 15-44 451 DATE: November 19, 2021 REMANDED Entitlement to service connection for vertigo, to include as secondary to service- connected deviated nasal septum, sinusitis associated with deviated nasal septum, and headaches (claimed as migraines) is remanded. REASONS FOR REMAND The Veteran served on active duty from July 1953 to July 1956. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Wichita, Kansas. By way of background, in a June 2019 Board decision, the issue of service connection for vertigo was denied. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims ("CAVC" or "the Court"). The Court issued a Memorandum Decision in April 2021 setting aside the Board's June 2019 decision as it pertained to the issue of service connection for vertigo and remanded the case back to the Board for disposition consistent with the Court's Order. This appeal has been advanced on the Board's docket pursuant to 38 U.S.C. § 7107(a)(2) and 38 C.F.R. § 20.902(c). Entitlement to service connection for vertigo, to include as secondary to service-connected deviated nasal septum is remanded. The Veteran contend that his current vertigo is related to active service. Specifically, he asserts that his vertigo was caused by being beaten around the head area during active service. Additionally, the Veteran contends that his vertigo may be related to his other service-connected disabilities. For example, during a December 2013 VA treatment note, the Veteran told the doctor that he believed his broken nose from active service made his vertigo worse. See Appellate Brief Received November 2021; Notice of Disagreement Received May 2015. See also Correspondence Received December 2015. The Board notes that the Veteran is currently service connected for deviated nasal septum, sinusitis associated with deviated nasal septum, headaches, and hearing loss. See Rating Decision Codesheet Received July 2021. In its April 2021 memorandum decision, the Court determined that the Board failed to address the Veteran's lay statements that his vertigo is in some way related to his service-connected deviated nasal septum disability and whether it met the threshold for an examination regarding a theory of secondary service connection remand is required. Additionally, CAVC stated that because the Veteran's statements within the December 2013 medical examination highlight a potential link between the Veteran's vertigo and his deviated nasal septum, the Board should have addressed secondary service connection for his vertigo in the previous decision. CAVC remanded the matter for these issues to be addressed by the Board. The Board notes that following separation from service, in August 2012, the Veteran reported that he developed vertigo two weeks prior accompanied by visual changes. He stated he was improved, and no treatment or diagnosis was rendered at that time. See Medical Treatment Records Received September 2014. The Veteran's post service treatment notes indicate that in October 2013, he stated that he had developed intermittent vertigo in August 2013 and he also reported chronic runny nose and allergies. In December 2013, he reported ongoing intermittent vertigo, stating that if he sat up too quickly, it caused dizziness. He told the doctor that he believed that his broken nose from active service made his vertigo worse. See Medical Treatment Records Received September 2014. Although CAVC referred to a December 2013 medical exam, the Board notes the Veteran's report is in a December 2013 treatment note. The Board finds that the record reasonably raises the possibility that the Veteran's vertigo is potentially related to his service-connected conditions based on the lay statements and medical records detailed above. See Morgan v. Wilkie, 31 Vet. App. 162, 164 (2019) (schedular rating concepts, including secondary service connection, are critical components of VA's duty to maximize benefits). As there has not been an opinion regarding secondary service connection for his vertigo disability, the Board finds that remand is necessary. The requirements to secure a VA examination are a low bar, and the evidence of record triggers VA's duty to assist. VA is required to provide examination when there is insufficient medical evidence to decide the claim, but the record otherwise contains competent evidence of a current disability or recurrent symptoms, evidence of an in-service event, and evidence of an indication of a nexus. See McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006); Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010); 38 C.F.R. § 3.159(c)(4)(i). As such, the McClendon requirements are satisfied, and a VA medical opinion is required regarding secondary service connection for the Veteran's vertigo disability. See also Bardwell v. Shinseki, 24 Vet. App. 36 (2010). The Board cannot substitute its own rationale for medical determinations and a medical opinion is required to determine whether or not service connection on a secondary basis is warranted. See Colvin v. Derwinski, 1 Vet. App. 171 (1991) (holding that the rating board cannot substitute its own medical judgment for that of medical professionals). The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of his vertigo disability. The examiner is asked to review the entire claims file, to include the Veteran's lay statements. Review all medical evidence of record, and undertake any studies deemed necessary. The examiner must provide well-reasoned opinions as to each of the following: (a.) Is it at least as likely as not (a 50 percent or greater probability) that the Veteran's currently diagnosed vertigo onset in or is caused by service, to include an incident in active duty service where he was beaten around the head area? (b.) Is it at least as likely as not (a 50 percent or greater probability) that the Veteran's currently diagnosed vertigo is caused by his service-connected deviated nasal septum disability? (c.) Is it at least as likely as not (a 50 percent or greater probability) that the Veteran's currently diagnosed vertigo is aggravated (worsened) by his service-connected deviated nasal septum disability? (d.) Is it at least as likely as not (a 50 percent or greater probability) that the Veteran's currently diagnosed vertigo is caused by his service-connected sinusitis disability (which is associated with his deviated nasal septum disability)? (e.) Is it at least as likely as not (a 50 percent or greater probability) that the Veteran's currently diagnosed vertigo is aggravated (worsened) by his service-connected sinusitis disability (which is associated with his deviated nasal septum disability)? (f.) Is it at least as likely as not (a 50 percent or greater probability) that the Veteran's currently diagnosed vertigo is caused by his service-connected headache disability? (g.) Is it at least as likely as not (a 50 percent or greater probability) that the Veteran's currently diagnosed vertigo is aggravated (worsened) by his service-connected headache disability? The examiner is advised that causation and aggravation are separate questions, and therefore both theories must be addressed separately in each opinion. For any aggravation found, the examiner should state, to the best of their ability, the baseline of symptomatology and the amount, quantified if possible, of aggravation beyond the baseline symptomatology. A complete rationale must be provided for each opinion. The examiner must consider the Veteran's lay statements. The examiner is reminded that the Veteran is competent to report observable symptoms, and such reports must be specifically acknowledged and considered in formulating any opinion. The examiner must consider and address the following: i. The Veteran's post-service report that sometimes his vertigo lasts all day up to a couple of days and he has to stay in bed. ii. The Veteran's post-service report that he believes that the vertigo was caused by being beaten around the head area during active service. iii. October 2013 treatment notes in which the Veteran stated that he developed intermittent vertigo in August 2013 and he also reported chronic runny nose and allergies. iv. A December 2013 treatment noted in which the Veteran reported ongoing intermittent vertigo, stating that if he sat up too quickly, it caused dizziness, and that he believed that his broken nose from active service made his vertigo worse. If the examiner is unable to provide a medical opinion, then he/she must explain in detail why that is the case and provide a statement as to whether there is any additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. Tiffany Dawson Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Dorsey-Kwansa, 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.