Citation Nr: 21070737 Decision Date: 11/24/21 Archive Date: 11/24/21 DOCKET NO. 16-48 021 DATE: November 24, 2021 ORDER Entitlement to service connection for dizziness is denied. FINDING OF FACT The most probative evidence of record indicates the Veteran has not been shown to have dizziness that manifested during active service or is otherwise causally or etiologically related to active service. CONCLUSION OF LAW The criteria for entitlement to service connection for dizziness have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service in the Army from February 1991 to June 1991, April 1992 to June 1999, and February 2003 to April 2004. He also had service in the Army National Guard and United States Army Reserve, to include a period of active duty for training from February 1991 to June 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2015 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The appeal was previously before the Board in June 2021. The appeal has since been returned to the Board for further appellate consideration. Duties to Notify and Assist The Board notes that the June 2019 remand directed the AOJ to ask the Veteran to provide information regarding any head trauma he experienced; specifically, the date of a rollover accident he reported at the time of a September 2015 VA examination for dizziness. In November 2019, the AOJ requested that information. He did not respond to that request. In September 2020, the AOJ again requested that the Veteran provide the information regarding the rollover accident. He did not respond to that request. The duty to assist a claimant is not a one-way street, and in the instant case, the Veteran has not cooperated in this regard in the development of his claim. See Wood v. Derwinski, 1 Vet. App. 406 (1991). Therefore, because the Veteran was given notification to provide the requested information, the Board finds that there is no prejudice to proceed with the claim and substantial compliance has been completed. Thus, the Board will decide the claim based on the evidence of record. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). 1. Entitlement to service connection for dizziness The Veteran contends his dizziness is related to head trauma he experienced in service and he was involved in a rollover accident. See September 2015 VA examination. Based on a review of the evidence, the Board finds that entitlement to service connection for dizziness is not warranted. The Board acknowledges that there is conflicting evidence of record regarding whether the Veteran has a diagnosis of dizziness. In a September 2015 VA ear examination, the Veteran was diagnosed as negative for an ear or peripheral vestibular disorder. In a September 2015 Gulf War examination, the examiner diagnosed the Veteran as negative for a diagnosed illness for which there is no etiology. In a follow-up report of general information, the examiner opined that the Veteran's claimed dizziness is not due to a vestibular disorder or ear disorder, nor is it the result of an undiagnosed illness or chronic multi-symptom illness. The examiner explained that the Veteran's dizziness is most likely attributed to his reported history of head trauma and a rollover accident. This seems to indicate there is an etiology for the dizziness, but there is no information on whether the accident occurred before, during, or after service. The Board assigns the September 2015 VA opinions low probative value as the examiner did not provide a nexus opinion on the etiology of the Veteran's claimed dizziness. Thus, this opinion is not significantly probative. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (holding that a medical opinion must be supported by an adequate analysis that the Board can consider and weigh against contrary opinions). In an October 2020 VA addendum opinion, the examiner noted that the Veteran has a co-existing psychiatric condition. The examiner explained that the Veteran has symptoms of both a mental disorder and a traumatic brain injury (TBI). The examiner explained that symptoms of mental disorders and TBI frequently overlap. The examiner noted that due to the presence of this overlap, the relative contribution of each disorder to the Veteran's symptoms cannot be determined without resorting to mere speculation. The examiner noted that it is not possible to differentiate what symptoms are attributable to each diagnosis, or to differentiate what portion of each symptoms are attributable to each diagnosis because of the overlap without resorting to mere speculation. The examiner determined that while there is no medical evidence that Veteran's dizziness is directly service connected, there is relation to the condition of dizziness and the Veteran's TBI. The examiner opined that the Veteran's dizziness was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The Veteran was evaluated in 2015 and 2019 with reports of experiencing more than five blasts during deployment to Iraq from 2003 to 2004. The Veteran noted that some of the blasts reported by the Veteran resulted in loss of consciousness for a period of four to five hours. The Veteran reported regaining consciousness in the infirmary with the symptoms of confusion, dizziness, and memory loss lasting approximately twelve hours. The Veteran also reported a history of TBI while in-service. The examiner noted that dizziness is a known sequella of mild TBI as referenced above. The examiner opined that it is more likely than not that the Veteran's dizziness is related to the reported history of head trauma. Therefore, the claimed condition dizziness is at least as likely as not (50 percent or greater probability) proximately due to or the result of the Veteran's TBI. The Board assigns low probative value to the October 2020 addendum opinion as the examiner opined that the claimed condition dizziness is at least as likely as not proximately due to or the result of the Veteran's TBI. The Veteran received a subsequent November 2020 traumatic brain injury VA examination that showed the Veteran was negative for a TBI. Therefore, the Board finds that the October 2020 opinion is not probative because it is based upon inaccurate information. A medical opinion based upon an inaccurate factual premise has no probative value. Reonal v. Brown, 5 Vet. App. 458, 461 (1993). In a November 2020 VA traumatic brain injury examination, the examiner diagnosed the Veteran as negative for a traumatic brain injury. The examiner noted that the Veteran's neurological examination was normal, and the Veteran's balance was excellent. The examiner opined that the Veteran had experienced multiple mild traumatic brain injuries in his past and they resolved themselves within weeks or months. The Board affords this opinion reduced probative value because the examiner did not address dizziness and there was no discussion of the October 2020 exam findings. Although the opinion is of reduced probative value, it retains some probative value regarding the TBI as it is based on upon the relevant evidence of record and a supporting explanation. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (noting that the probative value of an opinion is based on whether the examiner was informed of the relevant facts in rendering a medical opinion); Stefl v. Nicholson, 21 Vet. App. at 24 (2007). Pursuant to the June 2021 Board remand VA obtained an addendum opinion in July 2021. The examiner opined there is no clinical evidence of dizziness present on a continuing or chronic basis. The examiner reasoned the "Veteran has not been on any medication or medical therapy related to this condition on a chronic basis and it is NOT documented with clinical evidence at this time." Regarding the TBI the examiner found that there is no medical evidence of a TBI or TBI sequelae while in service. Therefore, the examiner concluded there is NO medical evidence that the Veteran's report of dizziness is directly related to active service. The Board assigns the July 2021 VA opinion significant probative value as it is based upon review a full review of the relevant evidence and provided supporting explanations. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (holding that factors for assessing the probative value of a medical opinion are the physician's access to the claims file and the thoroughness and detail of the opinion); Stefl v. Nicholson, 21 Vet. App. at 123-24. The examiner reviewed the relevant evidence of record, to include the Veteran's lay statements and previous VA examinations. See Nieves-Rodriguez v. Peake, 22 Vet. App. at 302-04. The presence of a disability at any time during the claim process can justify a grant of service connection, even when the most recent diagnosis is negative. McClain v. Nicholson, 21 Vet. App. 319 (2007). However, service connection is only available for a disease or injury where such incidents have resulted in a current disability. Here, the most probative evidence of record, the July 2021 addendum opinion, documents there is no clinical evidence of dizziness present on a continuing or chronic basis. Thus, it appears there was no diagnosis during the appeal period. The Board acknowledges the Veteran's statements that his claimed dizziness is related to head trauma he experienced in service. STRs reveal that in a January 2004 post-deployment health assessment, the Veteran reported experiencing headaches and dizziness during his deployment; however, there is no evidence of a formal in-service diagnosis made by a competent medical source. Also, the Veteran reported his dizziness is related to a rollover accident experienced in service. As noted above, attempts to determine the approximate date and location of this reported rollover accident have been unsuccessful as the Veteran has failed to provide information requested. Thus, a preponderance of the evidence suggests that the Veteran did not have a diagnosis of dizziness during service. Taking into account all the relevant evidence of record, the Board finds that the weight of the evidence is against the Veteran's claim for service connection for dizziness and the claim must be denied. David Gratz Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Braxton, 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.