Citation Nr: A21018303 Decision Date: 11/16/21 Archive Date: 11/16/21 DOCKET NO. 190506-19187 DATE: November 16, 2021 ORDER The claim for entitlement to VA compensation benefits under 38 U.S.C. § 1151 for a kidney disability resulting from VA medical treatment is dismissed. REMANDED Entitlement to service connection for vertigo, including as secondary to bilateral hearing loss, is remanded. FINDING OF FACT The grant of entitlement to service connection for a diabetic nephropathy with nephrolithiasis renders moot the Veteran's claim of entitlement to benefits under the provisions of 38 U.S.C. § 1151 for kidney disability resulting from VA hospital or surgical care. CONCLUSION OF LAW The Veteran's claim for entitlement to VA compensation benefits for a kidney disability under the provisions of 38 U.S.C. § 1151 is moot. 38 U.S.C. §§ 1151, 7104. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1965 to November 1969. These matters come before the Board of Veterans' Appeals (Board) on appeal from a March 2019 rating decision. In May 2019, the Veteran submitted a timely VA Form 10182 (Notice of Disagreement) and elected to pursue his appeal via the Board's hearing docket. The Veteran testified at a hearing before the undersigned in August 2021. In reviewing these claims, the Board may only consider the evidence of record at the time of the decision on appeal, as well as any evidence submitted by the Veteran or his representative at his hearing or within 90 days following his hearing. See 38 C.F.R. § 20.302(a). Entitlement to VA compensation benefits under 38 U.S.C. § 1151 for a kidney disability resulting from VA medical treatment In November 2018, the Veteran filed a claim seeking entitlement to service connection for a kidney condition, as secondary to diabetes mellitus, type II, and pursuant to 38 U.S.C. § 1151. Subsequently, an October 2020 rating decision allowed service connection for diabetic nephropathy (kidney condition) with nephrolithiasis (kidney stones). The effective date of the grant of benefits is March 31, 2013. In light of this grant of benefits for a kidney condition, the Board concludes the 38 U.S.C. § 1151 claim is rendered moot. Entitlement to VA compensation under 38 U.S.C. § 1110 or § 1131, based on service connection, is the greater benefit, and it is now granted in full. No additional benefit (monetary or otherwise) can be gained under 38 C.F.R. § 1151, nor does any controversy remain. See Hornick v. Shinseki, 24 Vet. App. 50, 53-57 (2010). VA is only required to consider a claim under the provisions of 38 U.S.C. § 1151, if the Veteran's claim for service connection is denied under 38 U.S.C. § 1110. See Timberlake v. Gober, 14 Vet. App. 122 (2000). REASONS FOR REMAND Service connection for vertigo, including as secondary to bilateral hearing loss, is remanded. In November 2018, the Veteran filed a claim seeking service connection for vertigo, including as secondary to a service-connected bilateral hearing loss disability. In December 2018, a VA ear conditions examination was provided to evaluate this claim. The examiner diagnosed peripheral vestibular disorder. He opined the condition was less likely than not proximately due to the hearing loss disability. A February 2019 addendum opinion restated this opinion. The December 2019 and February 2019 opinions do not address whether the peripheral vestibular disorder was aggravated by the Veteran's hearing loss disability. An opinion regarding secondary service connection is inadequate if it does not address both causation and aggravation of the nonservice-connected condition. See El-Amin v. Shinseki, 26 Vet. App. 136, 138 (2013). Therefore, a duty to assist error existed prior to the March 2019 rating decision. The issue must be remanded to obtain an additional VA etiology opinion. The matters are REMANDED for the following action: Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran's vertigo disability (diagnosed as peripheral vestibular disorder) is at least as likely not proximately due to or aggravated beyond its natural progression by his service-connected bilateral hearing loss disability. Aggravation and causation are distinct theories and must be addressed separately and independently of each other. If aggravation is found, the clinician must attempt to establish a baseline level of severity of the vertigo disability prior to aggravation by a service-connected bilateral hearing loss disorder. If the clinician determines an additional examination is necessary to provide the requested opinion, schedule an examination. M. HYLAND Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Jeanne Celtnieks 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.