Citation Nr: 21073414 Decision Date: 12/08/21 Archive Date: 12/08/21 DOCKET NO. 17-05 786A DATE: December 8, 2021 REMANDED Entitlement to service connection for vertigo, to include as secondary to service-connected posttraumatic stress disorder (PTSD) and migraine headaches, is remanded. REASONS FOR REMAND The Veteran served on active duty from October 1997 to February 1999. This matter comes before the Board of Veterans' Appeals (Board) on appeal of an August 2013 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In May 2011, the RO denied the Veteran's service connection claim for vertigo. Ordinarily, if a claim is finally denied, it may not be reopened without new and material evidence. 38 C.F.R. § 3.156(a). However, 38 C.F.R. § 3.156(c) provides an exception to this rule. If relevant service department records are newly associated with the claims file, "VA will reconsider the claim." 38 C.F.R. § 3.156(c)(1). In August 2019, the Board found that the service department records exception applied and remanded the appeal for additional development. Entitlement to service connection for vertigo, to include as secondary to service-connected PTSD and migraine headaches, is remanded. In August 2019, the Board remanded the appeal, in part, to obtain a VA medical opinion from a qualified examiner on whether the Veteran suffers from vertigo (or another identifiable disease). If so, the examiner was then asked to address whether the Veteran's vertigo (or another disease) pre-existed her military service. If not, the examiner would instead address whether the Veteran's service-connected mental disorder or migraine headaches caused or aggravated her vertigo. In January 2020, a VA opinion was obtained. The examiner concluded that the Veteran did not have vertigo. The examiner explained that the Veteran's medical history was complex and that "numerous medical conditions can lead to 'dizziness' with [v]ertigo being but one." See Jones v. Shinseki, 23 Vet. App. 382, 390 (2010) ("[C]urrent medical knowledge could yield multiple possible etiologies with none more likely than not the cause of a veteran's disability."). From there, the examiner's opinion becomes problematic. He states that he "can only speculate" whether the Veteran's symptoms were from her mental disorder, headaches, or something else because he lacks the expertise to render such an opinion. The January 2020 VA opinion is flawed, as the examiner indicated that he was unable to render an opinion in this appeal because he lacked the expertise. Therefore, a remand is necessary to obtain an adequate opinion and to ensure substantial compliance with the terms of the prior Board's remand. Stegall v. West, 11 Vet. App. 268, 271 (1998). The matter is REMANDED for the following action: Arrange for an appropriate healthcare provider to review the Veteran's claims file and provide an opinion on whether it is at least as likely as not (50 percent probability or greater) that the Veteran suffers from vertigo. The examiner should address whether the Veteran's symptoms (dizziness, fainting spells, etc.) are from her vertigo, mental disorder, migraine headaches, or another identifiable disease. In the opinion, the examiner should address (1) the Veteran's report that she experienced dizziness during a panic attack at the October 2010 VA examination, and (2) the April 2018 examiner's conclusion that the Veteran's dizziness is an expected symptom of her headaches. If the reviewing health care provider finds that physical examination or telehealth interview of the Veteran and/or diagnostic testing is necessary, such should be accomplished. If the Veteran is diagnosed with vertigo (or another identifiable disorder), the examiner should address whether the disability clearly and unmistakably existed before the Veteran's active duty service. (a.) If so, state whether it is clear and unmistakable (i.e., undebatable) that the pre-existing disability was NOT aggravated (i.e., permanently worsened beyond the natural course of the disease) during service. (b.) If not, state whether it is at least as likely as not (50 percent probability or greater) that the disability had its clinical onset during service or is due to an event or incident of the Veteran's period of active service. (c.) If not, also state whether it is at least as likely as not (50 percent probability or greater) that the Veteran's disability was (A) caused or (B) aggravated beyond its normal progression by her service-connected mental disorder or migraine headaches. Aggravation means an increase in disabilityany additional impairment of earning capacityof the nonservice-connected disability. If an opinion cannot be given without resorting to speculation, the examiner should explain why and state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), the record (additional facts are required), or the examiner (does not have the knowledge or training). A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Ashley Castillo Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Canedy, 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.