Citation Nr: 21075937 Decision Date: 12/21/21 Archive Date: 12/21/21 DOCKET NO. 17-44 052 DATE: December 21, 2021 REMANDED Service connection for vertigo as secondary to service-connected tinnitus and/or acquired psychiatric disorders and/or medications for service-connected disabilities is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Navy from October 1960 until his honorable discharge in October 1964. This appeal has been advanced on the Board of Veterans' Appeals' (Board) docket pursuant to 38 U.S.C. § 7107(b) and 38 C.F.R. § 20.902(c). This case comes before the Board of Veterans' Appeals (Board) on appeal from a February 2016 decision by a Regional Office of the United States Department of Veterans Affairs (VA). The Board notes that the Veteran requested a Board hearing in his VA Form 9, Substantive Appeal to the Board, which was scheduled for September 23, 2019. He was properly provided notice of the hearing in a correspondence dated August 22, 2019, and he did not attend the hearing. In November 2019, the Board remanded the case to the VA Regional Office for further development. Specifically, the Board directed the VA Regional Office to obtain an VA examination to address the etiology of his vertigo, which the VA Regional Office accomplished. Unfortunately, the Board finds remand is again required for the reasons discussed below. The Board notes that the Veteran was previously represented by attorney O.J. While on remand, the attorney notified VA that he was withdrawing from representation of the Veteran. As this withdrawal was after the Board had remanded the case but prior to return of the case to the Board, 38 C.F.R. § 20.6(b) permits the representative to withdraw by complying with the provisions of 38 C.F.R. § 14.631. Withdrawal under 38 C.F.R. § 14.631(c) is permitted if notice is given and the withdrawal does not adversely impact the client's interests. As written notice was given to both the Veteran and VA, and there is no apparent adverse impact to the claimant's interests, the withdrawal is effective and attorney O.J. no longer represents the Veteran. With all claims for benefits, VA has the duty to "make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claimant's claim for a benefit under a law administered by the Secretary [of VA]." 38 U.S.C. § 5103A(a)(1); see also 38 C.F.R. § 3.159(c) (implementing regulation). Part of this duty includes obtaining "relevant records held by any Federal department or agency that the claimant adequately identifies and authorizes the Secretary to obtain." 38 U.S.C. § 5103A(c)(1)(C). Pertinent to this appeal, VA's implementing regulation specifically lists Social Security Administration (SSA) records among the Federal agency records that VA is obligated to attempt to obtain. 38 C.F.R. § 3.159(c)(2). "Relevant records" are those records that relate to the injury or condition for which the veteran is seeking benefits and have a reasonable possibility of helping to substantiate the veteran's claim. Golz v. Shinseki, 590 F.3d 1317, 1321 (Fed. Cir. 2010). In this case, a correspondence received by VA on February 2, 1998, indicates that the Veteran applied for Social Security Disability benefits and received a medical examination in connection with his claim. Although it is unclear on what basis he sought benefits, the Board finds remand is required to try to obtain relevant medical records from the Social Security Administration in order to comply with VA's duty to assist. This is particularly important in this case because the Veteran is unrepresented, so VA will attempt to develop his claim to the fullest extent. Next, the VA Regional Office obtained an opinion from a VA-contracted examiner in October 2020 addressing the etiology of the Veteran's vertigo. In that opinion the examiner opined that the Veteran's vertigo was less likely than not caused by his tinnitus. In a subsequent October 2021 addendum opinion, a separate examiner opined that the Veteran's vertigo was less likely than not aggravated by his tinnitus. The Board notes that the Veteran has not made any assertion that his vertigo or associated symptoms had their onset in or are directly related to his military service. As part of the rationale offered by the October 2020 examiner, he acknowledged the Board's statement within the November 2019 remand order that "[t]he VAMC records reflect that cognitive impairment, a history of alcohol abuse, orthostatic hypotension, medication, pituitary adenoma, perforated eardrum, and aortic stenosis are all possible causes of the Veteran's symptoms." It appears that the examiner accepted this statement by indicating review of the Veteran's medical records. The Board notes that the Veteran is service connected for depressive disorder previously diagnosed as post-traumatic stress disorder with alcoholism in remission (also claimed as anxiety, insomnia to include acquired psychiatric disorder). Hence, the Board finds that the record raises the theory that the Veteran's vertigo, and accompanying symptoms, may be related to his service-connected psychiatric disorder based on the examiner's acknowledgment that his "cognitive impairment [and] history of alcohol abuse" are possible causes of his vertigo symptoms. Robinson v. Mansfield, 21 Vet. App. 545, 552 (2008), aff'd sub nom. Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009) (Board is required to consider theories of entitlement to benefits that are either raised by the claimant or reasonably raised by the record). Moreover, the examiner also acknowledged that the Veteran's medication may be related to his symptoms, but the examiner did not discuss what medication. Therefore, the Board finds remand is required to obtain an addendum opinion on the theory of secondary service connection in association with the Veteran's service-connected psychiatric disorder and medication use. Accordingly, the matter is REMANDED for the following actions: 1. Obtain any of the Veteran's outstanding VA medical records and associate them with the claims file. 2. Contact the Social Security Administration and request all relevant medical records associated with the Veteran's claim for Social Security Disability benefits as indicated by the correspondence received by VA on February 2, 1998. 3. After any additional records are associated with the claims file, obtain an addendum opinion from an appropriately qualified clinician to provide an opinion addressing the onset and etiology of the Veteran's vertigo. The entire claims file must be made available to and be reviewed by the examiner, including a copy of this REMAND order. If the examiner decides an examination is necessary, then one shall be provided. The examiner is asked to provide an opinion regarding: (a.) Whether it is at least as likely as not (50 percent probability or more) that the Veteran's currently diagnosed vertigo and associated symptoms were caused by (proximately due to or as the result of) his service-connected: i. Tinnitus and/or ii. Depressive disorder previously diagnosed as post-traumatic stress disorder with alcoholism in remission (also claimed as anxiety, insomnia to include acquired psychiatric disorder) and/or iii. Medications associated with any of his service-connected disabilities. Please identify the relevant medications, if any. (b.) Whether it is at least as likely as not (a 50 percent probability or more) that the Veteran's currently diagnosed vertigo and associated symptoms were aggravated by his service-connected: i. Tinnitus and/or ii. Depressive disorder previously diagnosed as post-traumatic stress disorder with alcoholism in remission (also claimed as anxiety, insomnia to include acquired psychiatric disorder) and/or iii. Medications associated with any of his service-connected disabilities. Please identify the relevant medication, if any. The examiner is advised "aggravation" means any increase in the severity of the underlying disability beyond its natural progression, regardless of permanence. The examiner is reminded to consider the Veteran's lay statements regarding the nature and onset of his disability, including any evidence concerning continuity of symptomatology, as he is legally permitted to report his symptoms, past medical history, and experiences. A clear and detailed rationale for the opinion(s), including a discussion of the facts and medical principles involved, should be provided as it will be of considerable assistance to the Board. Please do not simply list the facts on which you relied. If the examiner relies on medical treatises, the examiner should identify the treatises. If the examiner feels that a requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e., no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e., additional facts are required, or the examiner does not have the needed knowledge or training). T. Berry Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. F. Sawka, 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.