Citation Nr: A21020222 Decision Date: 12/17/21 Archive Date: 12/17/21 DOCKET NO. 190718-16781 DATE: December 17, 2021 ORDER The claim for entitlement to service connection for sinus headaches has been withdrawn. As new and relevant evidence has been received, the application to readjudicate the claim for entitlement to service connection for dizziness with vision loss is granted. REMANDED Entitlement to service connection for vertigo is remanded. Entitlement to service connection for a sinus condition, claimed as rhinitis, is remanded. FINDINGS OF FACT 1. At the July 2021 Board hearing, which was prior to the promulgation of a decision in the appeal, the Veteran withdrew her claim for entitlement to service connection for sinus headaches. 2. Evidence received since a final June 1992 rating decision relates to information that tends to prove a matter at issue in the claim for entitlement to service connection for dizziness with vision loss. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the claim for entitlement to service connection for sinus headaches have been met. 38 U.S.C. § 7105; 38 C.F.R. § 20.205. 2. New and relevant evidence has been received to warrant readjudication of the Veteran's claim for entitlement to service connection for dizziness with vision loss. 38 U.S.C. §§ 5108, 7105(c); 38 C.F.R. §§ 3.156(d), 3.2501, 20.1103. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1970 to March 1973 and from July 1976 to January 1992. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2019 rating decision issued by a Department of Veterans Affairs (VA) Regional Office. In her July 2019 VA Form 10182, Decision Review Request: Board Appeal, the Veteran elected the Hearing docket under the Appeals Modernization Act (AMA). Accordingly, the Veteran testified before the undersigned Veterans Law Judge during a July 2021 videoconference hearing. Under the AMA, when a claimant seeks appellate review through the Board's hearing docket, the Board may consider the evidence of record at the time of the original rating decision on appeal, additional evidence submitted on the date of the Board hearing (including testimony), and additional evidence submitted within 90 days of the hearing. 38 U.S.C. § 7113(b). 1. The claim for entitlement to service connection for sinus headaches The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.205. Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.205. The Veteran indicated her desire to withdraw the appeal regarding the issue of entitlement to service connection for sinus headaches at her July 2021 Board hearing. See Board Hearing Transcript at 2. The Board finds that the represented Veteran explicitly, unambiguously, and with a full understanding of the consequences, withdrew the issue. The undersigned clearly identified the withdrawn issue, and the Veteran affirmed that she was requesting a withdrawal as to that appeal. The Board finds that the Veteran has withdrawn this appeal and, hence, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeal and it is dismissed. 2. Whether new and relevant evidence has been received to warrant readjudication of the claim for entitlement to service connection for dizziness with vision loss The Veteran filed an original claim for service connection for dizziness with vision loss in March 1992, which was denied in a June 1992 rating decision under the legacy system. The Veteran did not submit a notice of disagreement or new and material evidence within 1 year of that decision. Accordingly, the June 1992 rating decision became final. In June 2019, the Veteran filed a VA Form 21-0995, Decision Review Request: Supplemental Claim seeking readjudication of the claim for service connection for dizziness. VA will readjudicate a claim if new and relevant evidence is presented or secured. New evidence is evidence that had not previously been submitted to the agency. 38 C.F.R. § 3.156(d). Relevant evidence is evidence that tends to prove or disprove a matter at issue in the claim. 38 C.F.R. § 3.2501. The June 1992 rating decision denied service connection for dizziness finding that the Veteran had not been diagnosed with a chronic disability manifested by dizziness with vision loss. Subsequent to the June 1992 rating decision, VA received additional treatment records reflecting a diagnosis of benign paroxysmal vertigo in May 2019 after the Veteran reported dizziness while using the stairs in her home. The Board finds that the records submitted during the applicable evidentiary window are new, as they had not been previously submitted into the record. The Board also notes that they are relevant, as the records offer a diagnosis corresponding to similar symptomatology experienced by the Veteran in service. Therefore, the Board finds the records to be new and relevant evidence and will readjudicate the Veteran's claim on the merits. REASONS FOR REMAND 1. Entitlement to service connection for vertigo is remanded. The Veteran's service treatment records reflect multiple complaints of dizziness with vision loss during her period of active service. During the July 2021 Board hearing, the Veteran reported that these symptoms have persisted since service discharge. Indeed, as noted above, treatment records dated in May 2019 reflect that she was diagnosed with vertigo after complaining of dizziness while using the stairs in her home. As there is insufficient competent medical evidence to adjudicate the Veteran's claim, a VA opinion should have been obtained regarding the nature and etiology of her diagnosed vertigo. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). A remand is required to correct this pre-decisional duty to assist error. 2. Entitlement to service connection for a sinus condition, claimed as rhinitis, is remanded. The July 2019 rating decision found that new and relevant evidence had been received to readjudicate the claim of entitlement to service connection for rhinitis. This is a favorable finding by the agency of original jurisdiction (AOJ) and the Board will proceed to the address the claim on the merits. See 38 U.S.C. § 5104A; 38 C.F.R. § 3.104(c). Notably, while the Veteran filed a claim for rhinitis specifically, she reported symptoms including coughing, nasal congestion, and post-nasal drip during the Board hearing. She further indicated that she was diagnosed with allergic rhinitis. Accordingly, the Board has expanded the claim to include all sinus symptoms and disorders identified in the record. See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (the scope of a psychiatric disability claim includes any disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record). The Veteran's service treatment records indicate that she was treated on various occasions for upper respiratory infections. In April 1986, the Veteran was diagnosed with chronic rhinitis with secondary epistaxis after noting blood in her sputum since before November 1985. In May 1986, the Veteran reported occasional flecks on blood in her sputum when she gets a cold. During the July 2021 Board hearing, the Veteran reported that she was later diagnosed with allergic rhinitis and that she continues to find blood in her mucus at times. The Veteran's post-service treatment records reflect ongoing prescriptions of cetirizine and fluticasone propionate nasal spray that the Veteran stated are used to treat her allergic rhinitis symptoms. Additionally, private treatment records reflect a diagnosis of allergic rhinitis with sinusitis in September 2019. A VA examination and opinion have not been obtained regarding this claim. As there is evidence of recurrent sinus symptoms, in-service treatment for rhinitis, and insufficient medical evidence for VA to make a decision on the claim, a VA opinion should have been obtained. See McLendon , 20 Vet. App. 79. A remand is required to correct this pre-decisional duty to assist error. The matters are REMANDED for the following action: 1. Obtain a VA opinion regarding the nature and etiology of the Veteran's diagnosed vertigo. The claims file should be available to, and reviewed by, the VA examiner. If an examination is deemed warranted, one should be arranged. The examiner should opine whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's diagnosed vertigo had its onset in or is otherwise related to her period of active service, to include her reports of dizziness with vision loss therein. The examiner must consider the Veteran's report that vertigo began in service and has continued thereafter. A rationale must be provided for all opinions offered. 2. Schedule a VA examination regarding the nature and etiology of the Veteran's sinus condition. The claims file should be available to, and reviewed by, the examiner. All indicated tests and studies should be complete. Thereafter, the examiner should respond to the following: (a.) List all disabilities of the sinuses diagnosed during the appeal period, to include rhinitis and/or sinusitis. (b.) For each diagnosis, is it at least as likely as not (a 50 percent or greater probability) that the condition had its onset in or is otherwise related to the Veteran's period of service, to include her in-service treatment for upper respiratory conditions and chronic rhinitis with secondary epistaxis? A rationale should be provided for all opinions offered. CAROLINE B. FLEMING Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. Connor, 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.