Citation Nr: 21009698 Decision Date: 02/23/21 Archive Date: 02/23/21 DOCKET NO. 17-05 122 DATE: February 23, 2021 REMANDED Entitlement to service connection for vertigo is remanded. REASONS FOR REMAND The Veteran served in the United States Army from May 2003 to May 2007, with service in both Iraq and Afghanistan. This matter is before the Board of Veterans’ Appeals (Board) on appeal of a July 2015 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). This matter was previously before the Board in September 2019, in which the Board denied service connection for vertigo. The Veteran timely appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In April 2020, the Court issued an Order granting a Joint Motion for Partial Remand of the parties. The Board remanded this claim in October 2020 in order to obtain an adequate examination, and this matter has now returned to the Board for further appellate review.   Entitlement to service connection for vertigo is remanded. VA will pay compensation to a Persian Gulf Veteran who exhibits objective indications of a “qualifying chronic disability” that manifests either during active service in the Southwest Asia theatre of operations or manifests to a degree of 10 percent or more no later than December 31, 2021. 38 C.F.R. § 3.317(a). A “qualifying chronic disability” is defined as: (a) an undiagnosed illness; or (b) a medically unexplained chronic multi symptom illness that is defined by a cluster of signs or symptoms, such as: (1) chronic fatigue syndrome; (2) fibromyalgia; or (3) functional gastrointestinal disorder (excluding structural gastrointestinal diseases). 38 C.F.R. § 3.317(a). Signs or symptoms that may be manifestations of undiagnosed illness include, but are not limited to, the following: (1) fatigue; (2) signs or symptoms involving skin; (3) headaches; (4) muscle pain; (5) joint pain; (6) neurologic signs or symptoms; (7) neuropsychological signs or symptoms; (8) signs or symptoms involving the respiratory system (upper or lower); (9) sleep disturbances; (10) gastrointestinal signs or symptoms; (11) cardiovascular signs or symptoms; and (12) abnormal weight loss. 38 C.F.R. § 3.317(b). The Veteran served in the Southwest Asia Theatre of Operations during the Persian Gulf War, having served in Iraq, and therefore the Veteran may be entitled to the presumption of service connection under 38 C.F.R. § 3.317(a)(1). The Veteran was afforded VA examinations in April 2014 and November 2020. The April 2020 Joint Motion found the April 2014 Gulf War General Medical examination to be inadequate because the examiner failed to provide an opinion regarding direct service connection for the Veteran’s diagnosed Benign Paroxysmal Positional Vertigo (BPPV). The examiner also found that the Veteran’s dizziness was not due to an undiagnosed illness for presumptive service connection purposes since the examiner diagnosed BPPV. The April 2014 examiner based this diagnosis on the Veteran’s history of dizziness as well as his diagnosis of vertigo in April 2013. In the November 2020 VA examination, the examiner disagreed with the April 2014 examiner and stated the Veteran did not have BPPV. The examiner opined that the April 2014 examiner’s diagnosis of BPPV was incorrect based on the neurological testing conducted in 2013 that did not result in any specific diagnosis and videonystagmography (VNG) testing from 2013 that showed normal results with respect to central or peripheral vestibulopathy and no evidence of BPPV. An MRI from April 2013 was also normal, and the examiner’s vestibular and ear exams were normal as well. The examiner also noted the Veteran did not have any historical or objective findings to warrant a diagnosis. Instead, the examiner stated the Veteran had “[s]ubjective complaints of dizziness only” and that these complaints had no identified etiology. The November 2020 examiner notes the Veteran experiences dizziness without any identified etiology, and the examiner refers to the Veteran’s complaints as “subjective.” However, although the examiner addresses the neurological testing conducted throughout 2013, the examiner fails to address the Veteran’s diagnoses of both vertigo and cervicogenic dizziness in his private treatment records, as well as the different treatments prescribed by his private physicians, to include prednisone, muscle relaxers, and physical therapy. Because the examiner failed to address the aforementioned evidence in the record, the November 2020 examination is inadequate. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (indicating that a medical opinion based on an inaccurate factual premise has no probative value). Additionally, as the Veteran served in the Southwest Asia theatre of operations during the Persian Gulf War, there is the possibility that presumptive service connection may be available under 38 C.F.R. § 3.317. The November 2020 examiner considered the Veteran’s complaints of dizziness to be “subjective,” and found no objective testing or findings concerning the Veteran’s complaints of dizziness. However, claims under the Gulf War presumption must have “objective indications of chronic disability” which includes both “signs,” in the medical sense of objective evidence perceptible to an examining physician, as well as other, non-medical indicators that are capable of independent verification. See Gutierrez v. Principi, 19 Vet. App. 1, 9 (2004); see also 38 C.F.R. § 3.317(a)(3). As such, the Board finds that the evidence of record indicates there are objective indicators related to the Veteran’s complaints of dizziness, most notably the diagnoses of and treatments for dizziness/vertigo by the Veteran’s private physicians in the record. While the Veteran was previously afforded a Gulf War General Medical examination in April 2014, the examiner diagnosed the Veteran with BPPV, a disease with an established etiology, and thus determined the Veteran did not have an undiagnosed illness. However, as the November 2020 examiner has raised questions about this diagnosis, new questions have been raised as to whether the Veteran has an undiagnosed illness manifested by dizziness and the record does not contain an adequate opinion on this question. As such, a new Gulf War General Medical examination is required to address the Veteran’s complaints of dizziness/vertigo, and therefore the Board must remand the Veteran’s claim for further development. Additionally, the Veteran has indicated receiving treatment from Dr. E.J. and Dr. B.H. for his dizziness/vertigo. Although the record contains some treatment records from these physicians, recent treatment records have not been obtained. As recent treatment records for this condition may be pertinent to determining the nature of the Veteran’s vertigo/dizziness, the Veteran should be requested to provide authorization for VA to obtain the records. Accordingly, this matter is REMANDED for the following action: 1. Ask the Veteran to complete a VA Form 21-4142 for providers who have treated his dizziness/vertigo, to include Dr. E.J. and Dr. B.H., since 2014. Make two requests for any authorized records, unless it is clear after the first request that a second request would be futile. 2. Schedule the Veteran for an examination with an appropriate clinician. If it is determined that an in-person examination is not necessary, the examiner is free to schedule a telehealth examination.   The examiner is requested to provide an opinion to the following: a) Clearly identify all current chronic disability(ies) involving vertigo or dizziness, including whether there are any symptoms that cause functional impairment. b) Then, with respect to any diagnosed disability (or any symptom causing functional impairment), the examiner should render an opinion, consistent with sound medical judgment, as to whether it is at least as likely as not related to an in-service injury, event, or disease, including his service in Iraq or Afghanistan? c) If the Veteran’s dizziness or vertigo is found not to be due to a diagnosed disability, then opine as to whether the Veteran has objective indications, as established by history, physical examination, and laboratory tests, of an undiagnosed illness or a medically unexplained chronic multisymptom illness, manifested by symptoms that have existed for six months or more or exhibited intermittent episodes of improvement and worsening over a six-month period. A “medically unexplained chronic multisymptom illness” is defined as a diagnosed illness without conclusive pathophysiology or etiology that is characterized by overlapping symptoms and signs and has features such as fatigue, pain, disability out of proportion to physical findings, and inconsistent demonstration of laboratory abnormalities. In providing these opinions, the examiner is to specifically consider the following evidence of record: i. The April 8, 2013 MRI from Olney MRI Center; ii. The May 7, 2013 entry from Potomac Physician associates; iii. The April 11, 2013, November 8, 2013, and April 22, 2014 entries from the Neurology Center; iv. The May 30, 2014 entry from the Neurological Center in Wheaton; v. All of the Veteran’s lay contentions, to include letters to VA received May 27, 2015; and vi. The April 2014 and November 2020 VA examination reports. A complete rationale for all opinions must be provided. If the examiner cannot provide a requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The examiner must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the examiner must indicate whether any opinion could   not be given due to limitations of knowledge in the medical community at large and not those of the particular examiner. M. SORISIO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Gabrielle Ongies, 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.