Citation Nr: 21024196 Decision Date: 04/22/21 Archive Date: 04/22/21 DOCKET NO. 13-26 757 DATE: April 22, 2021 REMANDED Entitlement to service connection for a vestibular disability (hereinafter “vestibular disability”), to include benign paroxysmal positional vertigo and as due to service-connected bilateral hearing loss and tinnitus, is remanded. REASONS FOR REMAND The Veteran served on active duty from October 1971 to April 1972, followed by a period of service in the reserves. This matter comes to the Board of Veterans’ Appeals (Board) from a December 2011 rating decision which, in pertinent part, denied entitlement to service connection for a vestibular disability. In January 2017, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. In November 2017, October 2019, and July 2020, the Board remanded this matter for additional development. Entitlement to service connection for a vestibular disability In written pleadings and at the January 2017 hearing, the Veteran asserts that service connection is warranted for a vestibular disability. He states that his symptoms, including dizziness, began during service and have continued since. He also states that his symptoms are related to acoustic trauma during service. The Veteran has conceded in-service acoustic trauma based on service-connected bilateral hearing loss and tinnitus. The Veteran states that he was told by a doctor that his vestibular disability is due to his service-connected hearing loss and tinnitus. In July 2020, J.W. reviewed the Veteran’s electronic folder and provided an addendum opinion. The examiner opined that it is “not at least as likely as not” that the Veteran’s vestibular disability began during service, to include as due to conceded in-service acoustic trauma; manifested within one year after discharge from service; or was noted during service with continuity of the same symptomology since service, to include lay evidence from the Veteran and family members. The examiner stated that the Veteran’s service treatment records are silent for dizziness or vestibular dysfunction during active service or for one year after service. The examiner noted that the Veteran was a long-term smoker, used alcohol, and had multiple medical conditions. The examiner opined that any of one these conditions, alone or in combination, plus advancing age, exacerbated by heavy smoking and alcohol abuse, can cause, contribute, or aggravate vestibular dysfunction. The Board cannot make a fully-informed decision because the addendum opinion is inadequate. While the examiner initially framed the opinion in terms of the correct legal standard, the rationale then used a lower standard in that the Veteran’s other medical conditions “can” cause, contribute, or aggravate vestibular dysfunction. Moreover, in providing this rationale, the examiner never discussed whether vestibular disability was related to the conceded in-service acoustic trauma. While the examiner referred to the absence of medical records during service and for one year after service, the examiner did not provide a proper foundation for drawing negative inferences for the absence of evidence. In the March 2021 informal hearing presentation, the Veteran’s representative asserts that the July 2020 examiner failed to mention whether the Veteran’s service-connected hearing loss or tinnitus played any role in the development of a vestibular disability. The Board, however, notes that, as stated in the July 2020 remand, the January 2020 VA examiner opined that the Veteran’s vestibular disability was not caused or aggravated by his service-connected hearing loss or tinnitus. While the Veteran is competent to report observable symptoms and information that he has been told by doctors, he is not competent to provide a nexus between his vestibular disability and his service-connected disabilities. See Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). On remand, the Veteran may submit competent evidence for consideration showing that his vestibular disability is caused or aggravated by his service-connected hearing loss or tinnitus. In the March 2021 informal hearing presentation, the Veteran’s representative also asserts that the July 2020 examiner’s title was not listed and, thus, it is unclear if the examiner is a medical professional or whether valid challenges can be made to the examiner’s credentials. Once a challenge to an examiner’s competency is raised, VA must respond to the challenge by providing the qualifications of an examiner to the veteran. See Francway v. Wilkie, 940 F.3d 1304, 1308-09 (2019). Because this matter is being remanded for an addendum opinion, the examiner providing this opinion should identify his or her title. Moreover, the agency of jurisdiction should obtain the qualifications of the January 2020 VA examiner and the examiner providing the addendum opinion. The matter is REMANDED for the following actions: 1. Obtain an addendum opinion from an appropriate clinician regarding the Veteran’s vestibular disability, to include benign paroxysmal positional vertigo diagnosed in September 2013. The examiner must identify his or her title. The examiner must opine whether the Veteran’s vestibular disability at least as likely as not began during or is related to active service, to include related to an in-service injury, event, or disease, including the Veteran’s conceded in-service acoustic trauma. The examiner must also opine whether the Veteran’s vestibular disability at least as likely as not manifested within one year after discharge from service. The examiner must consider the statements regarding symptomology since service, to include lay evidence from the Veteran and family members. The examiner must provide a rationale supporting all opinions. The examiner is advised that a negative opinion may not be based solely on the absence of treatment during or after service and that the examiner must provide a proper foundation explaining why the absence of evidence is relevant in determining whether the disability is related to service. (Continued on the next page.)   2. Obtain the qualifications of the January 2020 VA examiner and the examiner providing the addendum opinion. Associate these documents with the Veteran’s claims file and provide copies to the Veteran and his representative. If the qualifications of an examiner are not obtainable, notify the Veteran and his representative and document the reasons for such in the Veteran’s claims file. K. Parakkal Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Ormson, 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.