Citation Nr: 21024214 Decision Date: 04/22/21 Archive Date: 04/22/21 DOCKET NO. 10-48 607 DATE: April 22, 2021 REMANDED Entitlement to service connection for a disorder manifested by dizziness and lightheadedness, to include labyrinthitis, is remanded. REASONS FOR REMAND The Veteran served on active duty from November 1989 to April 1990 and from September 1993 to April 1995. This matter comes before the Board of Veterans’ Appeals (Board) from a May 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. This appeal was originally certified to the Board with an additional issue of entitlement to service connection for headaches. In a November 2019 Board decision and later promulgated in a rating decision that same month, entitlement to service connection for headaches was granted. As such, the issue is no longer in appellate status before the Board. Grantham v. Brown, 114 F.3d 1156, 1159 (Fed. Cir. 1997). On November 4, 2020, the United States Court of Appeals for Veterans Claims (Court or CAVC) issued a Joint Motion for Remand (JMPR) that remanded the issue of service connection for dizziness and lightheadedness back to the Board for reconsideration consistent with the terms of the motion. See Forcier v. Nicholson, 19 Vet. App. 414, 425 (2006). Pursuant to the Court’s remand and Kutscherousky v. West, the Board issued a 90-day letter to the Veteran and her representative dated November 18, 2020, notifying them of their ability to submit additional evidence or argument in support of their appeal within 90 days. 12 Vet. App. 369 (1999) (per curiam); see 38 C.F.R. § 20.1304. The Veteran responded, submitting additional evidence, and requested a remand of this case for the AOJ to review the additional evidence. and requested the full 90 days offered for the opportunity to submit new evidence. See Clark v. O’Rourke, 30 Vet. App. 92 (2018). The substance of the Court’s JMPR will be discussed further in the remand section below. Entitlement to service connection for a disorder manifested by dizziness and lightheadedness, to include labyrinthitis, is remanded. The Veteran’s original claim for service connection occurred in September 2009 when she asserted that her dizziness and lightheadedness, along with her migraine headaches, now service-connected, were chronic problems that had originated in service and had continued since then. The initial medical record documenting these symptoms occurred when the Veteran noted to a medical treatment provider in September 1996 that she experienced lightheadedness at least once a month. Another treatment record from November 2000 noted the Veteran was suffering from dizziness, with a possible diagnosis of labyrinthitis, an inflammatory disease, noted with a question mark on the examination form. The Veteran stated during her initial VA examination in September 2014 that she had been experiencing symptoms of headaches, dizziness, and lightheadedness ever since active service. The Veteran in July 2015 asserted her headaches, dizziness, and lightheadedness were related to an epidural procedure she received for anesthesia during childbirth during active service. On November 4, 2020, CAVC issued a Joint Motion for Partial Remand which vacated in part the November 2019 Board decision that denied entitlement to service connection for a disorder that included dizziness and lightheadedness, and remanded to the Board for further consideration and development. No. 20-1376, 2020 U.S. App. Vet. Claims (Nov. 4, 2020) (unpublished). The Court called to attention the Board’s duty to assist by providing an adequate examination report, in that an April 2014 Board remand directive had not been complied with. The Court considered the November 2017 VA examination to be inadequate because that VA examiner did not address whether the Veteran’s claimed disorder manifested by dizziness and lightheadedness, to include labyrinthitis, was related to the Veteran’s fall, injury to include possible concussion, and head trauma she suffered in active service. The problematic November 2017 VA examination had only noted a lack of mention in any service treatment record to produce its negative opinion for service connection. The Court also noted the Board had found the previous August 2015 and June 2016 examinations deficient in that the Veteran’s lay statements were not taken into account, statements the Board had said were both competent in the legal sense and credible regarding her symptomatology during and after service. Based on the Board’s determination at the time, remands were issued in November 2017 and November 2019 to address the Veteran’s symptomatology and her statements that the dizziness and lightheadedness originated in active service. A remand by the Board confers on an appellant the right to VA compliance with the terms of the remand order and imposes on the Secretary a concomitant duty to ensure compliance with those terms. See Stegall v. West, 11 Vet. App. 268, 271 (1998). As such, the Board will remand for a fresh VA examination and opinion for service connection for the Veteran’s disorder involving dizziness and lightheadedness, to include specific consideration of the Veteran’s claim that her current disability is related to her incident during active service when she suffered head trauma already documented, or related to her epidural seizure during childbirth in 1994. The matters are REMANDED for the following action: 1. Obtain any pertinent outstanding VA treatment records and associate them with claims file. Contact the Veteran and request that she identify any pertinent private treatment records not already identified and obtained and, with the appropriate authorization, attempt to obtain those records and associate them with the claims file. All actions to obtain the records should be documented. If the records cannot be located or do not exist, the Veteran should be notified and given opportunity to provide them. 2. After the record search is complete, and any new records are added to the claims file, obtain a new VA examination and opinion from an appropriate and qualified VA physician with expertise in neurological disease to address the nature and etiology of the Veteran’s dizziness and lightheadedness disability. The claims file must be made available to and reviewed by the examiner. A note that it was reviewed should be included in the report. Based on the review of the Veteran’s entire record, the examiner should provide an opinion as to the following: Whether it is at least as likely as not (probability of 50 percent or greater) that the Veteran’s claimed dizziness and lightheadedness disability had its onset in service or are otherwise related any to any in-service disease, event, or injury? The examiner is advised that the Veteran is competent to report her symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. The examiner is also asked to consider the additional evidence submitted by the Veteran now present in the claims file. If the examiner rejects the Veteran’s reports of symptomatology, a reason for doing so must be provided. A detailed rationale supporting the examiner’s opinion should be provided. In forming the opinion, the examiner must consider all lay statements of record. If the examiner feels that the requested opinions 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). Jones v Shinseki, 23 Vet. App. 382 (2010). The examiner is reminded that the term “as likely as not” does not mean “within the realm of medical possibility,” but rather that the evidence of record is so evenly divided that, in the examiner’s expert opinion, it is as medically sound to find in favor of the proposition as against it. 3. Thereafter, readjudicate the issue on appeal. If the determination remains unfavorable to the Veteran, she and her representative should be furnished a supplemental statement of the case which addresses all evidence associated with the claims file since the last statement of the case. The Veteran and her representative should be afforded the applicable time period to respond. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369, 372 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans’ Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). MICHAEL A. PAPPAS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Setter, 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.