Citation Nr: 22014029 Decision Date: 03/11/22 Archive Date: 03/11/22 DOCKET NO. 17-41 393 DATE: March 11, 2022 REMANDED Entitlement to service connection for vertigo is remanded. REASONS FOR REMAND The Veteran served on active duty from September 1989 to February 1998. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a June 2016 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In February 2021, the Veteran testified at a hearing conducted by the undersigned Veterans Law Judge. A transcript of the hearing has been added to the Veteran's claims file. The following May, the Board remanded the Veteran's claim for additional development. The case is once again before the Board. 1. Entitlement to service connection for vertigo is remanded. The Secretary must provide an exam or medical opinion when it "is necessary to make a decision on the claim." 38 C.F.R. § 5103(d). A medical exam or opinion is necessary only if the record contains (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) evidence establishing that the veteran suffered an in-service event, injury, or disease; (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service; and (4) insufficient competent medical evidence on file for VA to decide on the claim. 38 U.S.C. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). The third element "requires only that the evidence 'indicates' that there 'may' be a nexus" between the Veteran's symptoms or disability and his military service. McLendon, 20 Vet. App. at 83. "This is a low threshold." Id. Shortly before the appeal period, in October 2015, the Veteran told her healthcare provider that she had "been dizzy for several weeks" and complained that the room or the floor "changes height on her." Her healthcare provider assessed vertigocompetent medical evidence of a current disability. During service, the Veteran testified that she experienced dizziness, nausea, and balance problems on flights and "that [the] sensation continued for . . . an hour or two" afterward. Consistent with this, "motion sickness" is listed as a chronic illness in her service records. After service, she testified that her vertigo continued and gradually worsened. See id. ("The types of evidence that 'indicate' that a current disability 'may be associated' with military service include . . . evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation."). Because the record lacks sufficient competent evidence to decide the claim, the Board finds the criteria for a medical examination met. The Board is also required to discuss a theory of entitlement raised by the Veteran or by the evidence of record. Robinson v. Peake, 21 Vet. App. 545, 553 (2008). Here, the Board finds secondary service connection reasonably raised by the record. In April 2015, the Veteran reported "dizziness with similar onset to the constant tinnitus." In September 2017, the Veteran again reported experiencing tinnitus and dizziness "together." And the following December, the Veteran told her VA healthcare providers that her otolaryngologist "thought . . . perhaps the vertigo was a form of migraine [because] her tinnitus flared up with it." Read together, these medical records suggest that there may be some relationship between the Veteran's vertigo and her now-service-connected tinnitus. Accordingly, the Board finds a secondary service connection medical opinion needed as well. Finally, as the case is being remanded for additional development, any outstanding VA treatment records should be associated with the claims file. See Bell v. Derwinski, 2 Vet. App. 611, 613 (1992) (per curiam). The matter is REMANDED for the following action: 1. Obtain all outstanding VA treatment records and associate them with the claims file. 2. Then, schedule the Veteran for a VA examination to determine the nature and likely etiology of the Veteran's vertigo. The examiner should review the Veteran's claims file and provide an opinion on whether her vertigo had its clinical onset during service or is due to an event or incident of the Veteran's period of active service. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 3. If not, arrange for an appropriate healthcare provider to review the Veteran's claims file and provide an opinion on whether the Veteran's vertigo was (A) caused or (B) aggravated beyond its normal progression by her service-connected tinnitus or hearing loss. Aggravation means an increase in disabilityany additional impairment of earning capacityof the nonservice-connected disability. If aggravation is found, the examiner must attempt to establish a baseline level of severity of the diagnosed disability prior to aggravation by the service-connected disability. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 4. After undertaking any additional development deemed appropriate and giving the Veteran full opportunity to supplement the record, adjudicate the Veteran's pending claim in light of any additional evidence added to the record. If any benefit sought on appeal remains denied, the Veteran and her representative should be furnished with a Supplemental Statement of the Case and be afforded the applicable opportunity to respond before the record is returned to the Board for further review. M. Donohue Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Canedy, 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.