Citation Nr: 1801484 Decision Date: 01/09/18 Archive Date: 01/19/18 DOCKET NO. 16-22 797 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for chronic ear pain, to include as secondary to service-connected disabilities. 2. Entitlement to service-connection for dizziness, to include as secondary to service-connected disabilities. 3. Entitlement to a total disability rating based upon individual unemployability due to service-connected disability (TDIU). REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Veteran and J.K. ATTORNEY FOR THE BOARD A. Solomon, Associate Counsel INTRODUCTION This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). The Veteran served on active duty from September 1976 to September 1979. These matters come before the Board of Veterans' Appeals (Board) on appeal from a February 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Veteran presented testimonial evidence at a November 2016 Board videoconference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. The Board remanded these matters for further development in April 2017, July 2017, and October 2017. The appeals have since been returned to the Board for appellate review. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Although the Board regrets the additional delay, a remand is again found necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration. See 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159 (2017). The Veteran seeks entitlement to service connection for chronic ear pain and dizziness. In its April 2017 remand, the Board directed the AOJ to provide the Veteran with a VA examination pertaining to the claims. The remand specified that the examiner was to provide opinions as to whether the Veteran's claimed chronic ear pain and dizziness were manifestations of occipital neuritis, directly related to his military service, and/or were caused or aggravated by his service-connected cervical spine disability. The Veteran was provided with a VA examination in April 2017, at which the examiner concluded that the Veteran's chronic ear pain was at least as likely as not caused by his laryngopharyngeal reflux and that his dizziness was at least as likely as not caused by migraines, and were not symptoms of the Veteran's service-connected occipital neuritis. The Board remanded the claims again in July 2017 for an addendum opinion as to whether the Veteran's claimed ear pain and/or dizziness, along with laryngopharyngeal reflux and migraines, were aggravated by his service-connected occipital neuritis, or were caused or aggravated by the Veteran's other potentially-related service-connected disabilities. The Veteran was provided with another VA examination in August 2017, where the examiner opined that the Veteran's chronic ear pain and dizziness are less likely than not proximately due to or the result of his service-connected degenerative joint disease of the cervical spine. The examiner provided a rationale that there is no medical diagnosis of any chronic ear condition or vestibular problems, and that "medical literature/consensus does not support a causal link between mild degenerative arthritis of the cervical spine and either ear pain or dizziness." As no opinion was provided as to whether or not the Veteran's chronic ear pain and/or dizziness was aggravated by any of his service-connected disabilities, the examination was found to be inadequate and in October 2017, the Board again remanded the claims for an addendum opinion. In October 2017, an addendum opinion was obtained from the same examiner who conducted the August 2017 examination. The examiner stated an opinion that ear pain and dizziness are less likely than not proximately due to or the result of the Veteran's service-connected occipital neuritis, with the stated rationale being that medical literature/consensus does not support a causal association between either chronic ear pain or dizziness and occipital neuritis in this case, stating that "this includes no aggravation." The addendum opinion report then reproduced this statement a number of times, merely substituting the Veteran's other potentially-relevant service-connected disabilities (degenerative arthritis of the cervical spine, tinnitus, and hearing loss) for "occipital neuritis" for each opinion. In a December 2017 appellate brief, the Veteran's representative asserted that the October 2017 addendum opinion was inadequate for rating purposes because the examiner's opinions were fully conclusory without any clearly elaborated rationales. The Board agrees. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (noting that most of the probative value of a medical opinion comes from its reasoning and that it must be clear that the medical expert applied valid medical analysis to the significant facts of a particular case); Stefl v. Nicholson, 21 Vet. App. 120, 125 (2007) (holding that "the mere conclusion by a medical doctor is insufficient to allow the Board to make an informed decision as to what weight to assign to the doctor's opinion"). Additionally, the Board notes that the April 2017 VA examination report includes an opinion that the Veteran's dizziness is at least as likely caused by his migraine headaches. A June 2017 VA informed consent note for an occipital nerve block procedure indicated that the reason for the treatment was "migraine, headache, or eye pain." On remand, the Veteran should be provided with a supplemental VA medical opinion as to the nature and etiology of his claimed chronic ear pain and dizziness, to specifically include whether either represents a manifestation of a disability which has been caused or aggravated by the Veteran's potentially-related service-connected disabilities. The issue of entitlement to a TDIU is found to be inextricably intertwined with the other issues remanded herein, and it too must be remanded for further development. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that two issues are "inextricably intertwined" when they are so closely tied together that a final Board decision cannot be rendered unless both issues have been considered). As the Board is remanding the case for further development, the AOJ should take any necessary action to associate updated VA treatment records with the claims file. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Obtain any and all of the Veteran's outstanding updated VA treatment records and associate them with the claims file. All efforts to obtain such records must be fully documented and VA facilities must provide a negative response if no records are found. 2. After associating all responsive records with the claims file, refer the Veteran's claims file to an appropriate medical professional who has not yet provided an opinion regarding these claims (hereinafter "reviewer") for a supplemental medical opinion as to the nature and etiology of the Veteran's chronic ear pain and dizziness. The reviewer must be given full access to the complete VA claims file and electronic records for review. The reviewer must specifically note on the medical opinion report whether the claims file, to include a copy of this remand, and any electronic records, were reviewed in connection with providing this opinion. If, after review of the file, the reviewer determines that another VA examination is necessary, such must be scheduled and the Veteran must be notified. The reviewer should then address the following: a. Provide a diagnosis for any disability manifesting in the Veteran's described chronic ear pain at any time during the relevant appeal period. *The reviewer's attention is directed to an April 2017 VA examiner's opinion that the Veteran experienced otalgia caused by laryngopharyngeal reflux, and the reviewer is asked to address such possibility. If the reviewer determines that the chronic ear pain represents a symptom of one or more of the Veteran's already service-connected disabilities or a symptom (not associated with another disability) aggravated by a service-connected disability, the reviewer should so state. For the purposes of the above inquiry, the reviewer should consider the Veteran's relevant service-connected disabilities to include occipital neuritis, degenerative arthritis of the cervical spine, bilateral sensorineural hearing loss, and tinnitus. For any diagnosis rendered above for a disability manifesting in the Veteran's chronic ear pain: i. Is it at least as likely as not (50 percent or greater probability) that the disability was caused by his service-connected occipital neuritis? ii. Is it at least as likely as not (50 percent or greater probability) that the disability was aggravated by his service-connected occipital neuritis? iii. Is it at least as likely as not (50 percent or greater probability) that the disability was caused or aggravated by the Veteran's service-connected hearing loss and/or tinnitus? iv. Is it at least as likely as not (50 percent or greater probability) that the disability was caused or aggravated by the Veteran's service-connected degenerative arthritis of the cervical spine? b. Provide a diagnosis for any disability manifesting in the Veteran's described dizziness at any time during the relevant appeal period. *The reviewer is asked to comment on the significance, if any, of a June 2017 VA informed consent treatment record that documented that the Veteran would undergo an occipital nerve block procedure which was indicated for the treatment of "migraine, headache, or eye pain." If the reviewer determines that the Veteran's dizziness represents a symptom of one or more of the Veteran's already service-connected disabilities or a symptom (not associated with another disability) aggravated by a service-connected disability, the reviewer should so state. For the purposes of the above inquiry, the reviewer should consider the Veteran's relevant service-connected disabilities to include occipital neuritis, degenerative arthritis of the cervical spine, bilateral sensorineural hearing loss, and tinnitus. For any diagnosis rendered above for a disability manifesting in the Veteran's dizziness: i. Is it at least as likely as not (50 percent or greater probability) that the disability was caused by his service-connected occipital neuritis? ii. Is it at least as likely as not (50 percent or greater probability) that the disability was aggravated by his service-connected occipital neuritis? iii. Is it at least as likely as not (50 percent or greater probability) that the disability was caused or aggravated by the Veteran's service-connected hearing loss and/or tinnitus? iv. Is it at least as likely as not (50 percent or greater probability) that the disability was caused or aggravated by the Veteran's service-connected degenerative arthritis of the cervical spine? If it is determined that a disability manifesting in chronic ear pain and/or dizziness was aggravated by a service-connected disability, the reviewer should quantify the approximate degree of disability, or baseline, before the onset of aggravation, to the extent possible. The term 'at least as likely as not' does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of conclusion as it is to find against it. The reviewer must include in the medical report the rationale for any opinion expressed. The reviewer should cite to relevant evidence in the record, and provide an explanation as to how that evidence supports their conclusions, citing to medical treatise evidence if appropriate. A discussion of the medical processes involved may also prove helpful. Opinions stated as conclusions without an underlying explanation will be returned as inadequate. If the reviewer cannot respond to an inquiry without resort to speculation, he or she should so state, and further explain why it is not feasible to provide a medical opinion, indicating 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 in the reviewer (i.e. additional facts are required, or the reviewer does not have the needed knowledge or training). 3. Thereafter, review the requested medical opinion report(s) to ensure responsiveness and compliance with the directives of this remand; implement corrective procedures as needed. 4. After completing the aforementioned, and any additional development deemed necessary in light of the expanded record, readjudicate the Veteran's claims for entitlement to service connection for chronic ear pain and dizziness, including as secondary to service-connected disability, and entitlement to a TDIU. If any of the benefits sought on appeal are not granted in full, the Veteran and his representative should be furnished with a Supplemental Statement of the Case and afforded an opportunity to respond before the file is returned to the Board for further appellate consideration, if in order. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (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 MARTIN Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2017).