Citation Nr: 21062883 Decision Date: 10/12/21 Archive Date: 10/12/21 DOCKET NO. 17-21 259 DATE: October 12, 2021 REMANDED Entitlement to service connection for a vestibular condition manifested by vertigo is remanded. Entitlement to service connection for obstructive sleep apnea is remanded. Entitlement to service connection for a headache condition is remanded. REASONS FOR REMAND The Veteran served on active duty from June 1979 to June 1983. He testified at a July 2021 videoconference hearing before the undersigned Veterans Law Judge; a copy of the transcript of that hearing is of record. 1. Entitlement to service connection for a vestibular condition manifested by vertigo is remanded. The Veteran seeks service connection for a vestibular condition manifested by vertigo, which he contends is secondary to his service-connected tinnitus. The likely etiology of the claimed vestibular condition was first evaluated in a July 2015 opinion, wherein a VA examiner found that it was less likely than not that a vestibular condition manifested by vertigo was incurred in or otherwise attributable to service. In support thereof, the examiner stated merely that "attributing vertigo to acoustical trauma cannot be done without resorting to conjecture." See July 2015 Medical Opinion, Disability Benefits Questionnaire. The Board cannot rely on this opinion because the examiner offered essentially no rationale for his conclusion. If conjecture truly is necessary in order to set forth an opinion as to the likely etiology of the claimed vestibular condition, then the need for such conjecture must be fully explained. Without this explanation the July 2015 examiner's opinion has little probative value. The nature and likely etiology of the Veteran's claimed vestibular condition was next evaluated by a VA examiner in April 2016, who diagnosed the Veteran with benign paroxysmal positional vertigo (BPPV) following a review of the claims file and an in-person evaluation. That examiner then opined that it was less likely than not that the Veteran's claimed chronic ear infections were incurred in service or otherwise attributable to service, to include as secondary to service-connected tinnitus. In support thereof, the examiner noted only that there were "no records while on active duty to form a nexus between tinnitus and the Veteran's current ear diagnosis." See April 2016 Ear Conditions Disability Benefits Questionnaire. The Board cannot rely on this opinion either for a number of reasons. To begin, the examiner in his opinion inaccurately identified the Veteran's claimed disability as a "chronic ear infection", which undermines the probative value of the opinion as the Board is unclear as to what disability the examiner referred to. In addition, the examiner did not correctly apply the standard of evaluation for a secondary service connection claim. As a reminder, secondary service connection is permitted based on aggravation, such that compensation is payable for the degree of aggravation of a nonservice-connected disability caused by a service-connected disability. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995). To that end, service connection on a secondary basis can be granted for both causation as well as aggravation. The examiner did not discuss aggravation. Moreover, the examiner only considered the likelihood that the tinnitus contributed to the development of the claimed vestibular condition while in service, when secondary service connection for causation or aggravation can certainly be substantiated for the period following service. Accordingly, remand is necessary in order to secure an addendum opinion regarding the likelihood that the claimed vestibular condition is attributable to service, to specifically include as secondary to a service-connected disability, with a rationale that applies the appropriate standard of evaluation. 2. Entitlement to service connection for obstructive sleep apnea is remanded. The Veteran seeks service connection for obstructive sleep apnea, which he contends is secondary to his service-connected tinnitus. The nature and likely etiology of the Veteran's claimed obstructive sleep apnea was evaluated by a VA examiner in April 2016, who confirmed a diagnosis of obstructive sleep apnea following a review of the claims file and an in-person evaluation. That examiner then opined that it was less likely than not that the Veteran's obstructive sleep apnea was incurred in service or is otherwise attributable to service, to include as secondary to service-connected tinnitus. In support thereof, the examiner noted only that there were "no records while on active duty to form a nexus between sleep apnea and the Veteran's current diagnosis of obstructive sleep apnea." See April 2016 Sleep Apnea Disability Benefits Questionnaire. The Board cannot rely on this opinion for a number of reasons. To begin, the examiner in his opinion inaccurately stated that there was no association between sleep apnea and obstructive sleep apnea, which undermines the probative value of the opinion as the Board is unclear as to what disability the examiner referred to. In addition, as discussed previously the examiner did not correctly apply the standard of evaluation for a secondary service connection claim. To begin, the examiner did not discuss aggravation. Moreover, the examiner only considered the likelihood that the improperly identified "sleep apnea" contributed to the development of the claimed obstructive sleep apnea while in service, when secondary service connection for causation or aggravation can certainly be substantiated for the period following service. Accordingly, remand is necessary in order to secure an addendum opinion regarding the likelihood that the claimed obstructive sleep apnea is attributable to service, to specifically include as secondary to a service-connected disability, with a rationale that applies the appropriate standard of evaluation. 3. Entitlement to service connection for a headache condition is remanded. The Veteran seeks service connection for a headache condition, which he contends is secondary to his service-connected tinnitus. The nature and likely etiology of the Veteran's claimed headache condition was evaluated by a VA examiner in April 2016, who diagnosed the Veteran with migraine headaches following a review of the claims file and an in-person evaluation. That examiner then opined that it was less likely than not that the Veteran's claimed headache condition was incurred in service or is otherwise attributable to service, to include as secondary to service-connected tinnitus. In support thereof, the examiner noted only that there were "no active duty records of headaches from resultant tinnitus during service." See April 2016 Headaches Disability Benefits Questionnaire. The Board cannot rely on this opinion as the examiner did not correctly apply the standard of evaluation for a secondary service-connection claim. Once again, the examiner did not discuss aggravation. Moreover, the examiner only considered the likelihood that the tinnitus contributed to the development of the claimed headache condition while in service, when secondary service connection for causation or aggravation can certainly be substantiated for the period following service. Accordingly, remand is necessary in order to secure an addendum opinion regarding the likelihood that the claimed headache condition is attributable to service, to specifically include as secondary to a service-connected disability, with a rationale that applies the appropriate standard of evaluation. The matters are REMANDED for the following action: Provide the claims file to a qualified examiner in order to elicit an addendum opinion regarding the likely etiology of the claimed vestibular condition manifested by vertigo, obstructive sleep apnea, and headache condition. The entire claims file, including this REMAND, must be made available to the individual designated to provide the opinion, and that individual must indicate that they reviewed the entire claims file prior to setting forth their opinion. The chosen examiner must set forth an opinion as to whether it is it at least as likely as not (at least and approximate balance of positive and negative evidence) that the claimed vestibular condition manifested by vertigo, headache condition, and/or obstructive sleep apnea had its onset during service or is otherwise related to active service. In addition, irrespective of the answer to the above, the examiner is also requested to provide an opinion as to whether it is at least as likely as not that one or both of these conditions was caused or aggravated by one or more service-connected disabilities (as listed in a March 2017 rating decision). The examiner must discuss the possibility that either condition on appeal is attributable to each service-connected disability. If the opinion is that a service-connected disability or combination of service-connected disabilities aggravated one or both of these conditions, the examiner should specify, so far as possible, the degree of disability resulting from such aggravation. Moreover, when setting forth this opinion, the examiner should ensure that they apply the proper standard of evaluation. Specifically, the standard for secondary aggravation is any increase in disability, as opposed to the standard of "beyond the natural progression" as noted on the examination form itself. All opinions must be supported by a rationale. If the examiner cannot provide any of the requested opinions without resort to speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge; the examiner's own expertise; or whether additional facts are required and note what, if any, additional evidence would permit such an opinion to be made. A. C. MACKENZIE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Christopher M. Collins, 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.