Citation Nr: 21065715 Decision Date: 10/27/21 Archive Date: 10/27/21 DOCKET NO. 16-53 612A DATE: October 27, 2021 REMANDED Entitlement to service connection for cataracts is remanded. Entitlement to service connection for a vestibular disorder manifested by dizziness, to include vertigo, is remanded. REASONS FOR REMAND The Veteran served on active duty from September 1975 to September 1979. These matters are before the Board of Veterans' Appeals (Board) on appeal from a July 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). These matters were previously before the Board in December 2018 when they were remanded for further development. A February 2021 rating decision granted service connection for headaches and a scar of the neck. As the decision constitutes a full grant of the claims previously before the Board, the matters are no longer before the Board and will not be discussed further. 1. Entitlement to service connection for cataracts is remanded. Although the additional delay is regrettable, the Board finds an additional remand is required as there has not been substantial compliance with the Board's December 2018 remand. In the December 2018 Board remand order, the Board directed the Agency of Original Jurisdiction (AOJ) to schedule the Veteran for a VA examination to determine the nature and etiology of his claimed cataracts. Following examination of the Veteran, the VA examiner was asked to provide an opinion as to whether the Veteran has a current cataracts disability and, if so, whether (i) the cataracts were related to his service or (ii) were caused or aggravated by his service-connected squamous cell carcinoma, to include related radiation treatments. In September 2020, the Veteran underwent the requested examination and the examiner opined that the Veteran's cataracts were not directly related to his service and were not caused by his squamous cell carcinoma. However, the examiner did not provide an opinion on whether the cataracts were aggravated by his service-connected squamous cell carcinoma and did not address whether the Veteran's cataracts were caused by radiation treatment. In light of this, the Board finds remand is required to ensure substantial compliance with the Board's prior remand directives. See Stegall v. West, 11 Vet. App. 268 (1998) (holding that where the remand orders of the Board are not substantially complied with, the Board errs as a matter of law when it fails to ensure substantial compliance). The Board also notes the record reflects that the Veteran contends his cataracts are due to a vestibular disorder, as noted on his July 2015 Notice of Disagreement. On remand, a medical opinion addressing this contention should be obtained. Finally, in July 2021 correspondence, the Veteran and his agent submitted additional argument and evidence in which they contend the Veteran's cataracts are due to military training in the sun. As this evidence was submitted after the September 2020 VA medical opinion which addressed whether his cataracts were directly related to his service, remand for a new medical opinion that considers this evidence is required. 2. Entitlement to service connection for a vestibular disorder manifested by dizziness, to include vertigo, is remanded. In the December 2018 Board remand, the Board directed the AOJ to schedule the Veteran for a VA examination to assess whether he had a current vestibular disorder and, if so, whether the condition was related to his active service or was secondary to his hearing loss, tinnitus, squamous cell carcinoma (and radiation treatment), and gastroesophageal reflux disease (GERD). In July 2020, a VA examiner diagnosed hearing loss, tinnitus, and balance problems. The examiner also noted that there were signs and symptoms of a vestibular disorder, including staggering, hearing impairment and/or tinnitus, and balance disturbance. The examiner then provided nexus opinions as to whether the Veteran's hearing loss and tinnitus were related to his service, squamous cell carcinoma, or GERD, but did not address the Veteran's dizziness. In June 2021, the Veteran underwent an additional VA examination. Following examination of the Veteran, the examiner diagnosed benign paroxysmal positional vertigo. The examiner then opined that the Veteran's condition was not related to his service or his service-connected hearing loss, tinnitus, squamous cell carcinoma (and radiation treatment) or GERD. The examiner acknowledged that the Veteran complained of dizziness during service, as noted in a March 1977 service treatment record, but explained that the Veteran received no further treatment. The examiner also noted that the most up-to-date medical information and journals did not note a connection between the Veteran's dizziness and his history of hearing loss, tinnitus, squamous cell carcinoma, and GERD. However, the Board finds the July 2020 and June 2021 opinions inadequate. The Board notes the July 2020 opinion is inadequate as the examiner failed to provide a nexus opinion addressing the Veteran's dizziness. As for the June 2021 opinion, the Board finds the examiner failed to provide adequate rationales in support of the opinion. In light of this, remand for a new medical opinion is required. The matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment records for the period from March 2021 to the present. 2. After obtaining any additional records, obtain an addendum opinion from a VA examiner other than the September 2020 examiner addressing the nature and etiology of the Veteran's cataracts. The Veteran's claims file must be provided to the examiner for review. An examination should only be scheduled if the examiner deems one is necessary to provide the requested opinions. Following a review of the Veteran's claims file, the examiner is asked to respond to the following: (a) Whether it is at least as likely as not (a 50 percent or greater probability) the Veteran's cataracts are caused by his active service, to include military training in the sun. In providing this opinion, the examiner should address the articles referenced by the Veteran and his agent in July 2021 correspondence. (b) Whether it is at least as likely as not (a 50 percent or greater probability) the Veteran's cataracts are caused or aggravated by his squamous cell carcinoma, to include radiation treatment. In providing this opinion, the examiner should consider the following: (i) private treatment records which list the side effects of the Veteran's radiation therapy; (ii) an article submitted in November 2016 which does not list cataracts as a side effect of radiation therapy; and (iii) an article submitted in July 2021 which suggests there is an association between cataracts and radiation therapy. (c) Whether it is at least as likely as not (a 50 percent or greater probability) the Veteran's cataracts are caused or aggravated by his vestibular disorder, to include vertigo. A complete rationale for all opinions must be provided. If the clinician cannot provide a requested opinion without resorting to speculation, it must be so stated, and the clinician must provide the reasons why an opinion would require speculation. The clinician must indicate whether there was any further need for information or testing necessary to make a determination. 3. After obtaining any additional records, obtain an addendum opinion addressing the nature and etiology of the Veteran's vestibular disorder manifested by dizziness, diagnosed as vertigo. The Veteran's claims file must be provided to the examiner for review. An examination should only be scheduled if the examiner deems one is necessary to provide the requested opinions. Following a review of the Veteran's claims file, the examiner is asked to provide an opinion on the following: (a) Whether it is at least as likely as not (a 50 percent or greater probability) the Veteran's vertigo is caused by his active service, to include his in-service complaint of dizziness, as noted in a March 1977 service treatment record. (b) Whether it is at least as likely as not (a 50 percent or greater probability) the Veteran's vertigo is caused or aggravated by his hearing loss, tinnitus, or GERD. (c) Whether it is at least as likely as not (a 50 percent or greater probability) the Veteran's vertigo is caused or aggravated by his squamous cell carcinoma, to include radiation treatment. In providing this opinion, the examiner should consider the following: (i) private treatment records which list the side effects of the Veteran's radiation therapy and (ii) an article submitted in November 2016 which does not list dizziness as a side effect of radiation therapy. A complete rationale for all opinions must be provided. If the clinician cannot provide a requested opinion without resorting to speculation, it must be so stated, and the clinician must provide the reasons why an opinion would require speculation. The clinician must indicate whether there was any further need for information or testing necessary to make a determination. M. SORISIO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Jiggetts 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.