Citation Nr: 21067745 Decision Date: 11/05/21 Archive Date: 11/05/21 DOCKET NO. 10-48 607 DATE: November 5, 2021 REMANDED Entitlement to service connection for a disorder manifested by dizziness and lightheadedness, to include labyrinthitis, to include as secondary to service-connected headaches 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). By way of background, in April 2014, August 2015, and November 2017, the Board remanded the issue of entitlement to service connection for a disability manifested by dizziness and lightheadedness, to include labyrinthitis. In December 2019, the Board denied this claim but granted service connection for headaches. In granting the claim for headaches, the Board acknowledged the Veteran's 1990 in-service head trauma, in addition to her report of ongoing symptoms. However, the Board relied on a November 2017 negative medical opinion in denying the Veteran's claim for a disability manifested by labyrinthitis and dizziness, to include labyrinthitis. The Veteran appealed the Board's denial to the Court of Appeals for Veterans Claims (CAVC or "the Court"). In November 2020, the Court granted a Joint Motion for Partial Remand (JMPR) in which the parties agreed that the Board erred in relying on inadequate medical opinions, including a November 2017 negative opinion without any rationale supporting the examiner's negative opinion. This was deemed to be a duty to assist error, and the case was remanded to accord the Board an opportunity to ensure compliance with its own remand directives concerning the etiology of the Veteran's diagnosed labyrinthitis. Pursuant to the JMPR, the Board issued a remand in April 2021, acknowledging that the previous examinations did not consider the Veteran's lay statements, specifically, the problematic November 2017 opinion. The remand directed that a new examination and opinion be obtained from a qualified VA medical professional with expertise in neurological diseases. Upon completion of the requested development, the Board in August 2021 again remanded for a new VA examination finding the obtained June 2021 VA medical opinion was inadequate as it was not based on an in-person examination but more importantly, the examiner did not explain whether they had any expertise in neurological diseases. Furthermore, the June 2021 examiner failed to consider, or even mention, the Veteran's lay statements. Therefore, the Board requested that the RO afford the Veteran a new VA examination "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. The examiner was asked to opine as to both direct as well as secondary theories of service connection, to include whether or not the Veteran's recently service-connected headaches caused or aggravated her dizziness and lightheadedness. Unfortunately, as will be discussed below, the resulting opinion was not responsive to the Board's directive and, therefore, further remand is required. See Stegall v. West, 11 Vet. App. 268, 271(1998). Entitlement to service connection for a disorder manifested by dizziness and lightheadedness, to include labyrinthitis, to include as secondary to service-connected headaches is remanded. The Veteran contends that she has experienced dizziness and lightheadedness since a fall and subsequent head injury that occurred during service. The Board notes, that the Veteran's fall has been conceded by the VA and was the basis for the award of service connection for the Veteran's current service-connected headache condition. As noted above, the Veteran was afforded a new VA examination with medical opinions in August 2021 in response to the Board's August 2021 remand. The Board finds the resulting medical opinions and examination to be inadequate for adjudicative purposes for several reasons thus a remand is required. First, the Veteran was scheduled for a VA ear conditions examination that was performed by a general practice family nurse practitioner. The examiner did not explain whether or not she had any expertise in neurological disease. As such, the examination and resulting opinions are found to be noncompliant with the Board's August 2021 remand directives which specifically requested an examiner with such expertise. A remand by the Board confers upon the claimant a legal right to substantial compliance with the remand order; thus, when the Board's remand directives are not satisfied, the Board errs as a matter of law if it fails to ensure substantial compliance with such directives. See Stegall, 11 Vet. App. at 271. Therefore, as substantial compliance with the Board's August 2021 remand directives has not occurred as set forth above, the Veteran's claim must once again be remanded for further development. See id. The Board also notes that the August 2021 examiner's negative direct nexus opinion and rationale to also be inadequate. The examiner opined that there was "no current diagnosis of dizziness and lightheadedness during service to include labyrinthitis". She explained that objectively, upon examination, the Veteran was normal and "symptoms are subjective only" therefore, "a nexus has not been established". However, the examiner failed to explain whether or not the Veteran had any diagnosis "on examination or at any time during the appeal" sufficient to warrant service connection, as directed by the Board's August 2021 remand directives. See id. Additionally, the examiner provided a negative secondary nexus opinion based on the Veteran's recently service-connected headaches. The examiner opined that there was no secondary basis for service connection because the Veteran's post service diagnosis of labyrinthitis was given "after years of leaving service". The examiner notes the Veteran's reports of in-service head injury and feelings of dizziness and lightheadedness since service however, there is no explanation as to why the examiner discredited the Veteran's reports of onset in service. Therefore, the Board finds that the August 2021examiner failed to adequately consider the Veteran's lay statements and provide an adequate rationale as to why her reports of symptomology have been rejected rendering the opinion conclusory. See Miller v. Wilkie, 32 Vet. App. 249 (2020) (holding when an examiner fails to address lay evidence, and the Board doesn't find the Veteran not credible or not competent to offer that evidence, the proper remedy is for VA to get a new exam); See also, Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007) (a mere conclusion by an examiner is insufficient to allow the Board to make a fully informed decision as to the probative value of the opinion). See also Horn v. Shinseki, 25 Vet. App. 231, 240-42 (2012) (stating that under caselaw "an unexplained conclusory opinion is entitled to no weight in a service-connection context"). Furthermore, the August 2021 examiner did not specifically opine as to both causation as well as aggravation. A medical opinion that addresses only causation and not aggravation is inadequate to adjudicate a claim for service connection on a secondary theory of entitlement based on aggravation. El-Amin v. Shinseki, 26 Vet. App. 136, 140 (2013). Here, the examiner simply checked the box on the VA medical opinion form indicating a negative response for both causation as well as aggravation but then used the same rationale for both concluding "labyrinthitis is most likely the etiology of lightheadedness and intermittent dizziness". The examiner's opinion does not reference or even use the word headache in her rationale. The opinion therefore again appears to be conclusionary and not based on proper consideration of the Veteran's lay statements. See Stefl, 21 Vet. App. 120, 124-25 (2007). As a result, the Board finds the August 2021 opinion to also be inadequate for adjudicative purposes on the theory of secondary service connection. Lastly, the Board wishes to address the lengthy appeal history in the case and the fact that is has been remanded multiple times. The Board sincerely regrets delaying this appeal any further with yet another remand. Upon thorough review of the record, it appears the numerous remands stem from a misunderstanding by the AOJ with the type of examination required to afford to the Veteran and by whom. The Board, in an effort to avoid further confusions and misunderstandings, is specifically directing the AOJ to afford the Veteran a VA examination with a neurologist in order to determine the nature and etiology of the Veteran's dizziness and lightheadedness symptoms. A neurological VA examination should be scheduled along with any necessary diagnostic testing, to include additional examinations deemed appropriate by the neurologist. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination with a neurologist to address the nature and etiology of the Veteran's dizziness and lightheadedness. The entire 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 and examination of the Veteran, the examiner is asked to: (a) Opine whether the Veteran has a diagnosed disability manifested by dizziness and lightheadedness, to include labyrinthitis (on examination or at any time during the appeal). (b) Whether it is at least as likely as not that any such diagnosed disability had its onset during service or is otherwise related to any in-service disease, event, or injury, to include an in-service head injury? (c) Whether it is at least as likely as not that any diagnosed disability was caused or aggravated by her service-connected headache disability". The examiner is cautioned that the term "aggravated," as used in 38 C.F.R. § 3.310 (b), does not require that there be "permanent worsening" of the nonservice-connected disability. Instead, secondary service connection is warranted for "any incremental increase in disability and any additional impairment of earning capacity in nonservice-connected disabilities resulting from service-connected conditions, above the degree of disability existing before the increase regardless of its permanence." See Ward v. Wilkie, 31 Vet. App. 233, 239 (2019). 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. If the examiner rejects the Veteran's reports of symptomology and onset, a reason for doing so must be provided. The examiner must provide a complete rationale for his or her opinion(s) in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion. (Continued on the next page) 2. After the above development, and any additionally indicated development, has been completed, readjudicate the issue on appeal. SHEREEN M. MARCUS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. F. Minnitte, Attorney Advisor 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.