Citation Nr: 21067771 Decision Date: 11/05/21 Archive Date: 11/05/21 DOCKET NO. 17-48 123A DATE: November 5, 2021 ISSUE Entitlement to service connection for loss of balance for accrued purposes. REMANDED Entitlement to service connection for loss of balance for accrued purposes is remanded. REASONS FOR REMAND The Veteran served on active duty from December 1946 to December 1949. He died in May 2021. The Appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2016 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) which denied the Veteran's service connection claim for balance problems. The Veteran filed a timely Notice of Disagreement (NOD) in February 2017. A Statement of the Case (SOC) was issued in May 2017 and the Veteran appealed his claim to the Board in September 2017. See September 28, 2017 Form 9. As noted above, the Veteran died in May 2021. In June 2021, the Appellant submitted a request for substitution as claimant upon the death of the Veteran, which has been approved. See July 1, 2021 Correspondence. By way of background, the Veteran's service connection claim was previously remanded by the Board in June 2018, July 2019 and April 2020 for additional development, to include for the purpose of obtaining VA examinations and medical opinions. The Veteran was afforded a retrospective medical opinion in August 2021. The matter has returned to the Board for appellate review. For reasons that will be explained below, the Board finds that clarifying addendum medical opinion is required prior to adjudication of this Veteran's claim. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1990). Entitlement to service connection for loss of balance for accrued purposes is remanded. The Appellant is seeking service connection for loss of balance. The evidence of record indicates that the Veteran was diagnosed with loss of balance in September 2017 and VA treatment providers discussed loss of balance in association with tinnitus in March and September 2017. See March 24, 2017 treatment records re: Tinnitus/Balance, history of 3 falls in 1 year, follow-up, ENT; September 18, 2017 treatment records re: loss of balance, plus tinnitus; See also, August 29, 2021 Retrospective Medical Opinion, 4 re: diagnosed with vertigo relating to his balance issues. The Veteran is service connected for tinnitus and sensorineural hearing loss. See May 10, 2017 rating decision. During the course of this appeal, the Veteran has been provided with VA examinations in October 2018 and February 2020. The Veteran has also been provided with an August 2021 Retrospective Medical Opinion. In its July 2019 decision, the Board found the October 2018 VA medical opinion inadequate, because the VA did not provide opinions regarding whether the Veteran's loss of balance was caused or aggravated by his service-connected tinnitus or hearing loss, as specifically directed by the Board. In its April 2020 decision, the Board found the February 2020 examination and medical opinion inadequate because the examiner determined that the record did not show any correlation between tinnitus and the Veteran's balance issues when in fact VA treatment records from September and March 2017 did report an association. As such, the Board found that this February 2020 medical opinion was based on an inaccurate factual premise and therefore inadequate for adjudication purposes. In this April 2020 decision, the Board also remanded the Veteran's claim for further development, including a VA examination and medical opinion to address the etiology of his balance issues, including Vertigo. The Veteran died before an in-person examination was conducted and therefore an August 2021 retrospective medical opinion was provided to determine the etiology of his balance issues, including Vertigo. In the August 2021 retrospective medical opinion, the examiner rendered a negative nexus opinion for direct service and secondary service connection opinion. While the August 2021 direct service medical opinion appears adequate for purposes of adjudication (and with consideration of the previous direct service medical opinions of record that have not been deemed inadequate), the Board finds that a clarifying addendum opinion is required to address secondary service connection for the following reasons. For secondary service, the examiner opined that the Veteran's loss of balance condition is less likely than not proximately caused or aggravated (beyond its natural progression) by the Veteran's tinnitus or hearing loss. The examiner reasoned that "tinnitus and hearing loss are symptoms not diseases and thus is not nexuses for vertigo, as both are symptoms of inner ear conditions." See August 29, 2021 Medical Opinion, pg. 3 re: proximate cause; August 29, 2021 Medical Opinion re: aggravation, pgs. 3-4. In this retrospective medical opinion, the examiner also incorporates the following reference link and blog in the rationale. https://houseofhearing.ca/blog/relationship-tinnitus-vertigo/": "Tinnitus and vertigo are very closely related. Tinnitus, which is very common, results in an intermittent or constant "ringing" sound in the ear. It may also be perceived as hissing, whistling, or buzzing. Severe tinnitus can result in additional symptoms like dizziness that affect one's daily life. Tinnitus is not considered a disease but rather a symptom of problems with the auditory system (or another underlying medical condition). Vertigo is a severe sense of dizziness that often leads to disorientation. It is a symptom that can be the result of a variety of issues. Specifically, those issues will involve particular areas of the body, such as the ear or brain. However, it can also involve the sensory nerve pathway. Both tinnitus and vertigo are symptoms often involving ear problems and issues with the brain or nerve pathway. Because of this, they are commonly associated with one another to the extent that treating tinnitus will often resolve issues of vertigo. Because both issues often relate to the ear, it is important to get a hearing test to learn more. Tinnitus and vertigo are both diseases of the inner ear and, sometimes, the brain. Tinnitus is often an inner ear issue, and this can cause balance issues. Not all people who suffer from tinnitus also suffer from vertigo, but some do. Conversely, vertigo can be the cause of balance and ear problems. Tinnitus may also become very loud before vertigo sets in, and this can give the sense that you are spinning. Keep in mind that nearly everyone with Meniere's disease will suffer from both tinnitus and vertigo. Indeed, tinnitus often accompanies dysfunction of the vestibular system, and some vestibular disorders associated with tinnitus include Meniere's disease. Vertigo is usually easy to note if you suffer from it, but tinnitus can be more difficult for one to self-diagnose. Conditions that can cause low-pitched ringing in one ear include Meniere's disease, but this is not the most common cause of tinnitus. A general exam and a hearing test can help you discern exactly what is going on." See August 29, 2021 Medical Opinion, pg. 3. In this case, the Board notes that tinnitus and bilateral hearing loss are considered chronic diseases for VA purposes 38 C.F.R. § 3.309 (a). The Board also notes that the reference material cited by the examiner in the August 2021 retrospective medical opinion also identifies tinnitus as a disease. Thus, it important for the Board to obtain a clarifying addendum opinion as to whether the Veteran's loss of balance condition and/or vertigo was proximately caused or aggravated by the Veteran's service-connected disabilities, accounting for the fact that tinnitus and hearing loss are considered chronic diseases for VA purposes. To address this medical question, the Board finds that a clarifying medical opinion is necessary because the Board may not provide its own medical judgment. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1990). Accordingly, this matter is REMANDED for the following action: 1. Return the claims file to the physician-examiner who provided the August 29, 2021 Retrospective Medical Opinion for a clarifying addendum opinion. If that examiner is no longer available, provide the Veteran's claims file to a similarly qualified physician. The entire claims file and a copy of this remand must be made available to the examiner for review, and the examiner must specifically acknowledge receipt and review of these materials in any report generated. 2. After reviewing all available records, the examiner should:(A) Identify any balance issues related diagnoses, i.e., loss of balance, vertigo. See also, August 29, 2021 VA Medical Opinion, pg. 4. (B) Opine on whether the Veteran's balance issues are at least as likely as not (i.e., a 50 percent probability or greater) caused by or aggravated by service-connected tinnitus or hearing loss. The examiner is reminded that tinnitus and bilateral hearing loss are considered chronic diseases for VA purposes 38 C.F.R. § 3.309 (a). For purposes of this opinion, the examiner should consider the March 24, 2017 and September 18, 2017 VA treatment records re: tinnitus/balance, history of falls, loss of balance, plus tinnitus. In addressing aggravation, the examiner is reminded that any increase in disability need not be permanent. If the examiner finds that the service-connected tinnitus or hearing loss aggravated the Veteran's balance issues, the examiner is asked to state whether there is medical evidence created prior to the aggravation or at any time between the time of aggravation and the current level of disability that shows a baseline prior to aggravation. If the examiner is unable to establish a baseline prior to the aggravation, he or she should state such and explain why a baseline cannot be determined. The examination report must include a complete rationale for all opinions provided. If the examiner cannot provide the requested opinion (s) without resorting to speculation, the report should expressly indicate this, and the examiner should explain why an opinion cannot be provided without resorting to speculation. 3.After completing the requested actions, and any additional notification and/or development deemed warranted, readjudicate the issue on appeal. If the benefit sought on appeal remains denied, furnish to the Appellant and her attorney an appropriate supplemental statement of the case (SSOC) that includes clear reasons and bases for all determinations, and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. Michael A. Pappas Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Little, 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.