Citation Nr: 21070010 Decision Date: 11/22/21 Archive Date: 11/22/21 DOCKET NO. 14-01 715 DATE: November 22, 2021 REMANDED Service connection for vertigo is remanded. Service connection for migraine headaches is remanded. Service connection for lumbar spine disability is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1968 to February 1975. This matter comes before the Board of Veterans' Appeals (Board) from a May 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). This matter was remanded most recently in April 2021 to ensure substantial compliance with prior remand directives and obtain an adequate addendum medical opinion. Specifically, the Board directed the RO to obtain an opinion addressing whether the Veteran's current vertigo, migraine headaches, and lumbar spine disabilities are related to his active service and whether any of these disabilities clearly and unmistakably pre-existed service. The RO obtained the requisite addendum medical opinion in May 2021; however, due to several inadequacies, further remand is necessary. The Board notes that every veteran is presumed to be in sound condition when examined, accepted, and enrolled for service, except as to defect, infirmities, or disorders noted at the time of examination, acceptance, and enrollment. See 38 U.S.C. § 1111. To rebut this presumption, VA must show that a given disability clearly and unmistakably existed prior to service. Wagner v. Principi, 370 F.3d 1089, 1092 (Fed. Cir. 2004). Despite some incorrect phrasing of the legal standards for determining whether a condition pre-existed service, it appears the May 2021 examiner ultimately concluded there was insufficient evidence that clearly and unmistakably shows any of these conditions pre-existed service. However, the May 2021 examiner then improperly focused his nexus opinions as to the Veteran's claimed lumbar spine and migraine headache disabilities on the possibility of aggravation. The examiner opined that each disability was "less likely as not" related to service, but, rather than providing rationale as to how in-service reports of back pain and headaches are different than the Veteran's current disabilities, he instead focused on aggravation and whether there was a difference in severity of the Veteran's pre-service back pain and headaches and post-service back pain and headaches. Again, as referenced above, absent clear and unmistakable evidence that a disability pre-existed service, every Veteran is presumed to be in sound condition at entry into service. Wagner, 370 F.3d at 1092. If it cannot be determined that a disability clearly and unmistakably pre-existed service, then the correct question to answer is whether the current conditions are related to service. The May 2021 examiner did not substantially comply with the April 2021 remand directives. Per the April 2021 remand, the Board specifically directed the examiner to opine as to whether "the Veteran's current migraine headache and vertigo disabilities [are] at least as likely as not related to an in-service event or injury, to include the fall from the wing of a plane and the Veteran's complaints of and treatment for headaches and dizziness during service." However, in providing his opinions as to the migraine headache and vertigo disabilities, the examiner neither referenced nor discussed the Veteran's in-service fall from the wing of a plane. Separately, the Board also directed the examiner to "specifically discuss the Veteran's contentions that his in-service back pain was different than the back pain he experienced prior to service, began following a fall off of the wing of a plane, and that his back symptoms continued following service until such symptoms were then worsened by a work-related injury," and directed the examiner to opine as to whether "the Veteran's current lumbar spine disabilities [are] at least as likely as not related to an in-service event or injury, to include the fall from the wing of a plane." Again, the examiner did not discuss these contentions or the Veteran's fall from the wing of a plane related to his lumbar spine disability as requested, and while he stated that he reviewed these contentions, he provided no analysis and no explanation as to the impact they had on his opinion. Accordingly, the Board finds that the May 2021 opinion is inadequate and does not substantially comply with the April 2021 remand directives. While the Board sincerely regrets the additional delay, further remand is necessary to afford the Veteran the due process of law and ensure that he is afforded an adequate medical opinion. The matters are REMANDED for the following action: 1. Obtain an addendum medical opinion from the examiner who provided the May 2021 opinion as to the Veteran's lumbar spine disability. As a whole, the prior medical opinions indicate that despite some lay statements of pre-service symptoms, there is insufficient evidence that clearly and unmistakably shows a lumbar spine disability pre-existed service. Therefore, the examiner should not opine as to aggravation. After a review of the claims file, including this remand, the examiner should respond to the following: is the current lumbar spine disability at least as likely as not related to service? The examiner is reminded that the standard "at least as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. In providing this opinion, the examiner must specifically discuss the Veteran's contentions that his in-service back pain was different than the back pain he experienced prior to service, began following a fall off of the wing of a plane, and that his back symptoms continued following service until such symptoms were then worsened by a work-related injury. All opinions must be accompanied by a rationale reflecting full consideration of the evidence of record. A discussion and analysis of the pertinent evidence, relevant medical treatises, and generally accepted medical principles is required. 2. Obtain an addendum medical opinion from the examiner who provided the May 2021 opinion as to the Veteran's migraine headache disability. As a whole, the prior medical opinions indicate that despite some lay statements of pre-service symptoms, there is insufficient evidence that clearly and unmistakably shows a headache disability pre-existed service. Therefore, the examiner should not opine as to aggravation. After a review of the claims file, including this remand, the examiner should respond to the following: is the current migraine headache disability at least as likely as not related to service? The examiner is reminded that the standard "at least as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. In providing this opinion, the examiner must specifically discuss the reported fall from the wing of a plane and the Veteran's complaints of and treatment for headaches during service. All opinions must be accompanied by a rationale reflecting full consideration of the evidence of record. A discussion and analysis of the pertinent evidence, relevant medical treatises, and generally accepted medical principles is required. 3. Obtain an addendum medical opinion from the May 2021 opinion as to the Veteran's vertigo disability. As a whole, the prior medical opinions indicate that despite some lay statements of pre-service symptoms, there is insufficient evidence that clearly and unmistakably shows a vertigo disability pre-existed service. Therefore, the examiner should not opine as to aggravation. After a review of the claims file, including this remand, the examiner should respond to the following: is the current vertigo disability at least as likely as not related to service? The examiner is reminded that the standard "at least as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. In providing this opinion, the examiner must specifically discuss the reported fall from the wing of a plane and the Veteran's complaints of and treatment for dizziness during service. All opinions must be accompanied by a rationale reflecting full consideration of the evidence of record. A discussion and analysis of the pertinent evidence, relevant medical treatises, and generally accepted medical principles is required. MICHELLE L. KANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Tierno 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.