Citation Nr: 21070781 Decision Date: 11/26/21 Archive Date: 11/26/21 DOCKET NO. 16-32 477 DATE: November 26, 2021 REMANDED Entitlement to service connection for headaches is remanded Entitlement to service connection for dizziness is remanded. Entitlement to service connection for depression is remanded. REASONS FOR REMAND The Veteran served on active duty in the U.S. Air Force from December 1968 to January 1970. These matters come before the Board of Veterans' Appeals (Board) on appeal from a January 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The case was brought before the Board in January 2020, and the Board denied service connection for multiple claimed disabilities. The Veteran appealed the January 2020 decision to the U.S. Court of Appeals for Veterans Claims (Court). In an October 2020 Order of the Court granting a Joint Motion for Partial Remand (JMPR), the parties agreed to partially vacate the January 2020 Board decision limited to the issues of service connection for depression, dizziness and headaches, and remand the matters for compliance with the terms of the JMPR. In June 2021, the Board remanded the issues on appeal, as listed above, for additional development. Unfortunately, as explained below, the Board is not satisfied that there was substantial compliance with its prior remand. Therefore, the appeal must be remanded once again. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268, 271 (1998). 1. Entitlement to service connection for headaches is remanded. The October 2020 JMPR found that the Board's January 2020 decision was inadequate in part because it did not address the Veteran's service connection claim for headaches. The Board's June 2021 remand instructed the RO to schedule a VA examination for the Veteran's headaches. The August 2021 VA examiner opined that the Veteran's headaches were less likely than not incurred in or caused by his service because despite his service treatment records (STRs) documenting two complaints of headaches, his separation examination was clear and the next complaint was recorded in 1981, over 10 years after service. She stated that following that, the Veteran's medical records documented headaches in 1982, 2004, and 2008, and then his records were again silent for complaints and treatments of headaches. The August 2021 VA examiner concluded that therefore a nexus was not established and chronicity was not well established. The Board finds the August 2021 VA examiner's opinion to be inadequate because the VA examiner relied solely on an absence of contemporaneous medical evidence and did not consider the Veteran's lay statements with regard to an in-service onset and continuity of symptoms. Dalton v. Nicholson, 21 Vet. App. 23, 39 (2007). Specifically, she failed to address the Veteran's contentions that his headaches began when he fell down the stairs during service in Vietnam and that he has had continuous headaches from then onwards. Accordingly, another remand is required for an addendum opinion. See Stegall, 11 Vet. App. at 268; Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). 2. Entitlement to service connection for dizziness is remanded. The October 2020 JMPR found that the Board's January 2020 decision was inadequate in part because it did not address the Veteran's service connection claim for dizziness. The Board's June 2021 remand instructed the RO to schedule a VA examination for the Veteran's dizziness. The August 2021 VA examiner opined that the Veteran's dizziness was less likely than not incurred in or caused by service. However, she failed to mention the Veteran's contentions that his dizziness began when he fell down the stairs in Vietnam during service and continued from then onwards. The examiner must consider the Veteran's lay statements regarding the onset and continuity of symptomatology. Dalton v. Nicholson, 21 Vet. App. 23 (2007). Because the August 2021 VA examiner did not take into consideration the Veteran's statements regarding the complete history and onset of his symptoms, her opinion is incomplete, and the RO did not substantially comply with the Board's prior remand directive to provide a rationale for any opinions expressed. See Stegall, 11 Vet. App. at 268. Accordingly, another remand is required to complete the requested development. 3. Entitlement to service connection for depression is remanded. The October 2020 JMPR found that the Board's January 2020 decision was inadequate in part because it did not address the Veteran's service connection claim for depression. The June 2021 Board remand stated that on remand an examination should be conducted to see if the Veteran has a diagnosis of depression and whether there is any possible link to his active service. On remand, however, the July 2021 VA examination for an acquired psychiatric disorder did not mention the Veteran's depression diagnosis from his medical records and only discussed schizophrenia and posttraumatic stress syndrome (PTSD). The July 2021 VA examiner did not address whether the Veteran's diagnosed depression was etiologically related to his service. See McLain v. Nicholson, 21 Vet. App. 319, 321 (2007) (holding that service connection may be granted for a disability that manifests at any point during the pendency of a claim, even if it subsequently resolves prior to resolution of the claim). Accordingly, another remand is required to obtain a supplemental VA examination addressing the Veteran's depression. . See Stegall, 11 Vet. App. at 268; Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The matters are REMANDED for the following actions: 1. Forward the Veteran's claim file to an appropriately qualified physician (M.D.) to provide an addendum medical opinion regarding the nature and etiology of the Veteran's headaches and dizziness. An in-person examination need not be scheduled unless deemed necessary by the examiner or otherwise required by the evidence. The examiner must review the claims file in its entirety, to include a copy of this REMAND, and the review should be noted in the examination report. The examiner should provide an opinion whether it is at least as likely as not (50 percent or greater probability) that the Veteran's headaches and/or dizziness is related to his active-duty service. In providing the above opinion, the examiner must address the Veteran's statements regarding the history and continuity of his symptoms. A complete rationale for any opinion expressed must be provided. If an opinion cannot be expressed without resort to speculation, discuss why this is the case. 2. Forward the Veteran's claim file to the VA examiner who examined the Veteran for an acquired psychiatric disorder/PTSD in July 2021 or if unavailable, to another appropriately qualified clinician, to provide an addendum medical opinion regarding the nature and etiology of the Veteran's depression. The respective examiner must review the claims file in its entirety, including this REMAND, and must note that review in the examination report. Thereafter, the respective examiner should provide a detailed medical opinion addressing the following: (a.) Opine whether the Veteran has a current diagnosis of depression, and if so, whether it is at least as likely as not (50 percent or greater probability) that the Veteran's depression was incurred in or caused by an in-service injury, illness, or event? In providing this opinion, please comment on November 2007 VA treatment records with a diagnosis of depression, and a July 2008 letter (received in August 2008) from the Veteran's sister as to his mental health since service. The examiner is reminded that the term "at least as likely as not" does not mean "within the realm of possibility." Rather, it means that the weight of the medical evidence both for and against the claim is so evenly divided that it is as medically sound to find in favor of the claim as it is to find against it. (Continued on the next page) The examiner is advised that the lack of documented treatment for the claimed disability during service cannot serve as the sole basis for a negative finding. The Veteran is competent to report his medical history and must be considered and weighed in making the determination as to whether a nexus exists between the claimed diseases and military service. The examiner must provide a complete rationale for any opinion expressed. If the examiner is unable to provide an opinion without resorting to speculation, he or she should fully explain why that is so. LESLEY A. REIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Ahuva D. Sunshine 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.