Citation Nr: 21071287 Decision Date: 11/30/21 Archive Date: 11/30/21 DOCKET NO. 08-17 603 DATE: November 30, 2021 REMANDED Service connection for vertigo is remanded. REASONS FOR REMAND The Veteran served on active duty from October 1964 to October 1968. He passed away in October 2013 and Appellant is his surviving spouse. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an October 2006 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). This matter has been remanded on five occasions, most recently in July 2021, to obtain an adequate medical opinion as to the nature and etiology of the Veteran's benign postural vertigo. To date, an adequate medical opinion that fully considers service treatment records, applies the correct evidentiary standard, and is supported by a reasoned medical explanation has not been obtained. Regrettably, each of the Board's prior remands have failed to provide directives incorporating the correct evidentiary standard as to whether the Veteran's vertigo disability pre-existed service. Relevant here, a veteran is presumed to have been sound upon entry into service when no preexisting condition is noted at entry. See 38 U.S.C. § 1111; Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). While the Veteran reported frequent or severe headaches, dizziness or fainting spells, and ear trouble in his report of medical history at his entrance examination, and the entrance examiner noted a history of headaches following a blow to the head in 1963, the entrance examiner ultimately determined that the Veteran had no abnormalities in the overall clinical evaluation. As such, the Appellant is entitled to the presumption of soundness as to the Veteran's condition upon entry into service. Because the presumption of soundness attaches, the burden then falls on the government to rebut the presumption of soundness by clear and unmistakable evidence that the disorder both pre-existed service and was not aggravated in service. Wagner, 370 F.3d at 1096. If this burden is met, then the Appellant is not entitled to service-connected benefits. See id. However, if the government fails to rebut the presumption of soundness under 38 U.S.C. § 1111, then the Appellant's claim is one for service connection. See id. Across each of the Board's prior remands, at no point did the Board direct an examiner to opine whether the Veteran's vertigo disability clearly and unmistakably pre-existed service. Only one opinion, the October 2020 VA addendum opinion, out of the several opinions obtained throughout the appeal period, includes the question of whether the Veteran's vertigo disability clearly and unmistakably pre-existed service. However, even then, the October 2020 examiner did not opine, one way or another, whether the Veteran's vertigo disability clearly and unmistakably pre-existed service. The Board notes that each of the previous medical opinions, all of which have been inadequate, specifically discuss whether the Veteran's pre-existing vertigo increased in severity during service. Because the Appellant is entitled to the presumption of soundness as to the Veteran's condition at entry into service, and, to date, no examiner has opined as to whether the Veteran's vertigo disability clearly and unmistakably pre-existed service, any consideration of aggravation by the Board is not yet warranted. If, and only if, an adequate opinion determining clear and unmistakable evidence of pre-existence is obtained, then may the Board look to whether the pre-existing condition was aggravated by service; absent such a determination, the Appellant's vertigo claim is strictly one for service connection. This matter was remanded most recently in July 2021 to obtain a new medical opinion addressing the nature and etiology of the Veteran's vertigo, though, as discussed above, the remand failed to provide directives incorporating the correct evidentiary standard as to pre-existence. The RO obtained this opinion in August 2021, and while the opinion is inadequate as it fails to follow the correct evidentiary standard, the Board finds that it is also inadequate due to internal inconsistencies and lack of substantial compliance with the July 2021 remand directives. See Stegall v. West, 11 Vet. App. 268. Specifically, the July 2021 remand directed the examiner to determine, in part, whether the "diagnosis of vertigo [is] the same condition as postural dizziness that was noted on the Veteran's service entrance examination in October 1964," which the Board clarified as a determination of whether "the claimed vertigo [is] a condition that existed prior to service." The examiner responded to this directive by stating that "postural dizziness and vertigo are not the same condition" and generally explaining the differences between the two. The examiner did not specifically address whether the Veteran's vertigo disability pre-existed service as directed (though the directive itself did not incorporate the correct standard) and instead concluded that "the notion that the veterans 'dizzyness' or vertigo was caused by an MVA [motor vehicle accident] while in service is speculative at best." Despite the examiner's failure to address pre-existence, he marked that "[t]he claimed condition, which clearly and unmistakably existed prior to service, was clearly and unmistakably not aggravated beyond its natural progression by an in-service injury, event, or illness." He provided no rationale as to this determination and merely copy-and-pasted the language referenced above in the aggravation section of his opinion. Additionally, he failed to address the Board's other directives, failed to address the June 2010 medical article, and failed to discuss medical research and findings regarding connection, or lack thereof, between repeated head trauma and vertigo as requested. As such, the Board finds the August 2021 opinion wholly inadequate. Remand is necessary to correct the errors in the Board's previous remands and to obtain an adequate medical opinion that substantially complies with the Board's remand directives, applies the correct evidentiary standard as to pre-existence, and includes a reasoned medical explanation. While the Board sincerely regrets the additional delay, further development is necessary to ensure the Appellant is afforded due process of law. The matters are REMANDED for the following action: 1. Obtain an addendum medical opinion from the August 2021 VA examiner, or another appropriate examiner if he is unavailable. After a review of the claims file, including this remand, the examiner should respond to the following: (a.) Did the Veteran's vertigo disability clearly and unmistakably preexist service? (b.) If, and only if, the vertigo disability clearly and unmistakably preexisted service, is there clear and unmistakable evidence that there was no increase in disability during service or that any increase in disability was due to the natural progress of the preexisting vertigo disability? (c.) If the vertigo disability did not clearly and unmistakably preexist service, then is the current vertigo disability at least as likely as not related to service, to include the Veteran's in-service motor vehicle accidents? In responding to the above, the examiner must specifically discuss the Veteran's service treatment records documenting treatment for and symptoms related to March 1965 and November 1966 motor vehicle accidents and the articles discussing the impact of multiple head injuries submitted by the Veteran in June 2010. 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. 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.