Citation Nr: 21073079 Decision Date: 12/07/21 Archive Date: 12/07/21 DOCKET NO. 15-41 328 DATE: December 7, 2021 ORDER Entitlement to an initial disability rating in excess of 10 percent for tinnitus, to include extraschedular consideration, is denied. Entitlement to an initial compensable disability rating for bilateral hearing loss is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) beginning August 15, 2011, is granted, subject to the law and regulations governing the payment of monetary awards. REMANDED Entitlement to service connection for headaches, to include as secondary to service-connected disability, is remanded. Entitlement to service connection for sinusitis, to include as secondary to service-connected disability, is remanded. FINDINGS OF FACT 1. The Veteran's tinnitus was assigned a 10 percent rating, the maximum schedular rating available; the evidence does not support an extraschedular rating. 2. Throughout the appeal period, the Veteran's hearing loss was manifested by auditory acuity no worse than Level III in either ear, and the subjective complaints involving difficulty hearing in group conversations, in noisy areas and when watching TV, are reasonably described by the rating schedule. 3. From August 15, 2011, but no earlier, the evidence is at least in balance as to whether the Veteran's service-connected disabilities precluded him from securing and maintaining substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for an initial disability rating in excess of 10 percent for tinnitus, to include extraschedular consideration, have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.87, Diagnostic Code 6260 (2021). 2. The criteria for an initial compensable disability rating for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.85, 4.86, Diagnostic Code 6100 (2021). 3. From August 15, 2011, the criteria for entitlement to TDIU on an extraschedular basis, and on a schedular basis from October 4, 2011, have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.15, 4.16 (2021). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1963 to August 1967. He died in May 2020 and the appellant is the Veteran's surviving spouse and has been substituted as the claimant in these issues. These matters are on appeal of May 2014, August 2014 and November 2014 rating decisions. The Board remanded the appeal for further development in January 2019 and March 2020. Increased Ratings Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a question as to which of two evaluations apply, assigning the higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disability upon the person's ordinary activity, 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Separate evaluations may be assigned for separate periods of time based on the facts found, a practice known as "staged ratings," which are appropriate for any rating claim when the factual findings show distinct time periods during the appeal where the disability exhibits symptoms that warrant different ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Tinnitus The appellant and her attorney contend that the Veteran was entitled to a higher initial disability rating than the 10 percent rating assigned for the Veteran's service-connected tinnitus. The Veteran's tinnitus was rated 10 percent under Diagnostic Code 6260. 38 C.F.R. § 4.87. Under that diagnostic code, a single 10 percent rating is assigned for tinnitus, whether the sound is perceived as being in one ear, both ears, or in the head. The maximum schedular rating available for tinnitus is 10 percent. 38 U.S.C. § 1155; 38 C.F.R. § 4.87; Smith v. Nicholson, 451 F.3d. 1344 (Fed. Cir. 2006). VA treatment records show the Veteran intermittently complained of hearing problems and tinnitus as early as March 2013 and showed interest in noise cancelling devices. An August 2014 VA audiological examination report notes that the Veteran reported his tinnitus had its onset in service and that it was continuous at the time of the examination, but that it did not impact the ordinary conditions of his daily life, including his ability to work. Pursuant to the Board's January 2019 remand, the Veteran was provided another VA audiological examination in April 2019. However, the audiologist providing the examination indicated that the test results were not reliable and inconsistent. Preliminary test results were not reported as a result. The Veteran reported functional impairment from tinnitus being that he had difficulty hearing people, the television, and the radio. Noting that the Veteran had been diagnosed with dementia and that there was no indication in the April 2019 examination report that the unreliable results were due to a lack of effort on his part, the Board again remanded the claim in March 2020, to afford him another VA examination to determine the severity of his tinnitus and bilateral hearing loss. Unfortunately, the Veteran died before the examination could be scheduled. In March 2021, a VA audiologist reviewed the Veteran's claims file and opined that the Veteran would have had no work restrictions for his tinnitus with proper hearing and/or adaptive devices. He would have been able to work in a quiet environment that did not rely on verbal communication as a primary mode of report. As there is no legal basis upon which to award a higher schedular rating, or separate schedular ratings for each ear, the appeal must be denied. Sabonis v. Brown, 6 Vet. App. 426 (1994). The Board further finds that referral for consideration of an extraschedular rating is not warranted, as the evidence regarding the Veteran's tinnitus does not show such an exceptional disability picture that would render the available schedular rating inadequate. Thun v. Peake, 22 Vet. App. 111 (2008). By its very nature, tinnitus is a sound in the ears; thus, it can be expected to cause problems with hearing, and such is contemplated by the rating criteria. The appellant has not provided any evidence that the Veteran's tinnitus was of such a degree that the 10 percent schedular disability rating is insufficient. Specifically, the evidence does not show frequent hospitalization or marked interference with employment as a result of tinnitus, or symptoms manifesting in similar severity. Therefore, the Board finds that the schedular rating of 10 percent for the Veteran's tinnitus was adequate and that no referral is required for extraschedular consideration. 38 C.F.R. § 3.321(b). Bilateral Hearing Loss The appellant and her attorney contend that the Veteran was entitled to a compensable initial disability rating for his bilateral hearing loss. As discussed in the Board's March 2020 remand of this claim, the Veteran's April 2019 VA audiological examination was inadequate to assess the severity of his bilateral hearing loss as the examiner noted the test results were inconsistent and unreliable. Although the appeal was remanded to provide the Veteran another VA audiological examination, he unfortunately died before the examination could be scheduled. In March 2021, after reviewing the Veteran's claims file, a VA audiologist noted the Veteran had reported needing to have the TV turned up and needing people to repeat themselves. The audiologist opined that with proper hearing and/or adaptive devices, the Veteran would have had no work restrictions due to hearing loss. The audiologist opined that he would have been able to work in a quiet environment that did not rely on verbal communication as a primary mode of report. Ratings for hearing loss disability are derived from Table VII of 38 C.F.R. § 4.85 by a mechanical application of the rating schedule to numeric designations assigned after audiometric evaluations are performed. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). The numeric designations correspond to eleven auditory acuity levels, indicated by Roman numerals, where Level I denotes essentially normal acuity and Level XI denotes profound deafness. Auditory acuity is gauged by examining the results of controlled speech discrimination tests, together with the results of puretone audiometric tests in the frequencies of 1000, 2000, 3000, and 4000 cycles per second (Hz). 38 C.F.R. § 4.85. Exceptional patterns of hearing impairment are evaluated under 38 C.F.R. § 4.86. When the puretone threshold at each of the four specified frequencies (1,000, 2,000, 3,000, and 4,000 Hertz) is 55 decibels or more, Table VI or Table VIa is to be used, whichever results in the higher numeral. 38 C.F.R. § 4.86(a). Additionally, when the puretone threshold is 30 decibels or less at 1,000 Hertz, and 70 decibels or more at 2,000 Hertz, Table VI or Table VIa is to be used, whichever results in the higher numeral. Thereafter, that numeral will be elevated to the next higher Roman numeral. 38 C.F.R. § 4.86(b). 38 C.F.R. § 4.85(c) also provides, in substance, that Table VIa will be used to determine a Roman numeral designation (I through XI) for hearing impairment based only on the puretone threshold average when the examiner certifies that use of the speech discrimination test is not appropriate because of language difficulties, inconsistent speech discrimination scores, etc... On the VA audiological evaluation in August 2014, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 30 30 45 60 65 LEFT 20 20 45 55 65 The average pure tone threshold was 50 for the right ear and 46 in the left ear. Speech audiometry revealed speech recognition ability of 90 percent in the right ear and 92 percent in the left ear. This level of impairment translates to Level II hearing in the right ear and Level I in the left ear under Table VI. Applying these findings to 38 C.F.R. § 4.85, Table VII of the Rating Schedule results in a noncompensable evaluation. 38 C.F.R. § 4.85, Diagnostic Code 6100. Puretone thresholds did not reflect an exceptional pattern of hearing impairment in either ear; therefore, rating under § 4.86 is not appropriate. In addition to the medical evidence above, the Board has considered any lay evidence provided by the Veteran and the appellant. During the August 2014 VA examination, both the Veteran and the appellant reported he had a hard time hearing her and that he turned the TV volume up too high for her. The Veteran and appellant are competent to report that he had difficulty hearing because this requires only personal knowledge as it comes through his senses and her observations. Layno v. Brown, 6 Vet. App. 465 (1994). However, they are not competent to identify specific levels of his service-connected hearing loss disability according to the appropriate diagnostic code and relevant rating criteria. Additionally, the functional effects described by the Veteran and appellant are contemplated by the rating schedule for hearing impairments. 38 C.F.R. §§ 4.1, 4.10; see 64 Fed. Reg. 25200, 25203 (1999); 59 Fed. Reg. 17295. In this case, such competent evidence concerning the nature and extent of his disability has been provided in the medical evidence of record. As such, the Board finds these records to be more probative than the Veteran's and appellant's lay statements. See Cartwright v. Derwinski, 2 Vet. App. 24 (1991); Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). Moreover, the August 2014 examiner considered the functional effects of the Veteran's bilateral hearing loss during the examination. Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007). In conclusion, the only reliable VA examination of record shows that the Veteran's hearing impairment had not risen to a compensable level during the appellate period as set forth in the rating schedule, and the functional effects of his hearing loss are contemplated by the rating schedule. 38 C.F.R. §§ 4.7, 4.85, 4.86; Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007). Accordingly, the Board finds that the preponderance of the evidence of record is against the appellant's claim for an increased, compensable disability rating for the Veteran's service-connected bilateral hearing loss, and the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. TDIU prior to February 19, 2014 Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, and 4.16(a). If there is only one such disability, it must be rated at 60 percent or more, and if there are two or more disabilities, there shall be at least one disability rated at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent. 38 C.F.R. § 4.16(a). For the above purpose of one 60 percent disability or one 40 percent disability in combination, disabilities resulting from common etiology or from a single accident are considered to be one disability. Id. Regulations provide that if the above-mentioned percentage requirements for TDIU on a schedular basis are not met, TDIU may still be granted on an extraschedular basis in exceptional cases when the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disability. 38 C.F.R. § 4.16(b). The established policy of VA reflects that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16(b). Factors such as employment history and educational and vocational attainments are to be considered. Id. For VA purposes, the term "unemployability" is synonymous with an inability to secure and follow a substantially gainful occupation. VAOPGCPREC 75-91; 57 Fed. Reg. 2317 (1992). The word "substantially" suggests an intent to impart flexibility into a determination of overall employability, as opposed to requiring the appellant to prove that he is 100 percent unemployable. Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). "[S]ubstantially gainful occupation" contains both economic and noneconomic components. Ray v. Wilkie, 31 Vet. App. 58 (2019). The economic component "simply means an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person. Id. The non-economic component requires consideration of the Veteran's history, education, skill, and training, and physical and mental ability to perform the activities required by an occupation. Id. In this case, TDIU has been awarded from February 19, 2014, the date the March 2020 Board decision determined the Veteran met the schedular criteria for a TDIU. The issue of entitlement to TDIU on an extraschedular basis prior to February 19, 2014, was referred to the Director of Compensation Service (Director) for extraschedular consideration pursuant to the March 2020 Board remand. In a March 2021 decision, the Director denied the Veteran's request for TDIU on an extraschedular basis. Although the Board is required to obtain the Director's decision before awarding extraschedular TDIU benefits in the first instance, the Board is not bound by the Director's decision or otherwise limited in its scope of review of that determination. Wages v. McDonald, 27 Vet. App. 233, 236-38 (2015) (citing to 38 U.S.C. §§ 511(a), 7104(a); 38 C.F.R. § 4.16(b)); see Anderson v. Shinseki, 22 Vet. App. 423 (2009). The Board must make its own determination as to whether an extraschedular award of TDIU is merited. The appellant's attorney contends that the Veteran was entitled to TDIU prior to February 19, 2014, on the basis that he was forced to retire from his employment as an electrician in 1998 because of the limitations caused by his service-connected diabetes mellitus, type II (DM) and associated peripheral neuropathy (PN) of the lower extremities. The appellant contends that the Veteran's employment required that he climb up 30-foot ladders on a daily basis and that his PN caused him to slip several times due to an associated lack of balance or control of his feet. This made it very dangerous for him and he was forced to take an early retirement. Thus, he was unable to obtain and maintain substantially gainful employment due to the severity of his service-connected disabilities prior to February 19, 2014. Prior to February 19, 2014, the Veteran was service connected for PN of the left upper extremity and hand, evaluated as 10 percent disabling from March 8, 2011. Service connection was awarded for DM and PN of both lower extremities effective August 15, 2011. His DM was evaluated as 10 percent disabling from August 15, 2011, and as 20 percent from October 4, 2011; and his PN of both lower extremities was separately evaluated as 20 percent disabling for each lower extremity from August 15, 2011. His combined evaluation was 10 percent from March 8, 2011; 50 percent from August 15, 2011, and 60 percent from October 4, 2011. Based on the aforementioned evaluations, the Veteran did not meet the 38 C.F.R. § 4.16(a) schedular requirements for TDIU prior to October 4, 2011. As his service-connected DM and PN of both lower extremities and of his left upper extremity are all the result of a common etiology, the combined 60 percent disability beginning October 4, 2011 did meet the schedular requirements of 38 C.F.R. § 4.16(a). On his application for TDIU, received in August 2015, the Veteran reported that he last worked full time in January 2007, employed as an electrician. He indicated that his service-connected PN of the lower extremities and DM prevented him from securing or following any substantially gainful occupation. The Veteran reported completing high school and attending vocational school from February 1964 to April 1964. However, in a subsequent November 2017 application for TDIU, the Veteran reported that he last worked full time in 1998, employed as an electrician wiring machines. He indicated his service-connected PN in the lower extremities prevented him from climbing 30-foot ladders and walking on the machinery safely. VA treatment records as early as September 2011 note that the Veteran had worked as an electrician all his life. During an October 2011 VA examination for PN of the lower extremities, the examiner noted that the Veteran was a retired electrician and that he would be unable to work at that occupation due to his neuropathy. The examiner noted that the Veteran experienced moderate paresthesias and/or dysesthesias and numbness in both lower extremities as decreased sensation to light touch, vibration and cold. His deep tendon reflexes (DTR) in both lower extremities were also diminished. A September 2012 VA neuropsychological assessment noted the Veteran had been diagnosed with dementia and that he reported he was forced to retire in 2008 because of his back disability. The Veteran reported a recent onset of balance problems, numbness/tingling, and weakness congruent with reports in neurology notes. March 2014 and May 2016 VA examiners both opined that the Veteran's PN did not impact his ability to work. The March 2014 VA examination was conducted to address only the upper extremities, with the examiner noting that the Veteran was retired and that he was already service connected for DM and PN of the lower extremities. The May 2016 examiner noted that the Veteran also had nonservice-connected spinal stenosis/radiculopathy that was significant and that he used a cane and wheelchair for long distances as a result of his back disability. The examiner stated that his PN was no more than mild. A June 2016 letter from the Veteran's private treating physician indicated that the Veteran's diagnosed PN caused him painful dysesthesias and cold sensations from his mid tibias distally. The physician indicated that the disability had slowly progressed over time and opined that he would continue to have slow worsening of numbness and gait imbalance over time. In her October 2017 written statement, the appellant stated that the Veteran had struggled to cope with the changes and limitations resulting from his PN. She stated that as an electrician he had to climb 30-foot ladders on a daily basis wiring machinery. He was forced to retire early in 2008 when his PN in the lower extremities made it too dangerous for him to climb the ladders after slipping a couple of times because of his lack of balance or control of his feet. She stated that the disability had worsened and that he used a cane and wheelchair. Private physician and vocational consultant opinions dated in November 2015, October 2017, and December 2017 regarding the Veteran's ability to work were submitted. However, these opinions included consideration of disabilities that were not service connected prior to February 19, 2014, or that remain not service connected, including the Veteran's diagnosed dementia. Therefore, these opinions have no probative value as they do not evaluate whether his service-connected disabilities prior to February 19, 2014, which were only his DM, and PN of the lower extremities and left upper extremity, solely rendered him unemployable. In giving the benefit of the doubt to the appellant, the Board finds that the Veteran had been unable to secure or maintain a substantially gainful occupation as a result of the disabilities that were service connected prior to February 19, 2014, and beginning August 15, 2011, the date service connection was awarded for PN of the bilateral lower extremities and DM. The Board acknowledges the March 2014 and May 2016 VA examiners' opinions that the Veteran's PN was no more than mild, as well as the May 2016 VA examiner's opinion that the Veteran was unable to work because of his nonservice-connected back disability or dementia. However, the Board finds that medical evidence, specifically, the October 2011 VA examiner's assessment, reflects the Veteran's service-connected disabilities at that time, specifically his PN of the lower extremities, in fact, limited his physical capabilities, such as the noted moderate numbness, paresthesias and dysesthesia, and diminished DTR with a resultant unsteady gait. Moreover, the Board further finds that the Veteran's history of having worked during his entire civilian career as an electrician with a high school education and no other specialized training indicates that he would not have been able to find substantially gainful employment in another profession or at a desk job. As all doubt is resolved in favor of the Veteran, the Board finds that the evidence supports entitlement to a TDIU on an extra-schedular basis from August 15, 2011, to October 4, 2011, and on a schedular basis thereafter. 38 U.S.C. § 5107. REASONS FOR REMAND The Board regrets the delay associated with this remand, particularly as these matters have been the subject of prior remands. However, based on a review of the evidence of record, the Board finds that another remand is necessary as the agency of original jurisdiction (AOJ) has not substantially complied with the March 2020 remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that where the remand orders of the Board are not substantially complied with, the Board errs as a matter of law when it fails to ensure substantial compliance). Once VA undertakes the effort to provide a medical examination or opinion, it must provide an adequate one. A medical opinion is further inadequate if it does not take into account the Veteran's reports of symptoms and history, even if recorded in the course of the examination. Dalton v. Nicholson, 21 Vet. App. 23 (2007); see also Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007). The Board initially remanded the issues seeking service connection for headaches and for sinusitis in January 2019 to schedule VA examinations and obtain an initial etiological opinion for the Veteran's diagnosed sinusitis, to include whether it was proximately due to or aggravated by his service-connected DM and for an opinion regarding the etiology of the Veteran's headaches, to include whether they are secondary to his DM or his diagnosed sinusitis. In April 2019, the Veteran was afforded the appropriate VA examinations. The examiner opined that his sinusitis was less likely than not proximately due to or the result of his service-connected DM because he had no sinus problems in service and recurrent sinusitis could not be associated with DM. The same examiner opined that the Veteran's headaches were less likely as not proximately due to or aggravated by his service-connected DM; the rationale for his opinion was that the Veteran did not appear to have any residual symptoms associated with diagnosed concussion in service. In a later April 2019 opinion, another physician opined that the Veteran's diagnosed headaches were less likely than not related to service because there was no documentation of treatment for headaches in his service treatment records (STR) or within a year of his discharge from service. The examiner also opined that the Veteran's headaches were less likely than not related to his service-connected DM because he did not give any history of a relationship between his DM and his headaches and a recent large meta-analysis failed to show any clear association between DM and non-migrainous headaches. The examiner further opined that it was less likely as not that the Veteran's DM aggravated his headaches as there was no direct physiologic path between headaches as a neurologic condition and an endocrine condition of DM. Likewise, the examiner opined that it was less likely than not that the Veteran's diagnosed sinusitis caused or aggravated his diagnosed tension headaches as they were pathophysiologically unrelated. Finally, the examiner opined that the Veteran's diagnosed sinusitis was not directly related to service as there was no documentation of treatment for such in his STR or within a year of his discharge. The examiner opined that the Veteran's sinusitis was not proximately caused or aggravated by his service-connected DM because there was no direct physiologic pathway between the ENT condition of sinusitis and the endocrine condition of DM. The Board again remanded both issues in March 2020 to obtain addendum etiological opinions. With regard to the claim for service connection for sinusitis, the Board's remand noted that the April 2019 opinions were based on there being no medical evidence of treatment for sinusitis during service or within a year of service and did not address the longevity of the Veteran's symptoms, based on his statement that his symptoms began in 1980. See Dalton v. Nicholson, 21 Vet. App. 23 (2007) (holding that an examiner may not ignore lay statements of the Veteran, unless found by the Board to be not credible); Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (stating that the absence of documented treatment cannot, alone, serve as a basis for finding that lay evidence lacks credibility). Regarding the claim for service connection for headaches, the Board noted that the April 2019 opinions on a direct basis were based in part on the lack of pertinent treatment records in service, despite STRs in September 1963 and January 1966 documenting complaints of headaches associated with a cold and fever and a concussion respectively. Unfortunately, the VA addendum opinions are also inadequate. In March 2021, while the VA physician noted the Veteran's previous report of the onset of sinus symptoms in 1980, it was not addressed in the opinion that the Veteran's sinusitis was less likely as not incurred in or caused by his service as requested in the remand. The physician appears to have based the opinion on the lack of evidence of treatment for sinusitis during or within one year of his service. The physician further stated that the Veteran had never met the diagnostic criteria for chronic sinusitis and opined that the Veteran might have had occasional episodes of acute sinusitis as there was no evidence of chronic sinusitis. The physician also opined that it was less likely than not that the Veteran's sinusitis was proximately caused or aggravated by his service-connected DM because a review of the Veteran's medical records and medical literature did not support a physiologic, biomechanical, or anatomic mechanism for DM to cause or permanently aggravate sinusitis beyond its natural progression. Likewise, in another March 2021 opinion, the same VA physician opined that the Veteran's headaches were less likely than not incurred in or caused by an in-service injury because there was no evidence in the STR and medical record of treatment or symptoms suggestive of headaches, or that the Veteran had ever been diagnosed with chronic, severe recurrent headaches. The examiner noted that 70 to 80 percent of the North American population has headaches, with 50 percent experiencing them at least once a month. The physician also opined that the Veteran's headaches were less likely than not proximately due to or the result of the Veteran's service-connected DM, nor were his headaches as likely as not aggravated by his service-connected DM. The examiner stated that a review of the Veteran's medical records, including his STR, and medical literature did not support a physiologic biomechanical or anatomic mechanism for DM to cause or permanently aggravate headaches beyond their natural progression. In addition to the opinions not addressing the evidence outlined in the March 2020 remand, the Board further notes that the Veteran had been previously diagnosed with sinusitis and headaches during the pendency of the appeal, including on the April 2019 VA examinations, and that the April 2019 VA examination indicated that he had been diagnosed with chronic sinusitis in the 1980s. As such etiological opinions regarding the Veteran's sinusitis and headaches are necessary, even if the conditions had resolved prior to VA's adjudication of the claim pursuant to McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Unfortunately, in addressing whether the Veteran's sinusitis and headaches were secondary to his service-connected DM, the etiology opinions used the incorrect standard in finding that neither his sinusitis nor his headaches were "permanently" aggravated by his DM. See Ward v. Wilkie, 31 Vet. App. 233, 241-42 (2019) (holding that aggravation need not be permanent in nature for secondary service connection). On remand addendum medical opinions should be obtained based on full review of the record and supported by stated rationale that addresses relevant treatment records and the Veteran's stated history. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. The matters are REMANDED for the following action: 1. Return the claims file to the VA clinician who provided the March 2021 opinions for addendum opinions. The clinician must review the entire claims file, including a copy of this Remand. If the VA clinician who provided the March 2021 opinions is not available, then forward the Veteran's claims file to another appropriate clinician to obtain the below requested medical opinions. Following a review of the Veteran's claims file, the clinician must answer the following: (a) Is it at least as likely as not (a 50 percent or greater probability) that sinusitis and/or headaches that were diagnosed during the appeal period prior to the Veteran's death were related to his active-duty service or any incident therein? (b) Is it at least as likely as not (a 50 percent or greater probability) the Veteran's sinusitis and/or headaches were caused by his service-connected DM? (c) Is it at least as likely as not (a 50 percent or greater probability) that the Veteran's sinusitis and/or headaches underwent any incremental increase in disability, regardless of its permanence, due to his service-connected DM. The term "incremental increase in disability" means additional impairment of earning capacity. Objective measurement, or numerical quantification, is not required to ascertain an increase in disability. Moreover, an "incremental increase in disability" need not be permanent. A complete rationale for all opinions must be provided that addresses the Veteran's assertions of the onset of his sinus symptoms in the 1980s, as well as the STR in 1963 and 1966 indicating the Veteran complained of a headache associated with a cold and a concussion respectively. If the clinician cannot provide a requested opinion without resorting to speculation, it must be so stated, and the clinician must provide the reasons why an opinion would require speculation. The clinician must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the clinician must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. M. SORISIO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. J. Wells-Green 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.