Citation Nr: A21020271 Decision Date: 12/20/21 Archive Date: 12/20/21 DOCKET NO. 191008-40114 DATE: December 20, 2021 REMANDED Entitlement to service connection for intermittent monocular esotropia, left (claimed as vision disturbance to include nystagmus secondary to in-service head injury and/or BPPV) is remanded. Entitlement to special monthly compensation (SMC) based on aid and attendance of another person is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Navy from October 1990 to November 1992. These matters come to the Board of Veterans' Appeals (Board) on appeal from a September 2019 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). The rating decision on appeal constitutes an initial decision; therefore, the modernized review system, also known as the Appeals Modernization Act (AMA), applies. In the October 2019 VA Form 10182, Decision Review Request: Board Appeal, the Veteran elected the Evidence review docket. Therefore, the Board may only consider the evidence of record at the time of the agency of original jurisdiction (AOJ) decision on appeal, and 90 days following the submission of the VA Form 10182. 38 C.F.R. § 20.302(a). Evidence was added to the claims file during a period of time when new evidence was not allowed. As the Board is remanding the claims for further development, this additional evidence will be considered by the RO in the adjudication of those claims. 1. Service Connection Intermittent Left Eye Monocular Esotropia The Veteran generally contends that his intermittent left eye monocular esotropia is etiologically related to his active service. Specific argument in support of this appeal has not been provided. The Veteran was afforded a VA examination in August 2019. At that time, the examiner diagnosed intermittent left eye monocular esotropia, with an onset date of August 2019. The examiner found that there was no nystagmus shown on examination at that time. Then, the VA examiner opined the Veteran's nystagmus was related to his Meniere's disease and therefore less likely than not proximately due to or the result of his service-connected condition. Further explanation or opinion was not provided at this time. The Board finds the August 2019 VA opinion inadequate to decide the claim. In this regard, the August 2019 examiner failed to adequately provide a supporting rationale for the conclusions reached. The rationale was internally inconsistent, did not address direct service connection, and did not provide an opinion as to the nature and etiology of the Veteran's intermittent left eye monocular esotropia. Rather, the examiner provided only a conclusory statement that nystagmus, which was not found on examination, was secondary to a non-service connected disorder (Meniere's disease) without further elaboration. Moreover, the August 2019 VA examiner failed to reconcile the lack of nystagmus on examination to the opinion that his nystagmus was not related to his service. Additionally, the August 2019 VA examiner indicated that the Veteran may have a neurological disorder with the eyes and suggested he should seek further consultation without any explanation. Thus, the August 2019 medical opinion is afforded little, if any, probative weight. Barr v. Nicholson, 21 Vet. App. 303 (2007); Stefl v. Nicholson, 21 Vet. App. 120 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Given these deficiencies, remand is required to afford the Veteran an additional VA examination. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The failure to provide an adequate VA examination is a pre-decisional duty to assist error. 2. Entitlement to SMC Based on Aid and Attendance of Another The Veteran contends that he requires the aid and attendance of another person due to his service-connected disabilities. Specifically, the Veteran asserts that his benign paroxysmal vertigo causes him to be dizzy and unable to stand for more than a few minutes, and requires assistance in all activities of daily living. Additionally, he asserts that he has an assistant who helps him with all tasks during the day. A July 2019 Examination for Housebound Status or Permanent Need for Regular Aid and Attendance (VA 21-2680) was completed by Dr. M.W., a private physician. The provider found that the Veteran could not feed himself, but could sometimes feed himself when not shaking and required assistance on occasion; could not prepare his own meals, and was not able to pick up a pot or plate without dropping it due to weakness; did not need assistance in bathing and tending to other hygiene needs, but did need assistance getting out of clothes; was legally blind, but indicated he was not legally blind; did not need nursing home care; did require medical management because he could not read labels; managed his own funds; could not raise his arms, zip or button clothes, or shave due to imbalance; could not bend legs or lift due to fatigue and vertigo; had difficulty bending, standing, and lying down due to dizziness; and laid in bed all day unless going to the restroom or doctor appointments. He could not go to stores or tolerate being around crowds or others due dizziness and imbalance. The Board finds the July 2019 private DBQ report inadequate to decide the claim. In this regard, Dr. M.W.'s reports were internally inconsistent. Namely, she indicated he could not feed himself but then indicated he could feed himself on occasion; she indicated he did not need assistance with bathing and tending to other hygiene needs, but did need help getting out of clothes; and was legally blind and not legally blind. Thus, the July 2019 medical opinion is afforded little, if any, probative weight. Barr v. Nicholson, 21 Vet. App. 303 (2007); Stefl v. Nicholson, 21 Vet. App. 120 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Given these deficiencies, remand is required to afford the Veteran a VA examination so as to determine whether he is so helpless so as to be in need of regular aid and attendance due to his service-connected disabilities. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The failure to provide an adequate VA examination is a pre-decisional duty to assist error. The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of his diagnosed intermittent left eye monocular esotropia. Any and all indicated evaluations, studies and tests deemed necessary by the examiner should be accomplished. The need for further in-person examination is left to the discretion of the examiner. The examiner must opine whether the Veteran's left eye monocular esotropia is at least as likely as not related to an in-service injury, event, or disease. The examiner must reconcile any conflicting medical evidence of record. A clear rationale for all opinions must be provided, and a discussion of the facts and medical principles involved would be of considerable assistance. If the examiner opines that any of the above questions cannot be resolved without resorting to speculation, then a detailed medical explanation as to why this is so must be provided. A rationale should be provided for any opinion offered. If it is not possible to provide a specific opinion regarding the above questions, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). The medical opinion must support the conclusions reached with an analysis that is adequate to consider and weigh against other evidence of record; medical opinions must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. If an opinion cannot be expressed without resort to speculation, ensure that the clinician so indicates and discusses why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. 2. Schedule the Veteran for a VA examination by an appropriate clinician for an opinion as to whether the Veteran is in need of regular aid and attendance due solely to the combined service-connected effects of his service connected disabilities, including major depressive disorder, benign paroxysmal positional vertigo, tinnitus, right ankle tendonitis, and bilateral hearing loss. Following a review of the record and an examination of the Veteran, the examiner must express an opinion as to whether his service-connected disabilities result in the following limitations: (A) Inability to dress or undress himself or to keep himself ordinarily clean and presentable; (B) Frequent need of adjustment of any special prosthetic or orthopedic appliances which by reason of the particular disability cannot be done without aid (this does not include the adjustment of appliances which normal persons would be unable to adjust without aid, such as supports, belts, lacing at the back, etc.); (C) Inability to attend to the wants of nature; (D) Inability to feed himself through loss of coordination of the upper extremities or through extreme weakness; or (E) Incapacity, physical or mental, which requires care or assistance on a regular basis to protect the claimant from hazards or dangers incident to his daily environment. In offering such opinion, the examiner should consider the July 2019 Examination for Housebound Status or Permanent Need for Regular Aid and Attendance (VA 21-2680) was completed by Dr. M.W., a private physician. The VA examiner should set forth all examination findings, along with complete rationale for any conclusions reached. (Continued on the next page) The clinician is reminded if it is medically determined that the impairment attributable to nonservice-connected and service-connected conditions cannot be distinguished, the benefit-of-the-doubt doctrine requires that all such impairment be attributed to the service-connected disability. See Mittleider v. West, 11 Vet. App. 181 (1998). K. MARENNA Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Mariah N. Sim, 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.