Citation Nr: 21007533 Decision Date: 02/09/21 Archive Date: 02/09/21 DOCKET NO. 11-02 399 DATE: February 9, 2021 REMANDED Entitlement to service connection for a vestibular disorder is remanded. REASONS FOR REMAND The appellant is a Veteran who served on active duty from February 1956 to November 1957. This matter is before the Board of Veterans’ Appeals (Board) on appeal of an August 2009 Department of Veterans Affairs (VA) rating decision. The Veteran had requested a hearing before the Board; in a statement received in July 2012, he withdrew the request. In July 2014, April 2016, and November 2019, this matter was remanded for further development. The appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C. § 7107(a)(2). The Board is aware this matter was remanded three times before (and regrets the delay in final adjudication inherent with yet another remand). However, the response received did not adequately comply with instructions in the previous remand, and corrective action is necessary. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The November 2019 Board remand asked the Agency of Original Jurisdiction (AOJ) to obtain the treatment records mentioned as scanned in the record by the November and December 2014 VA examiners (but not found therein) and then to obtain a medical advisory medical opinion. Specifically, the examiner was to offer an opinion regarding the etiology of the Veteran’s vestibular disability and, if it was found to be unrelated to his service-connected bilateral hearing loss and/or tinnitus, identify the alternate etiology for the vestibular disability that is considered to be more likely. In January 2020, private treatment records mentioned by the November and December 2014 examiners, to include from the Balance Institute of Indiana, were associated with the record. A September 2014 Balance of Institute of Indiana treatment record notes complaints of imbalance and lightheadedness for several years, which has worsened over the past 6 to 7 months, and that symptoms are worse with sudden motion, bending over, climbing stairs, and walking up inclines; the assessment was multifactorial imbalance and peripheral vertigo not otherwise specified (NOS). In a February 2020 VA advisory opinion, the consulting provider stated that there is no documented vestibular disorder. Notably, the provider did not discuss the September 2014 Balance Institute of Indiana report and assessment therein. Additionally, the consulting provider noted the Veteran’s private ENT provider insinuated based on the radiculopathy that it is a peripheral neurological disorder, the provider stated that assessment is outside the scope of his practice. [The Board notes the opinions received in November 2014, September 2015, and April 2016 were found to be inadequate for rating purposes as they were stated in speculative terms. See November 2019 Board remand.] Nonetheless, although expressing lack of expertise in the matter, the consulting provider opined that the Veteran does not have a current vestibular condition. The opinion appears to suggest that additional examination (by a provider with the requisite expertise) is required to clarify the diagnosis/reconcile the conflicting evidence and determine the nature and etiology of the claimed vestibular disorder/balance problems. There has been no follow-up. The development completed has been less than fully responsive to the remand directives, and is inadequate for rating purposes, requiring corrective action. See Stegall, 11 Vet. App. at 271 The matter is REMANDED for the following: Arrange for the Veteran to be examined by an appropriate clinician with appropriate expertise (a neurologist or otologist, with neurology consult, if indicated) to confirm whether he has a vestibular disability, and if so, determine its nature and likely etiology. The Veteran’s record must be reviewed by the examiner and any indicated tests or studies should be completed. The examiner should provide responses to the following: (a) Does the Veteran have a current chronic vestibular disability (found on examination or as shown by the record during the pendency of the claim)? If so, identify is by diagnosis. Cite to the clinical findings that supporting the response. Specifically address the significance of the 2014 findings and assessment at the Balance Institute of Indiana (associated with the record on January 2020) when (during the pendency of this appeal) the Veteran was assigned a peripheral vertigo,(a) NOS diagnosis. (b) Identify the likely etiology for any vestibular disability diagnosed. Specifically, is it at least as likely as not (a 50% or better probability) that it was incurred in service, to include as due to an acknowledged acoustic nerve injury therein? [Note, by virtue of having established service connection for sensorineural hearing loss (SNHL) and tinnitus, the Veteran is acknowledged by VA to have sustained an acoustic nerve injury.] (c) If a diagnosed vestibular disability is determined to not be directly related to service, opine further whether it at least as likely as not that it was caused or aggravated by the Veteran’s service-connected tinnitus and/or bilateral hearing loss disabilities. [The opinion must address aggravation.] (d) If the Veteran’s service-connected tinnitus and/or bilateral hearing loss disabilities did not cause, but aggravated a vestibular disability, to the extent possible, identify the degree of disability (symptoms and/or impairment) that resulted from such aggravation. (e) If a diagnosed vestibular disability is determined to not be etiologically related to service or caused or aggravated by the Veteran’s SNHL and/or tinnitus, identify the etiology for the vestibular disability that is considered to be more likely (and explain why that is so). All opinions must include rationale that cites to supporting factual data and medical principles. If an opinion requested cannot be provided without resort to mere speculation, it must be so stated for the record. Such statement must include explanation why an opinion would require speculation (e.g., whether further information or testing is needed to make the determination, and if so, indicate what else is needed; or whether the opinion could not be rendered due to limitations in the knowledge of the medical community at large or of the particular examiner). GEORGE R. SENYK Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Naumovich, Associate 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.