Citation Nr: 21009470 Decision Date: 02/22/21 Archive Date: 02/22/21 DOCKET NO. 17-30 928 DATE: February 22, 2021 REMANDED Entitlement to service connection for a disability manifested by imbalance, to include as secondary to tinnitus or bilateral hearing loss, is remanded. REASONS FOR REMAND The Veteran served on active duty from September 1977 to September 1980. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a rating decision issued in July 2015 by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ) in December 2019. A transcript of the hearing is of record. The Board has previously remanded this case two times, in February 2020 and July 2020, for further development. Unfortunately, as explained below, the Board is not satisfied that there was substantial compliance with its prior remand instructions; therefore, the appeal must once again be remanded. See Stegall v. West, 11 Vet. App. 268, 271 (1998); D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). 1. Entitlement to service connection for a disability manifested by imbalance, to include as secondary to tinnitus or bilateral hearing loss, is remanded. The Veteran seeks service connection for a disability manifested by imbalance, to include as secondary to his service-connected tinnitus. The Veteran generally asserts that his imbalance is caused by his tinnitus. Furthermore, in several statements of record, the Veteran has suggested that his imbalance disorder may be caused by or secondary to his service-connected hearing loss. When a theory of entitlement is raised by the record, the Board must consider it. See Szemraj v. Principi, 357 F.3d 1370, 1375-76 (Fed. Cir. 2004). Therefore, the Board has recharacterized the Veteran's service connection claim for an imbalance disorder accordingly. In the February 2020 remand, the Board directed the RO to schedule the Veteran for a VA examination and to obtain a medical opinion assessing the nature and etiology of his disability manifested by imbalance, to include as secondary to tinnitus. The Veteran underwent a VA examination in March 2020. The VA examiner provided a negative nexus opinion stating that imbalance is commonly seen in association with tinnitus but there is no evidence in medical literature that subjective tinnitus can cause dizziness or imbalance. The examiner then further noted that the Veteran had other non-service connected risk factors for imbalance or dizziness, including peripheral neuropathy, back and knee pain, and a prior history of stroke. However, the examiner only discussed why the imbalance and tinnitus were not causally related and failed to specifically address why the Veteran's imbalance was not worsened by his tinnitus. Moreover, the opinion was based on an inaccurate factual premise rendering it inadequate for adjudication. In July 2020, the Board granted service connection for bilateral hearing loss. The Board remanded the Veteran’s claim for service connection for a disability manifested by imbalance. The Board directed the RO to obtain an addendum medical opinion from a qualified VA examiner to adequately address the etiology of the Veteran’s claimed imbalance and dizziness, to include causation or aggravation of the imbalance disability by the Veteran’s tinnitus or bilateral hearing loss. Pursuant to the July 2020 remand, the RO obtained an addendum opinion in August 2020. The same March 2020 examiner opined that the Veteran's disability manifested by imbalance is not causally related to his tinnitus nor his bilateral hearing loss. The examiner listed several of the Veteran’s risk factors for imbalance before concluding that the cause of the Veteran’s imbalance is likely related to postural/positional hypotension. While the examiner opined as to the causation of the Veteran’s imbalance disability, the examiner failed to specifically address whether the imbalance was aggravated or worsened by tinnitus or hearing loss as was specified in the remand directive. El-Amin v. Shinseki, 26 Vet. App. 136, 140–41 (2013). Thus, the opinion is inadequate. In light of the above, the Board finds that the record does not contain a medical opinion that is sufficient to fairly decide the Veteran's claim. Therefore, the claim must be remanded once again because the RO did not comply with the Board's prior remand directive to obtain an adequate medical opinion the Veteran's behalf. See Stegall, 11 Vet. App. at 268. On remand, an addendum medical opinion must be obtained that is adequate for the Board to make an informed decision on the Veteran's claim. See Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007); Douglas v. Shinseki, 23 Vet. App. 19, 26 (2009). Accordingly, the matters are REMANDED for the following action: Forward the Veteran's claims file to a qualified VA examiner, who has not yet provided an opinion in this case, to provide an addendum opinion. VA examinations should 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 that review must be noted in the report. Thereafter, the following questions should be answered: a) Does that Veteran have a disability manifested by imbalance and/or dizziness; or are these symptoms associated with an already diagnosed disability? A thorough rationale for this opinion is requested. b) Is it at least as likely as not (a fifty percent probability or greater) that the Veteran has a disability manifested by imbalance or dizziness that was caused by the service-connected tinnitus or hearing loss? c) If not, is it at least as likely as not (a fifty percent probability or greater) that a disability manifested by imbalance or dizziness was aggravated (worsened) by the tinnitus or hearing loss? A detailed rationale for the opinion must be provided. The examiner is reminded that the term “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 against it. If the examiner is unable to provide any required opinion or cannot provide an opinion without resorting to mere speculation, a full explanation as to why this is so must be provided. If the inability to provide the requested opinion is due to a need for additional information or additional expertise, this should be clearly indicated. (Continued on the next page)   The Board reminds the examiner that failure to comply with the examination directives outlined herein will render the opinion inadequate and will result in further remand of the Veteran's claims. LESLEY A. REIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Rosenthal, Ariana 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.