Citation Nr: 21009761 Decision Date: 02/23/21 Archive Date: 02/23/21 DOCKET NO. 07-06 507 DATE: February 23, 2021 REMANDED Entitlement to service connection for vertigo/dizziness is remanded. REASONS FOR REMAND The Veteran served in the United States Air Force from June 1986 to January 1990. This matter returns to the Board of Veterans’ Appeals (Board) on appeal following Board remand in March 2019 and, most recently in July 2020. Prior to this, in August 2018, the Secretary of the Department of Veterans Affairs (VA) and the Veteran agreed to a Joint Motion for Remand (JMR) before the Court of Appeals for Veterans Claims (Court), which issued an order vacating the Board’s June 2017 denial of the Veteran’s appeal. By way of background, the Veteran’s appeal was also remanded in January 2011, October 2011, and May 2013. The Veteran’s claim was originally decided by the Philadelphia, Pennsylvania Regional Office (RO) in a July 2005 rating decision. Entitlement to service connection for vertigo/dizziness is remanded With regard to the claims for service connection for vertigo/dizziness, the Board finds that the opinions obtained by the RO on the last remand are considered inadequate and incomplete, and remand is required to obtain additional opinion for the VA to fulfill the duty to assist the Veteran. The Board notes that the VA’s statutory duty to assist the Veteran includes the duty to conduct a thorough and contemporaneous examination so that the evaluation of the claimed disability will be a fully informed one. Green v. Derwinski, 1 Vet. App. 121 (1991); Snuffer v. Gober, 10 Vet. App. 400 (1997). Assistance by VA includes providing a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on a claim. 38 U.S.C. § 5103A (d) (West 2014); 38 C.F.R. § 3.159 (c)(4) (2016); McLendon v. Nicholson, 20 Vet. App. 79 (2006). When the medical evidence is inadequate, as it is here, VA must supplement the record by seeking an advisory opinion or ordering another medical examination. Colvin v. Derwinski, 1 Vet. App. 171 (1991); Hatlestad v. Derwinski, 3 Vet. App. 213 (1992). A remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the remand instructions, and imposes upon the VA a concomitant duty to ensure compliance with the terms of the remand. Stegall v. West, 11 Vet. App. 268 (1998). Here, in the Board last two remands in March 2019 and July 2020, the directives explicitly requested that the VA examiner speak to whether the Veteran’s claimed vertigo was caused or aggravated by the Veteran’s service-connected ankle disability. The Board notes that, despite such explicit directive in both the last two remands, the two opinions acquired by the RO in December 2019 and July 2020, failed to speak to secondary aggravation; with the former only concluding on causation, and the latter, being wholly silent with regards to a secondary nexus. The Board notes that an adequate examination for secondary service connection must address any relation, both causation and aggravation, between the claimed disability, here vertigo, and the service-connected ankle disability. The lack of an opinion on whether the Veteran’s claimed vertigo was aggravated by the ankle disability makes the examination incomplete, and as such opinion was explicitly noted in the directives from the last remand, the Board finds that substantial compliance with the terms of the remand has not been achieved. Stegall v. West, 11 Vet. App. 268 (1998). Therefore, remand is required for further inquiry. The matters are REMANDED for the following action: 1. Obtain and associate with the claims file any outstanding VA treatment records relevant to his claims for service connection. In this regard attempt to obtain records prior to March 2000. Make at least two attempts to recover such records from the appropriate depositories and/or VAMC’s. If such records prior to March 2000 cannot be obtained, the RO must made record of such attempts and a finding that such records cannot be found, and that any further search would be futile. 2. Schedule the Veteran for a VA examination, with an examiner who has not previously examined him. The examiner must review the claims file and should note that review in the report. All opinions must be supported by a rationale. The examiner should provide the following opinions: (a) Is it at least as likely as not (50 percent or greater probability) that his claimed vertigo/dizziness disability was caused by his service-connected right ankle disability; and (b) Is it at least as likely as not (50 percent or greater probability) that his claimed vertigo/dizziness disability was aggravated by his service-connected right ankle disability. 3. If, and only if, additional records prior to March 2000 are located, to explicitly include the February 2000 treatment record which confirms a plausible diagnosis for vertigo is located, then the VA examiner is asked to also address the following opinions: (c) is it at least as likely as not (50 percent or higher) that the Veteran’s claims vertigo/dizziness is related to an in-service injury, event, or disease, to include as a result of infection of the tissues that surround and support the Veteran’s teeth after he underwent dental surgery; or any in-service head injuries; or (d) manifested within one year of the Veteran’s separation from active service(in answering this question, the VA examiner is to consider the September 2012 statement from the Veteran’s brother, alleging that hehas experienced pain, dizziness, sleep disturbance, anxiety, agitation, and irritability since his in-service head injuries). Zi-Heng Zhu Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Hennessy, 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.