Citation Nr: 21011191 Decision Date: 03/01/21 Archive Date: 03/01/21 DOCKET NO. 15-29 810 DATE: March 1, 2021 REMANDED Entitlement to service connection for a disability manifested by dizziness and fainting spells, to include as due to a service-connected disability, is remanded. Entitlement to service connection for an acquired psychiatric disorder, to include as due to a service-connected disability, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from November 1971 until August 1972. This appeal was previously before the Board in September 2019 when it was remanded for additional development. Unfortunately, there has not been substantial compliance with the Board’s prior remand directives, and another remand is now required. Stegall v. West, 11 Vet. App. 268, 271 (1998). Entitlement to service connection for a disability manifested by dizziness and fainting spells, to include as due to a service-connected disability, is remanded. The claim must be remanded again because the medical opinions obtained in December 2019 and September 2020 are inadequate. The December 2019 examiner diagnosed the Veteran with benign paroxysmal positional vertigo (BPPV) and offered a negative nexus opinion but impermissibly relied upon an absence of treatment in service as affirmative negative evidence. The Agency of Original Jurisdiction (AOJ) recognized this opinion as inadequate and obtained an addendum medical opinion in September 2020 prior to readjudication of the claim. However, the September 2020 addendum medical opinion is also inadequate. The September 2020 opinion addresses the Veteran’s previously diagnosed Meniere’s Disease but does not address the Veteran’s diagnosed BPPV and does not provide an adequate rationale on secondary service connection. Entitlement to service connection for an acquired psychiatric disorder, to include as due to service-connected disability, is remanded. The claim must be remanded again because the medical opinions obtained in December 2019 and August 2020 are inadequate. After examination of the Veteran in December 2019, the examiner diagnosed the Veteran with schizoaffective disorder, mild vascular neurocognitive disorder, and cannabis use disorder and stated, “these problems coalesce to exacerbate his symptoms of anxiety and depression.” The examiner offered a negative nexus opinion but did not support it with rationale. The AOJ recognized this opinion as inadequate and obtained an addendum opinion from the December 2019 examiner in August 2020. Unfortunately, the August 2020 addendum opinion is also inadequate. The opinion provider failed to consider the Veteran’s prior statement, contained in the April 2014 notice of disagreement, that he did not report his depression and excessive worry prior to his separation examination, because he was afraid of being discharged under other than honorable conditions. Additionally, the negative secondary service connection opinion reached by the examiner is unsupported by rationale. On remand, the AOJ must obtain an adequate addendum medical opinions for each claim. See Barr v. Nicholson, 21 Vet. App. 303 (2007). The matters are REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records for the period from November 2019 to the present. 2. After completion of directive one, obtain an addendum opinion from an appropriate clinician regarding the likely etiology of the Veteran’s benign paroxysmal positional vertigo (BPPV). The opinion provider should be provided with all pertinent documents, including a copy of this remand. If the opinion provider concludes a requested opinion cannot be provided without examination of the Veteran, one should be scheduled. After review of pertinent documents and completion of any appropriate and necessary examination, studies, and testing, the opinion provider must answer the following: (a.) Is at least as likely as not (50 percent or greater probability) the Veteran’s benign paroxysmal positional vertigo (BPPV) is related to his active military service? (b.) Is it at least as likely as not (50 percent or greater probability) the Veteran’s benign paroxysmal positional vertigo (BPPV) is (i) proximately due to or (ii) aggravated (any worsening of disability) by his service-connected bilateral hearing loss and/or tinnitus? In providing the above-requested opinions, the opinion provider must consider, and discuss as appropriate, (i) the Veteran complaining of being very dysfunctional due to ringing in the ears in May 2011, (ii) the Veteran’s statement in July 2011 that his tinnitus was preventing him from functioning well, and (iii) the Veteran’s statement on an August 2019 VA Form 9 that he disclosed his condition while in the military but was not afforded treatment. 3. After completion of directive one, obtain an addendum opinion from an appropriate clinician regarding the likely etiology of the diagnosed psychiatric disorders. The opinion provider should be provided with all pertinent documents, including a copy of this remand. If the opinion provider concludes a requested opinion cannot be provided without examination of the Veteran, one should be scheduled. After review of pertinent documents and completion of any appropriate and necessary examination, studies, and testing, the opinion provider must answer the following for each diagnosed acquired psychiatric disorder: (a.) Is at least as likely as not (50 percent or greater probability) the Veteran’s acquired psychiatric disorder is related to his active military service? (b.) Is it at least as likely as not (50 percent or greater probability) that the Veteran’s acquired psychiatric disorder is (i) proximately due to or (ii) aggravated by (any increase in disability) his service-connected bilateral hearing loss and/or tinnitus? In providing the above-requested opinions, the opinion provider must consider, and discuss as appropriate, (i) the Veteran complaining of being very dysfunctional due to ringing in the ears in May 2011, (ii) the Veteran’s statement in July 2011 that his tinnitus was making him severely stressed and preventing him from sleeping and functioning well, and (iii) the Veteran’s statement on a filed April 2014 notice of disagreement that he did not report his depression and excessive worry until his medical exam upon separation, because he was afraid of being discharged under other than honorable conditions and that he self-medicated with alcohol. If the opinion provider determines a requested opinion cannot be provided without resort to speculation, they should say why. 4. Confirm that the VA medical opinion provided comports with this remand, specifically that the standard for the secondary aggravation opinion is any increase in disability, not the standard of beyond the natural progression as noted on the examination form itself. If not, get an addendum. M.E. Larkin Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M.D. Collins, 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.