Citation Nr: 21011246 Decision Date: 03/01/21 Archive Date: 03/01/21 DOCKET NO. 10-39 043 DATE: March 1, 2021 REMANDED Entitlement to service connection for a balance disorder, to include as secondary to service-connected left knee disability is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is remanded. REASONS FOR REMAND The Veteran served on active duty from January 1952 to October 1953. These issues come before the Board of Veterans’ Appeals (Board) on appeal from multiple rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). The issues on appeal were before the Board in December 2017, at which time the Board denied entitlement to service connection for a balance disorder and entitlement to a TDIU. Thereafter, the Veteran appealed this decision to the Court of Appeals for Veterans Claims (the Court). In March 2020, a Memorandum Decision was issued by the Court, vacating the December 2017 Board decision and remanding these issues back to the Board for additional development. The Board remanded this case in October 2020 for additional development. 1. Entitlement to service connection for a balance disorder, to include as secondary to service-connected left knee disability is remanded. After carefully considering this matter, and for reasons expressed immediately below, the Board finds that this case must be remanded for further development. The Board regrets the delay associated with this remand, especially considering that this matter was the subject of a previous remand. However, another remand is necessary for the following reasons to ensure that the Veteran is accorded full compliance with the statutory duty to assist. As for the issue of service connection for a balance disorder, to include as secondary to service-connected left knee disability, there is a lack of compliance with the Board’s October 2020 remand directives. On VA examination in December 2020, the diagnosis was peripheral vestibular disorder. The examiner noted that this balance disorder was a congenital condition in nature but did not comply with the Boards remand directives to address whether the Veteran’s balance disorder is a congenital disease or defect. It appears that the examiner was not notified that the opinion was required. Such a distinction is required as VA's Office of General Counsel has distinguished between congenital or developmental defects, for which service connection is precluded by regulation, and congenital or hereditary diseases, for which service connection may be granted, if initially manifested in or aggravated by service. VAOPGCPREC 82-90, VAOPGCPREC 67-90. Thus, on remand an addendum opinion should be obtained which complies with the Board’s remand instructions which is neither optional nor discretionary. See Stegall v. West, 11 Vet. App. 268, 271 (1998). 2. Entitlement to a total disability rating for individual unemployability (TDIU) due to service-connected disabilities is remanded. The Veteran contends that his service-connected disabilities preclude him from obtaining or maintaining substantially gainful employment, thereby warranting a TDIU. The Veteran’s TDIU claim is inextricable intertwined with his balance disorder claim. As such, the Board finds that the Veteran’s tinnitus claim must be remanded as well. See Harris v. Derwinski, 1 Vet. App. 180 (1991) (issues are inextricably intertwined when a decision on one issue would have a significant impact on another issue). The matters are REMANDED for the following action: 1. Obtain an addendum opinion regarding the Veteran’s balance disorder from the VA examiner who conducted the December 2020 VA examination. The claims file and all pertinent records must be available to the examiner and the examiner must indicate in the examination report that these records have been reviewed. Based on a review of the evidence of record, the examiner must provide opinions as to the following: (a.) For the Veteran’s peripheral vestibular disorder, please state whether such diagnosis is a congenital or developmental defect OR a congenital or development disease? The examiner is instructed to use the following definitions: a defect is “more or less stationary in nature,” while a disease is “capable of improving or deteriorating.” VAOPGCPREC 82-90. (b.) If the Veteran’s balance disorder is deemed to be a congenital or developmental defect, the examiner must render an opinion as to whether there was any superimposed disorder during active duty service? (c.) If the Veteran’s balance disorder is deemed to be a congenital or development disease, does the evidence of record clearly and unmistakably show that the disease existed prior to the Veteran’s entrance into active duty? If so, what evidence supports this conclusion? (d.) With respect to any such congenital disease that the examiner finds existed prior to the Veteran’s entrance into active duty, if there clear and unmistakable evidence that the disease was not aggravated during active service? The term “aggravation” for this opinion means a permanent increase in the claimed disability; that is, an irreversible worsening of the condition beyond the natural clinical course and character of the condition due to the service-connected disability as contrasted to a temporary worsening of symptoms. If so, what evidence supports that conclusion? (e.) If the examiner determines that the balance disorder is not congenital, then the examiner should render an opinion addressing whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran’s balance disorder was caused or aggravated by his service-connected disabilities, including but not limited to, left knee, left thigh, right thigh, and tinnitus. The examiner must render opinions for both causation and aggravation. The term “aggravation” for this opinion means “any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease, and not due to the natural progress of the nonservice-connected disease. If aggravation is found, the examiner should attempt to quantify the extent of additional disability resulting from the aggravation. The term “at least as likely as not” does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a certain conclusion is so evenly divided that it is as medically sound to find in favor of such a conclusion as it is to find against it. In rendering this opinion, the examiner is advised that the Veteran is competent to report his symptoms and history. Such reports must be acknowledged and considered in formulating any opinion. If the medical professional rejects the Veteran’s reports, he or she must provide an explanation for such rejection. The examiner is not to improperly discount the Veteran’s lay statements or rely solely on an absence of medical evidence in the record to support his or her conclusions. (Continued on the next page)   The examiner must address and reconcile, to the extent possible, their findings with the March 2016 and August 2017 VA medical opinions. A complete rationale must be provided for all opinions presented. If the medical professional cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation for why an opinion cannot be rendered. In so doing, the medical professional shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s) G. A. WASIK Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Hughes 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.