Citation Nr: 21012945 Decision Date: 03/08/21 Archive Date: 03/08/21 DOCKET NO. 16-19 810A DATE: March 8, 2021 REMANDED Entitlement to service connection for vertigo is remanded. Entitlement to service connection sleep apnea is remanded. REASONS FOR REMAND The Veteran served on active duty from June 1970 to August 1977. These matters come before the Board of Veterans’ Appeals (Board) on appeal of April 2012 and January 2015 rating decisions by a Department of Veterans Affairs (VA) Regional Office (RO). In April 2019, the Veteran testified before Veterans Law Judge (VLJ) White during a Travel Board hearing regarding the issues of entitlement to service connection for vertigo and sleep apnea, and an increased rating for service-connected bilateral hearing loss. In September 2019, the Board denied the increased rating claim and remanded the service connection claims for additional evidentiary development. In August 2020, the Veteran testified before VLJ Donohue during a virtual hearing regarding the issues of entitlement to service connection for vertigo and sleep apnea. Copies of both hearing transcripts are of record. Since two VLJs have received testimony in relation to the vertigo and sleep apnea claims, the Veteran is entitled to a panel decision and another hearing with the third member of the panel before the claims are adjudicated. Arneson v. Shinseki, 24 Vet. App. 379 (2011). During the August 2020 hearing, the Veteran waived his right to a hearing before the third member of the panel. Therefore, all due process has been afforded the Veteran with respect to a hearing and these claims are being decided by a panel of three VLJs. 1. Entitlement to service connection for vertigo is remanded. In the September 2019 remand, the Board directed that the Veteran be afforded a new VA examination to determine the nature and etiology of his vertigo. The examiner was asked to opine whether it is likely the Veteran’s vertigo began in or is related to his service, was caused by his service-connected bilateral hearing loss, or underwent any incremental increase in disability, i.e., was aggravated by, his service-connected bilateral hearing loss. The Board also advised the examiner that the Veteran’s competent report of his symptoms and history must be acknowledged and considered in formulating any opinion. See September 2019 Board remand. Review of the record reveals the Veteran was not afforded a new VA examination, as directed. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Instead, the agency of original jurisdiction (AOJ) obtained a medical opinion from a VA clinician in December 2019 which, even if arguably amounted to substantial compliance with the Board’s directive, was inadequate because it was based upon inaccurate facts and failed to consider all relevant evidence. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (“An opinion based upon an inaccurate factual premise has no probative value.”). Specifically, the VA examiner noted that there was no medical objective evidence that the Veteran had symptoms of vertigo or was diagnosed with vertigo during active service. The examiner stated that the documentations of dizziness during active service were associated with other symptoms but were not consistent with vertigo or BPPV. While the VA examiner is correct that the service treatment records (STRs) note various complaints of dizziness and lightheadedness in conjunction with other symptoms and conditions, a July 1972 STR contains a notation of vertigo which, while documented with other symptoms, represents medical evidence of at least one objective or medical notation of vertigo during service. See July 1972 STR. The examiner also stated that there are no medical notes referring to vertigo or symptoms of vertigo after discharge or when the Veteran sought VA care in 2001; however, VA and private treatment records show the Veteran reported having recent episodes of dizziness or vertigo at that time, and an October 2019 private treatment record reflects that the Veteran endorsed having an acute occurrence of vertigo recently. See January 2001 VA treatment record; private treatments records dated January 2001 and October 2019. Finally, the Board notes the VA examiner clearly did not consider or address the Veteran’s report of his symptoms and history, as directed, which are considered competent evidence. Given the foregoing, the Board finds a remand is needed to obtain an adequate VA opinion. An adequate medical opinion "must rest on correct facts." Acevedo v. Shinseki, 25 Vet. App. 286, 293 (2012). 2. Entitlement to service connection sleep apnea is remanded. In the September 2019 remand, the Board also directed that the Veteran be afforded a new VA examination to determine if his sleep apnea had its onset in service or is otherwise related thereto. The examiner was specifically directed to acknowledge and consider the Veteran’s competent report of his symptoms and history. However, the Veteran was not afforded a new VA examination, as directed, and the opinion obtained in December 2019 regarding the Veteran’s sleep apnea was inadequate for the following reasons. First, the VA examiner did not consider or address the Veteran’s competent reports of having difficulty sleeping, snoring, and waking up fatigued during and since service. Instead, the examiner based her opinion on the lack of objective evidence showing complaints symptoms of sleep apnea during active duty. Additionally, the examiner incorrectly noted that the Veteran was diagnosed with sleep apnea in 2005, whereas the lay and medical evidence reflects that he was diagnosed with sleep apnea as early as 2000 or 2001. See e.g., February 2012 Veteran statement; private treatment records dated February and June 2001. Therefore, because the December 2019 VA opinion failed to consider all relevant evidence and was based upon inaccurate facts, the Board finds a remand is needed to obtain an adequate opinion. See Reonal v. Brown, 5 Vet. App. at 461. The matters are REMANDED for the following action: 1. Request that an appropriate medical professional review the claims file and provide an addendum opinion regarding the Veteran’s vertigo. The claims file must be reviewed, and the examination report must reflect that such review was accomplished. The need for an additional examination is left to the discretion of the examiner. The examiner is requested to provide an opinion as to the following: (a) Is it at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran’s vertigo began in or is otherwise related to his active service? In answering the foregoing, the examiner must consider and address: 1. the service treatment records, to include the July 1972 notation of vertigo, and 2. the Veteran’s report of first noticing balance difficulties during service. See e.g., April 2019 hearing transcript, p. 7; and August 2020 hearing transcript, p. 6. (b) Is it at least as likely as not (50 percent probability or greater) that the Veteran’s vertigo: 1. was caused by his service-connected bilateral hearing loss or 2. underwent any incremental increase (aggravation) in disability, regardless of its permanence, by his service-connected bilateral hearing loss If aggravation is found, the examiner must attempt to establish a baseline level of severity of the diagnosed disability prior to aggravation by the service-connected disability. The examiner must consider and address the medical and lay evidence of record. A clear rationale for all opinions must be provided and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 2. Arrange for an appropriate health care provider to review the Veteran’s claims file and provide an opinion regarding the Veteran’s sleep apnea. The claims file must be reviewed, and the examination report must reflect that such review was accomplished. The need for an additional examination is left to the discretion of the examiner. (a) After reviewing the record, the examiner should provide an opinion as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran’s sleep apnea, diagnosed as early as 2000 or 2001, began in or is otherwise related to his active service? In answering the foregoing, the examiner must consider and address: 1. the service and post-service treatment records, in addition 2. the Veteran’s report that he experienced symptoms generally associated with sleep apnea during and since service. See February 2012 Veteran statement; November 2014 VA Form 9; April 2019 hearing transcript, p. 9; and August 2020 hearing transcript, pp. 3-5. 3. the Veteran’s competent reports of having difficulty sleeping, snoring, and waking up fatigued during and since service A clear rationale for all opinions must be provided and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 3. THE AOJ MUST REVIEW THE CLAIMS FILE AND ENSURE THAT THE FOREGOING DEVELOPMENT ACTION HAS BEEN COMPLETED IN FULL. IF ANY DEVELOPMENT IS INCOMPLETE, APPROPRIATE CORRECTIVE ACTION MUST BE IMPLEMENTED. IF ANY REPORT DOES NOT INCLUDE ADEQUATE RESPONSES TO THE SPECIFIC OPINIONS REQUESTED, IT MUST BE RETURNED TO THE PROVIDING EXAMINER FOR CORRECTIVE ACTION. (continued on the next page) M. Donohue Veterans Law Judge Board of Veterans’ Appeals YVETTE R. WHITE Veterans Law Judge Board of Veterans’ Appeals TBD To Be Determined Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Turnipseed, 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.