Citation Nr: 21013497 Decision Date: 03/09/21 Archive Date: 03/09/21 DOCKET NO. 13-09 920 DATE: March 9, 2021 REMANDED Entitlement to service connection for a disorder manifested by loss of consciousness, to include as a diagnosed vasodepressor syncope, and to include as secondary to service-connected disabilities is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from September 1968 to April 1970. By way of background, the Veteran had numerous claims before the Board in September 2017, including one for an increased rating for service-connected posttraumatic stress disorder (PTSD). See (First) Board Decision (Sept. 2017). The September 2017 Board decision remanded the Veteran’s claims for service connection for a disorder manifesting by losing consciousness and for a total disability rating based upon individual unemployability (TDIU). Id. To the extent that the first Board decision appeared to have rendered a final decision as to PTSD, this was vacated by a May 2018 Joint Motion for Partial Remand (JMPR). After the JMPR, the Veteran’s claims came to the Board once more in January 2019. See (Second) Board Decision ( Jan. 2019 ). Here, the Veteran was afforded a 70 percent rating since April 10, 2007 for PTSD. Id. However, the Board found that his claim for service connection for a disorder manifested by loss of consciousness was not developed as ordered, Stegall v. West, 11 Vet. App. 268, 271 (1998), and that the claim for TDIU was inextricably intertwined with it. See (Second) Board Decision, supra. For these reasons, the two remaining claims were remanded. Following the second Board decision, the Veteran was granted a TDIU, effective July 14, 2008. See Rating Decision ( Aug. 22, 2019 ). In sum and substance, even though the Veteran satisfied the schedular criteria since April 10, 2007, 38 C.F.R. § 4.16(a), he claimed that on account of his PTSD, July 13, 2008 was his last day of substantial, gainful employment. See VA Form 21-8940 (rec’d Nov. 6, 2018 ). Given the above, the Veteran was granted a TDIU, see Rating Decision (Aug. 22, 2019), supra. The Veteran has not disagreed with the effective date assigned for the TDIU on a form prescribed by the Secretary and therefore the Board does not have jurisdiction to consider this issue further. During the course of the Veteran’s appeal for the remaining claim for service connection for a disorder manifested by loss of consciousness, the Veteran testified at a hearing before a Veterans Law Judge in January 2017. That transcript has been associated with the file. In April 2020, the Veteran was informed that the VLJ who presided over his hearing is no longer employed at the Board. See BVA Letter ( Apr. 14, 2020 ). The Veteran was informed that under 38 U.S.C. § 7107(c) and 38 C.F.R. § 20.707, he has the right to request a subsequent hearing before a new judge, who would be assigned under 38 C.F.R. § 19.3(b). Id. In May 2020, the Veteran, through his attorney, clearly and unambiguously waived his right to another hearing. See Return Correspondence (rec’d May 13, 2020 ). The Board proceeds accordingly. Since the last Board remand, see (Third) BVA Decision (July 16, 2020), the Veteran was issued a Supplemental Statement of the Case (SSOC) on November 24, 2020. See SSOC (Nov. 24, 2020). The Board cannot escape the conclusion that the Veteran has still not yet been afforded substantial compliance with all previous remand directives—namely the remand directives set forth on July 16, 2020. See Stegall v. West, 11 Vet. App. 268, 271 (1998). As a result, and for the reasons to be discussed below, the Board remands the claims for further development.   1. Entitlement to service connection for a disorder manifested by loss of consciousness, to include as a diagnosed vasodepressor syncope, and to include as secondary to service-connected PTSD or tinnitus is remanded. The Board remanded the Veteran’s claim for the second time in January 2019, because the Agency of Original Jurisdiction failed to undergo necessary development of the Veteran’s claim for service connection for a disorder manifesting by loss of consciousness. See (Second) Remand, supra. Subsequent to this, the Veteran underwent a heart exam, whereby he was diagnosed with a vasodepressor syncope. See C&P Exam (Heart Conditions). Nonetheless, the examiner ultimately provided a negative nexus, stating that it was not at least 50 percent likely to be attributable to service. Id. However, an opinion as to secondary service connection was not provided and the in-service notation indicating that the Veteran had passed out was not addressed. While the Veteran recently submitted to a heart examination, the Veteran historically also submitted to a seizure examination in November 2014. See C&P Exam ( Nov. 2014 ). That examiner could not identify an etiology for the Veteran’s disorder, but he postulated that it could be a symptom of a mental health diagnosis. Id. at Page 5. As indicated above, the Veteran is service connected for PTSD. In July 2020, the Board deemed it necessary to clarify the exact diagnosis of the Veteran’s condition for which he seeks service connection, and to avail him of an opportunity to undergo additional VA examination. As a result, the Board remanded the Veteran’s claim for service connection for a disorder manifesting by loss of consciousness. The Board also included specific remand directives to consider secondary service connection between said diagnosis and service-connected PTSD or tinnitus. Examinations conducted in November 2020 merely concluded that the Veteran has neither a central nervous system disorder nor a seizure disorder. There is still no opinion as to whether any heart disorder that was diagnosed no later than May 2019, see C&P Exam (Heart Conditions) ( May 2019 ), supra is secondary to PTSD or tinnitus. See also Medical Report by Dr. H.L.H. ( Oct. 22, 2018 ) (rec’d Dec. 26, 2018); Correspondence from Attorney ( Dec. 21, 2020 ). Thus, remand is necessary to clarify the exact diagnosis of the Veteran’s condition for which he seeks service connection, to avail him of an opportunity to undergo updated VA examinations as necessary, and to ensure that the AOJ affords the Veteran substantial compliance with all previous remand directives. The matters are REMANDED for the following action: 1. The Veteran and his attorney should be given an opportunity to identify any outstanding private or VA treatment records relevant to the claim on appeal. After obtaining any necessary authorization from them, all outstanding records, to include any VA treatment records, should be obtained. For private treatment records, make at least two (2) attempts to obtain records from any identified sources. If any such records are unavailable, inform the Veteran and his attorney, and also afford them an opportunity to submit any copies in their possession. For federal records, all reasonable attempts should be made to obtain such records. VA medical records as of May 8, 2020 appear to be associated with the claims file, but no subsequent records after that date are of record. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. After the receipt of any outstanding records, schedule the Veteran for a VA examination with an appropriate clinician to address the nature and etiology of the Veteran’s claimed disorder manifested by loss of consciousness. A complete copy of the claims file must be made available to the examiner. For each disorder diagnosed, the examiner is asked to respond to the following questions: (a.) Is it at least as likely as not (50 percent or greater probability) that the Veteran’s current vasodepressor syncope manifesting by passing out had onset in service, is otherwise related to his active duty service; (b.) Is it at least as likely as not that the Veteran’s current vasodepressor syncope manifesting by passing out was caused by his service-connected PTSD; (c.) Is it at least as likely as not that the Veteran’s current vasodepressor syncope manifesting by passing out was aggravated by his service-connected PTSD; (d.) Is it at least as likely as not that the Veteran’s current vasodepressor syncope manifested by passing out was caused by his service-connected tinnitus; (e.) Is it at least as likely as not that the Veteran’s current vasodepressor syncope manifested by passing out was aggravated by his service-connected tinnitus? In so opining, the examiner must address the significance or lack thereof of a “passing out” episode on October 19, 1968 as referenced in a November 2014 VA examination. A medical opinion explaining whether the Veteran’s “passing out” disorder is a manifestation that is already compensated in the Veteran’s service-connected PTSD would be of considerable help to the Board. See Medical Report by H.L.H. ( Oct. 22, 2018 ) (rec’d Dec. 26, 2018); Correspondence from Attorney ( Dec. 21, 2020 ). A rationale should be provided for all opinions offered. If it is not possible to provide a specific opinion regarding the above questions, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). The medical opinion must support the conclusions reached with an analysis that is adequate for the Board to consider and weigh against other evidence of record; medical opinions must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. MARTHA R. LUBOCH Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Michael B. Engle, 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.