Citation Nr: 21013738 Decision Date: 03/10/21 Archive Date: 03/10/21 DOCKET NO. 15-14 116 DATE: March 10, 2021 REMANDED Entitlement to service connection for vertigo is remanded. Entitlement to service connection for acid reflux is remanded. Entitlement to service connection for a right knee disability is remanded. Entitlement to service connection for a left knee disability is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from August 1983 to June 1986. 1. Entitlement to service connection for vertigo is remanded. 2. Entitlement to service connection for acid reflux is remanded. 3. Entitlement to service connection for a right knee disability is remanded. 4. Entitlement to service connection for a left knee disability is remanded. The Veteran’s claims for service connection for vertigo, acid reflux, and bilateral knee disabilities, were previously remanded by the Board in July 2020 after a determination that the pervious VA examinations of record were inadequate for adjudication on the merits. To this end, the pervious Board remand directed the RO to obtain adequate addendum opinions with regards to the claimed conditions, to include speaking to secondary service connection for both the Veteran’s claims for acid reflux and vertigo. A remand by the Board or the Court confers on the claimant a legal right to substantial compliance with the remand order. Stegall v. West, 11 Vet. App. 268 (1998). Here, however, the acquired July and September 2020 VA addendum opinions are again found to be inadequate; and as such, the Board previous remand directives were not substantially complied with and remand is again required to obtain an adequate examination so the VA may fulfill its duty to the Veteran. VA’s statutory duty to assist the Veteran includes the duty to conduct a thorough 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); 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). When the medical evidence is incomplete, 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). In a correspondence submitted from the Veteran’s representative, he noted that the VA examination and opinions addressing the nature and etiology of the Veteran’s claimed disabilities were inadequate. With specific regards to the Veteran’s claims for vertigo and acid reflux, as secondary to his service-connected psychiatric disorder and/or tinnitus, the Veteran’s representative pointed out that the July 2020 VA examiner failed to provide any real rationale or basis regarding the negative finding regarding a direct or secondary nexus. The representative noted that the July 2020 VA nexus opinion essentially provided a legal analysis and conclusion, based on the evidence of record, instead of a medical opinion based on medical research, studies, and findings. The Board agrees. The Board finds that a close review of the July 2020 VA examiner finding and rationale reveals that the VA examiner’s basis and rationale for finding against the Veteran’s claim for a direct or secondary nexus was essentially that there was no evidence of record that shows that the Veteran’s psychiatric disability and/or tinnitus caused or aggravated his claimed acid reflux or vertigo. In other words, there is no opinion of record, other than the Veteran’s, that positively correlated the Veteran’s claimed acid reflux and/or vertigo to his psychiatric disability and/or tinnitus. The Board finds that such statement is not a medical rationale, but rather a finding of fact, which is the providence of the VA/Board and not the medical examiner. Conversely, it is the exact job of the examiner to provide that medical opinion regarding etiology of these claimed conditions, based on his/her medical education, training, and expertise. Here, as this examiner failed to do so, the Board must find that such opinion to be inadequate and the claims must be remanded for further development. Likewise, with regards to the September 2020 VA examination for the Veteran’s bilateral knee disabilities, the Board also finds the Veteran’s representative’s argument persuasive with regards to the inadequacy of the nexus opinion. Here, the representative set forth that the VA examiner based the entirety of the negative nexus opinion regarding direct connection to service on a lack of finding of any evidence of complaints, treatment, or diagnosis of a knee disability during service, while ignoring the Veteran’s lay accounts of in-service pain. The representative argues that such lack of consideration of the Veteran’s lay contentions not only renders such opinion inadequate, but also demonstrates the examiner’s failure to follow the directive of the Board’s last remand. The Board, again, agrees. In the last remand by the Board, the VA examiner was explicitly directed to speak to any potential etiological nexus regarding the Veteran’s bilateral knee disability, and that the Veteran’s contentions of inservice pain in his knees to be competent and credible. Here, the September 2020 VA examiner’s opinion not only ignores such directive, by not speaking to the Veteran’s lay contentions of pain arising during his active service, but the examiner uses the lack of evidence of an in-service incurrence as the sole basis for a negative nexus finding. To this end, the examiner explicitly even states that any such injury/incurrence to the knees would manifest with immediate symptoms, which is not shown of record. Again, this is not true considering the Veteran’s lay complaints of knee pain during, and since, service. As such, the Board finds that remand is required for the VA to fulfill its duty to the Veteran and acquire adequate opinions regarding the etiology of his claimed disabilities. The matters are REMANDED for the following action: 1. For the vertigo claim, submit the file to a VA examiner who has not previously examined the Veteran or provided an opinion regarding any of his claimed disabilities. The claims file must thoroughly be reviewed by the examiner. If the examiner is not available, another appropriate medical professional may be consulted. If the examiner determined another VA examination is necessary, one should be provided. The examiner must determine if it is at least as likely as not (50 percent or greater probability) that any currently diagnosed vertigo began in service or is otherwise related to service, or is caused or aggravated beyond its natural progression by his service-connected disabilities, to include tinnitus and his acquired psychiatric conditions, and to include as due to medications take for such. The opinion must address causation and aggravation, which are two separate inquiries. The examiner is directed to discuss correspondence submitted by the Veteran in September 2014, “PTSD and Physical Health” in the opinion. A full and complete rationale for the opinion is required. 2. For the acid reflux disorder claim, submit the file to a VA examiner who has not previously examined the Veteran or provided an opinion regarding any of his claimed disabilities. The claims file must thoroughly be reviewed by the examiner. If the examiner determined another VA examination is necessary, one should be provided. The examiner must determine if it is at least as likely as not (50 percent or greater probability) that any currently diagnosed acid reflux began in service or is otherwise related to service, or is caused or aggravated beyond its natural progression by his service-connected disabilities, to include tinnitus and his acquired psychiatric conditions, and to include as due to medications take for such. The opinion must address causation and aggravation, which are two separate inquiries. The examiner is directed to discuss correspondence submitted by the Veteran in September 2014, “PTSD and Physical Health” in the opinion. A full and complete rationale for the opinion is required 3. For the knee disorder claims, submit the file to a VA examiner who has not previously examined the Veteran or provided an opinion regarding any of his claimed disabilities. The claims file must thoroughly be reviewed by the examiner. If the examiner is not available, another appropriate medical professional may be consulted. If the examiner determined another VA examination is necessary, one should be provided. The examiner must determine if it is at least as likely as not (50 percent or greater probability) that any currently diagnosed knee disability, including but not limited to patellofemoral pain syndrome and degenerative arthritis of the knees, began in service or is otherwise related to service, to include his duties as an infantryman and the stress he contends he put on his knees during his active service. The examiner is notified that the Veteran’s statements regarding symptoms that started in service are credible. (Continued on the next page) A full and complete rationale for the opinion is required. DELYVONNE M. WHITEHEAD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Ziheng Zhu, 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.