Citation Nr: 21015933 Decision Date: 03/18/21 Archive Date: 03/18/21 DOCKET NO. 12-29 079 DATE: March 18, 2021 REMANDED Entitlement to service connection for a peripheral vestibular disorder is remanded. Entitlement to service connection for bilateral tilted optic discs is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Navy from September 1960 to October 1986. Following an August 2018 Memorandum Decision from the Court of Appeals for Veterans Claims (Court) vacating and remanding the Board’s July 2017 decision, the claims were brought before the Board again in March 2019 and were remanded for further development pursuant to the Court’s Order. 1. Entitlement to Service Connection: Vestibular Disorder Although the Board sincerely regrets further delay, another remand is required to provide the Veteran every possible consideration. The Veteran contends that he currently suffers from a peripheral vestibular disorder manifested by dizziness and vertigo that is related to his active duty service. The Board finds that the Regional Office (RO) did not substantially comply with the terms of the Board’s March 2019 remand. Stegall v. West, 11 Vet. App. at 270-71. In March 2019, the Board remanded the claim and advised the RO to obtain a new opinion that specifically considered the Veteran’s statements as sufficient proof of in-service occurrence based on the 38 U.S.C. § 1154(b) combat service presumption. However, the January 2021 examiner based the opinion on the lack of treatment or diagnosis for the claimed condition in his in-service records and did not consider the Veteran’s statements regarding in-service occurrence. It appears the RO acknowledged the examiner did not provide an adequate opinion in a January 2021 deferred rating; however, a Supplemental Statement of the Case was issued shortly after denying the claim. The Board notes that the Court held in Stegall that a remand by the Board confers on the appellant, as a matter of law, the right to compliance with remand order. See Stegall, 11 Vet. App. at 268. Therefore, remand for a VA addendum opinion is necessary. 2. Entitlement to Service Connection: Bilateral Tilted Optic Discs The Veteran contends that his bilateral tilted optic discs are related to and/or were aggravated by his active duty service. In the Court’s August 2018 Memorandum Decision, the Court found that the Veteran’s bilateral tilted optic disc condition was to be considered along with his other eye disability(s) claim. Specifically, the Court found that if any of the other eye disabilities that were still on appeal were service-connected, then the Board’s finding that “no medical evidence of record supports the argument that the tilted optic discs were aggravated by any superimposed injury or disease during service” would be erroneous. Following the Board’s March 2019 remand, the Regional Office (RO) granted service connection for the Veteran’s peripheral retinal degeneration. In accordance with the Court’s August 2018 Memorandum, and due to the RO granting an additional eye disability, the Board finds that a remand is required in order to obtain a new opinion that considers whether the Veteran’s now service-connected peripheral retinal degeneration was a superimposed injury that aggravated the Veteran’s bilateral tilted optic disc condition. The matters are REMANDED for the following action: 1. Return the claims file to the VA examiner who provided the January 2021 VA opinion on the Veteran’s vestibular disorder. The record and a copy of this Remand must be made available to the examiner. If the examiner determines that an examination of the Veteran is necessary to provide the requested opinion with rationale, then such examination should be scheduled and may be conducted via telehealth or similar service during the social distancing restrictions of the COVID-19 pandemic. If the January 2021 VA examiner is not available, the requested opinion with rationale should be rendered by another appropriate medical professional. Following a review of the entire record, to include the Veteran’s lay statements concerning his in-service occurrence, as well as the onset of the current symptomatology, the examiner should opine as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s peripheral vestibular disorder had its onset in service or is otherwise related to his active service. The examiner is asked to consider the Veteran’s reports of in-service dizziness and vertigo. If there is any medical reason to accept or reject the proposition that the Veteran’s reported injury and symptoms in service and thereafter represented the onset of his/her current disability, this should be noted. Stated another way, do the Veteran’s reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran’s reports generally inconsistent with medical knowledge or implausible? In offering any opinion, the examiner must consider the full record, to include all the lay statements, and the opinion should reflect such consideration.  A clearly stated rationale for any opinion offered should be provided and must not be based solely on the lack of any in-service records.   If the examiner is unable to provide an opinion without resort to speculation, he or she should explain whether the inability is due to the limits of the examiner’s medical knowledge, medical knowledge in general or there is evidence that, if obtained, would permit the opinion to be provided.   2. Send the claims to an appropriate examiner to determine etiology of the Veteran’s bilateral tilted optic discs. A copy of this remand should be made available to the examiner.  If the examiner determines the requested opinion cannot be provided without an examination, then such examination should be scheduled and may be conducted via telehealth or similar service during the social distancing restrictions of the COVID-19 pandemic. Following a review of the entire record, the Veteran’s competent lay statements, as well as the Veteran’s documented reports regarding the onset and progression of his current symptomatology, the examiner should opine whether the Veteran’s congenital defect of bilateral tilted optic disc was aggravated by a superimposed injury, to include his peripheral retinal degeneration. In offering any opinion, the examiner must consider the full record, to include all the lay statements, and the opinion should reflect such consideration.  A clearly stated rationale for any opinion offered should be provided and must not be based solely on the lack of any in-service records.    If the examiner is unable to provide an opinion without resort to speculation, he or she should explain whether the inability is due to the limits of the examiner’s medical knowledge, medical knowledge in general or there is evidence that, if obtained, would permit the opinion to be provided.   JENNIFER HWA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Negron, 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.