Citation Nr: 21023403 Decision Date: 04/20/21 Archive Date: 04/20/21 DOCKET NO. 10-19 543 DATE: April 20, 2021 REMANDED The issue of entitlement to service connection for vestibular disability, to include vertigo and dizziness, is remanded. The issue of entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU), to include on an extra schedular basis, is remanded. REASONS FOR REMAND The Veteran had active service from September 1968 to September 1972. These issues were previously before the Board. In November 2020, the Board remanded the appeal to the agency of original jurisdiction (AOJ) for additional development. Specifically, the Board directed the AOJ to obtain updated treatment records and to afford the Veteran VA examinations from clinicians who have not examined him before. The AOJ scheduled the Veteran for VA examinations in February 2020. The AOJ, however, did not obtain updated treatment records and the latest VA Medical Center treatment record in the Veteran’s file was added in October 2019. Thus, there has not been substantial compliance with the remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). Following evidentiary development, the VA Appeals Management Center (AMC) continued the previous denials in a supplemental statement of the case (SSOC) issued in February 2021. The Veteran’s VA claims file has been returned to the Board for further appellate proceedings. Compliance with remand directives by the originating agency is not optional or discretionary. The Board errs as a matter of law when it fails to ensure remand compliance. See Stegall, 11 Vet. App. at 268. Also, when a VA examination is provided or when a VA opinion is obtained, the VA must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). In addition to the aforementioned failure to obtain updated treatment records, the Board finds the February 2020 VA examination to be inadequate as the examiner did not address all of the Veteran’s assertions and/or have not supported the opinion with adequate rationale. The February 2021 VA examiner remarked that “when there is a known cause [benign paroxysmal positional vertigo] is often associated with a minor to severe blow to your head.” Although the Board specifically noted that the Veteran’s service treatment records included a complaint of an in-service head injury in June 1971 and that there was no medical opinion of record addressing the possibility of a causal relationship between the in-service head injury and vestibular disability, the VA examiner did not specifically opine on the matter. As the examiner did not address the Veteran’s assertions, the examination is inadequate. See Moore v. Derwinski, 1 Vet. App. 401, 404 (1991) (“the Board must include in its decisions ‘the precise basis for that decision … [and] the Board’s response to the various arguments advanced by the claimant.’” (alterations in original) (quoting Gilbert, 1 Vet. App. at 53)). Regarding the Veteran’s TDIU claim, the February 2021 VA examiner did not offer any explanations other than marking that the Veteran required no restrictions for job activities. The Veteran is currently in receipt of a combined 30 percent rating for service-connected disabilities of tinnitus, right ankle strain with degenerative osteoarthritic changes, post-operative scar, and bilateral hearing loss. This contradicts prior VA examinations, such as the May 2017 VA examination that found that the Veteran’s right ankle disability impacted his ability to perform some occupational tasks. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (“most of the probative value of a medical opinion comes from its reasoning”); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (“[A] medical opinion must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions”). The matters are REMANDED for the following: 1. Updated treatment records should be obtained and added to the claims file/e-folder. Any attempts at obtaining updated treatment records should be documented and also added to the claims file/e-folder. 2. Obtain an addendum VA medical opinion regarding the Veteran’s vestibular disability. Specifically, the examiner must opine whether it is at least as likely as not (50 percent or greater probability) that a vestibular disability was incurred in service, to include his head injury in June 1971. A rationale for all opinions is to be provided. All pertinent evidence, including both lay and medical, should be considered. If an opinion cannot be given without resorting to speculation, the examiner should explain why and state whether the need to speculate is due to a deficiency in the state of general medical knowledge, the record, or the examiner. The need for another examination is left to the discretion of the examiner offering the addendum opinion. 3. Then, provide the Veteran’s claims file to an appropriate clinician to provide a retrospective opinion regarding the impact of the Veteran’s service-connected disabilities on his ability to work. The entire claims file and a copy of this remand must be made available to the examiner for review, and the examiner must specifically acknowledge receipt and review of these materials in any reports generated. Based on a review of the claims file, the examiner must provide a functional assessment of the Veteran’s service-connected disabilities and the occupational limitations associated with each of these conditions, without consideration or any mention of his age or non-service-connected disabilities. A complete rationale should be given for all opinions and conclusions expressed. If the examiner disagrees, in part or as a whole, with prior medical opinions of record, the examiner must specifically discuss them. If an opinion cannot be given without resorting to speculation, the examiner should explain why and state whether the need to speculate is due to a deficiency in the state of general medical knowledge, the record, or the examiner. The need for another examination is left to the discretion of the examiner offering the addendum opinion. Timothy Berryman Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board H. Yun 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.