Citation Nr: 21026848 Decision Date: 05/04/21 Archive Date: 05/04/21 DOCKET NO. 16-36 016A DATE: May 4, 2021 REMANDED Entitlement to service connection for benign paroxysmal positional vertigo, to include as secondary to service-connected bilateral hearing loss, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Navy from September 1967 to August 1971. This matter is before the Board of Veterans' Appeals (Board) on appeal from a February 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In July 2017, the Veteran and his wife testified before the undersigned Veterans Law Judge at a video conference hearing. A transcript of this hearing is of record. The Board remanded this matter in November 2018 for additional development. Unfortunately, as explained below, the Board is not satisfied that there was substantial compliance with the remand. As such, the Veteran's appeal must be remanded once again. See Stegall v. West, 11 Vet. App. 268, 271 (1998); D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). 1. Entitlement to service connection for benign paroxysmal positional vertigo, to include as secondary to service-connected bilateral hearing loss, is remanded. The Veteran seeks entitlement to service connection for benign paroxysmal positional vertigo. VA medical records document that the Veteran has a current diagnosis of benign paroxysmal positional vertigo. In his July 2017 hearing, the Veteran testified that his vertigo had its onset at the same time as his hearing loss diagnosis in 2009. The Veteran also stated that he believed his vertigo was secondary to his bilateral hearing loss. In its November 2018 remand, the Board directed the RO to schedule the Veteran for a VA examination and to obtain a medical opinion on his behalf. Further, in the remand, the Board specifically instructed that a medical opinion be obtained to address the theory of entitlement to service connection on a secondary basis. Pursuant to the November 2018 remand, the Veteran underwent a VA examination in November 2020 to determine the nature and etiology of his benign paroxysmal positional vertigo. Upon examination, the VA examiner confirmed a diagnosis of benign paroxysmal positional vertigo. The examiner opined that the Veteran's benign paroxysmal positional vertigo was less likely than not incurred in or caused by his service. The examiner based her negative opinion solely on the lack of documented treatment during service or within one year of service. An opinion based on a lack of in-service treatment or diagnosis without consideration of a veteran's competent reports is inadequate. See Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007); see also Smith v. Derwinski, 2 Vet. App. 137, 140 (1992). Moreover, the examiner did not provide an opinion with regard to secondary service connection. In February 2021 the Regional Office (RO) obtained an addendum medical opinion from the same VA physician who provided the November 2020 medical opinion. However, review of the opinion reveals that the examiner did not address secondary service connection or the etiology of the Veteran's condition, instead she described the symptoms the Veteran experiences due to his benign paroxysmal positional vertigo. Later that month, the RO sought an additional addendum from the same VA physician as she still had not responded to the request as written. The response from the examiner again was inadequate as it did not discuss the relationship between the Veteran's benign paroxysmal positional vertigo and his service-connected bilateral hearing loss, but rather listed causes, symptoms, and treatment for the condition. In light of the above, the Board finds that the Veteran's claim must be remanded once again because the RO did not comply with the Board's prior remand directive to obtain an adequate medical opinion on the Veteran's behalf. See Stegall, 11 Vet. App. at 268. On remand, an addendum medical opinion must be obtained that is adequate for the Board to make an informed decision on the Veteran's claim. See Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007); Douglas v. Shinseki, 23 Vet. App. 19, 26 (2009). The matters are REMANDED for the following action: 1. Forward the Veteran's claims file to a qualified VA examiner (M.D.) who has not yet provided an opinion in this case to provide an addendum opinion. A full VA examination should not be scheduled unless deemed necessary by the examiner or otherwise required by the evidence. The examiner must review the claims file in its entirety, to include a copy of this REMAND, and that review must be noted in the report. Thereafter, the examiner is asked to provide a fully-articulated medical opinion addressing the following: (a) Is it at least as likely as not (50 percent or greater probability) that the Veteran's benign paroxysmal positional vertigo had its clinical onset during the Veteran's active duty service or within one year of separation, or is otherwise etiologically related to his active duty service? (b) Is it at least as likely as not (50 percent or greater probability) that the Veteran's benign paroxysmal positional vertigo was caused by his service-connected bilateral hearing loss? (c) Is it at least as likely as not (50 percent or greater probability) that the Veteran's benign paroxysmal positional vertigo was aggravated by (increased in severity beyond its natural progression) his service-connected bilateral hearing loss? The examiner is advised that the term "at least as likely as not" does not mean "within the realm of possibility." Rather, it means that the weight of the medical evidence both for and against the claim is so evenly divided that it is as medically sound to find in favor of the claim as it is to find against it. It is imperative that the medical opinion reconcile all available evidence of record, to include the Veteran's lay statements, service treatment records, post-service medical records, including all prior VA examinations and medical opinions, and any other pertinent evidence of record. The examiner is advised that the Veteran's lay statements of record must be considered and weighed in making the determination as to whether a nexus exists between the claimed disability and military service. It should be noted that a lack of documented treatment for the claimed disability in service, while probative, cannot serve as the sole basis for a negative finding. The examiner must provide a complete rationale for any opinions offered, citing to the examiner's own expertise, medical principals, and/or evidence in the record, when necessary, to support the conclusion reached. If an opinion cannot be reached without resorting to speculation, the examiner must fully explain why that is so. The Board reminds the examiner that failure to comply with the examination directives outlined herein will render the medical opinion inadequate and will result in further remand of the Veteran's claim. LESLEY A. REIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Rosenthal, Ariana 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.