Citation Nr: 21027169 Decision Date: 05/04/21 Archive Date: 05/04/21 DOCKET NO. 06-25 948 DATE: May 4, 2021 REMANDED The claim of entitlement to service connection for vertigo, to include as secondary to service-connected bilateral hearing loss, is remanded. The claim of entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1951 to July 1962. He died in December 2017. The appellant is his surviving spouse, who has been substituted for the Veteran in the appeal. This appeal to the Board of Veterans Appeals (Board) arose from a June 2006 rating decision in which a Department of Veterans Affairs (VA) Regional Office (RO) denied service connection for vertigo, as well a TDIU. The Veteran timely disagreed with, and perfected an appeal as to, the denials of both claims. In a July 2007 decision, the Board, denied the claims on appeal. The Veteran appealed the Board's denial to the United States Court of Appeals for Veterans Claims (Court). In May 2008, the parties filed a Joint Motion for Remand, requesting that the Court vacate the Board's decision, and remand the claims on appeal to the Board for further adjudication. The Court granted the motion. The Board later denied the Veteran's claims in a February 2009 decision. The Veteran again appealed the Board's denials to the Court, and, in August 2010, the Court again vacated the Board's decision, and remanded the claims to the Board for further adjudication. In March 2011 and November 2011, the Board remanded the claims on appeal. In February 2018, the Board dismissed the claims on appeal due to the Veteran's death. As noted above, the appellant's request to substitute for claims pending at the time of the Veteran's death was granted in April 2019. In December 2019 and July 2020, the Board remanded the claims on appeal to the agency of original jurisdiction (AOJ) for further action. Also, this appeal has been advanced on the Board's docket pursuant to 38 U.S.C. § 7107 (a)(2) and 38C.F.R. §20.900 (c). Unfortunately, the Board finds that still further AOJ action on the claims on appeal is warranted, even though such will, regrettably, further delay an appellate decision on these matters. A remand by the Board confers upon a veteran, as a matter of law, the right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. See Stegall v. West, 11 Vet. App. 268 (1998). In the December 2019 remand, the Board found that the March 2015 VA examiner failed to address direct service connection, as requested by the Board. The Board also found that the examiner failed to address whether the Veteran's labyrinthitis shown in 1998 was at least as likely as not caused or worsened by the Veteran's service-connected hearing loss, also requested by the Board. Further, the Board found that in addressing service connection on a secondary basis, the examiner did not explain his basis for concluding that there is no evidence of an interrelationship between hearing loss, tinnitus, and vertigo, as requested. Thus, the Board remanded the service connection claim (along with the intertwined TDIU claim) to obtain adequate medical opinion to address the noted deficiencies. In March 2020, a VA physician provided negative opinions for both direct and secondary service connection. For direct service connection, the examiner reasoned that the Veteran's onset of vertigo was 28 years after service, that vertigo is not precipitated by tinnitus or hearing loss, and that there was insufficient data to support vertigo as a direct result of the Veteran's military service. For secondary service connection, the examiner reasoned that vertigo that occurred in 1998 was fundamentally unrelated to hearing loss, there is no documented evidence to support secondary service connection with hearing loss, and there is no evidence of an interrelationship between hearing loss, tinnitus, and vertigo to diagnose Meniere's syndrome. In July 2020, the Board again found that the March 2020 addendum was inadequate to resolve the claim. The Board noted that the March 2020 VA physician repeated the same reasoning provided in the March 2015 opinion and also relied on absence of documented evidence of a diagnosis or associated symptoms in forming the negative opinion. Specially, the Board found that the examiner did not address the Veteran's labyrinthitis shown in 1998 and the examiner also the examiner again did not explain his basis for concluding that there is no evidence of an interrelationship between hearing loss, tinnitus, and vertigo, as requested. Thus, the Board again remanded the service connection claim (along with the intertwined TDIU claim) to obtain adequate medical opinion to address the noted deficiencies A medical opinion was obtained in February 2021, however, the Board notes that it is identical to the opinions previously obtained and the examiner, again, did not specifically address the labyrinthitis in 1998 or provide any reasoning for concluding that there is no evidence of an interrelationship between hearing loss, tinnitus, and vertigo, as was requested by the Board. See Stegall v. West, 11 Vet. App. 268 (1998); see Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008) (holding most of the probative value of a medical opinion comes from its reasoning). Under these circumstances, the Board finds that remand of the service connection claim to obtain adequate medical opinion based on full consideration of the Veteran's documented medical history and assertions and supported by clearly stated rationale is warranted. Stegall, supra; See also Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (once VA undertakes the effort to provide an examination or to otherwise obtain an opinion when developing a service connection claim, it must provide or obtain one that is adequate for purposes of the determination being made). With respect to the TDIU claim, the Board points out that, as service-connected bilateral hearing loss disability and vertigo were identified as factors in the Veteran's unemployability, and any decision with respect to service connection claim for vertigo being developed may well affect the claim for a TDIU, the claims are inextricably intertwined. See Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). As the claims should be considered together, it follows that, any Board action on the TDIU claim, at this juncture, would be premature. Hence, this matter is being remanded, as well. The matters are REMANDED for the following action: 1. Arrange to obtain from an appropriate physician who has not offered an opinion in connection with this appeal and addendum opinion addressing the etiology of the late Veteran's disability claimed as vertigo. The contents of the entire, electronic claims file, to include a complete copy of this REMAND, must be made available to the designated individual, and the addendum opinion should reflect consideration of the Veteran's documented medical history and his and the appellant's lay assertions. After review of all pertinent lay and medical evidence, the physician should provide an opinion, consistent with sound medical judgment, as to whether it is at least as likely as not (i.e. a 50 percent or greater probability) that the disability claimed as vertigo: (a) had its onset during service or was otherwise medically related to the Veteran's service; or, if not, (b) was caused OR aggravated (worsened beyond the natural progression) by the Veteran's bilateral hearing loss. Both aggravation and causation must be addressed. If aggravation is found, the physician should attempt to quantify the degree of additional disability resulting from such aggravation, to include by determining, o the extent possible, the baseline level of severity of the disability prior to the aggravation. In addressing the above, the physician must consider and discuss all relevant medical and other objective evidence, as well as all lay assertions, to include assertions as to the nature, onset, and continuity of symptoms. The examiner MUST address whether the Veteran's labyrinthitis shown in 1998 was at least as likely as not caused or worsened by the Veteran's service-connected hearing loss. If the examiner finds that there is no evidence of an interrelationship between hearing loss, tinnitus, and vertigo, the examiner MUST explain his or her basis for reaching this conclusion. Complete, clearly stated rationale for the conclusions reached must be provided. 2. To help avoid future remand, ensure that the requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. See Stegall, supra. Zi-Heng Zhu Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Hammad Rasul, 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.