Citation Nr: 21029231 Decision Date: 05/13/21 Archive Date: 05/13/21 DOCKET NO. 15-08 500 DATE: May 13, 2021 REMANDED Entitlement to service connection for a seizure disorder is remanded. Entitlement to service connection for vertigo is remanded. Entitlement to service connection for chronic obstructive pulmonary disease (COPD) is remanded. Entitlement to service connection for osteoporosis is remanded. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service in the United States Army from March 1964 to February 1967. He testified before the undersigned Veterans Law Judge (VLJ) at a videoconference hearing in December 2019. A transcript of the hearing is of record. REASONS FOR REMAND Entitlement to service connection for a seizure disorder; entitlement to service connection for vertigo is remanded; entitlement to service connection for COPD is remanded; and entitlement to service connection for osteoporosis is remanded. There has not been substantial compliance with the Board's April 2020 remand directives and therefore, remand is required. Stegall v. West, 11 Vet. App. 268, 271 (1998). As it relates to the Veteran's claim for a seizure disorder, in January 2021, the VA examiner stated: Today's examination is consistent with the claimant having one grand mal seizure. The treating provider indicated that it was most likely due to his alcohol use, however, there is a strong link between OSA causing seizures. There is no medical record evidence that the claimant's current grand mal seizure is due to the claimant's service-connected psychiatric disorder, PTSD, and generalized anxiety disorder during military service. This opinion is problematic for several reasons. First, the examiner did not consider the private DBQ dated in July 2013 indicating that, in addition to the grand mal seizure, the Veteran has experienced minor and major psychomotor seizures characterized by generalized tonic-clonic convulsions and episodes of unconsciousness during the appeal period. The Veteran's grand mal seizure occurred prior to the appeal period. However, the question before the examiner was whether the Veteran's currently diagnosed seizure disorder was at least as likely as not related to his service-connected psychiatric disability. Second, by a March 2021 rating decision, the Veteran was granted service connection for sleep apnea. The January 2021 VA examiner stated, "there is a strong link between OSA causing seizures." However, VA treatment records show that sleep apnea was not diagnosed until 2015, approximately 4 years after the Veteran's grand mal seizure. Because the examiner was only addressing the Veteran's one grand mal seizure, a sufficient opinion regarding any link between the Veteran's obstructive sleep apnea and seizure disorder was not provided. Moreover, the examiner did not provide any rationale for why the Veteran's seizure disability was less likely than not caused or aggravated by his psychiatric disability. The Veteran has contended that he began to drink heavily to cope with his psychiatric symptoms. His doctors have stated that his grand mal was due to his alcohol abuse, and that the Veteran was advised not to drink at all given the impact alcohol abuse can have on causing seizures. As such, remand is required for additional VA medical opinion. Regarding the Veteran's claims for vertigo and COPD, the January 2021 VA examiner opined that the Veteran did not have a current diagnosis. However, vertigo is capable of lay observation and the Veteran has testified that he experiences dizzy spells. Further, VA treatment records state that the Veteran "has intermittent vertigo (episodes lasting a few minutes) and has a cane for that. No issues with walking." See January 2021 VA Treatment Records. Further, private treatment records indicate that the Veteran has COPD that is stable and is currently being treated with Symbicort. Therefore, remand is required for additional VA medical opinion. Regarding the Veteran's osteoporosis, the examiner noted a diagnosis of cervical spine degenerative disc disease and stated: Today's examination is consistent with the claimant having cervical DDD. Clinically there is no medical evidence linking degenerative disc disease to the claimant's acquired psychiatric disorder, PTSD, and generalized anxiety disorder and there is no medical record evidence noting that the claimant's acquired psychiatric disorder, PTSD, and generalized anxiety disorder aggravated the DDD therefore is my opinion that the claimant's current complaint of cervical DDD is less likely than not [proximately due to his] acquired psychiatric disorder. The opinion not sufficient for adjudication purposes because it does not address the Veteran's lay contentions. The Veteran has contended that his years of drinking to cope with his mental health symptoms caused his osteoporosis. Further, although a diagnosis of cervical degenerative disc disease was noted, the examiner did not consider the Veteran's currently diagnosed osteopenia. See December 2019 VA Treatment Records (noting a diagnosis of osteopenia being treated with 200 units of Vitamin D daily). Thus, remand for additional VA medical opinion is necessary. The matters are REMANDED for the following action: 1. Obtain a VA medical opinion from an examiner other than the January 2021 VA examiner regarding the etiology of the Veteran's COPD. The need for an in-person examination is left to the discretion of the clinician. The examiner is to accept as fact that the Veteran has a current diagnosis of COPD unless there is affirmative evidence to the contrary. If so, as much should be identified and stated. After reviewing the entire claims file, the examiner should opine: (a) Whether the Veteran's COPD is at least as likely as not related to herbicide exposure, exposure to burn pits, or is otherwise related to service. A complete rationale for any opinion rendered must be provided. 2. Obtain a VA medical opinion from a clinician other than the January 2021 VA examiner regarding the etiology of the Veteran's seizure disorder. The need for an in-person examination is left to the discretion of the clinician. The examiner is to accept as fact that the Veteran has a current seizure disorder unless there is affirmative evidence to the contrary. If so, as much should be identified and stated. After reviewing the entire claims file, the examiner is asked to opine: (a.) Whether the Veteran's seizure disorder was at least as likely as not caused by his service-connected psychiatric disorder; and (b.) Whether the Veteran's seizure disorder was at least as likely as not aggravated by his service-connected psychiatric disorder. The Veteran contends that he had a seizure that was caused by his alcohol use and his private treatment records support this. He contends that his alcohol abuse was caused by his service-connected acquired psychiatric disorder. In rendering an opinion, the examiner must address the Veteran's contentions and provide a complete rationale for any medical opinion rendered. 3. Obtain a VA medical opinion from a clinician other than the January 2021 VA examiner regarding the etiology of the Veteran's osteopenia. The need for an in-person examination is left to the discretion of the clinician. After reviewing the entire claims file, the examiner is asked to opine: (a.) Whether the Veteran's osteopenia was at least as likely as not caused by his service-connected acquired psychiatric disorder; and (b.) Whether the Veteran's osteopenia was at least as likely as not aggravated by his service-connected acquired psychiatric disorder. The Veteran contends that his years of drinking to cope with his mental health symptoms caused his osteopenia. In rendering an opinion, the examiner must address the Veteran's contentions and provide a complete rationale for any medical opinion rendered. 4. Obtain a VA medical opinion from a clinician other than the January 2021 VA examiner regarding the etiology of the Veteran's vertigo. The examiner is to accept as fact that the Veteran has a vertigo disability unless there is affirmative evidence to the contrary. If so, as much should be identified and stated. The need for an in-person examination is left to the discretion of the clinician. After reviewing the entire claims file, the examiner is asked to opine: (a.) Whether the Veteran's vertigo was at least as likely as not caused by his service-connected acquired psychiatric disorder (or by the medications he takes for such disability); (b.) Whether the Veteran's vertigo was at least as likely as not aggravated by his service-connected acquired psychiatric disorder (or by the medications he takes for such disability); (c.) Whether the Veteran's vertigo was at least as likely as not caused by his now service-connected sleep apnea; (d.) Whether the Veteran's vertigo was at least as likely as not aggravated by his now service-connected sleep apnea; (e.) Whether the Veteran's vertigo was at least as likely as not caused by his non service-connected seizure disorder; and (f.) Whether the Veteran's vertigo was at least as likely as not aggravated by his non service-connected seizure disorder. A complete rationale for any medical opinion rendered must be provided. H.M. WALKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Martha R. Luboch, 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.