Citation Nr: 21031068 Decision Date: 05/20/21 Archive Date: 05/20/21 DOCKET NO. 13-31 464A DATE: May 20, 2021 REMANDED Entitlement to service connection for dizziness and loss of balance is remanded. Entitlement to service connection for swollen face and jaw is remanded. Entitlement to service connection for a left foot disorder is remanded. Entitlement to service connection for a right foot disorder is remanded. Preliminary Matters The Veteran had honorable active duty service with the United States Army from August 1965 to November 1968 and from April 1970 to September 1971. This matter is before the Board of Veterans' Appeals (Board) on appeal from a December 2010 rating decision of a VA Regional Office (RO). In April 2018, the Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing has been associated with the Veteran's electronic claims file. In July 2018, the Board, in pertinent part, remanded the instant issues on appeal for further development. The issues have returned to the Board for further appellate consideration. REASONS FOR REMAND Although further delay is regrettable, the Board finds that a remand is necessary in this case to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. 1. Entitlement to service connection for dizziness and loss of balance is remanded. Compliance with remand directives is not optional or discretionary, and the Board errs as a matter of law when it fails to ensure remand compliance. Stegall v. West, 11 Vet. App. 268, 271 (1998). In the July 2018 decision/remand, the Board directed the Agency of Original Jurisdiction (AOJ) to afford the Veteran with a VA examination to obtain an opinion as to the nature and etiology of the Veteran's claimed dizziness and loss of balance. The examiner was directed to address whether the Veteran's service-connected disabilities, to include tinnitus, caused or aggravated any current dizziness and loss of balance. In November 2019, a VA examiner provided a negative nexus opinion, indicating that the claim would be better addressed in the appropriate disability benefits questionnaire. Furthermore, the examiner did not provide an opinion addressing secondary service connection. In July 2020, the Veteran underwent a VA examination for his claimed dizziness and loss of balance. The July 2020 examiner opined that the Veteran's diagnosed dizziness and loss of balance are not directly related to service. The examiner noted that the Veteran's service treatment records show complaints of dizziness coupled with nausea; however, there was no continuation of symptoms during service and there was no mention of symptoms on the Veteran's separation examination. The examiner also noted that the Veteran's service treatment records were silent for complaints of loss of balance. The Board finds that this opinion has no probative value as it relies on the absence of evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). The July 2020 VA examiner further opined that diagnosed dizziness and loss of balance are less likely than not proximately due to or the result of the Veteran's service-connected disabilities, to include tinnitus and posttraumatic stress disorder (PTSD), as neither tinnitus nor PTSD would naturally progress to dizziness or loss of balance. The Court of Appeals for Veterans Claims (the Court) has indicated that findings of "not due to," "not caused by," and "not related to" a service-connected disability are insufficient to address the question of aggravation under 38 C.F.R. § 3.310(b) (2017). See El Amin v. Shinseki, 26 Vet. App. 136, 140 (2013). The Court has also indicated that an opinion that there is "no etiological relationship" may be insufficient to address the question of aggravation. See Allen, 7 Vet. App. at 449 ("[I]t is a big stretch of the English language to construe the phrase 'no etiological relationship between the veteran's service-connected right knee arthritis and the subsequent onset of left knee and bilateral hip arthritis' as encompassing aggravation, especially considering the use of the word 'onset.'"). In this case, the Board finds that the July 2020 VA examiner's opinion addressing whether the Veteran's dizziness and loss of balance were caused or aggravated by service-connected disabilities is conclusory, as it simply suggests that there is no relationship with the service-connected disabilities. Thus, the Board finds that the foregoing opinion pertaining to the Veteran's dizziness and loss of balance is inadequate with regard to the analysis of the aggravation prong. Accordingly, to ensure compliance with the directives of the July 2018 decision/remand, a VA addendum opinion should be obtained for the claimed dizziness and loss of balance, which includes an adequate supporting rationale. See Stegall, 11 Vet. App. at 271. 2. Entitlement to service connection for swollen face and jaw is remanded. See Argument Below 3. Entitlement to service connection for a left foot disorder is remanded. See Argument Below 4. Entitlement to service connection for a right foot disorder is remanded In the July 2018 decision/remand, the Board also directed the AOJ to obtain private treatment records. The Board stated that if it was deemed that the records do not exist or that any additional attempts to obtain these records would be futile, "the record should be annotated to reflect such and the Veteran should be notified in accordance with 38 C.F.R. § 3.159(e)." Specifically, the AOJ was directed to obtain records from the specialty doctor that the Veteran was referred to for his jaw problems, as well as records from Dr. C.C. and Nona Medical Hospital for his feet problems. It does not appear that these private records have been associated with the Veteran's claims file. It is unclear to the Board whether such records do not exist or that any further efforts to obtain them would be futile. The claims file does not contain a formal determination that such records do not exist or that further efforts to obtain such records would be futile, or any notification to the Veteran of such a finding, as required by governing regulation. See 38 C.F.R. § 3.159(e). On remand, a release for these records should be obtained from the Veteran. Then, these records, or documentation of the AOJ's attempt to obtain these records, should be associated with the Veteran's file. Accordingly, to ensure compliance with the directives of the July 2018 decision/remand, the above outstanding records should be obtained, or documentation of the AOJ's attempts to obtain these records should be provided. See Stegall, 11 Vet. App. at 271. Furthermore, the Board notes that the Veteran submitted a VA Form 21-4142a (General Release for Medical Provider Information to the VA) in March 2020, listing Lake Butler Correctional Institution. The Board does not see that records from this provider were then added to the record. Accordingly, the Board asks that this be addressed upon remand. Also, as regards to the bilateral feet, in the July 2018 decision/remand, the Board noted that post service treatment records documented treatment for various foot disorders; thus, the Board expanded the Veteran's claim to encompass all of the Veteran's foot disorders made during the pendency of the appeal. Clemons v. Shinseki, 23 Vet. App. 1 (2009). The Board directed the AOJ to afford the Veteran with a VA examination to obtain an opinion as to the nature and etiology of the Veteran's claimed bilateral foot disorders. The examiner was instructed to provide an opinion as to all of the Veteran's foot disorders. The Veteran was afforded a VA examination for his feet in November 2019. The Board notes that the November 2019 VA examiner did not include a medical opinion for all diagnoses. Accordingly, a remand is necessary to obtain an additional medical opinion that considers all current bilateral foot disorder diagnoses. On remand, the AOJ should make appropriate efforts to ensure that all pertinent private treatment records and any updated VA records are associated with the claims file. The matters are REMANDED for the following action: 1. Identify and obtain any outstanding VA and private treatment records that are not already associated with the claims file, to include private treatment records relating to the Veteran's jaw condition from the specialty doctor, as well as records from Dr. C.C. and Nona Medical Hospital for his feet. The Veteran has also indicated that he received treatment from Lake Butler Correctional Institution. If any record identified cannot be obtained, the Veteran and his representative should be notified of this in writing, to include all efforts taken by VA to attempt to obtain any such record. The Veteran should also be offered the option to provide any such record himself. If any requested records are unavailable, or the search for such records otherwise yields negative results, that fact should be clearly documented in the record and the Veteran so notified in accordance with 38 C.F.R. § 3.159(e). All steps taken to attempt to obtain the above records should clearly be documented in the record. 2. After obtaining any outstanding records, return the claims file to the examiner who performed the July 2020 VA examination for the Veteran's dizziness and loss of balance. The Veteran's claims file and a copy of this remand should be provided to the examiner and the examination report should reflect that these items were reviewed. If the July 2020 examiner is not available, the claims file should be provided to an appropriate medical professional so as to render the requested opinion. If the examiner determines that another VA examination is necessary, one should be scheduled. If an examination cannot be scheduled at a location to which the Veteran can safely travel, or if health considerations make the scheduling of an in-person examination not possible, the AOJ should consider whether other virtual options, to include telehealth interviews or examinations are possible. If virtual alternatives are not feasible or possible, the AOJ should indicate as much, and medical opinions based on review of the Veteran's claims file should be obtained, in lieu of an in-person or virtual examination, addressing the etiology of the Veteran's claimed disability. The examiner must offer an opinion as to whether it is at least as likely as not that the Veteran's dizziness and loss of balance manifested during, or as a result of active military service, to include as secondary to his service-connected disabilities, to include tinnitus. The examiner is also asked to offer an opinion as to whether it is at least as likely as not that the Veteran's dizziness and loss of balance was either caused or aggravated beyond the natural progression by the Veteran's service-connected disabilities, to include tinnitus. The examiner is informed that aggravation here is defined as any increase in disability. If aggravation is present, the clinician should indicate, to the extent possible, the approximate level of disability (baseline) before the onset of the aggravation. A complete rationale must be provided for all opinions offered. If an opinion cannot be offered without resort to mere speculation, the examiner must fully explain why this is the case and identify what additional evidence, if any, would allow for a more definitive opinion. 3. Then, return the claims file to the examiner who performed the November 2019 VA examination for the Veteran's feet. The Veteran's claims file and a copy of this remand should be provided to the examiner and the examination report should reflect that these items were reviewed. If the November 2019 examiner is not available, the claims file should be provided to an appropriate medical professional so as to render the requested opinion. If the examiner determines that another VA examination is necessary, one should be scheduled. If an examination cannot be scheduled at a location to which the Veteran can safely travel, or if health considerations make the scheduling of an in-person examination not possible, the AOJ should consider whether other virtual options, to include telehealth interviews or examinations are possible. If virtual alternatives are not feasible or possible, the AOJ should indicate as much, and medical opinions based on review of the Veteran's claims file should be obtained, in lieu of an in-person or virtual examination, addressing the etiology of the Veteran's claimed disability. The examiner should identify all foot disorders that have been present during the period of the claim. For each diagnosed foot disorder during the claim period, the examiner must offer an opinion as to whether it is at least as likely as not that it manifested during, or as a result of active military service. A complete rationale must be provided for all opinions offered. If an opinion cannot be offered without resort to mere speculation, the examiner must fully explain why this is the case and identify what additional evidence, if any, would allow for a more definitive opinion. 4. After completing all indicated development, the Veteran's claims should be readjudicated based on the entirety of the evidence. If any benefit sought on appeal is not granted, the Veteran and his representative should be provided a Supplemental Statement of the Case (SSOC) and afforded the requisite opportunity to respond before the case is remanded to the Board. B. MULLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Y. MacDonald, Associate 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.