Citation Nr: 21042526 Decision Date: 07/13/21 Archive Date: 07/13/21 DOCKET NO. 15-32 806 DATE: July 13, 2021 REMANDED Entitlement to service connection for vertigo, to include as secondary to service-connected disabilities is remanded. Entitlement to service connection for sleep apnea, to include as secondary to service-connected disabilities is remanded. REASONS FOR REMAND The Veteran, who is the appellant in this case, had service from September 1977 to September 1979 and from August 1981 to September 1996, with reserve duty in between. This appeal comes to the Board of Veterans' Appeals (Board) from a July 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana. The Veteran testified at a Board hearing before the undersigned Veterans Law Judge (VLJ) in May 2018; a transcript of the hearing is associated with the claims file. In September 2018, the Board remanded the Veteran's claim for additional development. The claim has since been returned to the Board for further appellate action. The Board is not satisfied there was substantial compliance with its remand orders, despite the RO having returned medical opinions more than once for addendum opinions, some rationales are inadequate for adjudication purposes. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999); Stegall v. West, 11 Vet. App. 268, 271 (1998). Additionally, new argument from the Veteran through her representative and facts of the case require further development. 1. Entitlement to service connection for vertigo, to include as secondary to a service-connected disability is remanded. The Veteran contends that she is entitled to service connection for vertigo because of events, or injury during service, or as secondary to a service-connected disability, based on causation or aggravation. One of the Veteran's theories for service connection relates to events the Veteran described during her May 2018 Board hearing. The Veteran described being on a flight from Ft. McClellan to Kirtland AFB with bronchitis and experiencing extreme pain in her left ear during landing. When asked by her representative, the Veteran said it was not during her Army active duty, so it was likely during her time in the reserves. Duty status during the flight needs classification as active or inactive duty for training. The issue of vertigo was remanded by the Board in September 2018 for further development to include a medical opinion on this secondary causation theory of service connection. The examiner determined that the Veteran's vertigo resulted from calcium crystals in the ear that became dislodged and migrated to one of the Veteran's semicircular canals. According to the examiner's rationale, calcium crystals interfere with the normal fluid movement used by the canals to sense head motion causing dizziness. But the examiner did not explain how the crystals formed or became dislodged. Since the bronchitis and sinusitis preceded the vertigo, and both sinusitis and bronchitis are service connected, the question of what caused the crystals formation posed by the Veteran's representative in their June 2021 Appellate Brief seems a valid one that needs answering prior to the Board's rendering a decision on this issue. Therefore prior to deciding, the Board has a series of related questions that need answering. 1. Was the Veteran on active duty for training during the flight from Alabama to New Mexico when she experienced ear pain? 2. Does infection cause the formation of calcium crystals responsible for the Veteran's vertigo? 3. Is it possible the crystal formation and resulting vertigo is caused by the bronchitis or sinusitis infections? Another possible cause of the Veteran's vertigo is her service-connected PTSD. The Veteran described symptoms of anxiety due to being discriminated against and passed over for promotion because of her gender. Is it possible the Veteran's anxiety causes hormonal imbalance which causes or aggravates her vertigo beyond its normal progression? The Board finds remand is needed to get answers for these questions prior to deciding the issue. 2. Entitlement to service connection for sleep apnea, to include as secondary to a service-connected acquired psychiatric disorder is remanded. The Veteran believes sleep apnea started in service or is secondary to her service-connected post traumatic stress disorder (PTSD) or to her deviated septum operation residuals. The Veteran last underwent a sleep study in April 2002, that diagnosed her with obstructive sleep apnea. The Veteran's CAPRI records list the issues as Other and Unspecified sleep apnea and not Obstructive sleep apnea. The Board remanded the issue of sleep apnea for further development in September 2018, and the examiner based his opinion on the April 2002 diagnosis of obstructive sleep apnea (OSA) only without discussion of the other sleep apnea diagnoses listed in the CAPRI records. The Veteran's representative contends this oversight makes the opinion inadequate. In denying service connection for OSA, the examiner explained that the Veteran's deviated nasal septum surgery causation theory put forth in her August 2015 Form 9, Appeal to the Board, could not cause OSA. The examiner explained that the deviated septum could not cause total blockage required for OSA. In response the Veteran's representative asks in their June 2021 Appellate Brief if it could cause the other types of sleep apnea listed in the Veteran's CAPRI records. The Veteran's representative argues the examination is inadequate because it failed to discuss and explain the other forms of sleep apnea listed and to determine if the deviated septum could cause those forms of sleep apnea. Additionally, since there has not been a polysomnography since 2002, which determines the type of sleep apnea, perhaps the Veteran has one of the other sleep apnea types listed in the Veteran's CAPRI records that would support the deviated septum residuals theory as a plausible cause for the Veteran's sleep disability. Additionally, a close reading of the file reveals another possible service connection theory for the Veteran's sleep apnea. The Veteran has also alleged that the sleep apnea is also a result of her PTSD. The examiner did not provide an opinion as to the relationship, if any, between the sleep apnea and PTSD. The Board regrets the additional delay, but finds additional development is needed prior to deciding these issues to give the Veteran every chance at service connection. The matters are REMANDED for the following action: 1. Update the record with this remand order and any missing CAPRI records since February 2021. Determine if the Veteran was on active duty for training or otherwise on active duty during the flight from Alabama to New Mexico when she experienced severe left ear pain. 2. Schedule the Veteran for an examination by an appropriate clinician for a new polysomnography to determine the nature, etiology, and classification (unspecified, obstructive, or other) of sleep apnea. The examiner must opine on the following: (a.) whether it is at least as likely as not related to an in-service injury, event, or disease, including symptoms of snoring that have continued since service. (b.) whether it is at least as likely as not (50 percent probability or greater) proximately due to a service-connected disability, to include an acquired psychiatric disorder. (c.) if the Veteran is diagnosed with an unspecified or other sleep apnea, is it at least as likely as not (50 percent probability or greater) proximately due to the Veteran's deviated septum operation residuals? (d.) whether it is at least as likely as not aggravated beyond its natural progression by a service-connected disability, to include a psychiatric disorder? A complete rationale for all opinions is required. 3. Forward the claims file to an appropriate examination to obtain an addendum opinion as to the nature and etiology of the claimed vertigo. An examination should not be scheduled unless the examiner deems one necessary. After reviewing the record, the examiner should provide an opinion regarding the following: (a.) whether the Veteran's vertigo is at least as likely as not related to an in-service injury, event, or disease, to include the Veteran's reported ear pain in-service during the flight from Ft. McClellan to Kirtland AFB with bronchitis. (b.) whether the Veteran's vertigo due to calcium crystal formation is due to infection is at least as likely as not proximately due to a service-connected disability, to include infection transmission from bronchitis and sinusitis, or hormonal imbalance due to PTSD. (c.) whether the Veteran's vertigo is at least as likely as not aggravated beyond its natural progression by a service-connected disability, to include increased calcium crystal formation due to bronchitis, and sinusitis infections, or hormonal imbalance due to PTSD. A complete rationale for all opinions is required. H. SEESEL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Black, 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.