Citation Nr: 22008082 Decision Date: 02/11/22 Archive Date: 02/11/22 DOCKET NO. 15-38 131 DATE: February 11, 2022 REMANDED Entitlement to service connection for headaches, to include as due to exposure to Gulf War environmental hazards, is remanded. Entitlement to service connection for dizziness/vertigo, to include as due to exposure to Gulf War environmental hazards, is remanded. Entitlement to service connection for acid reflux is remanded. REASONS FOR REMAND The Veteran serve don active duty in the United States Army from November 1984 to August 1991. These matters come before the Board of Veterans' Appeals (Board) on appeal from June 2015, March 2016, and March 2018 rating decisions by a Department of Veterans Affairs (VA) Regional Office (RO), also referred to as the Agency of Original Jurisdiction (AOJ). The June 2015 rating decision denied service connection for sleep apnea and tinnitus. The Veteran submitted a November 2015 notice of disagreement (NOD) for the June 2015 rating decision, appealing the issues. The March 2016 rating decision denied service connection for left knee pain, shortness of breath, fibromyalgia, headaches, plantar fascitis, right knee pain, fatigue, acid reflux, irritable bowel syndrome, sinusitis, a neck condition, and chronic back pain. The Veteran appealed these denials in a March 2016 NOD. The AOJ issued two statements of the case (SOC) in October 2016. One continued the findings of the June 2015 rating decision regarding sleep apnea and tinnitus. The other continued the finding of the March 2016 rating decision regarding left knee pain, shortness of breath, fibromyalgia, headaches, plantar fascitis, right knee pain, fatigue, acid reflux, irritable bowel syndrome, sinusitis, a neck condition, and chronic back pain. In November 2016, the Veteran filed two separate VA Form 9s, each appealing one SOC. The March 2018 rating decision denied service connection for vertigo, to which the Veteran submitted a NOD in April 2018. The AOJ continued its decision in a June 2018 SOC and the Veteran responded by submitting a VA Form 9 in July 2018. The Board issued a September 2018 decision addressing the appealed issues from the June 2015, March 2016, and March 2018 rating decisions. The Board denied service connection for tinea cruris, a back disability, a bilateral knee disability, chronic rhinitis, fibromyalgia, and shortness of breath. The Board granted service connection for tinnitus, a 30 percent rating for pseudofolliculitis with residuals scars/disfigurement effective July 25, 2011, a 20 percent rating for rectal condyloma effective July 25, 2011, and a 10 percent rating for hypertension. The Board remanded the issues of service connection for a psychiatric disorder, acid reflux, irritable bowel syndrome (IBS), a neck disability, headaches, fatigue, sleep apnea, and dizziness/vertigo for additional development. In February 2020, the AOJ issued a rating decision granting service connection for IBS. The Board notes the February 2020 rating decision was a complete grant of benefits with respect to the issue. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). As such, the issue is no longer on appeal. In April 2020, the Board issued a decision that denied service connection for fatigue and a neck disability and remanded the issues of service connection for dizziness/vertigo, headaches, posttraumatic stress disorder (PTSD), sleep apnea, and acid reflux, finding there had not been substantial compliance with its previous remand directives. An October 2020 rating decision by the AOJ granted the Veteran service connection for PTSD at 70 percent effective March 24, 2010. The Board notes the October 2020 rating decision granting service connection for PTSD was a complete grant of benefits with respect to the issue. See Grantham, supra. As such, the issue is no longer on appeal. An April 2021 Board decision remanded the issues of service connection for sleep apnea, headaches, dizziness/vertigo, and acid reflux as the AOJ had not readjudicated the issues after further developing them. In September 2021, the AOJ issued a rating decision that granted the Veteran service connection for his sleep apnea. The Board notes the September 2021 rating decision granting service connection for sleep apnea is a complete grant of benefits with respect to the issue. See Grantham, supra. As such, the issue is no longer on appeal. The remaining issues of service connection for headaches, dizziness/vertigo, and acid reflux are now before the Board for appellate consideration. In September 2018, April 2020, and April 2021, the present claims were remanded for further evidentiary development and readjudication. The Veteran is entitled to substantial compliance with all previous remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand by the Board imposes upon the Secretary of VA a concomitant duty to ensure compliance with the terms of the remand, and that the Board itself commits error as a matter of law in failing to ensure this compliance). The Board finds that the AOJ has substantially complied with the prior remand directives. 1. Entitlement to service connection for headaches, to include as due to exposure to Gulf War environmental hazards. 2. Entitlement to service connection for dizziness/vertigo, to include as due to exposure to Gulf War environmental hazards. 3. Entitlement to service connection for acid reflux. In December 2021 correspondence, the Veteran and his representative submitted a brief contending that his headaches, dizziness/vertigo, and acid reflux were caused or aggravated by his service-connected PTSD, sleep apnea, and IBS. Additionally, medical treatises allegedly supporting the Veteran's position were referenced. Secondary service connection opinions regarding sleep apnea and IBS have not been provided by VA, nor have opinions considered the medical treatise evidence provided in the December 2021 correspondence. As such, a remand is warranted. The matters are REMANDED for the following action: 1. Obtain an addendum opinion by an appropriate clinician regarding the nature and etiology of the Veteran's headaches. An examination of the Veteran should only be scheduled if the examiner determines one is necessary to obtain the requested opinions. After review of the claims file the examiner should respond to the following questions: (a.) Is it at least as likely as not (an approximate balance of positive and negative evidence) that the Veteran's headaches are proximately caused by the Veteran's service-connected disabilities, including PTSD, sleep apnea, and IBS? (b.) Is it at least as likely as not (an approximate balance of positive and negative evidence) that the Veteran's headaches are aggravated by the Veteran's service-connected disabilities, including PTSD, sleep apnea, and IBS? 1. The examiner should address all relevant medical treatises provided by the Veteran and his representative when formulating the opinions. 2. Obtain an addendum opinion by an appropriate clinician regarding the nature and etiology of the Veteran's dizziness/vertigo. An examination of the Veteran should only be scheduled if the examiner determines one is necessary to obtain the requested opinions. After review of the claims file, the examiner should respond to the following questions: (a.) Is it at least as likely as not (an approximate balance of positive and negative evidence) that the Veteran's dizziness/vertigo is proximately caused by the Veteran's service-connected disabilities, including PTSD, sleep apnea, and IBS? (b.) Is it at least as likely as not (an approximate balance of positive and negative evidence) that the Veteran's dizziness/vertigo is aggravated by the Veteran's service-connected disabilities, including PTSD, sleep apnea, and IBS? (c.) The examiner should address all relevant medical treatises provided by the Veteran and his representative when formulating the opinions. 3. Obtain an addendum opinion by an appropriate clinician regarding the nature and etiology of the Veteran's acid reflux. An examination of the Veteran should only be scheduled if the examiner determines one is necessary to obtain the requested opinions. After review of the claims file, the examiner should respond to the following questions: (a.) Is it at least as likely as not (an approximate balance of positive and negative evidence) that the Veteran's acid reflux is proximately caused by the Veteran's service-connected disabilities, including PTSD, sleep apnea, and IBS? (b.) Is it at least as likely as not (an approximate balance of positive and negative evidence) that the Veteran's acid reflux is aggravated by the Veteran's service-connected disabilities, including PTSD, sleep apnea, and IBS? (c.) The examiner should address all relevant medical treatises provided by the Veteran and his representative when formulating the opinions. The examiner is notified that the United States Court of Appeals for Veterans Claims held that causation and aggravation are independent concepts and should have separate findings and rationales. Atencio v. O'Rourke, 30 Vet. App. 74 (2018). As such, the clinician must provide separate findings and rationales relating to causation and aggravation. The mere absence of evidence of contemporaneous treatment in the service treatment records cannot, standing alone, serve as the sole basis for an unfavorable opinion. However, it is permissible to consider this as one factor in the determination regarding the origins of the claimed disability, providing there is also sufficient explanation as to why it is reasonable to have expectation of treatment in the circumstance presented. All opinions must be supported by a clear rationale. The examiner is asked to explain in detail the underlying reasoning for his or her opinion, to include citing to relevant evidence, supporting factual data, prior medical opinions, and medical literature, as appropriate. If any requested opinion cannot be provided without resorting to mere speculation, the examiner must explain why a more definitive response is not possible or feasible. In other words, merely saying he or she cannot respond will not suffice. K.A. KENNERLY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Lee Feldman, 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.