Citation Nr: 22011867 Decision Date: 03/02/22 Archive Date: 03/02/22 DOCKET NO. 15-26 566 DATE: March 2, 2022 ISSUES 1. Entitlement to service connection for a back disability. 2. Entitlement to service connection for chronic motion sickness. REMANDED Entitlement to service connection for a back disability is remanded. Entitlement to service connection for chronic motion sickness is remanded. REASONS FOR REMAND The Veteran served on active duty from March 1984 to March 1988, and from September 1989 to June 1993. This matter is before the Board of Veterans Appeals (Board) on appeal from February 2013 and February 2014rating decisions by the Department of Veterans Affairs (VA) Regional Offices (RO) in Montgomery, Alabama, and Nashville, Tennessee, respectively. The Veteran testified before the undersigned Veterans Law Judge (VLJ) in October 2015. A copy of the hearing transcript has been associated with the claims file. This case was previously before the Board in July 2018, July 2020 and June 2021. In the July 2018 decision, the Board, in pertinent part, remanded the Veteran's entitlement to service connection claims for a back disability and chronic motion sickness for further development. The Board also remanded the Veteran's increased rating claim for a bilateral hearing loss disability for further development. In the July 2020 decision, the Board denied the Veteran's entitlement to service connection claims for a back disability and chronic motion sickness. The Board also denied the Veteran's claim for entitlement to an increased rating for his service-connected bilateral hearing loss disability. In February 2021, the Veteran appealed to the United States Court of Appeals for Veterans Claims (CAVC) that part of the Board's decision which denied the Veteran's claim for entitlement to service connection for a back disability and chronic motion sickness. Pursuant to a February 2021 Joint Motion for Partial Remand (JMPR) and the February 2021 Order approved by the United States Court of Appeals for Veteran's Claims (CAVC), the parties agreed that the Board erred because it did not substantially comply with its earlier July 2018 remand instructions with respect to the Veteran's back disability claim. Second, the Court found that the Board erred because it did not provide an adequate statement of reasons or bases with respect to addressing favorable evidence pertaining to the Veteran's service connection claim for chronic motion sickness. See February 11, 2021 CAVC Order. In its June 2021 decision, to comport with the terms of the February 2021 JMPR, the Board remanded the Veteran's service connection claims for a back disability for a new VA examination. The Board also remanded the Veteran's service connection claim for chronic motion sickness for an addendum medical opinion. While the VA examination and addendum medical opinion did take place, the Board finds there has not been substantial compliance with its June 2021 remand. Stegall v. West, 11 Vet. App. 268 (1998). Hence, this matter is remanded to Agency of Original Jurisdiction (AOJ) for further evidentiary development. The Board is also cognizant that in October 2021 correspondence, the Veteran requested the appeal be held in abeyance for 90 days to allow him to submit additional evidence in support of his claim. See October 21, 2021, VA Form 21-4138. While VA did not formally reply to this request, that period of time has lapsed, and no additional evidence has been received. Moreover, as this matter is being remanded for further development, he will have another opportunity to submit additional evidence to support his claims. Entitlement to service connection for a back disability. The Veteran asserts that his back disability is related to service. See August 15, 2012 VA Form 21-4138 Statement in Support of Claim. During the course of this appeal, the Veteran has been afforded Back Condition examinations in February 2013, March 2019 and August 2021. In light of the findings of the February 2021 JMPR, the Board found the March 2019 examination inadequate adjudication purposes because the examiner did not consider or address the Veteran's credible October 2015 Board Hearing testimony regarding continuous symptoms since separation. See February 2021 JMPR re: prior remand requesting VA examiner to specifically consider the Veteran's credible October Board Hearing testimony, pgs. 4-5; June 2021 Board remand, pg. 7. Pursuant to the Board's June 2021 remand, the Veteran was afforded an August 2021 Back Conditions examination to determine the nature and etiology of his back disability. In this examination, the examiner offered an unfavorable nexus opinion. The August 2021 examiner reasoned that "during service lumbar condition, was acute only. There is no evidence of chronicity of care. A nexus has not been established." See August 28, 2021 Back Conditions Medical Opinion, pg. 2. The Board notes however that the examiner, once again, did not address the Veteran's credible testimony from his October 2015 Board Hearing with respect to his report of continuous symptoms since service. The Board notes that the examiner was also directed to consider the Veteran's military occupational duties involving heavy lifting during service. See July 2021 BVA Remand, pgs. 4-5; See also, March 2015 Board Hearing transcript, pgs. 8-15. Additionally, the Board notes that while the examiner concluded that the Veteran's lumbar condition was acute only, there is no discussion or explanation with respect to service treatment records that show complaints of back pain during service. See, e.g., August 20, 1986; February 12, 1990; August17, 1992; October 2, 1992 and November 12, 1992 service treatment records re: complaints of back pain. See Miller v. West, 11 Vet. App. 345, 348 (1998) (a bare conclusion is not probative without a factual predicate in the record). As referenced in the introduction of this decision, the Board is also cognizant that following his August 2021 Back Conditions examination, the Veteran submitted a written statement in October 2021 expressing concern his lay statements regarding continuity of symptoms since separation from service were not considered by the August 2021 Back Conditions examiner. See October 21, 2021 VA Form 21-4138, Statement in Support of Claim. After careful review of the August 2021 medical opinion, the Board finds that a new VA medical opinion addressing the nature and etiology of this Veteran's back disability is warranted. First, under Stegall, a remand by the Board confers on the veteran the right to compliance with its remand orders. Stegall v. West, 11 Vet. App. 268 (1998). Here, as outlined above, the examiner did not address the Veteran's credible October 2015 Board Hearing testimony regarding continuous symptoms since separation from service. Second, by not addressing the Veteran's credible October 2015 Board Hearing testimony regarding continuity of symptoms since separation, the examiner's rationale appears to be based entirely on the absence of treatment records during and after service to establish an unfavorable nexus opinion. See Dalton v. Nicholson, 21 Vet. App. 23 (2007) (an examination must consider lay evidence of an in-service incurrence or continuity of symptomatology since service). Third, it is not clear from the August 2021 examiner's rationale as to why the Veteran's in-service treatment and complaints about back pain are acute only. See Miller v. West, 11 Vet. App. 345, 348 (1998) (a bare conclusion is not probative without a factual predicate in the record); See also, D'Aries v. Peake, 22 Vet. App. 97, 104 (2008). If an examination report is inadequate or fails to contain sufficient detail, the Board is required to return the report. See Bowling v. Principi, 15 Vet. App. 1, 12 (2001) Hence, the Board finds that an addendum medical opinion is required prior to adjudication of this appeal to determine the nature and etiology of this Veteran's back disability. Entitlement to service connection for chronic motion sickness. The Veteran asserts that his chronic motion sickness disability is related to service. See April 3, 2014 Notice of Disagreement (NOD). During the course of this appeal, the Veteran has been afforded VA examinations in March 2019 and August 2021 to determine the nature and etiology of his chronic motion sickness disability. In order to comport with the terms of the February 2021 JMPR, the Board remanded the Veteran's claim for an addendum medical opinion to (1) address favorable evidence with respect to the Veteran's diagnosis of chronic motion sickness during service and (2) consider and address the Veteran's lay statement regarding any pertinent symptomatology during service and since his separation from service. See June 2021 Board remand, pgs. 4-9. In an August 2021 Medical opinion, the examiner offered an unfavorable nexus opinion. The examiner reasoned that "the Veteran was diagnosed with Vertigo in 2010 which was long after his military service. The motion sickness was a separate condition from the Veteran's complaint of Vertigo." See August 28, 2021, Medical Opinion, pg. 2; See also, August 28, 2021 Ear Conditions examination. The Board finds this medical opinion inadequate for the following reasons. First, while the examiner concludes that the Veteran's in-service motion sickness was a separate condition from the Veteran's current complaint of Vertigo, in the absence of an explanation or discussion of any facts or medical principles to support this conclusion, the Board is without the detail necessary to make a fully informed decision on this Veteran's appeal. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning). See also, D'Aries v. Peake, 22 Vet. App. 97, 104 (2008). If an examination report is inadequate or fails to contain sufficient detail, the Board is required to return the report. See Bowling v. Principi, 15 Vet. App. 1, 12 (2001). Second, the examiner does not address the Veteran's lay statements regarding any pertinent symptomatology during service and since separation, as specifically directed by the Board's June 2021 Board Remand. A remand by the Board confers on the veteran the right to compliance with its remand orders. Stegall v. West, 11 Vet. App. 268 (1998). The Board is also cognizant that subsequent to his August 2021 examination, the Veteran submitted a written statement expressing concern his lay statements regarding in-service symptoms and symptoms since separation, were not considered by the August 2021 examiner. See October 21, 2021, VA Form 21-4138, Statement in Support of Claim. Hence, for the reasons outlined above, the Board finds that a new VA addendum medical opinion is required prior to the Board's adjudication of this Veteran's claim. Accordingly, these matters are REMANDED for the following action: 1. Obtain any outstanding private or VA treatment records and associate all such records with the electronic claims file. 2. After obtaining all necessary records, forward the claims folder to a suitable medical professional, other than the August 2021 VA examiner, to review the file and provide an addendum medical opinion regarding the Veteran's back disability. The Veteran need not be scheduled for another physical examination unless such examination is considered necessary to provide a reliable opinion as to the nature and etiology of this Veteran's back disability. The VA examiner is requested to opine whether it is at least as likely as not that the Veteran's current back disability is due to or otherwise causally or etiologically related to his active military service. For purposes of this examination, the examiner must address the Veteran's credible testimony at the October 2015 Board Hearing regarding the location and continuity of his back pain, along with his military occupational duties involving heavy lifting. See March 2015 Board Hearing transcript, pgs. 8-15. The examiner is advised that the Veteran is competent to report symptoms and that his reports must be considered in formulating the requested medical opinion. If the Veteran's reports are discounted, the examiner should provide a reason for doing so. The rationale for an examiner's opinion must not be based solely on the absence of treatment records during and after service. See Dalton v. Nicholson, 21 Vet. App. 23 (2007) (an examination must consider lay evidence of an in-service incurrence or continuity of symptomatology since service). A complete rationale for all opinions should be set forth and a discussion of the facts and medical principles involved, including a discussion of the etiology of this Veteran's back disability, would be of considerable assistance to the Board. 3. Next, forward the claims file to a suitable medical professional, other than the August 2021 examiner, for an Addendum medical opinion regarding the nature and etiology of this Veteran chronic motion sickness disability. For the Veteran's chronic motion sickness, opine whether it is at least as likely as not that the Veteran's chronic motion sickness disability (1) began during active service, (2) manifested within one year after discharge from service, (3) was noted during service with continuity of the same symptomatology since service, (4) related to an in-service injury, event, or disease during service. Note: For purposes of this examination, the VA examiner is asked to specifically address the Veteran's service treatment records regarding a diagnosis of chronic motion sickness. See e.g., March 27, 1990 STR re: treatment for sea sickness, loss of appetite; April 6, 1990 STR re: diagnosis of motion sickness; April 8, 1990 STR re: diagnosis of chronic motion sickness; April 11, 1990 STR re: provisional diagnosis of sea sickness (with numerous episodes, both documented and undocumented) of motion sickness; April 27, 1990 STR, notation of motion sickness; March 31, 1990 re: chronic motion sickness; June 15,1990 STR re: chronic motion sickness; June 16, 1990 STR re: chronic motion sickness. Please also address whether the Veteran's chronic motion sickness was acute only. If so, please explain why. The examiner is advised that the Veteran is competent to report symptoms and that his reports must be considered in formulating the requested opinions. The VA examiner must also consider and address the lay statements of the Veteran concerning any pertinent symptomatology. See e.g., June 21, 2015 (motion sickness, dizziness); June 29, 2015 (motion sickness, dizziness); July 14, 2015 lay statements (dizziness, vertigo). If the Veteran's reports are discounted, the examiner should provide a reason for doing so. The rationale for an examiner's opinion must not be based solely on the absence of treatment records during and after service. See Dalton v. Nicholson, 21 Vet. App. 23(2007) (an examination must consider lay evidence of an in-service incurrence or continuity of symptomatology since service). A complete rationale for all opinions should be set forth and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. The AOJ should review the medical opinions to ensure compliance with this remand. If the reports are deficient in any manner, the AOJ should implement corrective procedures. 4. After undertaking the development above, the Veteran's claims should be readjudicated. If the benefit sought on appeal remains denied, the Veteran and his attorney should be furnished a supplemental statement of the case and be given an appropriate period to respond before the case is returned to the Board for further review. Michael A. Pappas Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Little, 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.