Citation Nr: 9924272 Decision Date: 08/26/99 Archive Date: 08/27/99 DOCKET NO. 92-17 646 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Reno, Nevada THE ISSUE Entitlement to service connection for a disorder characterized as Meniere's disease. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and his spouse ATTORNEY FOR THE BOARD M. Miyake, Associate Counsel INTRODUCTION The veteran served on active duty from February 1943 to February 1946. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 1991 rating decision by the RO that denied, in part, a claim of entitlement to service connection for a disorder characterized as Meniere's disease. The veteran was notified of the denial by a letter dated in March 1991. The veteran testified at a personal hearing in November 1991. The hearing officer confirmed the denial and a supplemental statement of the case was issued that same month. Previously, this case was before the Board in July 1994 and December 1997, when it was remanded for additional development. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained. 2. The evidence establishes that the veteran has a disorder characterized as Meniere's disease that is likely related to service. CONCLUSION OF LAW A disorder characterized as Meniere's disease was incurred during military service. 38 U.S.C.A. §§ 1110, 1154(b), 5107 (West 1991); 38 C.F.R. §§ 3.102, 3.303, 3.304(d) (1998). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Factual Background Review of the record indicates that the veteran's service medical records were destroyed by the 1973 fire at the National Personnel Records Center (NPRC). In January 1991, the NPRC indicated that morning reports of the 9th Tank Battalion, Company C, show that the veteran was assigned to that organization from July to September 1945; however, there were no indications of illness or treatment noted. The veteran's separation qualification record shows that he served as a medium tank driver and gunner with the 20th Armored Division, 9th Tank Battalion in France, Belgium, Holland, Austria and Germany. The record shows that he used 75-millimeter and 30-caliber machine guns to wipe out enemy positions and personnel. The veteran's DD-214 shows that his military occupational specialty (MOS) was a medium tank gunner and that he received, among other decorations, the European African Middle Eastern Campaign Medal. Correspondence from Cyril N. Kerrin, M.D., to a hospital service company, dated in July 1972, indicates that the veteran had had no real change in his Meniere's syndrome. Dr. Kerrin also noted that an attached letter was sent in January 1971, indicating that the veteran suffers from chronic Meniere's syndrome involving the middle ears. A statement from C.G. McClure, M.D., dated in August 1977, lists the veteran's diagnoses and concurrent conditions as degenerative disc disease, arthritis, and Meniere's syndrome. Correspondence from Dr. McClure, dated in November 1978, indicates that the veteran had, among other disorders, dizziness and "Meniere's disease possibly causing the dizziness and also related to cervical spondylosis." Another statement from Dr. McClure, dated in May 1979, lists the veteran's diagnoses and concurrent conditions as degenerative disc disease, monocular vision, dizziness, and Meniere's disease. Correspondence from W. Keith Seolas, M.D., dated in April 1980, and from William A. Brown, M.D., dated in September 1982, indicate that the veteran had, among other disorders, Meniere's disease, related to cervical spondylosis. A portion of a letter signed by Walter Bromberg, M.D., dated in January 1983, indicates that the veteran had Meniere's syndrome or chronic labyrinthitis. The physician concluded that the veteran showed definite evidence of Meniere's syndrome. A January 1984 Social Security Administration (SSA) decision contains a summary of the medical evidence relied upon in that decision. It was noted that the veteran had been awarded a period of disability beginning in February 1977 based on Meniere's syndrome and degenerative arthritis of the thoracic spine. The decision referred to a December 1982 examination noting that the veteran had episodic vertigo of 30 years duration, probably on the basis of labyrinthine disease. VA outpatient treatment records, dated from June 1983 to May 1992, show that in June 1983, a provisional diagnosis was questionable Meniere's disease. The records show that, beginning in January 1985, the veteran gave a history of dizziness since 1946 and was seen for complaints of it. In January 1985, Meniere's disease - well controlled - was diagnosed. In February 1985, possible labyrinthitis dizziness was diagnosed. In September 1985, probable Meniere's disease (benign) was diagnosed. In July 1987, stable Meniere's disease was diagnosed. In April 1990, inner ear damage was diagnosed. In February 1991, positional vertigo was diagnosed. Correspondence from a former co-worker, dated in June 1990, indicates that the veteran suffered from dizzy spells during the later part of the 1940's and into the 1950's. Correspondence from a lay witness, dated in June 1990, indicates that he had served with the veteran and that both he and the veteran were injured by fragments of 30- caliber machine-gun bullets while driving tanks during training. Correspondence from a friend, dated in July 1990, indicates that the veteran had suffered from dizzy spells during the late 1940's or early 1950's. Correspondence from Stuart F. Pardee, D.C., dated in August 1990, indicates that the veteran had been treated since January 1985. Dr. Pardee opined that the veteran suffers from a dizziness disorder that had previously been diagnosed as Meniere's disease, and has suffered from this disorder since the late 1940's. Correspondence from A.E. Mott, D.C., dated in September 1991, indicates that the veteran had been treated for severe dizziness and a low back problem beginning in 1947, and periodically until August 1980. Dr. Mott noted that the veteran had given a history of having been injured in service including in a motorcycle accident and from shells exploding in a tank. Correspondence from William L. Mott, D.C., dated in October 1991, indicates that all treatment records of the veteran have since been destroyed since his retirement in 1977. Dr. Mott noted that, based on his memory, the veteran had sought treatment sometime in the mid to late 1940's when he had complained of severe vertigo. At a personal hearing at the RO in November 1991, the veteran testified that he was not sure when his dizziness began. He testified that, as a tank operator or gunner, he had hit his head inside the tank on more than one occasion. The veteran's wife testified that after the veteran returned from overseas his dizziness worsened. At a March 1992 VA examination, the veteran reported that his dizziness was controlled by medication. It was noted that the veteran had had a severe attack of dizziness when he reclined onto the exam table, and that his vertigo was "real." The diagnoses included severe, disabling Meniere's syndrome. Correspondence from Dr. Pardee to an insurance company, dated in February 1993, indicates that Dr. Pardee had treated the veteran since June 1983 for dizziness and adjustment to the atlas vertebra. Dr. Pardee also provided a history of the veteran's having been diagnosed with Meniere's disease, and discovering that having his atlas vertebra adjusted by a chiropractor could control his Meniere's disease in the late 1940's. Dr. Pardee noted that to the best of his knowledge, there was no accident that brought on this condition, and that Meniere's was classified as a disease. Dr. Pardee opined that the veteran's condition was a permanent condition of dizziness. Treatment reports from J. Heflin, M.D., show that, in May 1993, the veteran had chronic labyrinthitis. Chronic vertigo was diagnosed. In November 1993, it was noted that the veteran had severe chronic positional vertigo. Vertigo was diagnosed. Treatment reports from Larry W. Fish, D.O., dated from September 1995 to September 1996, show that the veteran was treated for chronic neck pain and Meniere's disease, both of which were treated and improved with manipulative therapy. A September 1996 VA outpatient treatment record shows that an equilibrium problem of the inner ear was diagnosed. A March 1997 treatment note from Alan G. Brown, D.C. indicates that the veteran was seen for complaints including vertigo. Correspondence from Mary K. Kerrin, received in October 1997, indicates that she had been employed by Dr. Kerrin from 1946 to 1949, and had made the appointment for the veteran. She noted that, in February 1946, the veteran's diagnoses had been Meniere's syndrome - ear problem and dizzy spells. She noted that Dr. Kerrin had past away in October 1994. A treatment report from J. Frost, M.D., dated in June 1997, indicates that the veteran gave a history of Meniere's disease following service. A statement from Robert Woodhall, M.D., dated in February 1998, indicates that the veteran's atlas and axis (C1 - C2) had been adjusted to relieve and control the veteran's dizziness. It was noted that dates of treatment were in 1977, and that the veteran was still a patient. A statement from Dr. Pardee, received in February 1998, indicates that the veteran was treated for dizziness in 1983. At a September 1998 VA examination, the veteran gave a history of vertigo since 1946. He reported that during service he was exposed, on several occasions, to concussive type noise injury from shell explosions within a tank. He also noted some hearing loss since then. The examiner noted that the veteran has had a diagnosis of Meniere's disease but was unable to tell exactly how that diagnosis was made. It was noted that the veteran's dizziness was a feeling of unbalance and slight motion without whirling vertigo, which he got whenever he stood or sat. His dizziness was present most of the time. There was also a fairly strong positional component to it. He was taking medication, which provided some relief. Physical examination revealed the auricle, external canal, tympanic membrane, tympanum, and mastoid were normal. No active ear disease or infections were present. The audiogram revealed a bilateral, fairly symmetrical, sensorineural hearing loss across all frequencies with a worsening of the hearing above 4000 Hertz. His puretone average was 31 in the right ear and 25 in the left ear. Speech discrimination was 96 percent in the right ear and 84 percent in the left ear. Tympanograms were normal. The electronystagmogram revealed significant, unilateral weakness in the left ear at 31 percent. Positional testing was not possible due to severe arthritis of the neck. The diagnosis was "chronic labyrinthopathy, etiology undetermined but could be consistent with a concussive noise injury per history." II. Analysis At the outset, the Board notes that the veteran's service medical records are not available. The United States Court of Appeals for Veterans Claims (known as the United States Court of Veterans Appeals prior to March 1, 1999) (Court) has held that where "service medical records are presumed destroyed . . . the BVA's obligation to explain its findings and conclusions and to consider carefully the benefit-of-the- doubt is heightened." O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). The VA also has a heightened duty to assist the veteran in the development of evidence favorable to his claim. Here, the veteran has not provided any leads that the VA has not already pursued to develop his claim. Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated by service. 38 U.S.C.A. §§ 1110, 1131 (West 1991); 38 C.F.R. § 3.303(a) (1998). Service connection is also warranted where the evidence shows that a chronic disability or disorder has been caused or aggravated by an already service-connected disability. 38 C.F.R. § 3.310 (1998); Allen v. Brown, 7 Vet. App. 439 (1995). When disease is shown as chronic in service, or within a presumptive period so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date are service connected unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b) (1998). A well-grounded claim is a plausible claim, one which is meritorious on its own or capable of substantiation. Such a claim need not be conclusive, but only possible, to satisfy the initial burden of 38 U.S.C.A. § 5107(a); Murphy v. Derwinski, 1 Vet. App. 78 (1990). To be well grounded, however, a claim must be accompanied by evidence that suggests more than a purely speculative basis for granting entitlement to the requested benefits. Dixon v. Derwinski, 3 Vet. App. 261, 262-63 (1992). Evidentiary assertions accompanying a claim for VA benefits must be accepted as true for purposes of determining whether the claim is well grounded, unless the evidentiary assertion is inherently incredible or the fact asserted is beyond the competence of the person making the assertion. Espiritu v. Derwinski, 2 Vet. App. 492 (1992). Where the determinative issue involves medical causation or a medical diagnosis, competent medical evidence to the effect that the claim is plausible or possible is required. Murphy, 1 Vet. App. at 81. A claimant cannot meet this burden merely by presenting lay testimony, because lay persons are not competent to offer medical opinions. Espiritu, 2 Vet. App. at 495. The Court has held that competent evidence pertaining to each of three elements must be submitted in order make a claim of service connection well grounded. There must be competent (medical) evidence of a current disability, competent (lay or medical) evidence of incurrence or aggravation of disease or injury in service, and competent (medical) evidence of a nexus between the in-service injury or disease and the current disability. This third element may be established by the use of statutory presumptions. 38 C.F.R. §§ 3.307, 3.309 (1998); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); see also Epps v. Gober, 126 F.3d at 1468. If a reasonable doubt arises regarding service origin, or any other point, it should be resolved in the veteran's favor. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. The veteran claims that his ear disorder characterized as Meniere's disease is due to inservice head trauma from hitting his head inside the tank and from the noise caused from shell explosions within the tank. He has also provided a history of having had symptoms of occasional vertigo, dizziness, and hearing loss in service. Because his service medical records were destroyed in a fire, the Board takes into consideration other sources of evidence that might help to establish that his ear disorder characterized as Meniere's disease had its onset in service, including any clinical records of treatment during the interval from discharge to the present time. Although there is no official service record showing treatment for a head trauma during service, satisfactory lay or other evidence that an injury or disease was incurred or aggravated in combat will be accepted as sufficient proof of service connection if the evidence is consistent with the circumstances, conditions or hardships of such service even though there is no official record of such incurrence or aggravation. 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(d). The veteran's DD-214 shows that his MOS was a medium tank gunner and that he had participated in the European African Middle Eastern campaign. The veteran also submitted a statement from a buddy indicating that they were injured by fragments of 30-caliber machine gun bullets while driving tanks during training. The Board finds that this evidence is sufficient to show exposure to possible head trauma from hitting his head inside the tank and exposure to noise caused from shell explosions within the tank. Correspondence and treatment notes from private physicians, dated since January 1971, indicate that the veteran suffered from chronic Meniere's syndrome. Correspondence from private physicians, dated since August 1990, have referred to the veteran's history of having suffered from Meniere's disease since the late 1940's and having been treated for complaints of dizziness and vertigo in the mid to late 1940's. A January 1984 SSA decision referred to a December 1982 examination noting that the veteran had episodic vertigo of 30 years duration probably on the basis of labyrinthine disease. On the other hand, private physicians have related Meniere's disease to cervical spondylosis in correspondence dated in November 1978, April 1980, and September 1982. VA treatment records show that, beginning in January 1985, the veteran was found to have Meniere's disease. Subsequent VA treatment records also show diagnoses of labyrinthitis, inner ear damage, an equilibrium problem of the inner ear, and positional vertigo. Pursuant to the Board's December 1997 remand, a VA examination was conducted in September 1998 to determine whether the veteran's Meniere's disease was associated with his history of head trauma or symptoms of dizziness manifested during service. At the September 1998 VA examination, the veteran reported his history of being exposed to concussive noise injury from shell explosions within a tank on more than one occasion. The examiner opined that the veteran had chronic labyrinthopathy, etiology undetermined, but could be consistent with a concussive noise injury per the veteran's history. While some private physicians have related Meniere's disease to cervical spondylosis, the Board finds that the veteran's reported exposure to head trauma and noise from shell explosions from the tank, statements from other private physicians indicating treatment for ear problems in the mid to late 1940's, numerous correspondence from other private physicians indicating treatment for Meniere's disease but not indicating it was related to cervical spondylosis, and the September 1998 VA examiner's opinion indicating that is possible that the veteran's current ear disorder is due to a concussive type injury, provide adequate information on which to base a finding that the veteran's disorder manifested by Meniere's disease is likely attributed to service. Accordingly, the Board, based on its review of the relevant evidence in this matter, finds that the evidence is, at least, in relative equipoise as to the merits of the veteran's claim. The Board finds that the absence of service medical records and opinions of some private physicians relating Meniere's disease to cervical spondylosis, is counterbalanced by the remaining evidence, bringing the evidence regarding a nexus to service at least into equipoise. Consequently, resolving doubt in the veteran's favor, the Board finds that the veteran's disorder characterized as Meniere's disease is attributable to his military service, and that service connection for such disability is warranted. 38 C.F.R. § 3.102. ORDER Service connection for a disorder characterized as Meniere's disease is granted. N. R. ROBIN Member, Board of Veterans' Appeals