Citation Nr: 0602332 Decision Date: 01/26/06 Archive Date: 01/31/06 DOCKET NO. 98-10 383A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUE Entitlement to service connection for vertigo as secondary to service-connected bilateral hearing loss. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD A. Harley, Associate Counsel INTRODUCTION The veteran had active service from January 1960 through May 1962. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 1998 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, the Commonwealth of Puerto Rico. In May 2005, the appeal was remanded to obtain additional development. In particular, the RO was required to both send a duty to notify letter to the veteran and to collect the veteran's records from the VA Medical Center (VAMC) in San Juan. Both the duty to notify letter and the treatment records are now part of the record and the case is again before the Board for appellate review. FINDINGS OF FACT 1. The RO obtained all relevant evidence necessary for an equitable disposition of the veteran's appeal. 2. The veteran is service connected for bilateral hearing loss. 3. Competent medical evidence fails to establish a connection between the veteran's vertigo symptomology and either active service, or his service-connected bilateral hearing loss. CONCLUSION OF LAW The criteria for service connection for vertigo as secondary to service-connected bilateral hearing loss have not been met. 38 U.S.C.A. § 1331 (West 2002); 38 C.F.R. §§ 3.303(a), 3.310(a) (2005). REASONS AND BASES FOR FINDINGS AND CONCLUSION The veteran seeks service connection for vertigo as secondary to his service-connected bilateral hearing loss. Because the record is devoid of evidence to suggest a connection between the veteran's vertigo and his bilateral hearing loss, the preponderance of the evidence is against the veteran's claim. Law and Regulations "[T]o prove service connection, a claimant must submit (1) medical evidence of a current disability, (2) medical evidence, or in certain circumstances lay testimony, of in- service incurrence or aggravation of an injury or disease, and (3) medical evidence of a nexus between the current disability and the in-service disease or injury." See Pond v. West, 12 Vet. App. 341, 346 (1999). In other words, entitlement to service connection for a particular disability requires evidence of the existence of a current disability and evidence that the disability resulted from a disease or injury incurred in or aggravated during service. 38 U.S.C.A. §§ 1131; 38 C.F.R. § 3.303(a). Also, service connection may be granted on a secondary basis for a disability that is proximately due to a service- connected disability. 38 C.F.R. § 3.310(a). Secondary service connection may be found where a service-connected disability aggravates another condition. When aggravation of a nonservice-connected condition is proximately due to a service-connected condition, the veteran shall be compensated for the degree of disability - but only that degree - over and above the degree of disability existing prior to the aggravation. Allen v. Brown, 7 Vet. App. 439 (1995). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt will be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Factual Background and Analysis The veteran's service medical records, VA treatment records, VA examination reports, and private treatment records were all reviewed. His bilateral hearing loss is service connected and presently rated as 20 percent disabling. He contends that he currently suffers from vertigo, which he believes was caused by his service-connected bilateral hearing loss. The veteran's service medical records make no mention of vertigo or dizziness or unbalance. His January 1960 induction examination did not evaluate the ear, and the report did not reflect any vertigo complaints. The ears were examined for the February 1962 separation examination and the veteran's deafness was noted in the report, but, again, the veteran made no complaints of vertigo symptomology. The September 1968 VA examination report specifically notes "no intermittent nausea, vomiting, vertigo." It was not until June 1990 that the veteran was treated for vertigo. He was seen in the emergency room at Fundacion Hospital Metropolitano and diagnosed with Postural Vertigo. He saw Dr. Hogan in April 1995 complaining of imbalance and vertigo, and, in September 1995 Dr. Fuertes diagnosed Dramamine for the condition. The record reflects treatment with Dr. Hogan again in March 1998. VA treatment for vertigo symptomology began in February 1998 with complaints of dizziness, but no diagnosis. He treated at the VAMC in San Juan several times between 2001 and 2003 for vertigo and dizziness. VA gave the veteran several VA audio examinations between 1996 and 2004. A history of vertigo was noted in several reports. The most recent VA examination was in February 2004. The findings were normal for the auricle, external canal, tympanic membrane, and mastoids. The examiner found no active ear disease and opined that the "veteran's description of vertigo is not associated to the type of hearing loss for which he is service connected. There is no other ear condition/disease to explain his complaint." The veteran's most recent diagnosis is a January 2005 diagnosis of Meniere's disease from the VAMC in San Juan. The treatment record remarks that Meniere's disease is a combination of tinnitus, dizziness, and hearing loss. No vertigo is mentioned. The record reflects intermittent complaints of vertigo symptomology since 1990, almost thirty years post-service, with several vertigo diagnoses between 1990 and the present. The record is devoid of evidence to establish a connection with the veteran's vertigo and either his active service, or his service-connected bilateral hearing loss. Thus, the preponderance of the evidence is against the veteran's claim and it is, therefore, denied. Duties to Notify and Assist VA has fulfilled its duties to notify and to assist the veteran in the development of his claim. When a complete or substantially complete application for benefits is filed, VA must notify a veteran and his representative, if any, of any information and medical or lay evidence necessary to substantiate the claim. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002); 38 C.F.R. § 3.159(b) (2005). In particular, VA must notify the veteran of the following: (1) any information and evidence needed to substantiate the claim; (2) which information the veteran is expected to provide to VA; (3) which information VA will attempt to obtain on the veteran's behalf; and (4) the requirement that the veteran submit to VA any pertinent evidence in his possession. 38 C.F.R. § 3.159(b)(1) (2005). Compliance with 38 U.S.C.A § 5103 requires that the notice requirement be accomplished prior to an initial unfavorable determination by the agency of original jurisdiction. Pelegrini v. Principi, 18 Vet. App. 1112 (2004). Here, the February 1998 rating decision predated the November 9, 2000 effective date of VA's notice requirement; therefore, no notice letter was sent prior to the rating decision. There is no error in the RO's not providing notice prior to the initial adjudication decision where such notice was not mandated at the time. Pelegrini, 18 Vet. App. at 120. Here, notices have since been provided that informed the veteran of the basis for the decision, what types of evidence would be needed, and how the evidence would be secured. The December 2003 letter notified the veteran of what was needed to establish a service connection claim, what was already in the claims file, and what VA was responsible for obtaining. It also notified the veteran that he was responsible for ensuring that VA received all evidence in support of the claim. The May 2005 Board Remand found that this letter did not notify the veteran of what was needed for his claim for service connection on a secondary basis, so a second letter was sent in May 2005 that described what was needed to establish a secondary service connection claim. The May 2005 letter also updated the veteran as to what was contained in his claims file and what VA was seeking to collect. It also asked the veteran to ensure that all necessary evidence, not in Federal agency possession, was provided to VA. Thus, the two notice letters satisfied all elements of the notice requirement. After the notice was provided, a Supplemental Statement of the Case (SSOC), re- adjudicating the veteran's claims, was provided to the veteran in September 2005. This action essentially cured the error in the timing of the notice. Despite the timing of these letters, the veteran was afforded a meaningful opportunity to participate effectively in the processing of his claim. It is not prejudicial to the veteran for the Board to proceed to finally decide this appeal VA has also satisfied its duty to assist the veteran in substantiating his claim. The duty to assist contemplates that VA will help the veteran obtain relevant records, whether or not the records are in federal custody. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c), (d) (2005). The veteran's service medical records and VA medical records were collected and placed in the claims file, as were private treatment records. The veteran was also afforded several VA audiology and ear disease examinations in order to develop his claim. He has not notified VA of any additional relevant evidence not presently found in the claims file. Thus, VA met its duty to assist the veteran. ORDER Entitlement to service connection for vertigo as secondary to service-connected bilateral hearing loss is denied. ____________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs