Citation Nr: 1312821 Decision Date: 04/17/13 Archive Date: 05/02/13 DOCKET NO. 09-49 587 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Reno, Nevada THE ISSUE Entitlement to service connection for vertigo, to include as secondary to service-connected disability. REPRESENTATION Appellant represented by: Nevada Office of Veterans' Services WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Nadine W. Benjamin, Counsel INTRODUCTION The Veteran served on active duty from September 1970 to September 1972. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a July 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri, which denied the benefits sought on appeal. Jurisdiction of the case has been subsequently transferred to the RO in Reno, Nevada. A Travel Board hearing was held on May 14, 2012, before Kathleen K. Gallagher, a Veterans Law Judge who was designated by the Chairman to conduct the hearing pursuant to 38 U.S.C.A. § 7107(c) (West 2002) and who is rendering the determination in this case. In August 2012, the Board remanded this claim for additional development. The Board is satisfied that there was substantial compliance with its remand directives. While the VA examiner did not address the question of direct service connection specifically, the discussion offered in the report is adequate for the Board to make a determination in this claim. Thus a remand is not required. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). The case has been returned to the Board and is ready for further review. FINDING OF FACT The Veteran was exposed to excessive noise in the military, and it is at least as likely as not that the Veteran's vertigo is related to his exposure to acoustic trauma in service. CONCLUSION OF LAW The criteria for service connection for vertigo have been met. 38 U.S.C.A. §§ 1110, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303, (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). With respect to the issue decided herein, the Board is granting in full the benefits sought on appeal. Accordingly, without deciding that any error was committed with respect to the duty to notify or the duty to assist, such error was harmless and need not be further considered. See, e.g., Bernard v. Brown, 4 Vet. App. 384 (1993); VAOPGCPREC 16-92 (1992). Service Connection Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. §§ 1110. Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). To establish service connection for a disability resulting from a disease or injury incurred in service, or to establish service connection based on aggravation in service of a disease or injury which pre-existed service, there must be (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of incurrence or aggravation of a disease or injury in active service; and (3) competent evidence of a nexus or connection between the current disability and the disease or injury incurred or aggravated in service. Horn v. Shinseki, 25 Vet. App. 231, 236 (2010); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009); cf. Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). In many cases, medical evidence is required to meet the requirement that the evidence be "competent". However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). Service connection for certain chronic diseases may be established on a presumptive basis by showing that the disease manifested itself to a degree of 10 percent or more within one year (three years for active tuberculous disease and Hansen's disease; seven years for multiple sclerosis) from the date of separation from service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). In such cases, the disease is presumed under the law to have had its onset in service even though there is no evidence of that disease during the period of service. 38 C.F.R. § 3.307(a). The term "chronic disease" refers to those diseases listed under section 1101(3) of the statute and section 3.309(a) of VA regulations. 38 U.S.C.A. § 1101(3); 38 C.F.R. § 3.309(a); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where a chronic disease under 3.309(a) is "shown as such in service" ("meaning clearly diagnosed beyond legitimate question" Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013), or in the presumptive period so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). In cases where a chronic disease is "shown as such in service", the Veteran is "relieved of the requirement to show a causal relationship between the condition in service and the condition for which service connected disability compensation is sought." Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Instead, service connection may be granted for subsequent manifestations of the same chronic disease without any evidence of link or connection between the chronic disease shown in service and manifestations of the same disease at a later time. In other words, "there is no 'nexus' requirement for compensation for a chronic disease which was shown in service, so long as there is an absence of intercurrent causes to explain post-service manifestations of the chronic disease." Id. If evidence of a chronic condition is noted during service or during the presumptive period, but the chronic condition is not "shown to be chronic, or where the diagnosis of chronicity may be legitimately questioned," i.e., "when the fact of chronicity in service is not adequately supported," then a showing of continuity of symptomatology after discharge is required to support a claim for disability compensation for the chronic disease. Proven continuity of symptomatology establishes the link, or nexus, between the current disease and serves as the evidentiary tool to confirm the existence of the chronic disease while in service or a presumptive period during which existence in service is presumed." Walker v. Shinseki, ___ F.3d ___, No. 2011-7184, 2013 WL 628429 (Fed. Cir. Feb. 21, 2013); 38 C.F.R. § 3.303(b). A disability which is proximately due to or the result of a service-connected disease or injury can be service connected. See 38 C.F.R. § 3.310 (2005). The United States Court of Appeals for Veterans Claims (Court) clarified that service connection shall be granted on a secondary basis under the provisions of 38 C.F.R. § 3.310(a) where it is demonstrated that a service-connected disorder has aggravated a nonservice-connected disability. See Allen v. Brown, 7 Vet. App. 439, 448 (1995). Where a service-connected disability aggravates a nonservice-connected condition, a Veteran may be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. To establish a claim for secondary service connection, a Veteran must demonstrate that a current disability is the result of a service-connected disability. Medical evidence is required to prove the existence of a current disability and to fulfill the nexus requirement. See Black v. Brown, 10 Vet. App. 279 (1997). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (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 shall be given to the claimant. 38 U.S.C.A. § 5107(b). When a reasonable doubt arises regarding service origin, such doubt will be resolved in the favor of the claimant. Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102. The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied. See Gilbert, 1 Vet. App. at 54. The Veteran contends that he has vertigo related to service or to his service-connected tinnitus. The Veteran claims he was exposed to noise exposure from canon fire in basic training as a sergeant who was in charge of a platoon and was on the range with them. He also claims exposure to jet and helicopter flight noise as an air traffic controller. His DD 214 shows his MOS as an air traffic control specialist in the Army. He has also claimed that his vertigo is due to or aggravated by his service-connected tinnitus. Initially, the Board notes that the Veteran has been diagnosed with vertigo. A May 2008 private electromyography report found an abnormal result suggesting vestibular system dysfunction. In September 2008, benign positional vertigo was diagnosed. A VA examination in October 2012 shows a diagnosis of benign paroxysmal positional vertigo. The Veteran has reported in various written statements and at a May 2012 hearing before the Board, that he was exposed to extensive noise from cannon and small arms firing. During basic training, he was recruited as an instructor, which required him to be in the firing range all the time. Upon completion of training, the Veteran stated that he served as an air traffic controller and radar approach controller and was constantly exposed to noise from airplanes and helicopters on the flight line. He also had a tour of duty in Korea, during which time he was routinely exposed to ultra high frequency radio noise on a daily basis for about three to four months. His DD Form 214 indicates that his military occupational specialty (MOS) was air traffic control specialist and supervisor and that he had foreign service in Korea for three months. He has also stated that vertigo began when he was 22 years old. The Board notes that the Veteran is competent to attest to the factual matters of which he had first-hand knowledge, such as an in-service noise exposure or the onset of vertigo. See Layno, 6 Vet. App. at 469; see also Barr, 21 Vet. App. at 307 (holding that lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation); see also Jandreau, 492 F.3d at 1377 (noting, in a footnote, that sometimes a layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer). It is further noted that the Board may not determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. See Washington v. Nicholson, 19Vet. App. 362, 368 (2005); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). Indeed, the Board has no reason to doubt the credibility of the Veteran's lay statements as they are consistent with the other evidence of record. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007) (holding that as a finder of fact, the Board, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing). The Board finds the Veteran's lay statements are credible as to his inservice noise exposure and his complaints during service. Thus, the Board notes that two of the three requirements for direct service connection have been met: (1) there is a current disability and (2) there was an injury--military acoustic trauma-sustained in service which is noted to be consistent with the Veteran's duties and circumstances in service including serving as an air traffic control specialist and supervisor in service. In addition, two of the three requirements for secondary service connection have been met: (1) there is a current disability and (2) tinnitus is service-connected. Thus in order for the Veteran to prevail, the evidence must show a nexus between his diagnosed vertigo and his exposure to acoustic trauma in service or between his diagnosed vertigo and his service-connected tinnitus. Concerning the third requirement that (3) there should be medical evidence linking the Veteran's disability to his military acoustic trauma or his tinnitus, the Board finds that the evidence reasonably supports a finding that service connection is warranted on a direct basis. Private records show that in May 2008, a private examiner stated that the Veteran had vertigo and disequilibrium that did not seem to be associated with any tinnitus. The Veteran was examined by VA in October 2012, and the claims file was reviewed. The examiner found that the Veteran had benign paroxysmal positional vertigo and peripheral vestibular disorder. The Veteran reported that the disorder began when he was 22 years old. The examiner indicated that the claimed condition is less likely than not (a less than 50 percent probability) proximately due to or the result of the Veteran's service-connected condition. The rationale was that tinnitus is less likely to aggravate the vertigo condition in general and is usually the opposite effect where vertigo aggravates the tinnitus. The examiner stated that in this case, the Veteran was exposed to loud noise and has audiological evidence of progressive hearing loss over the years. The examiner reported that this likely started with the noise exposure in his military service causing the hearing problem and also the balance complaints which led to tinnitus as well. The examiner stated that therefore it is less likely than not that the claimant's vertigo was caused or aggravated by the tinnitus. The Veteran has submitted a medical treatise that indicated that some acoustic trauma and vertigo/dizziness studies suggest that there may be balance disturbances resulting from noise exposure. The report further notes that asymmetric exposure to extremely intense sounds leads to a greater likelihood of vertigo. Discussion The Board has found the Veteran's lay statements regarding military noise exposure and observable symptoms to be competent and credible evidence. The Veteran has also submitted medical treatises in support of his claim. This medical treatise evidence suggests that noise exposure can result in vertigo. A VA examiner has stated that the noise exposure in service caused the balance complaints. As noted above, the examiner reported that hearing loss likely started with the noise exposure in his military service "causing the hearing problem and also the balance complaints which led to tinnitus as well." (emphasis added). While the VA examiner did not provide a specific opinion regarding direct service connection, the Board finds that it is not necessary to remand for another opinion in this case. 38 C.F.R. § 3.159(c)(4). Rather, given that the Veteran has a current diagnosis that has been associated with conceded exposure to acoustic trauma in service, and in the rationale against secondary service connection, the examiner associated the vertigo with acoustic trauma in service, the Board finds that it is as likely as not that the Veteran's currently diagnosed vertigo is traceable to military service. It is noted that there is no opinion in the file that indicates that the vertigo is not related to service acoustic trauma. The Board therefore concludes that the evidence of record provides an adequate basis on which to grant service connection. Despite the lack of showing of vertigo in official service treatment records, given the presence of a current disability, the exposure to noise in service, and the VA examiner's opinion indicating that the Veteran's current vertigo is due to acoustic trauma, as well as the medial treatise supporting the possible cases vertigo, the Board concludes that there is sufficient evidence in support of the Veteran's claim for service connection. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER Service connection for vertigo is granted. ____________________________________________ KATHLEEN K. GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs