Citation Nr: 1410923 Decision Date: 03/14/14 Archive Date: 03/20/14 DOCKET NO. 09-18 535 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Little Rock, Arkansas THE ISSUES 1. Entitlement to service connection for a disability manifested by headaches and dizziness, claimed as vertigo and Meniere's syndrome. 2. Entitlement to service connection for obstructive sleep apnea. REPRESENTATION Appellant (the Veteran) is represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD L. Cramp, Counsel INTRODUCTION The Veteran had active service from April 1984 to August 1987. This appeal comes before the Board of Veterans' Appeals (Board) from an April 2008 rating decision of the RO in Little Rock, Arkansas. The Veteran presented personal testimony at a hearing conducted in February 2010 by a Veterans Law Judge. The Veteran was informed by letter dated in January 2012 that the individual who conducted the hearing was no longer an employee of the Board. VA appellants are entitled to a hearing before an individual who will participate in making the final determination of the claim. 38 C.F.R. § 20.707 (2013). The Veteran was offered the opportunity to attend another hearing conducted by the Judge who would decide his appeal. The Veteran responded in February 2012 that he did not want another hearing. In July 2010, the Board remanded this appeal for additional evidentiary development. It has since been returned to the Board for further appellate action. In reviewing this case the Board has not only reviewed the physical claims file, but also the electronic file on the "Virtual VA" system to insure a total review of the evidence. The issue of entitlement to service connection for obstructive sleep apnea is addressed in the REMAND below and is therein REMANDED to the RO via the Appeals Management Center (AMC) in Washington, DC. FINDING OF FACT The Veteran does not have Meniere's disease; however, headaches with intermittent dizziness are etiologically related to medication prescribed and taken to treat a service-connected psychiatric disability. CONCLUSION OF LAW Headaches with intermittent dizziness are proximately due to or a result of the service-connected psychiatric disability. 38 U.S.C.A. §§ 1131, 1153, 5103, 5103A, 5107, 7104 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.306, 3.310 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION The RO denied service connection for Meniere's disease on the basis that a diagnosis of Meniere's disease had not been confirmed. In denying the claim, the RO acknowledged that the Veteran experiences intermittent bouts of dizziness associated with headaches and tinnitus. Indeed, there appears no question that the Veteran has reported similar symptoms to clinicians for many years. In a November 2003 VA treatment note, the Veteran complained of "dizzy symptoms." The impression was that the Veteran might be developing an early Meniere's type syndrome; however, the physician noted that the bouts of dizziness did not appear "particularly inner ear based by history." The physician noted that the Veteran was taking quite a few tranquilizers for depression, and speculated that these might be contributing somewhat to his dizziness. A VA ear, nose, and throat treatment report in May 2006 includes a diagnosis of endolymphatic hydrops. A February 2008 VA examination cited a June 2005 VA treatment note, which reportedly discussed the possibility of the onset of early Meniere's. The Board believes this to be a reference to the November 2003 report, as the June 2005 report contains no reference to early Meniere's disease. The February 2008 examiner opined that previous ear, nose, and throat evaluation had established that the Veteran's vertigo was probably secondary to his migraine headaches with associated nausea and roaring tinnitus. A March 2004 clinical note reveals complaints of unilateral right-sided headaches with dizziness/lightheadedness, blurred vision, and a feeling of pressure and muffled ear sounds, present for approximately 3 years. The diagnosis was "likely" atypical migraine. An April 2004 neurology consultation included the opinion that the lightheadedness was most likely an autonomic aura related to migraines. A March 2007 neurological consultation includes the opinion that the Veteran's daily headaches are at least in part rebound headaches from frequent use of analgesics. Other records show that the analgesics are taken primarily for headaches. The Board remanded this issue in July 2010 in part for the purpose of obtaining an examination and opinion by an otolaryngologist as to the identity and etiology of the disorder claimed as vertigo and Meniere's disease. In an August 2010 report, the examiner noted that the Veteran "always has headaches and dizziness." The Veteran estimated that the dizzy episodes occur as often as twice a week. The headaches are always there. The examiner found it less than likely that the Veteran's symptoms were attributable to Meniere's syndrome, based on normal electronystagmography (ENG) results. The examiner diagnosed "[m]igraine headaches with intermittent sensation of dizziness." While it is difficult to parse the examiner's opinion, which is presented in several run-on sentences, and which uses inconsistent and often very general terminology in describing the Veteran's symptoms, interpreting the opinion in the light most favorable to the claim, the examiner found that the medications prescribed for the service-connected dysthymic disorder have as likely as not caused, contributed to, or aggravated the headaches, spinning vertigo, and associated nausea. While further development could certainly be ordered in an attempt to obtain greater certainty as to the specific symptoms included and as to whether the examiner intended a causal relationship or a relationship by aggravation of a pre-existing disorder, the Board finds that this is not necessary. The Board notes that the treatment records reflect that the Veteran has been taking medications for his psychiatric disability off and on since at least 1990. These medications include Celexa, Cymbalta, Doxepin, Fluoxetine, Hydroxyzine, Mirtazapine, Nortriptyline, Prozac, Remeron, Sertraline, Trazodone, Venlafaxine, Wellbutrin, Zoloft, and Zolpidem. Indeed, the initial prescriptions were well prior to the grant of service connection for a psychiatric disability in March 1997. This roughly corresponds to the initial reports of headaches on a regular basis and predates the reports of dizziness. A June 1990 VA treatment report indicates onset of continuous headaches for 6 months. A July 1990 report notes the presence of headaches and light-headedness. There is no indication that a diagnosis of migraine headaches with intermittent dizziness predated the use of medications to treat the psychiatric disability. As such, the Board interprets the opinion as establishing a direct causal relationship and not one of aggravation. Regarding the specific assertion that the Veteran has Meniere's disease, the Board finds that this is not supported by the evidence. There are certainly references in the clinical records to Meniere's disease, such as a March 2006 dietitian/nutrition note indicating a low salt diet for Meniere's disease, however, this appears to be a reference to what the dietitian believed to be the diagnosis and not a diagnosis based on concurrent evaluation and testing. A February 2008 VA examiner notes that there had been a diagnosis of Meniere's disease, but also noted that the prior studies were not indicative of Meniere's disease and the examiner did not include Meniere's disease among the diagnoses. The August 2010 opinion is accorded the greatest probative weight on the question of a diagnosis, as it was based on a complete evidentiary review and is accompanied by a rationale. Simply stated, the best evidence in this case provides evidence against the claim that the Veteran has Meniere's disease. Nevertheless, while the evidence does not establish a diagnosis of Meniere's disease, the Board has found that the symptoms attributed by the Veteran to Meniere's disease are service connected. The Board interprets this as a grant of the complete benefit sought. As the Board is granting service connection for migraine headaches with intermittent dizziness, the claim is substantiated, and there are no further VCAA duties. Wensch v. Principi, 15 Vet App 362, 367-368 (2001); see also 38 U.S.C.A. § 5103A(a)(2) (Secretary not required to provide assistance "if no reasonable possibility exists that such assistance would aid in substantiating the claim"); VAOPGCPREC 5-2004 (the notice and duty to assist provisions of the VCAA do not apply to claims that could not be substantiated through such notice and assistance). ORDER Service connection for headaches with intermittent dizziness is granted. REMAND In February 2010, subsequent to the Board's July 2010 remand, the Veteran submitted an excerpt from a drug interaction warning distributed with a prescription (Sildenafil) to treat erectile dysfunction. This excerpt presents the results of a study showing that a single 50-mg dose of Sildenafil taken at bedtime was associated with an increase in sleep apnea. At the time the Veteran submitted this excerpt, and at the time of the Board's July 2010 remand, service connection was not in effect for erectile dysfunction. Accordingly, the medical opinion requested by the Board did not address medications prescribed for erectile dysfunction. Since the remand, in a February 2013 rating decision, the RO granted service connection for erectile dysfunction. Based on the addition of erectile dysfunction to the Veteran's service-connected disabilities, a supplemental opinion is necessary to determine whether obstructive sleep apnea is related to medication taken to treat erectile dysfunction. The Board apologizes for the delay in the full adjudication of this case. Accordingly, the issue of entitlement to service connection for obstructive sleep apnea is REMANDED for the following action: 1. If possible, obtain a supplemental opinion from the examiner who conducted the August 2010 examination. If the examiner is not available, obtain an opinion from another medical professional. If the reviewer determines that additional examination of the Veteran is necessary to provide a reliable opinion, such examination should be scheduled. However, the Veteran should not be required to report for another examination if it is not found to be necessary. The claims folder must be made available to and reviewed by the reviewer/examiner. The VA examiner is requested to offer an opinion as to whether it is at least as likely as not (i.e., to at least a 50-50 degree of probability) that obstructive sleep apnea was caused or permanently worsened beyond its natural course by medication prescribed for any of the Veteran's service-connected disabilities, specifically to include Sildenafil to treat erectile dysfunction. Note: The term "at least as likely as not" does not mean merely within the realm of medical possibility, but that the medical evidence for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against it. All opinions are to be accompanied by a rationale consistent with the evidence of record. A discussion of the pertinent evidence, relevant medical treatises, and generally accepted medical principles is requested. 2. Readjudicate the remanded claim. If the benefit sought on appeal is not granted, the Veteran and his representative should be provided a supplemental statement of the case and an appropriate time period for response. The case should then be returned to the Board for further consideration, if otherwise in order. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). The Veteran is advised to appear and participate in any scheduled VA examination, as failure to do so may result in denial of the claim. See 38 C.F.R. § 3.655 (2013). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013). ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs