Citation Nr: 1411866 Decision Date: 03/21/14 Archive Date: 04/02/14 DOCKET NO. 11-23 691A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to service connection for Meniere's disease. 2. Entitlement to service connection for headaches. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K. J. Kunz, Counsel INTRODUCTION The Veteran served on active duty from September 1981 to September 1985, and from February 1987 to November 2008. This appeal comes before the Board of Veterans' Appeals (Board) from a July 2010 rating decision by the Columbia, South Carolina Regional Office (RO) of the United States Department of Veterans Affairs (VA). In that decision, the RO denied service connection for Meniere's disease and for headaches. In March 2011, the Veteran had a hearing before a hearing officer at the RO. In August 2013, the Veteran had a Board videoconference hearing before the undersigned Veterans Law Judge (VLJ). Transcripts of those hearings are of record. The issues on appeal to the Board previously included service connection for right ear hearing loss. In a February 2013 rating decision, the RO granted service connection for right ear hearing loss, resolving that issue. To ensure a total review of the evidence, the Board has reviewed the Veteran's paper claims file and his electronic files on the Virtual VA system and the Veterans Benefits Management System (VBMS). FINDINGS OF FACT 1. The Veteran has Meniere's disease that had onset during service. 2. Recurrent headaches began during service and continued after service. CONCLUSIONS OF LAW 1. Meniere's disease was incurred in service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. § 3.303 (2013). 2. Recurrent headaches were incurred in service. 38 U.S.C.A. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2012)) redefined VA's duty to assist a claimant in the development of a claim for VA benefits. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2013). The Board is granting the benefits sought on appeal. Therefore, it is not necessary to discuss VA's duties to notify or assist the Veteran in substantiating those claims. Meniere's Disease The Veteran contends that he has Meniere's disease that began during service. The RO has established service connection for the Veteran's tinnitus and bilateral hearing loss. Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection also may be granted for any disease diagnosed after service when all the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection for certain chronic diseases, including organic diseases of the nervous system, may be established based upon a legal presumption by showing that it manifested itself to a degree of 10 percent disabling or more within one year from the date of separation from service. 38 U.S.C.A. §§ 1112, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2013). The Court has explained that, in general, service connection requires (1) evidence of a current disability; (2) medical evidence, or in certain circumstances lay evidence, of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Under 38 C.F.R. § 3.303(b), if a chronic disease or injury is shown in service, subsequent manifestations of the same chronic disease or injury at any later date, however remote, may be service connected, unless clearly attributable to intercurrent causes. For a showing of a chronic disorder in service, the mere use of the word chronic will not suffice; rather, there is a required combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. The provisions of 38 C.F.R. § 3.303(b) have been interpreted as an alternative to service connection only for the specific chronic diseases listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a claim, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107. To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. The Veteran's service treatment records reflect that he was seen in July 1988 after he felt lightheaded and weak, and slipped to the ground. From 1989 forward, testing showed that he had hearing loss. In July 1996, a clinician found that he had Eustachian tube dysfunction. The Veteran reported earache in April 1997, May 2001, and April 2002. In 2008, he related a several year history of tinnitus. In a February 2008 medical history, he reported a history of dizzy spells. The Veteran had VA medical examinations in June 2008, before his separation from service. At that time, he stated that he had been exposed to weapons noise during service. He reported a history of ear infections due to equalization problems in aircraft. He stated that he had constant tinnitus, with onset three years earlier. In VA treatment in April 2009, the Veteran reported having tinnitus with onset in 2002. In a May 2009 VA audiology consultation, he related having hearing loss and tinnitus. Private treatment notes from 2009 and 2010 reflect additional reports of tinnitus. In September 2009, the Veteran had an episode of weakness, numbness, and pain in the left arm and left leg. In March 2010, the Veteran had an otolaryngology consultation at an Army clinic. He reported having hearing loss, tinnitus, and disequilibrium. He indicated that the tinnitus was worse in the last five months. The otolaryngologist, D. F. M., M.D., found that Meniere's disease was possible, based on symptoms. He stated that the symptoms were not really consistent with benign paroxysmal postural vertigo. In a June 2010 statement, the Veteran wrote that he had periods when he felt unsteady, with impaired balance. He indicated that he had a spinning feeling that was sometimes accompanied by nausea. He stated that his tinnitus was very irritating and that intense tinnitus occasionally disturbed his sleep. In treatment at the Army Clinic in August 2010, the Veteran reported that two weeks earlier he had vertigo and lost consciousness. The treating clinician noted that the Veteran also had loud tinnitus and sensorineural hearing loss, which the clinician described as consistent with Meniere's disease. In February 2011, the Army otolaryngologist Dr. M. wrote that he treated the Veteran. Dr. M. noted that several years earlier, while the Veteran was still on active duty, he began experiencing symptoms of sensorineural hearing loss, tinnitus, and episodic vertigo. Dr. M. stated that the Veteran's symptoms are consistent with a diagnosis of Meniere's disease. Dr. M. noted that while the Veteran was on active duty clinicians missed or did not arrive at a diagnosis of Meniere's disease. Dr. M. stated that further evaluation at the Army facility "now confirmed this as the diagnosis present all along." In the March 2011 RO hearing before a hearing officer, the Veteran reported that early in service he was able to do training exercises. He stated that during service he developed vertigo and tinnitus. He reported that he saw a doctor and was told that he had an ear problem. He indicated that clinicians told him to avoid certain tasks because of his vertigo. He stated that he determined to forge ahead with his duties and keep quiet about the vertigo. He related that about a year after his separation from service a doctor diagnosed Meniere's disease. In May 2011, the Veteran had a VA ear disease examination. The examiner reported having reviewed the Veteran's claims file. The examiner noted that the Veteran had never undergone an EMG. The examiner stated that the Veteran had vertigo that was compatible with a finding of Meniere's disease, but that the patterns of his hearing loss were not consistent with Meniere's disease. The examiner stated that there was no objective testing evidence to confirm a diagnosis of Meniere's disease, and that the Veteran's sensorineural hearing loss and vertigo were of uncertain etiology. In VA treatment in June 2011, the Veteran reported a long history of vertigo, and present sharp pain in the left ear and left side of the face. In July 2011, the Veteran had an exacerbation of vertigo. In July 2011, Dr. M. stated that the Veteran "has a diagnosis of Meniere's Disease based on the classic symptoms of documented sensorineural hearing loss, tinnitus, vertigo, and aural fullness." Dr. M. stated that the Veteran had received treatment for Meniere's Disease, and that with treatment some of his symptoms improved and stabilized. Dr. M. related that on a recent VA evaluation, the diagnosis was disputed, and the Veteran was instructed to discontinue his medication. Dr. M. stated that the Veteran's symptoms worsened after stopping his medication, and improved and stabilized after his primary care physician restarted the treatment. In October 2011, Dr. M. saw the Veteran for follow-up for Meniere's disease. The Veteran reported having had a few minor episodes of vertigo. In VA primary care in October 2011, the treating clinician noted a history of benign positional vertigo diagnosed as Meniere's disease. The list of the Veteran's medications included meclizine for dizziness. In January 2013, the Veteran had a VA ear conditions examination. The examiner reported having reviewed the Veteran's claims file. The Veteran reported that nausea, vomiting, tinnitus, and vertigo began in 2006, and that in 2009 a clinician diagnosed Meniere's disease. He stated that he had been treated with meclizine, which worked only intermittently. The examiner noted that the Veteran had hearing impairment, vertigo that occurred less than once a month and lasted less than an hour, and tinnitus that occurred more than once a week and lasted more than 24 hours. The examiner stated that, because the diagnosis of the Veteran with Meniere's disease was made based on symptoms and not laboratory values, and because the Veteran's hearing loss did not include low frequency hearing loss, he questioned the diagnosis. He opined that the Veteran's hearing loss was more in line with noise exposure. He stated that, if Meniere's disease was a factor in causing the Veteran's vertigo, it was not caused by noise exposure but more likely was caused by one of a number of metabolic possibilities. In the August 2013 Board hearing, the Veteran reported that he experienced dizziness, or vertigo, and tinnitus, and that he had hearing loss. He indicated that his Meniere's disease symptoms began during the last five years of his service. He stated that during service he tried to hide his Meniere's disease symptoms and forge ahead with his duties. He indicated that he feared that others would interpret his dizziness and balance problems as intoxication. The Veteran's service treatment records reflect that during service he had hearing loss, tinnitus, and dizziness, symptoms associated with Meniere's disease. The Veteran continued to report such symptoms after service. Treating physicians found in 2010 that it was possible that the Veteran had Meniere's disease, and concluded in 2011 that he did have it. A VA clinician who examined the Veteran in May 2011 found that there was no testing evidence to confirm a diagnosis of Meniere's disease, and a VA clinician who examined the Veteran in June 2013 questioned whether a diagnosis of Meniere's disease was correct. The 2011 and 2013 VA examiners did not express certainty that the Veteran does not have Meniere's disease. They indicated, rather, some question as to whether Meniere's disease is adequately shown in the Veteran's case. Dr. M.'s training as an otolaryngologist and the knowledge of the Veteran's case he obtained through treating the Veteran add persuasive weight to his conclusion that the Veteran has Meniere's disease. It is also notable that the Veteran's symptoms worsened after medication to treat Meniere's disease was stopped, and stabilized after it was started again. The Board finds that the evidence that the Veteran has Meniere's disease is at least as persuasive as the evidence that he does not. Considering the symptoms in service, and Dr. M.'s opinion that the Veteran had Meniere's disease all along, beginning during service, the evidence supports that the current Meniere's disease began during service. The Board therefore grants service connection for Meniere's disease. Headaches The Veteran reports that during service he began to have recurrent headaches, and that he has continued to have such headaches since then. His service treatment records reflect reports of headaches in May 1988, September 1988, and August 2007. From 2002 forward, he had treatment on multiple occasions for sinus congestion, sinus pain, and allergies affecting his nose and sinuses. He was eventually diagnosed with asthma. The RO has established service connection for his asthma. In April 2007, while the Veteran was still in service, he had private treatment to address abdominal pain. The symptoms and disorders noted at that time included headaches. In VA treatment in April 2009, the Veteran reported onset of recurrent headaches in about 2005. He stated that presently he had headaches about once a week, and asserted that the headaches were associated with pollen and allergies. He indicated that the headaches lasted a few hours, and that during headaches light hurt his eyes. In private treatment in July 2009, the Veteran reported a headache that had been present for six days. He indicated that the headache was accompanied by photophobia, phonophobia, and occasional nausea. The treating physician diagnosed migraine headaches, and prescribed medications. On a July 2009 MRI of the Veteran's brain, results were normal. Treatment for headaches continued in 2009 and 2010. In the March 2011 hearing before a hearing officer, the Veteran stated that he was not treated for migraine headaches before service. He reported that he first experienced migraine headaches during his service in Hawaii, which was from 1999 to 2002. He stated that during that period he told doctors about his headaches and began taking medications for the headaches. He indicated that, seeking to meet his superiors' expectations, he minimized visits to doctors. He related that presently he received treatment for migraine headaches. In the August 2013 Board hearing, the Veteran reported that he did not have headaches before he entered service. He stated that he began to have migraine headaches during his service in Hawaii, which was between 1999 and 2002. He reported that at that time the headaches were strong, that he sought treatment, and that clinicians prescribed medications. He stated that prescription of medications to treat headaches continued after service, through the present. He indicated that he had post-service treatment for headaches within a year after his separation from service. Medical treatment records corroborate the Veteran's accounts that he began to have recurrent headaches during service. The treatment for headaches he received as early as within the year following service helps to show that recurrent headaches during service have continued since service. Although clinicians did not provide a diagnosis of migraine headaches during service, and have not consistently provided such a diagnosis since service, the record of recurrent headaches during service, soon after service, and since is sufficient to support service connection for headaches. ORDER Entitlement to service connection for Meniere's disease is granted. Entitlement to service connection for headaches is granted. ____________________________________________ MICHELLE L. KANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs