Citation Nr: 0015558 Decision Date: 06/13/00 Archive Date: 06/22/00 DOCKET NO. 96-08 717 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston- Salem, North Carolina THE ISSUE Entitlement to service connection for dizziness. REPRESENTATION Appellant represented by: S. Kendall, Attorney at Law ATTORNEY FOR THE BOARD C. Fetty, Counsel INTRODUCTION The veteran had active service from August 1969 to March 1971. This appeal arises from a February 1995 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina, which determined that no new and material evidence had been submitted to reopen a claim for service connection for hearing loss. The appeal also arises from an October 1995 RO rating decision that denied, in pertinent part, claims for service connection for dental trauma to teeth 9 and 10 and for service connection for dizziness. The veteran appealed to the Board of Veterans' Appeals (Board) for service connection for hearing loss, dizziness and dental trauma to teeth 9 and 10. In a June 1997 decision, the Board issued a decision determining that no new and material had been submitted to reopen a claim for service connection for hearing loss, and that the veteran had not submitted evidence of well-grounded claims for service connection for dental trauma to teeth 9 and 10 and for dizziness. The veteran appealed the June 1997 Board decision to United States Court of Appeals for Veterans Claims (hereinafter referred to as Court). In a decision dated August 4, 1999, the Court affirmed the Board's decision as to a dental condition and hearing loss. With respect to service connection for dizziness, the Court found the claim to be well grounded. The Court then vacated the Board decision as to dizziness and remanded it for "further proceedings." Since that time, the veteran has submitted additional relevant evidence and a waiver of his right to initial RO review of the evidence. New medical evidence has been submitted attributing the veteran's hearing loss to an in- service ear infection. The Board no longer has jurisdiction over this matter, as the Court affirmed the June 1997 Board decision that the claim had not been reopened by new and material evidence. The new evidence is referred to the RO as a new application to reopen the claim for service connection for hearing loss. The new medical evidence refers to "vertigo". The Board finds that this refers to the same condition claimed as "dizziness". FINDINGS OF FACT 1. The Board finds that all relevant evidence for equitable disposition of this claim has been obtained. 2. A chronic ear infection began during active service and has caused current dizziness. CONCLUSION OF LAW Dizziness was incurred in active service. 38 U.S.C.A. §§ 1110, 1137; 38 C.F.R. §§ 3.303 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION In August 1999, the Court found the claim for service connection for dizziness to be well grounded. The submission of a well-grounded claim triggers VA's duty to assist. See 38 U.S.C.A. § 5107(a) (West 1991). The Board finds that all relevant evidence for equitable disposition of this claim has been obtained to the extent possible and that no further assistance to the veteran is required to comply with VA's duty to assist him. The Board must review the claim on its merits and account for the evidence that it finds to be persuasive and unpersuasive and provide reasoned analysis for rejecting evidence submitted by or on behalf of the claimant. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. See Alemany v. Brown, 9 Vet. App. 518 (1996), citing Gilbert, at 54. I. Factual Background Service department documents indicate that the veteran served as a helicopter repairman. He served in Vietnam; however, he has not alleged that any injuries or diseases in service were incurred during or as a result of combat. A March 1969 induction examination report reflects some right ear hearing impairment. A June 1970 treatment report reflects loss of hearing in the veteran's right ear and a chronic infection in the right ear with an opaque tympanic membrane and probable cholesteatoma. The impression was chronic ear disease in the right ear with complete hearing loss and mild hearing loss in the left ear. The examiner recommended that the veteran wear earplugs when flying and return in 30 to 60 days for a recheck. A July 1970 treatment report notes complaint of deafness in the right ear. An August treatment record notes that the veteran had some right ear hearing loss and perforation present before active service. Other service medical records (SMRs) note treatment for a perforated right eardrum while stationed in Vietnam and that a favorable line of duty determination for a perforated eardrum was given. Chronic ear infection with complete right-sided hearing loss and mild left hearing loss were also noted. The veteran underwent a separation examination in March 1971. According to the report, the veteran did not undergo audiometry. The report indicates only that the veteran's hearing was 15/15, bilaterally, to whispered voice. In April 1971, the veteran submitted a claim for benefits indicating that he had hearing loss in the right ear inter alia. Service connection was granted that month for perforation of the right tympanic membrane. An August 1977 treatment report notes complaint of dizziness and right ear infection. The report notes a superior perforation of the right tympanic membrane and probable cholesteatoma in the middle ear. According to a December 1977 VA hospital report, the veteran underwent right tympanoplasty with homograft tympanic membrane and malleus. A cholesteatoma was found in the right middle ear. In August 1979, the veteran underwent VA hospitalization and right ear surgery for replacement of a homograft incus. The veteran underwent VA audiology examination in January 1980. According to the report, his right ear hearing had improved slightly since before entering service and his left ear hearing was within normal limits. In March 1980, a claim for service connection for hearing loss and chronic right otitis media was denied and the veteran did not appeal the decision. In September 1994, the RO received a report of a North Carolina Division of the Veterans Affairs medical examination. The report noted hearing loss, dizziness, and a retracted and scarred right tympanic membrane. The diagnosis was mixed hearing loss and vertigo, of undetermined etiology. An October 1994 North Carolina Division of Veterans Affairs examination report notes post surgical changes in the right ear with hearing loss and mild high frequency sensorineural hearing loss in the left ear. In April 1995, the veteran submitted a claim for benefits for a dental condition, hearing impairment, and dizziness. In his claim he indicated that he experienced hearing loss and dizziness while in Vietnam. He indicated that he was hospitalized in Vietnam for dizziness, hearing loss, and an ear infection. He also reported previous VA treatment and private treatment in 1992-93 by a Dr. Barker. In March 1996, the veteran was seen at Iredell Memorial Hospital Emergency Department for dizziness. Antivert was prescribed for the veteran's symptoms. No etiology was given. As noted in the introduction, in June 1997, the Board adjudicated the claim and found that the veteran had not submitted evidence of a well-grounded claim for service connection for dizziness. In April 2000, the veteran submitted a medical evaluation dated in March 2000 that significantly impacts this appeal. The report is signed by Craig N. Bash, Assistant Professor of Radiology and Nuclear Medicine, Uniformed Services University of the Health Sciences (a joint services school organized within the U.S. Department of Defense). In the report, Dr. Bash notes review of the veteran's claims file and acknowledged several post-service ear surgeries. Dr. Bash relates certain symptoms, including vertigo, to the veteran's in-service ear infection and cholesteatoma. Dr. Bash noted reliance on evidence of a probable Pseudomonas infection of the right middle ear with cholesteatoma during active service with indications of chronic recurring infections since 1969. Dr. Bash concluded with the following opinion: "This patient's current mastoiditis, vertigo, hearing loss, ossicle loss, and tympanic membrane loss are all a result of his chronic service-acquired infection." Legal Analysis In order to establish service connection for a disability, the evidence must show it resulted from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110, 1137 (West 1991); 38 C.F.R. § 3.303 (1999). Service connection may 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) (1999); Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Dr. Bash's March 2000 medical opinion clearly notes that the veteran has vertigo and other residuals of an in-service ear infection. The Board notes that this opinion appears to be well supported by the evidence of record. Although the etiology of the veteran's dizziness had previously been left undetermined, the earlier medical opinions certainly have not precluded or clouded the recent determination. The favorable medical opinion is uncontroverted by other medical evidence of record. The Board finds therefore, that the medical evidence strongly favors the claim. ORDER Entitlement to service connection for dizziness is granted. J. E. Day Member, Board of Veterans' Appeals