Citation Nr: 0211929 Decision Date: 09/13/02 Archive Date: 09/19/02 DOCKET NO. 01-05 391 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUE Entitlement to service connection for vertigo as being secondary to service-connected bilateral hearing loss and tinnitus. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. P. Simpson, Counsel INTRODUCTION The veteran had service with the United States National Guard from 1956 to 1962, in the course of which he engaged in two- week periods of active duty for training. He also had a period of active duty for training in June 1963. This case comes before the Board of Veterans' Appeals (the Board) on appeal from a June 2000 rating decision of the Portland, Oregon, Department of Veterans Affairs (VA) Regional Office (RO). The RO denied service connection for vertigo as secondary to service-connected hearing loss. In June 2002, the veteran testified at a personal hearing before the undersigned Board Member; a transcript of which has been associated with the claims file. The Board notes that a claim for service connection for a psychiatric disorder as being secondary to the service- connected bilateral hearing loss and tinnitus has been raised by the evidence of record, and therefore the Board refers this issue to the RO for initial consideration and appropriate action. Godfrey v. Brown, 7 Vet. App. 398 (1995). FINDINGS OF FACT 1. The veteran is service connected for bilateral hearing loss and tinnitus. 2. There is competent evidence that vertigo is attributable to the service-connected bilateral hearing loss and tinnitus. CONCLUSION OF LAW Vertigo is proximately due to or the result of the service- connected bilateral hearing loss and tinnitus. 38 U.S.C.A. §§ 1110, 5103A, 5107 (West 1991 & Supp. 2001); 38 C.F.R. § 3.310(a) (2001). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duty to Assist Because the Board is granting service connection for vertigo as being secondary to service-connected bilateral hearing loss and tinnitus, it does not believe that it needs to establish that VA has fulfilled its duty to assist. However, the Board must address the RO's development in this case because it was exceptionally comprehensive. Following the May 2000 ear examination, the RO, recognizing that the examiner, who had conducted the May 2000 examination, had not had an opportunity to review the claims file, sent it to be reviewed by that same examiner for him to review the claims file and provide answers to specific questions that related to the veteran's claim for service connection. That examiner provided an opinion in August 2000. The RO then obtained a second opinion, which opinion was done in October 2000. The Board finds that such actions taken by the RO were exhaustive, and appreciates the attentiveness the RO showed in adjudicating the veteran's claim. II. Decision Section 3.310(a) of title 38, Code of Federal Regulations, which applies to secondary service connection for a disability and which derives from 38 U.S.C.A. § 1110 (West 1991), provides: Disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. 38 C.F.R. § 3.310(a) (2001). When all the evidence is assembled, 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 a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board notes that the veteran is service connected for bilateral hearing loss and tinnitus. The Board has carefully reviewed the evidence of record and finds that the evidence supports the grant of service connection for vertigo. The reasons follow. The evidence that supports the veteran's claim would be various VA treatment reports and the veteran's report of history in his statements and in testimony before the undersigned Board Member. In August 1997, the veteran reported dizziness and nausea when he was not standing with both feet on the ground. A November 1999 VA treatment report shows that the veteran complained of an imbalance sensation when standing up quickly. Following examination, the examiner stated that the veteran had episodic tinnitus with vertiginous symptoms, which he stated were related to chronic sensorineural hearing loss. In a separate November 1999 treatment report, the veteran reported dizziness with a sensation of nausea and a spinning sensation. Following examination, the examiner entered an assessment of intermittent vertigo. A December 1999 treatment report shows a finding that the veteran presented with impaired balance, which the examiner attributed to the veteran's tinnitus. The evidence against the veteran's claim would be several opinions by VA examiners. In a May 2000 examination report, the examiner stated that he did not believe that the veteran's dizziness was related to the veteran's bilateral hearing loss or tinnitus because "generally, dizziness does not occur 35 years after noise exposure. When it is related to noise exposure, it is a sudden, instantaneous problem." That same examiner provided an additional opinion in August 2000. There, he stated that he did not see any evidence in the claims file of complaints of dizziness during times while the veteran was on active duty or in reserves, nor any evidence of the extent of the veteran's hearing loss at that time. His determination that the veteran did not have vertigo as a result of the service-connected bilateral hearing loss and tinnitus was that the description of the veteran's dizziness did not indicate a "true vertigo" associated with such disabilities. Finally, in an October 2000 opinion, a VA examiner stated that he believed that the majority of the evidence was consistent with the finding that vertigo was due to benign positional vertigo. In reviewing the evidence against the veteran's claim, the Board notes that while the evidence in the record is devoid of complaints of dizziness prior to 1997, the veteran provided sworn testimony before the undersigned Board Member at a June 2002 hearing. The undersigned thus had an opportunity to observe the veteran and found him to be a remarkably credible witness. There, the veteran testified that he had had dizziness during his period of active duty for training and had just not reported such history prior to 1997. Dizziness is a symptom that the veteran is competent to report, as it is an observable condition, and the Board finds no basis to discredit his allegation. Therefore, it appears that much of the examiners's findings that the veteran does not have true vertigo was based on a lack of evidence, as opposed to the veteran actually denying any vertigo prior to 1997. Again, the undersigned found the veteran's testimony to be very credible at the June 2002 Board hearing and accepts his report of history of having vertigo since approximately 1959. Thus, the Board finds that it is unable to ascribe greater weight to the VA opinions, which are against the veteran's claim, or the VA opinions, which support the veteran's claim, and the evidence is therefore in equipoise. As stated above, when the evidence is in relative equipoise as to the merits of an issue, then the benefit of the doubt in resolving the issue is to be given to the veteran. See 38 C.F.R. § 3.102 (2001); Gilbert, 1 Vet. App. at 55. Accordingly, the Board concludes that service connection is warranted for vertigo as being secondary to the service-connected bilateral hearing loss and tinnitus. ORDER Service connection for vertigo as being secondary to the service-connected bilateral hearing loss and tinnitus is granted. JEFF MARTIN Member, Board of Veterans' Appeals IMPORTANT NOTICE: We have attached a VA Form 4597 that tells you what steps you can take if you disagree with our decision. We are in the process of updating the form to reflect changes in the law effective on December 27, 2001. See the Veterans Education and Benefits Expansion Act of 2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the meanwhile, please note these important corrections to the advice in the form: ? These changes apply to the section entitled "Appeal to the United States Court of Appeals for Veterans Claims." (1) A "Notice of Disagreement filed on or after November 18, 1988" is no longer required to appeal to the Court. (2) You are no longer required to file a copy of your Notice of Appeal with VA's General Counsel. ? In the section entitled "Representation before VA," filing a "Notice of Disagreement with respect to the claim on or after November 18, 1988" is no longer a condition for an attorney-at-law or a VA accredited agent to charge you a fee for representing you.