Citation Nr: 1017109 Decision Date: 05/07/10 Archive Date: 05/19/10 DOCKET NO. 05-37 916 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Providence, Rhode Island THE ISSUE Entitlement to service connection for vertigo, claimed as secondary to service-connected posttraumatic stress disorder (PTSD) with panic disorder. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Dan Brook, Counsel INTRODUCTION The Veteran served on active duty from February 1965 to October 1968. This appeal to the Board of Veterans' Appeals (Board) arose from a September 2005 rating decision in which the RO, inter alia, denied service connection for vertigo claimed as secondary to service-connected posttraumatic stress disorder (PTSD) with panic disorder. In September 2005, the Veteran filed a notice of disagreement (NOD). A statement of the case (SOC) was issued in November 2005, and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in November 2005. In March 2008, the Veteran testified during a Board video- conference hearing before the undersigned Veterans Law Judge; a transcript of that hearing is of record. In June 2008, the Board remanded the claim on appeal to the RO, via the Appeals Management Center (AMC) in Washington D.C., for further development. After accomplishing the development, the AMC continued the denial of the claim as reflected in an October 2009 supplemental SOC (SSOC), and returned the matter to the Board. In September 2008, the Veteran's representative submitted additional medical evidence directly to the Board (i.e. a copy of the report of a September 2008 VA compensation and pension examination performed at the Providence VA Medical Center pursuant to an August 2008 AMC examination request), along with a waiver of initial RO consideration of the evidence. For unknown reasons, this evidence was not considered by the RO/AMC, but is accepted for inclusion in the record on appeal. See 38 C.F.R. § 20.1304 (2009). FINDINGS OF FACT 1. All notification and development actions needed to fairly adjudicate the claim on appeal have been accomplished. 2. Although the Veteran's vertigo is not medically shown to have been caused by the Veteran's service connected PTSD with panic disorder, and is not directly aggravated by psychiatric disability, an uncontroverted medical opinion indicates that it is more likely than not that the vertigo is aggravated by dizziness caused by medications taken for this disability. CONCLUSION OF LAW Resolving all reasonable doubt in the Veteran's favor, the criteria for secondary service connection for vertigo, on the basis of aggravation, are met. 38 U.S.C.A. §§ 1131, 5103, 5103A, 5107(b) (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. 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. 2009)) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2009). Given the favorable disposition of the claim for service connection, the Board finds that all notification and development actions needed to fairly adjudicate this claim have been accomplished. II. Analysis Service connection may be granted for 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 may be granted for any disease diagnosed after discharge from service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Under 38 C.F.R. § 3.310(a), service connection may be granted for disability that is proximately due to or the result of a service-connected disease or injury. That regulation permits service connection not only for disability caused by service- connected disability, but for the degree of disability resulting from aggravation of a nonservice-connected disability by a service-connected disability. See also Allen v. Brown, 7 Vet. App. 439, 448 (1995). The Veteran underwent a private otoneurology evaluation in May 1996. He reported that that he fell on ice in January 1994, striking his right occiput, and that he was imbalanced for a few moments, but did not have any vertigo thereafter. However, he subsequently began having problems with dizziness in 1995. Examination and videonystagmography were conducted and the pertinent impression was possible otolith dysfunction or cupulolithiasis as an otogenic source of dizziness and imbalance. The physician noted that the diagnosis was made by the observation of paroxysmal vertigo, without nystagmus, during the examination. The physician added that, because there was a clear-cut delay in the onset of the dizziness; because it was so severe as to provoke motion sickness; and, because of the absence of any evidence of a cervicogenic factor; he thought an otogenic source was possible. The physician also indicated that the Veteran's head trauma in 1994 could have caused an otolith dysfunction, thus harming the gravitosensitive aspects of the labyrinth. In May 1997, the Veteran was again examined by the same physician, with his chief complaint being that his positional vertigo was back. Following examination, the impression was active benign paroxysmal positional vertigo (BPPV) due to canalothiasis of the left posterior semi-circular canal. The physician added that this recurrence strongly suggested a highly recurrent pattern of BPPV, and added that he saw this pattern in otolith degenerative illnesses. He stated that it was very possible that the Veteran had an otolith degeneration, because he was quite young to have the idiopathic form of this disease. VA medical records from January 1997 to March 2009 reflect that the Veteran received ongoing treatment for PTSD with panic disorder and was noted to be intolerant to all trials of mood stabilizers, low dose neuroleptics and selective serotonin reuptake inhibitors (SSRIs). The records indicate that the Veteran reported aggravation of his vertigo/dizziness as a result of trying numerous medications for his PTSD including, Prozac, Wellbutrin, Serzone, Celexa, Topiramate, Lamotrigine and Buspar. Also, in a February 1998 letter, a treating VA psychiatrist stated that the Veteran was being treated for PTSD with agoraphobia and panic disorder and that he had a severe problem with vertigo, which had made it difficult for him to tolerate several trials of different antidepressants. Specifically as regards Buspar, a May 2006 VA outpatient psychiatry note reflects that the Veteran was encouraged to resume a trial of the medication at a low dose. It was noted that he had stopped taking buspar due to lightheadedness. Progress notes from July 2006, March 2007, January 2008 and February 2008 reflect that the Veteran was still susceptible to vertigo if he moved his head too far back or too suddenly, especially when combined with taking buspar. On September 2008 VA ear, nose and throat (ENT) examination, the Veteran reported that his symptoms of vertigo included a spontaneous dropping feeling while sitting in a chair. This would last about 3 to 4 seconds during which he felt as if he was falling down an elevator shaft. The Veteran also reported dizziness, which he described as the room turning, and which the examiner noted was a form of vertigo or disorientation in space. The Veteran indicated that movement, such as rolling over in bed, looking up, and stooping over would regularly cause a brief episode of spinning or turning dizziness. Physical examination revealed that a dynamic visual acuity test was positive and that a standard Romberg test was also positive. The examiner noted that he took at face value the Veteran's complaint that his medications aggravated his dizziness and indicated that he understood this to mean that these drugs caused a sense of dizziness or lightheadedness, a recognized side effect. The examiner also indicated that the Veteran regularly took Buspar, 5 mg b.i.d., which commonly causes dizziness as a side effect, and that he also took topiramate and amityrptiline, which also causes this side effect. Additionally, the examiner noted that the VA outpatient records specifically reflected the finding that the Veteran was susceptible to vertigo when he moved his head too far back or too suddenly, especially when combined with taking buspar. The examiner indicated that he knew of no direct connection between any medications and the aggravation or initiation of BPPV. Thus, it was his opinion that the Veteran's BPPV was not directly aggravated by treatment for service connected PTSD. However, the examiner opined that the Veteran's BPPV was aggravated by dizziness that was caused by the medications used to treat the PTSD. The examiner noted that this observation was supported by the observations in the VA outpatient records by the Veteran's treating psychiatrist. Thus, the examiner found that it was more likely than not that the Veteran's BPPV was aggravated by dizziness caused by the medications he takes for PTSD. The examiner noted that the Veteran would have been willing to have positional testing in order to confirm the diagnosis of BPPV but that he could not for medical reasons. The examiner indicated that the Veteran would have had to fast prior to positional testing in order to satisfy his surgeon's concerns that he might throw up and aspirate material from his stomach into his lungs (due to having a prior esophagectomy). However, because of his diabetes, the Veteran could not go more than two hours without becoming hypoglycemic. The examiner also indicated that the Veteran had had vestibular testing in the past and that he did not feel that additional testing would have significantly changed his opinion concerning the presence of BPPV. On May 2009 VA ENT examination, the examiner noted that the Veteran had indicated that he was unable to undergo testing for the presence of vertigo due to the risk of aspiration, resulting from esophageal reflux, which he had developed subsequent to his esophagectomy surgery. At the outset, the Board notes that, although the May 2009 VA examiner was unable to conduct testing for BPPV, and thus did not diagnose the disability, the earlier evidence of record reasonably establishes the presence of BPPV, with the September 2008 VA examiner specifically indicating that he did not feel that additional testing would have significantly changed his opinion concerning the presence of the disability. The Board also notes that the evidence of record does not support an award of secondary service connection on the basis that the Veteran's PTSD with panic disorder has caused this current vertigo but instead tends to indicate that the vertigo resulted from his head trauma in 1994. The Veteran has contended that the fall, which resulted in the head trauma, was actually caused by him taking the medication, Xanax, for PTSD, but there is no objective evidence of record to support this contention. However, the Veteran and his representative have also alleged that the Veteran's vertigo is aggravated by the medications he takes for PTSD. Specifically as regards the question of aggravation, the September 2008 VA examiner, an ENT physician, reviewed the relevant record, including the other medical evidence discussed above, and examined the Veteran. Based on this examination and review, the examiner found that although the Veteran's vertigo is not directly aggravated by the medications he takes for his service-connected PTSD, the vertigo is aggravated by dizziness caused by the medications. Thus, while this opinion does not support a finding of a direct link between the Veteran's PTSD medications and increased severity of the vertigo, it does support a finding that aggravation of the vertigo results from the effect (i.e. dizziness) of the PTSD medications. Accordingly, the Board finds that the opinion establishes a sufficiently clear- albeit, somewhat indirect-relationship between the PTSD medications and the aggravation of the vertigo to supporting a finding of secondary service connection based on such aggravation. Significantly, there is no medical opinion of record on the question of the aggravation of the Veteran's vertigo that contradicts the September 2008 examiner's opinion. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. 38 C.F.R. § 3.102. See also 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Given the totality of the evidence, and with resolution of all reasonable doubt on the question of aggravation by service-connected disability in the Veteran's favor, the Board finds that the criteria for secondary service connection for vertigo, on the basis of aggravation, are met. As a final point, the Board notes that, effective October 10, 2006, VA amended 38 C.F.R. § 3.310 with regard to the requirements for establishing secondary service connection on an aggravation basis. See 71 Fed. Reg. 52,744-47 (Sept. 7, 2006). While the amendment may have some bearing on the assignment of the disability rating, here, in adjudicating the matter of service connection, the Board has (as the RO did) applied the version of the regulation in effect at the time the Veteran filed his claim. ORDER Secondary service connection for vertigo, on the basis of aggravation, is granted. ____________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs