Citation Nr: 1126432 Decision Date: 07/13/11 Archive Date: 07/19/11 DOCKET NO. 08-10 020 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUE Entitlement to service connection for dizziness, including as secondary to the service-connected hearing loss and tinnitus. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL The Veteran and his friend ATTORNEY FOR THE BOARD Biswajit Chatterjee, Associate Counsel INTRODUCTION The Veteran served on active duty in the military from February 1943 to October 1945. This appeal to the Board of Veterans' Appeals (Board) is from a September 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska. As support for his claim, the Veteran testified at a hearing at the RO in July 2009, before the undersigned Veterans Law Judge (VLJ) of the Board, also commonly referred to as a Travel Board hearing. A transcript of this hearing is of record. In December 2009, the Board remanded the dizziness claim to the RO, via the Appeals Management Center (AMC), for additional development and consideration. In April 2011, the AMC issued a supplemental statement of the case (SSOC) continuing to deny the claim and returned the file to the Board for further appellate review. As such, the Board is deciding the claim for service connection for dizziness. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2010). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDING OF FACT There is no competent and credible evidence indicating he had dizziness while in service, or that it is otherwise related or attributable to his military service, including to his service-connected bilateral hearing loss and tinnitus. CONCLUSION OF LAW The Veteran's dizziness is not a result of disease or injury incurred in or aggravated by his military service, or else proximately due to, the result of, or chronically aggravated by his service-connected bilateral hearing loss and tinnitus. 38 U.S.C.A. § 1110 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.303, 3.310 (2010). REASONS AND BASES FOR FINDING AND CONCLUSION I. The Duties to Notify and Assist As provided by the Veterans Claims Assistance Act (VCAA), VA has duties to notify and assist claimants in substantiating claims for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2010). Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will obtain and assist the claimant in obtaining; and (3) that the claimant is expected to provide. See 38 C.F.R. § 3.159(b)(1); see also Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Charles v. Principi, 16 Vet. App. 370, 373- 74 (2002). These VCAA notice requirements apply to all five elements of a service-connection claim: (1) Veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007). Further, this notice must include information that a downstream disability rating and an effective date for the award of benefits will be assigned if service connection is granted. Id., at 486. Ideally, VCAA notice should be provided prior to an initial unfavorable decision on a claim by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II). If, however, for whatever reason it was not, or the notice provided was inadequate, this timing error can be effectively "cured" by providing any necessary VCAA notice and then going back and readjudicating the claim - such as in a statement of the case (SOC) or supplemental SOC (SSOC), such that the intended purpose of the notice is not frustrated and the Veteran is given an opportunity to participate effectively in the adjudication of the claim. See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Mayfield IV); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). The U. S. Supreme Court has clarified that VCAA notice errors are not presumptively prejudicial, rather, should be determined based on the facts of each individual case. Moreover, as the pleading party, the Veteran, not VA, has this burden of proof for showing there is a VCAA notice error in timing or content and, furthermore, that it is unduly prejudicial, meaning outcome determinative of the claim. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009). Here, a letter satisfying the notice requirements of 38 C.F.R. § 3.159(b)(1) was sent to the Veteran in December 2006, so prior to initially adjudicating his claim in September 2007. The letter informed him of the evidence required to substantiate his claim and apprised him of his and VA's respective responsibilities in obtaining this supporting evidence. Note also that the December 2006, and the more recent March 2008 and January 2010 letters complied with Dingess by discussing the downstream disability rating and effective date elements of his claim. And of equal or even greater significance, since providing that additional Dingess notice, the RO has readjudicated his claim in the April 2011 SSOC - including considering the additional evidence received in response to that additional notice. See again, Mayfield IV and Prickett, supra. So the timing defect in the provision of that additional notice has been rectified. VA also fulfilled its duty to assist the Veteran by obtaining all relevant evidence in support of his claim that is obtainable, and therefore appellate review may proceed without prejudicing him. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159; see also Bernard v. Brown, 4 Vet. App. 384 (1993). The RO/AMC obtained his VA treatment records and his available service treatment records (STRs) and service personnel records (SPRs). He also submitted personal statements and testified at both a formal Decision Review Officer hearing at the RO January 2009, and a Travel Board hearing in July 2009. As well, the RO and AMC obtained his VA treatment records and medical opinions in February 2009, and September and October 2010, concerning all aspects of the etiology of his dizziness claim. That is, these opinions addressed the claim both on a direct and secondary basis of service connection, satisfying the principles of McLendon v. Nicholson, 20 Vet. App. 79 (2006), 38 U.S.C.A. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4). Notably, the Board primarily remanded this case in December 2009 so the AMC could obtain outstanding VA treatment records and arrange for a VA compensation examination and opinion on the etiology of his claimed dizziness, which since have been obtained. The Board also had previously remanded this case so the AMC could obtain private treatment records from an indentified provider, Boys Town. Here, although the AMC noticeably made both an initial request and a follow-up request for private treatment records from Boys Town, these requests elicited no response. And the AMC notified the Veteran of its efforts to obtain the records from this identified private provider. As such, the AMC made "reasonable efforts" to obtain these relevant private records, in compliance with 38 U.S.C.A. § 5103A(b) and 38 C.F.R. § 3.159(c)(1), albeit ultimately unsuccessful. The Board finds the AMC made sufficient attempts to obtain these private treatment records. See Chest v. Peake, 283 Fed. App. 814 (Fed. Cir. 2008). The Board is therefore satisfied there was substantial compliance with the remand directives. See Stegall v. West, 11 Vet. App. 268 (1998) and Dyment v. West, 13 Vet. App. 141, 146- 47 (1999). That is to say, the Board is satisfied the RO/AMC made reasonable efforts to obtain any identified medical and other records. Significantly, neither the appellant nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained and that is obtainable. The Board is therefore satisfied that VA has provided all assistance required by the VCAA. 38 U.S.C.A. § 5103A. II. Analysis-Entitlement to Service Connection for Dizziness, Including as Secondary to the Service-Connected Hearing Loss and Tinnitus The Veteran contends that his dizziness resulted from acoustic trauma from bomber jet engines and artillery noise suffered during service in World War II. In the alternative, he asserts his condition could also be related to his already service-connected hearing loss and tinnitus on a secondary basis. When determining whether service connection is warranted, all theories of entitlement, direct and secondary, must be considered. Szemraj v. Principi, 357 F.3d 1370, 1371 (Fed. Cir. 2004). Thus, the Board will address the claim on both direct-incurrence and secondary bases. After carefully reviewing the evidence, however, the Board finds no basis to grant this claim on either a direct or secondary theory of service connection. As discussed below, he fails to establish in-service incurrence of dizziness and evidence of an etiological link between his current dizziness and active duty. Nor is there competent and credible evidence attributing his current dizziness to service-connected hearing loss and tinnitus, either by way of causal relation or aggravation. Service connection is granted if it is shown the Veteran has disability resulting from an injury sustained or a disease contracted in the line of duty, or for aggravation during service of a pre-existing condition beyond its natural progression. 38 U.S.C.A. §§ 1110, 1153; 38 C.F.R. §§ 3.303, 3.306. Stated somewhat differently, to establish entitlement to service connection, there must be: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1, 8 (1999). Even conceding that the Veteran's dizziness symptoms are part of a clinically diagnosed balance disorder, there is still no evidence of in-service incurrence of any dizziness symptoms or any balance disorder. Acoustic trauma during service was already established by the RO, in the September 2007 rating decision, in already granting his claims for service connection for hearing loss and tinnitus. Despite this, the Veteran's STRs do not reveal any complaint, diagnosis, or treatment for dizziness or a balance disorder. Dizziness was not noted on the separation examination in September 1945. And there equally is no competent and credible evidence tending to suggest an association between his current dizziness and any disease contracted or injury sustained during his service. See Watson v. Brown, 4 Vet. App. 309, 314 (1993) ("A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or a disease incurred in service.") (italics added for emphasis). See, too, Maggitt v. West, 202 F.3d 1370, 1375 (Fed. Cir. 2000); D'Amico v. West, 209 F.3d 1322, 1326 (Fed. Cir. 2000); Hibbard v. West, 13 Vet. App. 546, 548 (2000); and Collaro v. West, 136 F.3d 1304, 1308 (Fed. Cir. 1998). To the contrary, there is competent medical opinion evidence by the October 2010 VA compensation physician that specifically discounts the notion that his dizziness had its origins during his period of service. So the only remaining question is whether he also experiences dizziness on a secondary basis to his service-connected bilateral hearing loss and tinnitus. Concerning this, disability that is proximately due to, the result of, or chronically aggravated by a service-connected disease or injury is considered service-connected, and when thus established, this secondary condition is considered a part of the original condition. 38 C.F.R. § 3.310(a) and (b) (2010). In this regard, establishing entitlement to service connection on this secondary basis requires evidence sufficient to show: (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). Also, in February 2009, another VA compensation physician provided an opinion against the secondary service connection aspects of his claim. That is, the February 2009 VA physician opined that the Veteran's dizziness is not associated with his tinnitus or hearing loss, precluding the possibility his dizziness is caused by or a result of his hearing loss and/or tinnitus. And the February 2009 VA opinion also stated, "...his dizziness is not aggravated by the hearing loss and/or tinnitus." A September 2010 VA compensation physician opinion then affirmed the latter opinions, by explicitly finding there is no causal relationship between his dizziness and the hearing loss or "ringing" (i.e., tinnitus). The September 2010 VA medical opinion also affirmed the notion that his hearing loss and tinnitus did not permanently worsen or aggravate his dizziness. Accordingly, there is simply no medical evidence supporting the claim of entitlement to service connection for a disability characterized by dizziness. The commenting VA physicians have provide highly probative, competent medical evidence against the notion that the Veteran experiences dizziness either as a direct result of his military service or even, alternatively, as secondary to his already service-connected hearing loss and tinnitus. Velez v. West, 11 Vet. App. 148, 158 (1998). See also Wallin v. West, 11 Vet. App. 509, 512 (1998) and McQueen v. West, 13 Vet. App. 237 (1999) (both indicating, like Velez, that competent medical nexus evidence is required to associate any given disorder with a service-connected disability). The Board also places limited probative value on the Veteran's lay statements in support of his claim. He is certainly competent to report that he has experienced these symptoms during and since his time on active duty in World War II, since within the realm of lay observation and experience. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009); See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Barr v. Nicholson, 21 Vet. App. 303, 310 (2007); and 38 C.F.R. § 3.159(a)(2). However, for the Board to assign any probative value to his statements, they must be both competent and credible. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). See also Rucker v. Brown, 10 Vet. App. 67 (1997) and Layno v. Brown, 6 Vet. App. 465, 469 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted")). Unfortunately, the Board finds his statements concerning the onset of his symptoms to be not credible, even though competent. See Dalton v. Nicholson, 21 Vet. App. 23 (2007) (indicating the Board must make an express credibility finding regarding lay evidence). His statements regarding are inconsistent, as he testified at his Board hearing that he had some dizziness symptoms during service. See July 2009 Board hearing testimony transcript, at 24. This contradicts earlier statements in his appeal, wherein he alleged that his dizziness disability had its onset in approximately 1999-2001. See November 2006 claim (VA Form 21-526) and January 2009 DRO hearing transcript, at 3. Simply stated, inconsistencies in the record undermine his credibility concerning the alleged date of onset of his dizziness. See Caluza v. Brown, 7 Vet. App. 498, 511, 512 (1995), aff'd per curiam, 78 F.3d. 604 (Fed. Cir. 1996). See also Macarubbo v. Gober, 10 Vet. App. 388 (1997) (holding that the credibility of lay evidence can be affected and even impeached by inconsistent statements, internal inconsistency of statements, inconsistency with other evidence of record, facial implausibility, bad character, interest, bias, self-interest, malingering, desire for monetary gain, and witness demeanor). In addition, the lapse of so many years between separation and the first documented complaints of dizziness after nearly six decades later (approximately 2006) further reduces the credibility of his assertions of dizziness due to service. See Maxson v. West, 12 Vet. App. 453, 459 (1999), affirmed sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (ruling that a prolonged period without medical complaint can be considered, along with other factors, as evidence of whether an injury or a disease was incurred in service which resulted in any chronic or persistent disability). So, the highly probative medical evidence against his claim outweighs the limited probative lay evidence for his claim. In conclusion, the Board finds that the preponderance of the evidence is against service connection for a disability characterized by dizziness, including as secondary to the service-connected hearing loss and tinnitus. So there is no reasonable doubt to resolve in the Veteran's favor, and this claim must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER The claim for service connection for dizziness, including secondary to the service-connected bilateral hearing loss and tinnitus, is denied. ____________________________________________ C. CRAWFORD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs