Citation Nr: 1237685 Decision Date: 11/02/12 Archive Date: 11/09/12 DOCKET NO. 08-19 460 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to service connection for disability manifested by dizziness, to include motion sickness, labyrinthitis, and vertigo. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Michael Holincheck, Counsel INTRODUCTION The Veteran served on active duty from June 1954 to September 1956. He has unverified additional service in the U. S. Marine Corps Reserve (USMCR) from March 1954 to June 1954. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDING OF FACT A chronic disability manifested by dizziness, to include motion sickness, labyrinthitis or vertigo is not shown to be related to the Veteran's period of active service. CONCLUSION OF LAW The Veteran does not have a disability manifested by dizziness, to include motion sickness, labyrinthitis or vertigo, that is the result of disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 4.9 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Background The Veteran served on active duty in the United States Navy from June 1954 to September 1956. He has unverified additional service in the USMCR from March 1954 to June 1954. The Veteran submitted his original claim for service connection for "chronic sea sickness (motion sickness)" in October 1956. He reported he had had the disorder since childhood. The RO requested the Veteran's service treatment records (STRs) in October 1956. The RO received STRs related to the Veteran's USMCR service in January 1957. The records included a March 1954 enlistment physical examination, at which time the Veteran reported a history of car sickness. He was found to be qualified for enlistment in the USMCR at that time. The STRs contain an entry that noted he was discharged for convenience of the government to enlist in another service in June 1954. The Veteran began his active service in the Navy in June 1954. The RO denied the Veteran's claim with a decision dated in January 1957. The decision cited to the Veteran's "induction" examination for evidence that the condition existed on entry to service. There was a reference to clinical records showing treatment at the Naval Hospital in Corona, California, in July and September 1956. The conclusion was that the Veteran's chronic sea sickness was a congenital or developmental condition and not a disease within the existing schedule and that the evidence did not show that it was aggravated beyond its natural progress during service. Notice of the rating action was provided in January 1957. The Veteran did not appeal the decision. Additional STR entries were received that related to the Veteran's Navy service from June 1954 to September 1956. The Veteran had an enlistment physical examination in June 1954. He again reported a history of car sickness on his Report of Medical History as part of his physical examination. However, he was accepted for service In June 1954. The STRs included a chronological record of his duty stations. The Veteran attended basic training and then additional advanced training as a pipefitter before reporting aboard the USS ATLAS (ARL-7) in January 1955. The Veteran served on the USS ATLAS until he reported for duty on the USS RUPERTUS (DD-851) on May 28, 1956. The STRs reflect that the Veteran was treated for otitis media on one occasion during basic training in September 1954. There were no other entries regarding any type of ear problems or dizziness until 1956. The records show that the Veteran was first treated for sea sickness on the USS RUPERTUS on June 7, 1956, a little more than a week after reporting to the ship. He had several treatment entries for motion sickness, identified as seasickness, during June and July 1956, respectively. A final entry from the ship, dated July 30, 1956, noted that the Veteran suffered from chronic motion sickness. He had reported to the ship in May 1956 and became ill during the first trip out to sea. He was violently sick and did not respond to any of the prescribed remedies. He was incapacitated for duty during the entire time at sea. The Veteran was noted to be a diligent worker and would work overtime in port to make up for work he had gotten behind while at sea. The recommendation was for the Veteran to be hospitalized and evaluated for reassignment to another type of ship or shore station. The Veteran was transferred to the U. S. Naval Hospital in Corona, California, at the end of July 1956. He remained as a patient until his discharge from service in September 1956. A Report of Medical Survey was prepared in September 1956. The report noted that the Veteran had been admitted to the hospital from his ship in July 1956. The diagnosis on admission was motion sickness (seasickness). The Veteran denied any symptoms or complaints on admission. The history of the illness was that, when the Veteran reported aboard his ship, he immediately became severely ill with typical motion sickness. The symptoms consisted of severe dizziness, nausea and vomiting with associated weakness in the legs. He received what was described as the usual treatment with no effect. The report noted that the Veteran's illness, as described in his records, was severe and incapacitating and kept him from performing his duties aboard ship despite his sincere cooperation and attempt to overcome this malady. The report also noted that the Veteran reported having had motion sickness as long as he could remember. He reported being ill when riding in a car, train, aboard airplanes and in any unusual motion such as swinging, etc. It was noted that this fact was documented in the Veteran's Report of Medical History. No defects or abnormalities were found on examination on admission to the hospital. Routine laboratory examinations and a chest x-ray were interpreted as being negative or within normal limits. It was noted that, since admission to the hospital, the Veteran had been on no therapy, was fully ambulatory and was entirely asymptomatic and appeared well. The report's final finding was that the Veteran developed signs and symptoms of motion sickness (seasickness) that was chronic and severe. The motion sickness was a condition that was not incurred in the line of duty and existed prior to his enlistment, was not the result of the Veteran's own misconduct and had not responded to therapy. The report recommended that the Veteran be discharged from service as the motion sickness was not a disability but a disqualifying disorder for further service. The STRs contain written statements from the Veteran acknowledging the findings and recommendations of the report and that he be discharged from service. He accepted the findings and asked that he be discharged. The Veteran sought to reopen his claim in August 1965. He said he was seeking service connection for chronic motion sickness that he said was possibly labyrinthitis. He also said he had a possible ear condition. The RO wrote to him in September 1965. The Veteran was advised to submit evidence that established this claimed disability was related to service. He was told that, if he did not submit the requested evidence within 30 days, his claim would be disallowed. The Veteran did not respond to the letter. The Board notes that the Veteran received VA education benefits in the years after service. In particular, there is a January 1974 statement from the Veteran where he reported that he had completed 21.5 hours of dual flight time and 9.5 hours of solo flight time. He did not report any health issues in receiving his flight training. The Veteran submitted his current "claim" in August 2007. The Veteran noted he had developed motion sickness in service. He said he had later been told that he had inner ear problems and vertigo. He said the condition had worsened over the years. The RO wrote to the Veteran to inform him of the previous denial of his claim in January 1957. He was advised that he needed to submit new and material evidence to reopen his claim. However, as determined by the Board in its remand of November 2010, the Veteran's original claim was still under consideration. (In that regard, the RO had not considered the second envelope of additional STRs that were received within the one-year appeal period of the rating decision of January 1957. The Board determined that new and material evidence had been received that required a re-adjudication of the original claim that did not occur.) The Veteran responded to the RO's letter in October 2007. He reported that he had received additional treatment for inner ear problems or vertigo from VA. He said he had been treated for the last 10 years. He said that, when he was inducted into service, he was not noted to have motion sickness. He was not diagnosed with motion sickness until he developed it while serving on his ship. He said the condition had gotten progressively worse. The Veteran submitted several VA outpatient entries in support of his claim. The records covered a period from February 2006 to October 2007. An entry from February 2006 noted a follow-up for a complaint of lightheadedness/dizziness since he had an upper respiratory infection (URI)/sinusitis. The Veteran was noted as having been offered, but declining, Meclizine in November 2005. The Veteran reported having off and on episodes of dizziness especially when he turned his head or rose from a reclining or sitting position. The examiner said they discussed all possible causes, including vestibular neuronitis, eye problems, carotid stenosis, etc. No specific diagnosis was provided and the final assessment was lightheadedness/dizziness. The Veteran was given a prescription for Meclizine. The Veteran was evaluated for complaints of chest pain in May 2006. At that time he also said he had dizziness that would come every now and then. He reported that this happened when his potassium level would be low. He also said that, when he increased his dose of potassium, the dizziness went away. In September 2006, the Veteran complained of off-and-on dizziness since he was in service. He told the examiner that a doctor in service told him that he had ear problems. The Veteran said his current dizziness felt more frequent and persistent. No specific tests were done; however, the examiner provided an assessment of vertigo. He also recommended an ear, nose and throat (ENT) consult that the Veteran declined. He said he would seek a private consultation. The Veteran was seen again in October 2007. He reported that his Meclizine helped with his symptoms but did not take away the dizziness completely. The examiner again recommended a VA ENT consult but the Veteran refused. He reported he was to have cataract surgeries in the next few days. He was going to seek a private ENT evaluation after these surgeries. The RO "reopened" the Veteran's claim but denied service connection in November 2007. The determination was that the evidence of record did not support that the claimed dizziness and/or vertigo was related to his military service. The Veteran submitted his notice of disagreement (NOD) in December 2007. He said he believed his motion sickness, inner ear problems or vertigo were related to service. He said he did not have any problems with vertigo when he came into service. He added he was fine until he was assigned to the ATLAS and developed motion sickness. He said he was transferred ashore and evaluated. The Veteran alleged that the military would not operate on his ears because the operation was dangerous and the military did not want to pay for it. The Veteran added that he was able to do all kinds of activities prior to service to include riding in speedboats and cars. He stated that, since service, he was unable to ride even as a passenger in a car without getting sick. The Board remanded the case for additional development in November 2010. The development was to include obtaining outstanding VA treatment records identified by the Veteran as well as to obtain any records associated with his VA-sponsored flight training. Finally, the Veteran was to be afforded an examination. The Veteran was afforded a VA examination in December 2010. The examiner noted that she had reviewed the claims folder as well as electronic VA medical records for the Veteran. She also noted that the Veteran had not provided any of his private treatment records for review. The examiner provided a detailed review of the STR entries that began with the Veteran's physical examinations from March and June 1954, respectively, with the notations of a history of car sickness. The examiner also cited to the Report of Medical Survey and its recording of the Veteran saying he had experienced motion sickness for as long as he could remember. The examiner included most of the survey report in her listing of the review of the STRs. The examiner noted that the STRs did not document any evidence of motion sickness on the ATLAS from 1955 to 1956. The Veteran said he did experience sea sickness on the ship but sickbay was always closed because the corpsman was drunk. The examiner further noted that the Veteran was asymptomatic while at the Naval Hospital and that he participated in flight training in the mid-1970s and logged 31 flight hours. The Veteran told the examiner that he did vomit on one occasion while flying and that he did frequently have dizziness and nausea. The examiner noted that the Veteran sought to reopen his claim in 1965 with contentions of labyrinthitis and chronic motion sickness. She also noted that the current claim was submitted in August 2007. The examiner provided a recap of VA treatment record entries that were pertinent to the issue on examination. The examiner cited to an August 2001 entry that noted the Veteran to report headaches and plus-one-month duration of positional vertigo when he would get up fast. An entry from September 2001 noted the Veteran as reporting his headaches as stopped since he was taking medication for hypertension. An entry from October 2001 noted the Veteran did not take his blood pressure medications and had headaches and elevated blood pressure. He also had sinus drainage. The Veteran was recommended for a sleep study but did not follow through. It was noted that his hypersomnolence resolved after he used Flonase. This was changed to Flunisolide that worked well. An entry from July 2004 noted the Veteran was seen for orthostatic hypertension. He reported having an occasional dizzy spell. He reported having a cold about two weeks earlier with pain in the right ear. Examination of the tympanic membranes noted the right membrane was slightly tender but they were otherwise normal. The entry said that the Veteran's lightheadedness was thought to be due to middle ear pathology, perhaps secondary to nasal congestion. He was started on Nasalide. A second entry from July 2004 was said to show the Veteran as feeling better with a little dizziness when he first used his nasal inhaler but this would go away with no more dizziness for the day. The examiner cited to a June 2005 entry that noted a sleep study showed severe obstructive sleep apnea syndrome with nocturnal hypoxemia. The Veteran was begun on a CPAP. An entry from September 2005 noted the Veteran was transported to Cox, a private hospital, for vertigo, nausea, and vomiting. He had awakened from sleep in the middle of the night with the symptoms. The Veteran was found to have hypokalemia. He also reported having increased sinus problems and a pain in the right ear for one week. The entry noted the right tympanic membrane was clear but had some evident bulging from fluid in the middle ear. His left ear was said to be normal and contracted. The diagnosis was probable labyrinthitis, nausea and vomiting, and vertigo. He was placed on Meclizine and potassium replacement. The examiner also noted that the Veteran had a computed tomogram (CT) scan of the head in September 2005. The examiner said the report for the study said it was compared with a magnetic resonance imaging (MRI) of the brain from July 2005. The report further indicated that there was no mass hemorrhage or mass effect. Changes that may represent the previously described lacunar infarct were again seen. The impression was findings that may represent small lacunar infarct which are old. An entry from November 2005 noted the Veteran continued to have mild lightheadedness when he turned his head. He also reported having sinus pressure and sore throat. He declined to take Meclizine because the lightheadedness was not that bad. In February 2006 he reported having dizziness/lightheadedness since his admission to Cox. He had this on and off especially when he turned his head or rose from a reclining or sitting position. This entry was one of the VA records submitted by the Veteran in October 2007. The examiner cited an entry from March 2006 that showed the results of a carotid Doppler study. The Veteran had a mild amount of atherosclerotic plague bilaterally without evidence of stenosis. The entry noted that the Veteran said he took Meclizine twice and his lightheadedness had totally resolved. The examiner noted that the Veteran reported at the VA examination that it only helped. The examiner cited to an eye clinic record from May 2006 that provided diagnoses of bilateral cataracts. The examiner also reviewed the entries from September 2006 and October 2007 that were previously submitted by the Veteran. This included the Veteran being offered a VA ENT consult but declining. The Veteran was seen in December 2007 for post-cataract refraction. The examiner also noted a repeat MRI of the brain from July 2009. She said this showed small areas of remote infarction involving the right frontal corona radiated as well as the left cerebellum that were unchanged since July 2005. The examiner also noted that a treatment entry from April 2010 that noted a continued complaint of right wrist pain from the Veteran's motor vehicle accident (MVA). The Veteran informed the examiner that he had been in a motorcycle accident in May 2009 and that the MRI was obtained due to his continued complaints of headaches. Two final entries related to the audiology clinic where the Veteran was seen for a consult for hearing aids in October 2010 and fitted for the hearing aids in December 2010. The examiner provided a list of the Veteran current medications with all of them from non-VA prescriptions. The Veteran was noted to be employed as a barber. The problem on examination was identified as dizziness with its onset in childhood. The examiner said there was no history of trauma to the ears or history of neoplasm. The Veteran gave a history of tinnitus. The examiner noted a history of ear pain as reflected in the treatment entries from 2001. The right ear was identified. The Veteran reported daily dizziness but not constant. He described it as lasting 2-3 minutes most of the time but it would sometimes last longer. The Veteran gave a history of hearing loss with a date of onset in 1990. The Veteran also reported a history of drainage of the left ear beginning in 2009. There was no drainage for the right ear. The Veteran also reported a history of gait or balance problems that he said began in service. The physical examination of the ears noted a perforated right tympanic membrane. The examiner said there was an area of scarring that was suggestive of a partially healed perforation. The examiner said there were no complications of ear disease or secondary conditions or evidence of middle or inner ear infections. There were no signs of a staggering gait or imbalance. The examiner noted that the Veteran had been diagnosed with hearing loss on a recent examination and fitted with hearing aids. The examiner included copies of the October and December 2010 audiology evaluations. The examiner said the Veteran had hearing aids but had good hearing in a quiet room at the time of the examination. She also said the Veteran related a longstanding disturbance of balance, high frequency hearing loss and ringing of his ears. She said his neck was extremely stiff and painful with markedly decreased range of motion. She referenced the motorcycle accident of 2009 as having exacerbated the condition but that the Veteran had had severe cervical arthrosis before then and had refused surgical consult. She also noted that the evidence showed the Veteran as having a previous stroke based on three separate MRI's of the brain, with the first MRI in 2005. She also said the Veteran apparently had a perforation of the right tympanic membrane which may have been incurred in the 2009 motorcycle accident. The Veteran related having intermittent discharge from the ear since that time. The examiner noted that the Veteran reported that he had seen an ENT specialist but did not know what diagnoses may have been made. She said that relevant diagnoses were lacunar syndrome initially documented on MRI dated 2005 and subsequently noted on two subsequent imaging studies. She said that lacunar infarcts were a major cause of dizziness, and was presumably the reason the Veteran was on Clopidogrel. Additional diagnoses included perforation of the right tympanic membrane, possibly sustained in 2009 motorcycle accident. Longstanding cervical arthrosis was made worse following 2009 motorcycle wreck. The Veteran had previously complained that dizziness was made worse by turning his head. He has refused surgical consult. He had hypertension and nasal congestion on Flunisolide treatment and hypokalemia. He stated that his dizziness improved when potassium was properly regulated. He also had bilateral cataracts, now surgically corrected and cerumen in his ears. The examiner opined that the Veteran's motion sickness in service can be described as a congenital defect. In support of her opinion she stated that the Veteran had severe motion sickness in childhood even with such common childhood activities as playing on swings. He had stated he could not ride a train, plane or boat without feeling dizzy, and that this motion sickness had gone on for as long as the Veteran could remember. He began having symptoms of motion sickness as soon as he boarded his ship (RUPERTUS) and while it was still at anchor and in port. She also stated that this pre-existing problem did not undergo a worsening in service to a permanent degree beyond that which would be due to the natural progression of the disorder. She noted that the Veteran complained of these symptoms on every ship he has been on; he was free of all symptoms while in the Naval Hospital on dry land. The examiner referred to the other diagnoses of record that she had listed. She stated that none of these diagnoses can be attributed to the Veteran's brief period in the military. She said that it should be noted, however, that this list of diagnoses may be incomplete, as the Veteran had apparently had an extensive workup in the private sector which she had not seen, and which included ENT consult. She said she suggested that the Veteran have his private physicians submit their medical records for review. Should he choose to do so, she would be glad to review them. The RO made attempts to locate any outstanding vocational rehabilitation and education records for the Veteran but was told there were no additional records available. This was communicated to the Veteran by way of a letter dated in April 2011. The Veteran responded to the letter in April 2011. He contended that he did not see the corpsman on the ship at sea because sickbay was always closed. He claimed that his perforated ear drum was due to the big guns on ship. He also repeated his assertion that there was a determination in service that it was too dangerous to operate on him and that it would cost too much. The Veteran submitted private medical records from two sources that were received in February 2011. Included were records from Doctors Hospital of Springfield for the period from May 1986 to October 2004. The records reflect an initial entry from May 1986 where the Veteran was seen for complaints of chest pain. He had injured himself at home. An entry from October 1986 noted that the Veteran was prescribed Seldane, in Transderm form, because he was going on a ship. The next entry is dated in June 1990. The Veteran was involved in a MVA. He complained of a rather severe headache. A second entry, also in June 1990, noted he had stiffness in his neck, pain, and headaches. There were numerous entries from that time up to October 2004. An entry from August 2000 noted that the Veteran complained of nausea, sweating, chest pain, and dizziness. He had a sore throat. He was to get a stress test. Later entries from August 2000 noted that he had a normal stress test. There were no further complaints of dizziness and no complaints of lightheadedness, imbalance, or vertigo. The other records were from the Wheeler Heart and Vascular Center for the period from August 2008 to October 2010. Included in the records were several from his primary care physician (PCP) D. Brockman, M.D. An entry from August 2008 said the Veteran was seen as a new patient. His gait and station were described as normal. He did not give a history of any type of problems with dizziness, imbalance, or vertigo. He was seen in May 2009 for evaluation after his motorcycle accident. The entry notes the accident was two hours earlier. The Veteran was struck by a truck while at a stop sign. The Veteran expressed issues with neck pain, left shoulder, ribs, flank and leg pain. He was ambulatory. The assessment was that most of the injuries were felt to be soft tissue injuries. The Veteran was seen again in June 2009. At this time he complained of having dizzy spells since the accident. He said he had them when he would lie down at night. He also reported occasionally being dizzy on standing. An MRI of the head was ordered. The Veteran was seen for follow-up in July 2009. The Veteran reported experiencing issues with dizziness on changing position and moving his neck. The symptoms had been present since his accident. The report of the MRI of July 2, 2009, was included in the record. The report was referenced by the VA examiner in her report of December 2010. The report noted a prior MRI of July 2005 and that there had been no significant interval change. Small, remote infarcts were present involving the right frontal corona radiate as well as the left cerebellum that were unchanged since July 2005. The Veteran continued to be seen on essentially a monthly basis, mostly for complaints of pain. An entry from December 2009 noted that he had had to sell his motorcycle. Additional entries, dated in April and October 2010, respectively, note rechecks for his physical complaints. There are no entries that discuss any symptoms for the Veteran in service or relate the dizziness noted after the motorcycle accident in May 2009 to the Veteran's military service. The Veteran's claim was re-adjudicated in April 2011. The claim remained denied and he was issued a supplemental statement of the case (SSOC). The Veteran responded to the SSOC with a written statement that same month. He disputed that he did not have motion sickness on his first ship. He again claimed that he could not be seen in sickbay due to the corpsman being drunk. He also said that he did not have any real problems before service and that his problems began after being on ships in the Navy. The Board remanded the case for additional development in June 2011. In particular, the VA examiner had cited to electronic VA records that were not included in the claims folder or Virtual VA. The records were needed for the Board's review. Also, the Veteran was to be asked to submit evidence of private treatment for his claimed condition. Finally, the Board requested that the examiner who performed the examination of December 2010 review the record in light of the private records discussed above and state whether there was any change in her opinion. The Appeals Management Center (AMC) wrote to the Veteran in June 2011. He was asked to submit records of private treatment or identify them for VA to request them on his behalf. He was also advised that the AMC had obtained VA outpatient records for the period from 2001 to 2011. The referenced VA records include most of specific record entries cited by the VA examiner in the report of December 2010. Among the entries was one from August 2001 that noted recent complaints of headaches and dizziness. The tympanic membranes were noted as intact on examination. The VA treatment records also included entries that incorporated reports of private treatment provided to the Veteran. This included the evidence regarding the Veteran's September 2005 admission to Cox Hospital as well as the results of the CT scan at that time and comparison to the earlier MRI study. The Veteran submitted a statement in response to the letter from the AMC in July 2011. He argued that he should be entitled to benefits as he had demonstrated his disability in service. He said the notice letter had not referenced records from the Naval Hospital where he was evaluated. The Veteran repeated his contention that surgery for his condition was considered in service but determined to be too dangerous. The Veteran did not identify any additional treatment and did not provide any authorizations to obtain existing private treatment records. The AMC obtained VA treatment records for the Veteran that covered a period from August 2001 to July 2011. Most of the records were duplicative of those previously discussed. There was an entry from March 2005 in regard to an early evaluation for sleep problems. The Veteran was noted to complain of being sleepy while driving. The records also included entries from Dr. Brockman that were referenced by the VA examiner in December 2010. Such references included citation to entries related to the motorcycle accident in May 2009, the MRI report of July 2009, and later entries through April 2010. The records dated after December 2010 did not provide any relevant evidence in regard to the Veteran's claimed disability. The VA examiner of December 2010 provided the requested addendum to her report in August 2011. In that regard, she noted that no new records from the Veteran's private physician were added to the claims folder. She did acknowledge additional VA treatment records. She stated that the new VA records did not alter her prior opinion that the Veteran's motion sickness represented a congenital defect. She also responded to the question of whether the additional treatment records altered her prior opinion in regard to the other diagnoses of records not being related to the Veteran's military service. The examiner said there was no change in her opinion. The additional VA records did not present what she said was "new evidence" that would change her opinion. The AMC made additional efforts to seek any possible outstanding military records for the Veteran. Negative replies were received in response to the requests made. The Veteran was advised of this fact by way of separate correspondence dated in July 2012. The Board notes that the AMC obtained additional paper VA treatment records dated up to August 2011 and associated them with the claims folder. In addition, VA records for the period from August 2001 to July 2012 were included in Virtual VA. The Board notes that the paper records, as well as the electronic records dated after July 2011 do not provide any additional relevant evidence to the issue on appeal. The AMC considered the additional evidence added to the claims folder and re-adjudicated the Veteran's claim in September 2012. The claim remained denied and the Veteran was issued a SSOC that explained the basis for the continued denial. The Veteran's representative responded to the SSOC that same month. The 30-day response period was waived and it was requested that the case be forwarded to the Board. II. Analysis The law provides that service connection may be granted for disability resulting from disease or injury, contracted in the line of duty, incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2012). 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). In the alternative, the chronicity provisions of 38 C.F.R. § 3.303(b) are applicable where evidence, regardless of its date, shows that a veteran had a chronic condition in service, or during an applicable presumptive period, and still has such condition. Such evidence must be medical unless it relates to a condition as to which under case law of the United States Court of Appeals for Veterans Claims (Court) or the United States Court of Appeals for the Federal Circuit (Federal Circuit), lay observation is competent. Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage v. Gober, 10 Vet. App. 488 (1997). Generally, service connection requires (1) medical evidence of a current disability, (2) medical evidence, or in certain circumstances lay testimony, of in-service incurrence or aggravation of an injury or disease, and (3) medical evidence of a nexus between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999); accord Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection may not be established for congenital defects but service connection may be granted for congenital diseases. See Winn v. Brown, 8 Vet. App. 510 (1996); see also VAOPGCPRECs 1-90, 67-90, 82-90; 38 C.F.R. §§ 3.303(c), 4.9 (2012). VAOPGCPREC 82-90 provides a discussion of what constitutes a defect or a disease such that a defect is a condition not considered capable of improving or deteriorating and a disease is a condition that is considered capable or improving or deteriorating. See Quirin v. Shinseki, 22 Vet. App. 390, 394-95 (2009). At the outset, the Board notes that motion sickness is defined as the syndrome of pallor, nausea, weakness, and malaise, which may progress to vomiting and incapacitation, caused by stimulation of the semicircular canals during travel or motion as on a boat, plane, train, car, swing, or rotating amusement ride. DORLAND'S ILLUSTRATED MEDICAL DICTIONARY, 1612, (26th ed. 1995). Sea sickness is defined as a form of motion sickness caused by motion of a floating platform, such as a ship, boat, or raft. Id., at 1588. (This definition was provided by the Board in its remand of November 2010.) The Veteran's STRs appear complete. They include his USMCR enlistment physical examination, his enlistment examination for the Navy, treatment entries and his Report of Medical Survey that encompassed his period of hospitalization and evaluation from July to September 1956 as well as discharge processing entries. The Board finds that there are no outstanding STRs for the Veteran. The STRs establish that the Veteran reported having car sickness at the time of his physical examinations in 1954. His STRs do not record any incidents of his experiencing motion sickness on his first ship, the USS ATLAS. The Veteran has made several statements that he was sick on that ship but that sickbay was always closed so that his motion sickness was not noted. The Board has looked to the Veteran's complete STRs in assessing his statements. The Veteran gave no history of being seasick prior to his assignment to the RUPERTUS. The detailed typed report of July 30, 1956, made in referring the Veteran for evaluation, recorded only that the Veteran became ill on that ship when it was underway but not in port. It is notable that the STR entry said the Veteran should be evaluated for possible assignment to another ship or station. The Board finds that it would be unnecessary for such a comment to be made if the Veteran had a history of being seasick on the ATLAS as well. It would be apparent that continuous seasickness would have been recognized as a bar to further service without additional evaluation. The Veteran's claim was previously denied because his motion sickness was considered to be a congenital defect or developmental abnormality and not subject to service connection. The evidence of record still supports such a conclusion. The Veteran's motion sickness clearly would become symptomatic in keeping with the type of defect that it is - being in motion sometimes made him ill. This would not change the status of his condition as a defect. As determined by the Board, the objective evidence of record does not establish any evidence of motion sickness during basic training, additional training as a pipefitter or during his first ship assignment. Moreover, the Veteran was noted to be asymptomatic on his second ship when it was in port and he was completely asymptomatic during his entire period at the Naval Hospital. The VA examiner provided a thorough review of the medical evidence, to include the Veteran's STRs, VA records and those records from Dr. Brockman that were included in the VA records. The examiner noted the Veteran's period of flight training in the 1970s. The examiner also interviewed the Veteran. The examiner included in her report the questions put forth by the Board in the remand of November 2010; specifically whether the Veteran's motion sickness represented a congenital defect or a congenital disease. The examiner concluded that the Veteran's motion sickness in service was a congenital defect. The examiner cited to the Veteran's reported history of having motion sickness since childhood and then experiencing motion sickness on his ship. The examiner also stated that the defect did not undergo any worsening in service by noting the Veteran was completely asymptomatic on land. She confirmed her opinion that the motion sickness represented a congenital defect in her addendum of August 2011. The determination of whether the Veteran's motion sickness in service represents a congenital defect or a congenital disease requires a medical opinion. In this case, the VA medical examiner provided the necessary opinion. The Veteran has not provided any medical evidence to contradict the opinion. Thus the Board concludes that the Veteran's motion sickness represents a congenital defect that is not subject to service connection. The Veteran has also alleged that he has additional problems of dizziness, to include labyrinthitis, and vertigo. He has related them to his motion sickness in service and his military service in general. However, other than one instance of treatment for an ear infection in service, the STRs are negative for evidence to support his claim. The Report of Medical Survey provided a comprehensive review of the Veteran's health status in service and at the time of that evaluation with no findings of dizziness, labyrinthitis or vertigo. The Veteran has made several statements wherein he alleges he continued to experience problems with dizziness and vertigo in the years after service. He said in his NOD of December 2007 that, after his Navy service, he was unable to even ride as a passenger in a car without being sick. In December 2010 he said that he did not fly, get on boats or get in a car he had to drive. The Veteran does not dispute that he received flight training after service, to include approximately 30 hours of actual flying time. The Board finds it to be incredible that he would be allowed to fly if his medical condition included continuous symptoms of dizziness and vertigo. Also, the VA treatment records that relate to initial evaluations for his sleep apnea in March 2005 note that the Veteran reported feeling sleepy while driving. He also clearly operated a motorcycle for some period of time prior to his accident in May 2009. The post-service medical records, to include his private records from May 1986 to October 2004 do not show complaints or treatment related to symptoms of dizziness, labyrinthitis or vertigo with one exception when the Veteran had some dizziness associated with complaints of chest pain in August 2000. The Veteran was noted to receive Seldane, Transderm, because he was going aboard a ship in October 1986. The later provided private treatment records from Dr. Brockman do not reflect treatment for the claimed symptoms until after the Veteran had his motorcycle accident in May 2009. Further, none of the private treatment records relate any such symptoms to the Veteran's military service. The VA treatment records do reflect several entries that note complaints of dizziness, labyrinthitis, lightheadedness and vertigo on several occasions. They also document the Veteran's treatment at Cox Hospital in September 2005. However, none of the assessments relate such symptoms and/or findings to the Veteran's military service. A number of the entries note that the symptoms were resolved through use of medication to treat unrelated problems or eliminating a decrease in the Veteran's potassium level. The Board notes that the Veteran contends that he suffered a perforated tympanic membrane in service as a result of exposure to the noise from the firing of big guns on his ship; however, the objective medical evidence of record does not identify a perforated right tympanic membrane until many years after service. The finding was made after several earlier examinations of both ears reported the tympanic membranes to be intact. The VA examiner provided a listing of the several medical conditions that could be the cause of the Veteran's symptoms. The examiner further stated that none of the listed conditions was related to the Veteran's military service. The STRs are negative for evidence of the conditions and the post-service medical records also do not relate the conditions to service. The Board has considered that lay evidence in the form of statements of the Veteran is competent to establish evidence of symptomatology where symptoms are capable of lay observation. See Charles v. Principi, 16 Vet. App. 370, 374 (2002); Layno v. Brown, 6 Vet. App. 465, 469 (1994); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The Board notes that lay evidence may also be sufficient to establish a current diagnosis. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir 2007) (describing situations when lay evidence can be competent and sufficient to provide medical diagnosis); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Although the Court and Federal Circuit has addressed the circumstances where lay evidence can/must be considered, both judicial bodies have also addressed where the Board may make findings that the lay statements are beyond the competence of the giver, or that the statements are not credible or the giver of the lay evidence is mistaken. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007); Jandreau, 492 F.3d at 1377. n.4 (Sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer.). In this case, the Veteran is not competent to relate the etiology of his claimed dizziness, to include labyrinthitis and vertigo to his military service. There is no medical evidence of a chronic disease in service. There is no probative evidence of a chronicity of symptoms in service or after. The medical records document the claimed symptoms many years after service. The private and VA treatment records provide no nexus to service or any association with the Veteran's military service. The VA medical examiner's opinion also determined that there was no relationship to service for the Veteran's claimed symptoms. There is no medical opinion to the contrary. Thus, service connection for dizziness, to include labyrinthitis and vertigo is denied. The Board has considered the doctrine of reasonable doubt, but finds that the record does not provide an approximate balance of negative and positive evidence on the merits. The Board is unable to identify a reasonable basis for granting service connection. Gilbert v. Derwinski, 1 Vet. App. 49, 57-58 (1990); 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2012). The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp 2012)), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2012), provides that VA will assist a claimant in obtaining evidence necessary to substantiate a claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. (The Board notes that 38 C.F.R. § 3.159 was revised, effective May 30, 2008. See 73 Fed. Reg. 23353-56 (Apr. 30, 2008). The amendments apply to applications for benefits pending before VA on, or filed after, May 30, 2008. The amendments, among other things, removed the notice provision requiring VA to request the veteran to provide any evidence in the veteran's possession that pertains to the claim. See 38 C.F.R. § 3.159(b)(1).) In addition, the Court has held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 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 v. Nicholson, 19 Vet. App. 473 (2006). The RO wrote to the Veteran in September 2007 with notice on how to substantiate his claim. Even though the Veteran was informed that his claim had been previously denied he was still advised of the evidence required to substantiate his claim for service connection. The letter informed the Veteran of the types of evidence that would be beneficial in supporting his claim. He was further advised of the information required from him to enable VA to obtain evidence on his behalf, the assistance that VA would provide to obtain evidence on his behalf, and that he should submit such evidence or provide VA with the information necessary for VA to obtain such evidence for him. He was asked to submit any medical reports that he possessed. The letter also included notice to the Veteran as to how VA determined disability ratings and effective dates. The Veteran provided two responses to the notice letter in October 2007. He submitted VA treatment records he believed supported his claim and identified sources of VA treatment. The Veteran's claim was denied, on the merits, in November 2007. He submitted his NOD in December 2007 and perfected his appeal in June 2008. The Board remanded the case in November 2010 and June 2011 for additional development. The Veteran was provided the opportunity to submit or identify additional evidence that would support his claim. The Veteran has not disputed the contents of the VCAA notice in this case. He was afforded a meaningful opportunity to participate in the development of his claim. From the outset, he demonstrated actual knowledge of what was required to establish service connection as evidenced by his statements that listed his being treated for motion sickness in service and why his discharge for motion sickness established his entitlement to benefits. He also argued that he experienced symptoms since service. The Veteran has not alleged any deficiency with regard to the notice. Thus, the Board is satisfied that the duty-to-notify requirements under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) were satisfied. The Board also finds that VA has adequately fulfilled its obligation to assist the Veteran in obtaining the evidence necessary to substantiate his claim. All available evidence pertaining to the Veteran's claim has been obtained. The evidence includes his STRs, VA outpatient treatment records, private records submitted by the Veteran as well as his lay statements. The Veteran declined to have a hearing in his case. The Board finds that VA has satisfied its duty to notify and assist. The Veteran has not identified any other pertinent evidence, not already of record. The Board is also unaware of any such evidence. ORDER Service connection for disability manifested by dizziness, to include motion sickness, labyrinthitis, or vertigo is denied. _________________________________ MARK F. HALSEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs