Citation Nr: 1301413 Decision Date: 01/14/13 Archive Date: 01/23/13 DOCKET NO. 08-20 765 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to service connection for Meniere's syndrome. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Andrea Johnson, Associate Counsel INTRODUCTION The Veteran had active military service from February 1981 to November 1984 and from August 1986 to September 2005. This appeal initially came to the Board of Veterans' Appeals (Board) from a March 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. In July 2010, the Board remanded the issue of service connection for Meniere's disease for further development. The requested development has been completed and there is no prejudice for the Board to proceed. See Stegall v. West, 11 Vet. App. 268 (1998). The Board must note that in reviewing this case the Board has not only reviewed the Veteran's physical claims file, but also her file on the "Virtual VA" system to insure a total review of the evidence. FINDING OF FACT The weight of the evidence is against a finding that the Veteran currently has, or has had at any time during the course of her appeal, Meniere's syndrome. CONCLUSION OF LAW Criteria for service connection for Meniere's syndrome has not been met. 38 U.S.C.A. 1110, 1131 (West 2002); 38 C.F.R. 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION In seeking VA disability compensation, a Veteran generally seeks to establish that a current disability results from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131. "Service connection" basically means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 C.F.R. § 3.303. The Veteran is currently seeking service connection for Meniere's syndrome which she believes began in service. 38 U.S.C.A. § 1154(a). In order to establish service connection on a direct basis, the record must contain: (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, 1167 (Fed. Cir. 2004). The Veteran's hearing was in the normal range upon her separation physical in 2005, as well as during her VA examination one year later. The record does not contain evidence the Veteran sought treatment for hearing loss. Furthermore, her claim for service connection for bilateral hearing loss was denied by the RO in March 2007 and was not appealed by the Veteran. As such, the evidence does not establish any hearing impairment. The claims file does include some evidence the Veteran experienced vertigo, as service treatment records show one single episode of extreme vertigo in March 1983 while in service, during which the Veteran fell to the ground. She sought medical treatment that same day. The medical professional who treated her opined the Veteran likely had labyrinthitis, making no mention of Meniere's syndrome. The service treatment records do not reveal any other episodes of vertigo while in service. On the Veteran's medical history form accompanying her separation physical in June 2005 the Veteran even specifically denied experiencing dizziness. Therefore, the service treatment records make no mention of Meniere's syndrome, and the Veteran only received treatment for one isolated incidence of vertigo while in service. The Veteran reports that since the episode of extreme vertigo in 1983 she has continued to have occasional vertigo. The Board notes that the Veteran is competent to report the symptoms of Meniere's disease, including vertigo; however the Veteran is not competent to report a diagnosis of Meniere's disease, which requires specialized medical training. See Layno v. Brown, 6 Vet. App. 465 (1994); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). As such, the Board acknowledges the Veteran continues to experience occasional vertigo since separation, but this is not sufficient for a diagnosis of Meniere's disease. VA does not generally grant service connection for symptoms alone, without an identified basis for those symptoms. The VA needs to identify a disability, not symptoms of a disability. Accordingly, service connection cannot be granted for symptoms of a disability. Nevertheless, based on her complaints the Veteran was afforded a VA examination in August 2006 to investigate whether she had a chronic disability that was related to her in-service complaint of dizziness. She reported symptoms of occasional vertigo and buzzing in her ears, as well as occasional tinnitus. Physical examination revealed wax in her ear canal on right side which was easily removed, and otherwise normal ears. No vertigo or staggering gait was seen. The examiner found that the Veteran had "mild periodic, but inactive" Meniere's disease. The examiner found the Meniere's disease did occur in service, and there "is a slight chance" it could recur. However, the examiner opined that since it had been twenty years since the Veteran had an episode, reoccurrence was unlikely. In July 2010 the Board remanded the issue of service connection for Meniere's syndrome for further development. As a result the Veteran was afforded a second VA examination in January 2011. The Veteran reported she experienced mild vertigo approximately once every six months, which lasted several seconds each time and then resolved on its own. She gave one example when she felt unsteady walking on a graded racetrack which resolved when she moved to an even surface. The examiner specifically noted the Veteran was very prone to motion sickness. The examiner accurately noted a history of occasional vertigo and tinnitus, but no history of hearing loss or gait problems. The examiner opined that the etiology of the Veteran's claimed Meniere's disease is less likely than not due to her time in service. The examiner provided a rationale for her conclusion, explaining that the Veteran did not meet the criteria for a diagnosis of Meniere's disease either in service or since leaving service. The examiner further explained that the Veteran's symptoms were "momentary and infrequent" and occur less than twice a year. Although both examiners noted that the Veteran experienced occasional vertigo, neither examiner found that she has Meniere's syndrome. The examiner in August 2006 found that while the Veteran did experience one episode of Meniere's syndrome while in service, the disease has been inactive for the past twenty years and was unlikely to recur. The examination from January 2011 found that the Veteran has never actually met the criteria for a diagnosis of Meniere's syndrome. Other than the two medical examinations described, there is no mention of Meniere's syndrome in the claims file. The Veteran is not currently being treated for vertigo or Meniere's syndrome. Based on all of the foregoing the Board finds that the evidence does not show the Veteran has a current disability related to Meniere's syndrome. Absent proof of the existence of the disability being claimed, there can be no valid claim. See Brammer v Derwinski, 3 Vet. App. 223 (1992). The Board recognizes that the Court of Appeals for Veterans Claims has held that the presence of a chronic disability at any time during the claim process can justify a grant of service connection, even where the most recent diagnosis is negative. McClain v. Nicholson, 21 Vet. App. 319 (2007). However, where, as here, the overall evidence supports the conclusion the Veteran never had Meniere's syndrome during the course of her appeal, that holding would not be applicable. In this case, the Veteran did experience an episode of Meniere's syndrome while in service twenty years ago, but it has not reoccurred since. As such, the Board concludes that the Veteran does not currently have, nor has she had at any time during the course of her appeal, Meniere's syndrome. Given this conclusion, the criteria for service connection have not been met, and the Veteran's claim is therefore denied. Even if there was some indication or indications, of this problem, the best evidence in this case, at this time, is that the Veteran does not have this disability. Duties to Notify and Assist Under applicable criteria, VA has certain notice and assistance obligations to claimants. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Notice must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits and must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). With respect to service connection claims, a section 5103(a) notice should also advise a claimant of the criteria for establishing a disability rating and effective date of award. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006). In the present case, required notice was provided by a letter dated in August 2006, which informed the Veteran of all the elements required by the Pelegrini II Court as stated above. The letter also informed the Veteran how disability ratings and effective dates were established. Under these circumstances, the Board finds that the notification requirements of the VCAA have been satisfied as to both timing and content. As to VA's duty to assist, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). VA treatment records have been obtained, as have service treatment records. The Veteran has not indicated that any private treatment records exist. Additionally, the Veteran was offered the opportunity to testify at a hearing before the Board, but she declined. The requested development after remand has been completed. See Stegall v. West, 11 Vet. App. 268 (1998). The Veteran was provided with two VA examinations (the reports of which have been associated with the claims file). The Board finds the VA examinations were thorough and adequate and provide a sound basis upon which to base a decision with regard to the Veteran's claim. Both VA examiners personally interviewed and examined the Veteran, including eliciting a history from her, and provided the information necessary to evaluate her disability. Furthermore, neither the Veteran nor her representative has voiced any issue with the adequacy of either examination. As discussed, VA has satisfied its duties to notify and assist, and additional development efforts would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Because VA's duties to notify and assist have been met, there is no prejudice to the Veteran in adjudicating this appeal. ORDER Service connection for Meniere's syndrome is denied. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs