Citation Nr: 1301884	
Decision Date: 01/17/13    Archive Date: 01/23/13

DOCKET NO.  09-00 095	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas


THE ISSUE

Entitlement to service connection for bilateral vertigo with acute nausea, including as secondary to service-connected bilateral hearing loss.


REPRESENTATION

Veteran represented by:	Texas Veterans Commission


WITNESSES AT HEARING ON APPEAL

The Veteran and his wife.


ATTORNEY FOR THE BOARD

Michael Wilson, Associate Counsel


INTRODUCTION

The Veteran served on active duty from November 1963 to June 1967.

This matter comes to the Board of Veterans' Appeals (Board) on appeal from a July 2007 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas, which in relevant part, denied the Veteran's claim for service connection for vertigo with nausea.  

The Board notes that in his November 2006 service connection claim, the Veteran indicated that he was seeking service connection for vertigo with accompanying acute nausea.  In the July 2007 rating decision, the RO adjudicated claims for a cracked fistula in the bilateral ears, for Meniere's syndrome, and for bilateral vertigo with acute nausea.  In his February 2008 notice of disagreement, the Veteran indicated that he disagreed with the RO's decision to deny his claim for vertigo brought on by Meniere's syndrome.  While the December 2008 statement of the case only addressed the Veteran's claim for bilateral vertigo with acute nausea, the Board observes that the symptomatology associated with that claimed disability appear to fully encompass the disability for which the Veteran is seeking service connection.  Additionally, in granting service connection for this claim, it appears that the applicable rating criteria will also fully incorporate his described symptomatology.  

The Veteran and his wife, K. B., provided testimony at a hearing before an RO Decision Review Officer in May 2009.  They additionally testified at a hearing before the undersigned Acting Veterans Law Judge (VLJ) in October 2012.  Transcripts of those hearings are of record.

During his October 2012 Board hearing, the Veteran alluded that he had tinnitus resulting from the same etiology as his hearing loss and claimed vertigo disability on appeal.  Additionally, the Acting VLJ took testimony regarding the Veteran's claim of entitlement to a total rating based on individual unemployability (TDIU) due to service-connected disability.  However, because the Veteran is not currently claiming entitlement to a TDIU in connection with an increased rating claim, the Board cannot take jurisdiction over that claim in the first instance.  See Rice v. Shinseki, 22 Vet. App. 447 (2009) (holding that a claim for a TDIU is part of an increased rating claim when such claim is expressly raised by the Veteran or reasonably raised by the record).  Accordingly, because the Board does not have jurisdiction over the Veteran's TDIU claim or his claim for service connection for tinnitus, these claims are referred to the Agency of Original Jurisdiction for appropriate action.  


FINDING OF FACT

The Veteran's bilateral vertigo with acute nausea is etiologically related to his active service.


CONCLUSION OF LAW

The criteria for entitlement to service connection for bilateral vertigo with acute nausea have been met.  38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

In this decision, the Board grants entitlement to service connection for bilateral vertigo with acute nausea.  As this represents a complete grant of the benefit sought on appeal with respect to this claim, no discussion of VA's duty to notify and assist pursuant to the Veterans Claims Assistance Act of 2000, 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002), is necessary.

The Veteran contends that his current bilateral vertigo with acute nausea was incurred as a result of his active service.  Specifically, he contends that while aboard a submarine during active duty, the submarine suddenly began to rapidly descend and as a result underwent a rapid decompression which caused otologic damage and ultimately led to the development of his vertigo disability.  

	A.  Governing Laws and Regulations

Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service.  38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2012).  

Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability.  See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table).  The second and third elements may be established by showing continuity of symptomatology.  

Continuity of symptomatology may be shown by demonstrating "(1) that a condition was 'noted' during service or any applicable presumption period; (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."  Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); see also Davidson, 581 F.3d at 1316; Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board").  "Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology."  Savage, 10 Vet. App. at 496 (citing Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991)).  

In making all determinations, the Board must fully consider the lay assertions of record.  Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).  A layperson is competent to report on the onset and continuity of his current symptomatology.  See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge).  Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.  Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007).  

When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent.  Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77. 

The Board is charged with the duty to assess the credibility and weight given to evidence.  Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001).  Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit, citing its decision in Madden, recognized that that Board had inherent fact-finding ability.  Id. at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002).  The United States Court of Appeal for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence.  Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992).  

As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing.  See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996).  

In determining the probative value to be assigned to a medical opinion, the Board must consider three factors.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008).  The initial inquiry in determining probative value is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case.  A review of the claims file is not required, since a medical professional can also become aware of the relevant medical history by having treated a Veteran for a long period of time or through a factually accurate medical history reported by a Veteran.  See id. at 303-04.  

The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion.  See Id.  A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence.  See McLendon v. Nicholson, 20 Vet. App. 79 (2006).

The third and final factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis.  The most probative value of a medical opinion comes from its reasoning.  Therefore, a medical opinion containing only data and conclusions is not entitled to any weight.  In fact, a review of the claims file does not substitute for a lack of a reasoned analysis.  See Nieves-Rodriguez, 22 Vet. App. at 304; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions.").  

Service connection may be granted for certain chronic diseases, including organic diseases of the nervous system such as a sensorineural hearing loss, when such disability is manifested to a degree of 10 percent or more within one year of discharge from service.  See 38 U.S.C.A. §§ 1101, 1112(a) (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012).  Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service.  See 38 C.F.R. § 3.303(d) (2012)

Service connection may be granted on a secondary basis for a disability that is proximately due to or the result of an established service-connected disorder.  See 38 C.F.R. § 3.310(a) (2012).  A claim for secondary service connection generally requires competent evidence of a causal relationship between the service-connected disability and the nonservice-connected disease or injury.  See Jones (Wayne L.) v. Brown, 7 Vet. App. 134 (1994).  There must be competent evidence of a current disability; evidence of a service-connected disability; and evidence of a nexus between the service-connected disability and the current disability.  See Wallin v. West, 11 Vet. App. 509, 512 (1998); Reiber v. Brown, 7 Vet. App. 513, 516-7 (1995).

Similarly, any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service connected.  See 38 C.F.R. § 3.310(b) (2012); Allen v. Brown, 7 Vet. App. 439 (1995).  In the latter instance, the nonservice-connected disease or injury is said to have been aggravated by the service-connected disease or injury.  See 38 C.F.R. § 3.310(b) (2012).  In cases of aggravation of a Veteran's nonservice-connected disability by a service-connected disability, the Veteran shall be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation.  See 38 C.F.R. § 3.322 (2012).  

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant.  See 38 U.S.C.A. § 5107 (West 2002); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).

	B.  Analysis

Although the contention is raised that the Veteran's claimed vertigo disability was incurred as secondary to his service-connected bilateral hearing loss, the Board believes that the evidence of record more appropriately supports a finding of service connection for this disability on a direct basis; that is, as directly related to the reported incident where the Veteran's submarine underwent a rapid decompression.  

Considering first the current disability requirement for service connection, the record reflects consistent and ongoing diagnoses of vertigo with dizziness and/or nausea during the pendency of the Veteran's appeal.  Such a diagnosis was made during a June 2007 VA otolaryngology (ENT) examination, where the Veteran was specifically diagnosed with vertigo and unsteadiness.  Additionally, private letters from the Veteran's private ENT specialist, Michael Bryan, M.D., reflect ongoing treatment for vertigo and dizziness.  In March 2009, Dr. Bryan provided a letter specifically citing the Veteran long-standing history of problems with recurring vertigo and dizziness.  Based on the abundant information of record pertaining to the Veteran's vertigo disability, he clearly satisfies the first required element for service connection.  See Davidson, supra.

With respect to the second required element to establish service connection, an in-service incurrence of a disease or injury, the Board observes that the primary contention of the Veteran is that he suffered damage to his ears during an incident of rapid decompression while he was aboard a submarine.  While a review of his service treatment records (STRs) does not reflect such an incident, the Veteran has consistently and continually reported that this event took place.  Moreover, the Veteran specifically indicated in a March 2008 statement that to the best of his memory, the incident took place in December 1964 to January 1965, and that he was aboard the USS Angler at the time.  He reported that he reported to sick call at the time, but that the submarine did not have an on board physician but only a corpsman.  He indicated that the corpsman only cursorily examined him and told him to see a doctor on their return to base if he had any additional difficulties.  

While the RO sought to obtain information regarding any recorded incident aboard the USS Angler during the time frame reported by the Veteran, a response received from the National Archives and Records Administration (NARA) indicated that the USS Angler was docked at the Portsmouth Naval Shipyard in New Hampshire between December 1964 and January 1965.  A review of the Veteran's service personnel records, however, reveals that the Veteran was no longer aboard the USS Angler as of November 1964.  Thus, the report from the NARA does not necessarily detract from the Veteran's claim as his recollection of the approximate date of the alleged incident is not completely accurate.  

Nonetheless, the Board notes that in November 1994, long before he filed his current service connection claim on appeal, the Veteran was noted during a VA audiological examination to have had a history of barotrauma while on board a submarine.  He was additionally noted to have had an episode of vertigo in 1991.  This report was incidentally made while the Veteran was providing a medical history during an examination in connection with his claim for service connection for hearing loss.  The Veteran did not initiate a claim with respect to his tinnitus until many years later in November 2006, apparently after he began having more consistent episodes of vertigo.  Thus the Veteran's report regarding this in-service incident, made during his November 1994 VA examination, adds credibility to his claim.  

The Board additionally notes that the Veteran was shown to suffer from rather significant hearing loss upon his separation from service.  His November 1963 enlistment examination, however, showed that he had normal hearing acuity on his entry into active service.  Although the May 1967 separation examination indicated that his hearing loss was thought to be due to nerve damage, the Board observes nonetheless, that his significant decrease in hearing sensitivity is also consistent with his claim that he suffered a rapid decompression incident during his service.  

Finally, the Veteran has noted service aboard submarines during his active duty.  Given this noted submarine service, it is certainly reasonable to believe that he may have experienced such a rapid decompression incident during his active service.  Accordingly, based on the foregoing evidence, the Board will give the full benefit of the doubt to the Veteran and find that his reported in-service otologic injury, due to the rapid decompression of his submarine, meets the second required element to establish service connection.  See Davidson, supra.

Accordingly, the Board is left to consider the final required element for service connection, a nexus established by competent evidence between the Veteran's in-service injury and his currently diagnosed vertigo with acute nausea.  Here, the Board notes that abundant evidence of record, including private medical opinions, shows that the Veteran's current vertigo disability, which initially manifested several years after his separation from service, is at least as likely as not related to his claimed in-service rapid decompression incident.  See 38 C.F.R. § 3.303(d) (2012)

The Veteran testified during his May 2009 DRO hearing that he did not experience vertigo until approximately 1986 or 1987.  As previously noted, evidence of record dated as early as November 1994, reveals that he reported having a history of barotrauma while on board his submarine during his active duty.  He also indicated at that time that he had an episode of vertigo in 1991.  A review of the record reveals that he began to complain of feeling like he was about to pass out at times in June 2005.  Since May 2006, he had consistently complained of symptoms of dizziness and vertigo associated with nausea.  In a January 2007 statement, the Veteran indicated that he believed he had been suffering periodic bouts with nausea and dizziness during the first 20 years after his separation from service, but that he had previously associated these symptoms with the flu or an intestinal illness.  He indicated that the culprit for his vertigo disability was a leaking fistula in his inner ear, which was concluded to have been caused by the rapid decompression incident aboard a submarine.

In connection with his service connection claim, the Veteran was afforded a VA ETN examination in June 2007.  During the examination he reported initially suffering an onset of severe vertigo over a period of several months approximately 20 year prior the examination.  He indicated that though not as severe, he still regularly experienced vertigo and disequilibrium.  After examining the Veteran the VA examiner diagnosed, inter alia, vertigo and unsteadiness.  Although the Veteran believed that the onset of his vertigo was related to the in-service incident involving the rapid decompression of his submarine, the examiner indicated that he could not find evidence in the Veteran's STRs to substantiate this claim, and that the evidence indicated that he had a sudden problem involving his right ear about 20 years previous to the examination, thus many years after his separation from service.  He opined that though the etiology of the disability was uncertain, it would appear to be related to a viral etiology.  Thus, the examiner is in effect concluding that the Veteran's vertigo disability is not etiologically related to his service.  Unfortunately, however, where the examiner's opinion is largely based only on an absence of evidence in the record, it is inadequate for resolving the determinative issue of the etiology of the Veteran's claimed vertigo disability.  See Dalton v. Nicholson, 21 Vet. App. 23 (2007) (holding that an examination was inadequate where the examiner did not comment on the Veteran's reports, but instead relied on an absence of medical records to provide a negative opinion).

During a subsequent VA examination in June 2010, the Veteran was diagnosed with bilateral Meniere's disease with hearing loss and severe vertigo and drop attacks.  The examiner noted that the Veteran suffered severe vertigo episodes in association with Meniere's disease.  The examiner did not, however, provide an opinion with respect to the etiology of the Veteran's Meniere's disease or vertigo.  Similarly, VA audiological examination conducted in May 2007 and March 2011 did not address the Veteran's claimed vertigo disability.

The evidence of record reflects that the Veteran has received ongoing treatment for his vertigo disability from Dr. Bryan since at least July 2006.  In a May 2007 letter, Dr. Bryan indicated that the Veteran's episodic dizziness had an onset closely associated with a rapid decompression episode during his active service.  Dr. Bryan noted that the Veteran had presented with signs and symptoms consistent with a perilymphatic fistula, and that it was his opinion that his history was consistent with a chronic perilymphatic fistula or possibly permanent damage that was suffered after a fistula developed and is now intractable.  

In a subsequent May 2009 letter, Dr. Bryan noted that it would be completely outside the realm of reasonable medical probability that the Veteran's vertigo was incurred as a result of the aging process.  He indicated that it was his opinion that the Veteran's otologic problems were related to the in-service submarine incident which caused significant barotrauma.  He indicated that the preponderance of the evidence would suggest that the in-service incident caused the Veteran's otologic symptoms.  

Later, in a July 2009 letter, Dr. Bryan provided an explanation with respect to the delay between the Veteran's potential initiation of an otologic injury and the subsequent vestibular effects.  He indicated that a vestibular injury typically manifests as acute vertigo that subsides over a period of days, and typically is quiescent until another insult occurs.  In the case of a perilymphatic fistula, he indicated that intermittent leakage related to vacillating intracranial pressure could be a plausible explanation for unpredictable recurring symptoms.  He further noted that it is possible for a perilymphatic fistula to become asymptomatic for an extended period of time and then symptomatically recur if the fistula is reopened, and that by their very nature perilymphatic fistulas are often associated with fleeting/recurring symptoms.  Dr. Bryan concluded that a perilymphatic fistula was really the only reasonable explanation for the Veteran's otologic symptoms, especially given the Veteran's incurrence of barotrauma while serving aboard a submarine.  

In a final October 2012 letter, Dr. Bryan again provided the opinion that it was reasonable to presume that the development of the Veteran's otologic symptoms are related to a severe inner ear pathology that could have been caused by a severe episode of barotrauma.  He reiterated that it was not reasonable to conclude that the aging process caused these symptoms.  Thus, he concluded that it was much more plausible that the otologic problems were related to the described incident involving significant barotrauma during the Veteran's service aboard a submarine.  He also reiterated that he believed that the preponderance of the evidence suggested this etiology.  

In considering the medical opinions provided by Dr. Bryan, the Board observes that collectively these opinions are well-reasoned, well-informed, and fully articulated.  Dr. Bryan has treated the Veteran's claimed vertigo disability for several years and he is aware of his submarine service and would be aware of any intervening factors that could have caused his claimed disability.  Moreover, his opinions collectively show that the Veteran's vertigo disability is at least as likely as not related to his claimed in-service rapid decompression incident, which apparently caused significant barotrauma.  Accordingly, the Board finds that collectively these opinions satisfy the required nexus between the Veteran's current vertigo disability and his active service.  See Dalton, supra.

Accordingly, the Board concludes that the evidence of record supports a finding that the Veteran's current vertigo with acute nausea is etiologically related to his active service.  He currently suffers from vertigo with nausea, the Board has conceded that he suffered an in-service otologic injury due to the rapid decompression incident aboard a submarine, and adequate medical opinions provided by Dr. Bryan have has at least as likely as not related the Veteran's vertigo disability to this reported in-service injury/incident.  

In making this determination, the Board is reminded that an "absolutely accurate" determination of etiology is not a condition precedent to granting service connection, nor is "definite" or "obvious" etiology.  See Alemany v. Brown, 9 Vet. App. 518, 519 (1996).  Rather, this need only be an as likely as not proposition for all reasonable doubt to be resolved in the Veteran's favor and his claim resultantly granted.  See 38 C.F.R. § 3.102 (2012).  Accordingly, all doubt with respect to this claim is resolved in favor of the Veteran and his claim for entitlement to service connection for bilateral vertigo with acute nausea is granted.  


ORDER

Entitlement to service connection for bilateral vertigo with acute nausea is granted.



____________________________________________
Thomas H. O'Shay
Acting Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs