Citation Nr: 1303012 Decision Date: 01/29/13 Archive Date: 02/05/13 DOCKET NO. 07-10 354 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California THE ISSUE Entitlement to service connection for vertigo, to include as secondary to service connected hearing loss and tinnitus REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD C. Kedem, Counsel INTRODUCTION The Veteran served on active duty from April 1953 to April 1956. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a July 2005 rating decision by which the RO denied the Veteran's claim. The Veteran testified at a video conference hearing before the undersigned Veterans Law Judge in February 2010, and a transcript of this hearing is of record. In April 2010, the Board remanded this matter to the RO via the Appeals Management Center (AMC) in Washington, D.C. to afford the Veteran a new VA examination. The Board deemed the ensuing August 2010 VA medical examination inadequate. As such, the Board was compelled to remand the case again for compliance with the April 2010 remand directives. See Stegall v. West, 11 Vet. App. 268 (1998) (noting that the Board errs as a matter of law when it fails to ensure compliance with a remand). The Board next remanded this matter in May 2011. Please note 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 Vertigo is not shown to be related to the Veteran's active duty service, and it is not proximately due to or aggravated by a service-connected disability. CONCLUSION OF LAW The criteria for service connection for vertigo are not met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.310. (2012) REASONS AND BASES FOR FINDING AND CONCLUSION After the evidence has been assembled, it is the Board's responsibility to evaluate the entire record. 38 U.S.C.A. § 7104(a) (West 2002). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102 (reasonable doubt to be resolved in veteran's favor). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303(b). Service connection may also 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). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The United States Court of Appeals for Veterans Claims (Court) has held that "Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. In the absence of proof of a present disability there can be no valid claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992). Service connection may also be granted for a disability that is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310(a). When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. 38 C.F.R. § 3.310(a); Harder v. Brown, 5 Vet. App. 183, 187 (1993). The controlling regulation has been interpreted to permit a grant of service connection not only for disability caused by a service-connected disability, but for the degree of disability resulting from aggravation of a non-service-connected disability by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995). To prevail on the issue of secondary service causation, the record must show (1) evidence of a current disability, (2) evidence of a service-connected disability, and (3) medical nexus evidence establishing a connection between the current disability and the service-connected disability. Wallin v. West, 11 Vet. App. 509, 512 (1998); Reiber v. Brown, 7 Vet. App. 513, 516-17 (1995). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67 (1997); Layno v. Brown, 6 Vet. App. 465 (1994); Cartwright v. Derwinski, 2 Vet. App. 24 (1991) (although interest may affect the credibility of testimony, it does not affect competency to testify). A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses. See Layno, 6 Vet. App. 465. The Board is charged with the duty to assess the credibility and weight given to evidence. Wensch v. Principi, 15 Vet. App. 362, 367 (2001); Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. Caluza v. Brown, 7 Vet. App. 498 (1995). The Board may weigh the absence of contemporaneous medical evidence against the lay evidence in determining credibility, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of the veteran's claims file. Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale, as well as a basis in objective supporting clinical data. Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005) (rejecting medical opinions that did not indicate whether the physicians actually examined the veteran, did not provide the extent of any examination, and did not provide any supporting clinical data). The Court has held that a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). Medical evidence that is speculative, general or inconclusive in nature cannot support a claim. Obert v. Brown, 5 Vet. App. 30, 33 (1993); see also Beausoleil v. Brown, 8 Vet. App. 459, 463 (1996); Libertine v. Brown, 9 Vet. App. 521, 523 (1996). A physician's statement framed in terms such as "may" or "could" is not probative. See Warren v. Brown, 6 Vet. App. 4, 6 (1993). A significant factor to be considered for any opinion is the accuracy of the factual predicate, regardless of whether the information supporting the opinion is obtained by review of medical records or lay reports of injury, symptoms and/or treatment. See Harris v. West, 203 F.3d 1347, 1350-51 (Fed. Cir. 2000) (examiner opinion based on accurate lay history deemed competent medical evidence in support of the claim); Kowalski v. Nicholson, 19 Vet. App. 171, 177 (2005) (holding that a medical opinion cannot be disregarded solely on the rationale that the medical opinion was based on history given by the veteran); Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that the Board may reject a medical opinion based on an inaccurate factual basis). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. The Board has reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by a veteran or obtained on a veteran's behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). The service treatment records reflect no diagnosis of vertigo, no complaints of vertigo, and no symptoms consistent with vertigo, providing evidence against this claim. A March 2002 VA progress note from RKR, M.D. indicated that he had been treating the Veteran for the past five years and that the Veteran suffered from several disorders including positional vertigo. On February 2004 audiology evaluation, the Veteran reported exposure to loud weaponry noise in service to include during service in Korea (which is not in dispute). He reported occasional problems with vertigo since service. The examiner noted the occasional balance problems since service and recommended an examination by an ear, nose, and throat (ENT) physician in order to rule out retrocochlear pathology. In October 2008, while seeking VA treatment, the Veteran indicated that he had been experiencing poor balance for six years. He denied syncope or presyncope, but on a few occasions, he had a sensation of the room spinning. Importantly, the Veteran himself has never indicated he has this problem in service. In January 2009, the Veteran was seen due to complaints of dizziness with sudden movements. The Veteran indicated that the symptoms began six to eight years earlier. An ENT follow-up was suggested. In March 2009, RJ, M.D., a VA physician, indicated that the Veteran suffered from chronic vertigo that seemed related to hearing loss and tinnitus and appears to have been caused by loud noise during service in Korea in 1953. According to Dr. RJ, the Veteran had not been able to operate heavy equipment since 2002 due to his vertigo. A June 2009 VA progress note indicated that an ENT attributed the Veteran's vertigo to a central nervous system (CNS) lesion. Medication for hypertension and diabetes mellitus two were also likely contributing to dizziness. Such a statement only provides some evidence against this claim as it indicates two problems not related to service as the cause of this problem. On VA examination in August 2009, the Veteran reported vertigo since approximately 1996 although he described an acute episode of vertigo in 1964. Upon obtaining a medical history from the Veteran and reviewing the record, the examiner diagnosed vestibulopathy. The examiner opined that the acute episode of vertigo in 1964 left the Veteran with unilateral vestibulopathy that worsened with age. The examiner opined that there was no nexus between the Veteran's claimed vertigo and service, as there was no trauma in service that would have caused vertigo and because the fact that the first episode of vertigo did not take place until eight years after service separation militated against a finding of a relationship to service. On August 2010 VA examination, the Veteran stated that he had difficulty maintaining his balance. His benign paroxysmal positioning vertigo (BPPV) had resolved, and there had been no vertigo since. The examiner indicated that vertigo due to BPPV had resolved and that dizziness was likely due to microvascular disease. Vestibulopathy was not likely due to noise exposure in service, providing more evidence against this claim. In a July 2012 addendum to the foregoing examination report, the examiner indicated that the Veteran's dizziness was most likely due to microvascular disease and that vestibulopathy was not due to noise exposure in service, providing highly probative evidence against this claim, not only indicating that this condition was not the result of the service connected disability but clearly indicating the cause of the problem (a nonservice related disability). In a September 2012 addendum, the examiner wrote that vertigo was not likely due to noise exposure in service. First, the Board finds that vertigo or similar disorder is not directly related to service. The Veteran at times has indicated that vertigo existed since service. At other times, he indicated that vertigo had its onset in 1964, 1996, and approximately six to eight years before 2009. Because the Veteran has been inconsistent in his reporting regarding the onset of symptoms and because the service treatment records do not reflect complaints of vertigo and records dated close in time to service do not indicate symptoms consistent with vertigo, the Board concludes that the Veteran is not accurate in his description of the onset of vertigo and that symptoms of vertigo began many years after service separation. See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) (holding that the Board has the duty to assess the credibility and weight to be given to the evidence); Caluza v. Brown, 7 Vet. App. 498 (1995) (in weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness). As such, the Board finds that vertigo did not become chronic in service and that there has been no continuity of symptomatology between service and the present. The Board notes that it does not find accurate the assertion of a February 2004 examiner regarding symptoms of vertigo since service, as the Board has found that the Veteran's allegations of symptoms since service lacked credibility. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (medical opinion based upon an inaccurate factual premise has no probative value). The best factual evidence in this case clearly indicates a problem that began many years after service. As to service connection, therefore, the question remaining is whether the Veteran's vertigo, vestibulopathy, or other condition causing dizziness is directly related to service. Dr. RJ opined that the Veteran's vertigo was related to noise exposure in service. He provided no rationale for that opinion. Thus, the Board accords it limited probative value. See Stefl v. Nicholson, 21 Vet. App. 120, 12 (2007); see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (a medical opinion that contains only data and conclusions is accorded no weight). There are two other medical opinions that explain why the Veteran's claimed vertigo is unrelated to service. The August 2009 VA examiner explained that there was no trauma in service to have caused vertigo and that the fact that it manifested no earlier than eight years after service tended to show no relationship to service. The August 2010 VA examiner asserted that the Veteran's imbalance was unrelated to noise exposure and that it was most likely due to an etiology unrelated to service, namely microvascular disease. The Board accords August 2009 and August 2010 VA medical opinions great probative weight because the findings contained therein are based on the evidence of record and are fully supported by rationales. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (holding that factors for assessing the probative value of a medical opinion are the physician's access to the claims file and the thoroughness and detail of the opinion). The opinions clearly indicate there was no connection between the two problems, both directly or by reason of aggravation. In this regard, the opinions clearly indicated the cause of the problem, which has nothing to do with service. A connection between the problems is, a best, highly speculative, based on no medical rational. In sum, because vertigo or similar disability did not become chronic in service, because there has been no continuity of symptomatology since service, and because the competent and credible evidence of record does not show a nexus between vertigo and service, service connection for vertigo on a direct basis is denied. 38 C.F.R. § 3.303. The Board next finds that the claimed vertigo is not due to or aggravated by the service-connected hearing loss or tinnitus. 38 C.F.R. § 3.310; Allen, supra. Finding such a nexus would require medical expertise, which the Veteran is not shown to possess. Thus, his representations regarding such a link carry limited probative weight. See 38 C.F.R. § 3.159(a)(1) (2012) (competent medical evidence means evidence provided by a person who is qualified through education, training or experience to offer medical diagnoses, statements, or opinions); Duenas v. Principi, 18 Vet. App. 512, 520 (2004); see also Routen v. Brown, 10 Vet. App. 183, 186 (1997) (holding that a layperson is generally not capable of providing opinions on matters requiring medical knowledge, such as the condition causing or aggravating the symptoms). The only medical opinion regarding a link between the claimed vertigo and the service-connected hearing loss and tinnitus is that of Dr. RJ. However, since Dr. RJ provided no rationale for that conclusion, the Board accords it no probative weight. See Stefl, supra. The record contains no other competent and credible medical opinion showing a causal link between the service-connected hearing loss and/or tinnitus and vertigo or aggravation of vertigo caused by the service-connected hearing loss and/or tinnitus. As such, service connection for vertigo on a secondary basis to include as based on aggravation is denied. 38 C.F.R. § 3.310; Allen, supra. The Board has considered the provisions of 38 U.S.C.A. § 5107(b), but there is not such a state of approximate balance of the positive evidence with the negative evidence to otherwise warrant a favorable decision. Veterans Claims Assistance Act of 2000 (VCAA) VCAA and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102 , 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102 , 3.156(a), 3.326(a) (2012). The notice requirements of VCAA require VA to notify the claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain. The Board notes that a "fourth element" of the notice requirement requesting the claimant to provide any evidence in the claimant's possession that pertains to the claim was removed from the language of 38 C.F.R. § 3.159(b)(1). See 73 Fed. Reg. 23,353-356 (April 30, 2008). The Court issued a decision in the appeal of Dingess v. Nicholson, 19 Vet. App. 473 (2006), which held that the 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, including the degree of disability and the effective date of an award. Those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. In a timely March 2005 letter, the RO provided notice to the Veteran regarding what information and evidence is needed to substantiate claim for service connection as well as what information and evidence must be submitted by the Veteran and what evidence VA would obtain. The notice did not include provisions for disability ratings and for the effective date of a claim. The Veteran was given notice of that type of information in February 2008. Any defect as to the timing of this notice was cured because the RO readjudicated the claim to include in the latest November 2012 supplemental statement of the case. See Prickett v. Nicholson, 20 Vet. App. 370, 376-78 (2006) (validating the remedial measures of issuing fully compliant VCAA notification and re-adjudicating the claim in the form of a statement of the case to cure timing of notification defect). Regarding the duty to assist, the Board is satisfied VA has made reasonable efforts to obtain relevant records and evidence, including affording the Veteran several VA medical examinations in furtherance of the claim. To that end, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds the VA examinations adequate for the purpose of deciding the issue of service connection for vertigo. They contains sufficient information, to include that supplied by the Veteran, for a determination that vertigo is unrelated to service. The examination reports together with other evidence of record also contains sufficient information to deduce that there is no causal relationship between vertigo and other service-connected disabilities. The Board is also satisfied that VA has made reasonable efforts to obtain relevant records and evidence. Specifically, the information and evidence that has been associated with the claims file includes the Veteran's service treatment records, the Veteran's statements, private medical records, and VA clinical medical records. For the foregoing reasons, the Board finds that VA has fulfilled the duties to notify and assist the Veteran. ORDER Service connection for vertigo is denied. _________________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs