Citation Nr: 1306803 Decision Date: 02/27/13 Archive Date: 03/01/13 DOCKET NO. 08-00 039 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUES 1. Entitlement to service connection for a disability manifested by dizziness, to include as secondary to service-connected disability. 2. Entitlement to an initial rating in excess of 10 percent for bilateral hearing loss prior to October 12, 2011, and to a rating in excess of 20 percent thereafter. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD John Kitlas, Counsel INTRODUCTION The Veteran served on active duty from January 1966 to January 1970. This case originally came before the Board of Veterans' Appeals (Board) on appeal from an April 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office in North Little Rock, Arkansas, (RO). The Veteran provided testimony at hearings conducted before personnel at the RO in August 2007 and February 2008. Transcripts from both hearings are of record. In a September 2011 decision, the Board denied the Veteran's claim for service connection for dizziness and remanded the claim of entitlement to a higher initial rating for bilateral hearing loss. The Veteran appealed that decision to United States Court of Appeals for Veterans Claims (Court). In a May 2012 Order, the Court vacated and remanded that part of the September 2011 Board decision that denied the claim or service connection for dizziness for further development and readjudication consistent with the Joint Motion for Partial Remand. In a November 2011 rating decision, the RO increased the rating of the service connected bilateral hearing loss to 20 percent from October 12, 2011. In September 2012, the Board remanded the appeal for further development for both the hearing loss and dizziness claims. With respect to the dizziness claim, the development was to include a new VA medical examination to determine the nature and likely etiology of the Veteran's disability manifested by dizziness. The Veteran was subsequently accorded a VA medical examination in October 2012 which the Board finds is adequate for resolution of this claim. All other development directed by the Board's prior remands regarding the dizziness claim appears to have been accomplished. Accordingly, a new remand is not required to comply with the holding of Stegall v. West, 11 Vet. App. 268 (1998). See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (Remand not required under Stegall where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). For the reasons addressed in the REMAND portion of the decision below, however, the Board finds that further development is still required regarding the hearing loss claim. Accordingly, the claim is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. All notification and development necessary for the disposition of the Veteran's claim of service connection for a disability manifested by dizziness have been completed. 2. The preponderance of the competent medical and other evidence of record is against a finding that the Veteran has a disability manifested by dizziness that is etiologically related to service or service-connected hearing problems, to include by way of aggravation. CONCLUSION OF LAW The criteria for a grant of service connection for a disability manifested by dizziness, to include as secondary to service-connected disability, are not met. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.303, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Preliminary Matters The Board notes at the outset that VA has an obligation to notify claimants what information or evidence is needed in order to substantiate a claim, as well as a duty to assist claimants by making reasonable efforts to get the evidence needed. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A and 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012); see also Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). In regard to the claim of service connection for dizziness, the Board notes that he was sent pre-adjudication notice as required by Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004), via an August 2006 letter. Among other things, this letter informed the Veteran of what was necessary to substantiate a service connection claim, what information and evidence he must submit, what information and evidence will be obtained by VA, and the information used by VA to determine disability rating(s) and effective date(s). In view of the foregoing, the Board finds that the Veteran was notified and aware of the evidence needed to substantiate this claim and the avenues through which he might obtain such evidence, and of the allocation of responsibilities between himself and VA in obtaining such evidence. Accordingly, there is no further duty to notify. In any event, the Veteran has not demonstrated any prejudice with regard to the content or timing of any notice. See Shinseki v. Sanders, 129 S.Ct.1696 (2009) (Reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination). The Board also notes that the Veteran has actively participated in the processing of his case, and the statements submitted in support of his claims have indicated familiarity with the requirements for the benefits sought on appeal. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), reversed on other grounds, 444 F.3d 1328 (Fed. Cir. 2006) (VA can demonstrate that a notice defect is not prejudicial if it can be demonstrated ... that any defect in notice was cured by actual knowledge on the part of the appellant that certain evidence (i.e., the missing information or evidence needed to substantiate the claim) was required and that the appellant should have provided it.); see also Overton v. Nicholson, 20 Vet. App. 427 (2006). In addition, the Board finds that the duty to assist a claimant in the development of his or her case has been satisfied regarding the claim of service connection for a disability manifested by dizziness. The Veteran's service treatment records are on file, as are various post-service medical records. Further, the Veteran has had the opportunity to present evidence and argument in support of his claims, to include at the August 2007 and February 2008 RO hearings. Nothing indicates the Veteran has identified the existence of any relevant evidence that has not been obtained or requested. For example, he has not indicated there is outstanding evidence relating the etiology of his claimed dizziness to service or as secondary to a service-connected disability. With respect to the aforementioned RO hearings, the Court held in Bryant v. Shinseki, 23 Vet. App. 488 (2010), that 38 C.F.R. 3.103(c)(2) requires that the RO official or VLJ who conducts a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, the RO officials who conducted the hearings accurately noted the current appellate claims, and asked questions to clarify the Veteran's contentions. Although they did not specifically note the bases of the prior determinations or the elements that were lacking to substantiate the Veteran's appellate claims, the Veteran, through his testimony and other statements of record, demonstrated that he has actual knowledge of the elements necessary to substantiate his claims. Finally, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. 3.103(c)(2), nor has he identified any prejudice in the conduct of either hearing. As such, the Board finds that, consistent with Bryant, the duties set forth in 38 C.F.R. 3.103(c)(2) have been satisfied, or any errors have been rendered harmless. The Board also notes that the Veteran was accorded VA examinations in February 2008 and October 2012 which included opinions that addressed the etiology of the Veteran's claimed dizziness, to include as secondary to a service-connected disability. 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."). In this case, the opinions expressed by the February 2008 and October 2012 VA examinations regarding the Veteran's claimed dizziness reflect the examiners were aware of the Veteran's reported contentions, and had an accurate understanding of his medical history based at least in part on review of his VA claims folder. Further, the opinions expressed were not in equivocal or speculative language, and were supported by stated rationale consistent with the documented medical history. The Board acknowledges that the Joint Motion noted that the February 2008 VA examination report of record did not specifically address the question of whether the Veteran's service connected bilateral hearing loss condition aggravated his dizziness. However, this deficiency was addressed by the more recent October 2012 VA examination. No competent medical evidence is of record which explicitly challenges the conclusions of the VA examiners, nor does the evidence demonstrate any prejudice therein. For these reasons, the Board finds that the VA examinations are adequate for resolution of this case. In view of the foregoing, the Board finds that the duty to assist the Veteran has been satisfied in this case. The Board notes that it has thoroughly reviewed the record in conjunction with this case. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence submitted by the appellant or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (The Board must review the entire record, but does not have to discuss each piece of evidence). Rather, the Board's analysis below will focus specifically on what the evidence shows, or fails to show, on the claims. See Timberlake v. Gober, 14 Vet. App. 122, 129 (2000) (Noting that the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant). In making all determinations, the Board must fully consider the lay assertions of record. 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 (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). Moreover, the 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). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C.A. § 5107(b). When a reasonable doubt arises regarding service origin, such doubt will be resolved in the favor of the claimant. Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102. The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied. Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). Legal Criteria and Analysis 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). A disability that is proximately due to or the result of a service-connected disease or injury shall be service-connected. 38 C.F.R. § 3.310. Establishing service connection on a secondary basis requires evidence sufficient to show that a current disability exists and that the current disability was either caused by or aggravated by a service-connected disability. 38 C.F.R. § 3.310(a); Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). Initially, the Board acknowledges that the Veteran, as a lay person, is competent to describe symptoms of dizziness. However, whether such symptoms are due to a chronic disability, and the specific diagnosis of such disability, is a complex matter that requires competent medical evidence to resolve. Further, to the extent he contends his dizziness is secondary to an already service-connected disability, the Board observes that the impact one disability has upon another is a complex medical issue which also requires competent medical evidence to resolve. This finding is supported by Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010) in which the Federal Circuit held in the context of a claimant contending secondary service connection that a veteran's own conclusory generalized statement that his service illness caused his present medical problems was not enough to entitle him to a medical examination. Here, nothing on file shows that the Veteran has the requisite knowledge, skill, experience, training, or education to render a medical opinion. Consequently, his contentions cannot constitute competent medical evidence. 38 C.F.R. § 3.159(a)(1). The Board acknowledges that the Veteran's lay contentions regarding his dizziness can, in general, provide a basis for a subsequent competent medical diagnosis and opinion. Further, his complaints have been attributed to Meniere's disease and/or vertigo. However, in this case, it appears that the Veteran has provided inconsistent reports regarding the duration of his dizziness symptoms. For example, at a July 2006 visit to a VA audiology clinic, the Veteran reported having problems with dizziness for ten years. Reports from an August 2007 VA otolaryngologic consultation noted a 20 year history of right aural fullness and non positional vertigo. At the August 2007 hearing, the Veteran reported that his problems with dizziness began within one or two years of separation from service. A January 2008 VA outpatient report listed an impression of Meniere's disease with the Veteran reporting a "long history" of this disease as well as vertigo. At the February 2008 VA examination, the Veteran reported to this examiner that symptoms of dizziness began in the late 1980s. In view of the aforementioned inconsistencies regarding the onset of his purported dizziness, it calls into question the Veteran's reliability as a historian of such symptomatology. Nevertheless, it should be noted that, in general, he has indicated that these symptoms started after his period of active service which is consistent with the fact that no such symptoms were noted in his service treatment records, to include the January 1970 release from active duty examination. There were also no complaints or findings of dizziness noted on a subsequent September 1985 VA medical examination. Rather, the first competent medical findings of dizziness appears to be in 2005, many years after his separation from service. The Court has indicated that the normal medical findings at the time of separation from service, as well as the absence of any medical records of a diagnosis or treatment for many years after service is probative evidence against the claim. See Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (affirming Board where it found that veteran failed to account for the lengthy time period after service for which there was no clinical documentation of low back condition); see also Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (A prolonged period without medical complaint can be considered, along with other factors concerning a claimant's health and medical treatment during and after military service, as evidence of whether an injury or a disease was incurred in service which resulted in any chronic or persistent disability.). The Board also observes that no competent medical evidence is of record which relates the etiology of the Veteran's current complaints, to include Meniere's disease and/or vertigo, to his active service or as secondary to a service-connected disability. Rather, the February 2008 and October 2012 VA examinations contain opinions against such a finding. For example, the February 2008 VA examiner opined that the Veteran's Meniere's disease was not secondary to his service-connected hearing loss, with the examiner stating that while Meniere's disease over a long period of time results in sensorineural hearing loss, "there is no way to say this [V]eteran's hearing loss has caused his Meni[e]re's disease to develop." The examiner also stated that he could not "connect" Meniere's disease to the in-service noise exposure. As already noted, the Joint Motion criticized the adequacy of the February 2008 VA examination for not addressing whether the service-connected hearing loss aggravated the Veteran's Meniere's disease. Therefore, the Veteran was accorded a new VA examination in October 2012 at which the examiner opined that the Veteran's disability manifested by dizziness/vertigo/Meniere's disease was not caused by or aggravated by his service-connected hearing loss and tinnitus. The examiner noted that the Veteran's hearing loss and tinnitus had been established as secondary to in-service noise exposure; and that Meniere's disease was a disorder of the inner ear that causes symptoms of vertigo, hearing loss, pressure in the ear, and tinnitus. Further, the examiner stated that hearing loss and tinnitus were symptoms of Meniere's disease; that hearing loss and tinnitus do not cause Meniere's disease; and vertigo is a co-symptom with hearing loss and tinnitus. In summary, the Board has determined that competent medical evidence is required to diagnose the Veteran's purported dizziness disability and determine the etiology thereof; the Veteran's contentions do not constitute competent medical evidence; and the competent medical opinions that have addressed the etiology of this disability are against it being etiologically linked to service and/or as secondary to a service-connected disability. Therefore, the preponderance of the competent medical and other evidence of record is against a finding that the Veteran has a disability manifested by dizziness that is etiologically related to service or service-connected hearing problems, to include by way of aggravation. As the preponderance of the evidence is against this claim, the benefit of the doubt doctrine is not for application in the instant case. See generally Gilbert, supra; see also Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). Consequently, the benefit sought on appeal with respect to this claim must be denied. ORDER Service connection for a disability manifested by dizziness, to include as secondary to service-connected disability, is denied. REMAND In regard to the Veteran's claims of entitlement to higher ratings for his service-connected hearing loss, as part of the September 2012 remand the Board directed that efforts be made to procure a complete copy of a January 2009 hearing evaluation of the Veteran, to include audiogram findings. The Board acknowledges that treatment records regarding the January 2009 VA hearing evaluation were added to the record, and were referenced in the January 2013 Supplemental Statement of the Case (SSOC). The SSOC noted, in part, that these records did not show puretone thresholds at 1000, 2000, 3000 and 4000 Hertz. The Board acknowledges that such is the case regarding the January 2009 records on file. However, these records also note under the heading "OBJECTIVE:" that The audiogram is available under No such audiogram is part of the records assembled for the Board's review, nor are these records available through the Virtual VA system. Moreover, neither the January 2013 SSOC or the other evidence of record indicates why the audiogram is not on file as the January 2009 record indicates that it was available. The Court has held that VA records which are in existence are constructively of record and the failure of the RO or the Board to consider any such pertinent records might constitute clear and unmistakable error, even though such evidence was not actually in the record assembled for appellate review. Bell v. Derwinski, 2 Vet. App. 611 (1992). Relevant statutory and regulatory provisions also emphasize the importance of obtaining pertinent VA records as part of the duty to assist. See 38 U.S.C.A. § 5103A(c)(2); 38 C.F.R. § 3.159(c)(2). Moreover, in its September 2012 remand, the Board specifically directed that efforts be made to obtain any audiogram from January 2009, which as noted above was not accomplished even though there is evidence to suggest this audiogram is available. Consequently, the Board concludes that it must remand this case in order to obtain any such records. The Board further finds that any outstanding treatment records regarding the Veteran's hearing loss be obtained while this case is on remand. Accordingly, the case is REMANDED for the following action: 1. Procure a complete copy of the audiogram from January 2009 VA hearing evaluation of the Veteran. All attempts to secure this evidence must be documented in the claims file, to include whether or not efforts were undertaken to access the audiogram via the feature noted on the January 2009 VA treatment records. If the audiogram cannot be reproduced, that fact should be documented. 2. Obtain the names and addresses of all medical care providers who have treated the Veteran for his hearing loss since October 2012. After securing any necessary release, obtain those records not on file. 3. After completing any additional development deemed necessary, readjudicate the issue on appeal in light of any additional evidence added to the records assembled for appellate review. If the benefits requested on appeal are not granted to the Veteran's satisfaction, the veteran and his representative should be furnished a SSOC which addresses all of the evidence obtained after the issuance of the last SSOC in January 2013, and provides an opportunity to respond. The case should then be returned to the Board for further appellate consideration, if in order. By this remand, the Board intimates no opinion as to any final outcome warranted. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs