Citation Nr: 1307338 Decision Date: 03/04/13 Archive Date: 03/11/13 DOCKET NO. 09-36 695 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUE Entitlement to service connection for a disability manifested by dizziness. REPRESENTATION Appellant represented by: New York State Division of Veterans' Affairs ATTORNEY FOR THE BOARD G. A. Wasik, Counsel INTRODUCTION The Veteran served on active duty from July 1956 to February 1959. He also had subsequent periods of active duty for training and inactive duty for training in the National Guard. This case comes before the Board of Veterans' Appeals (Board) on appeal from a June 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York. The issue on appeal was before the Board in June 2012, when the claim was remanded for additional evidentiary development and to cure a procedural defect. Also before the Board in June 2012 was a claim of entitlement to service connection for Meniere's disease which was denied. The Board notes that, in addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claim. A review of the documents in the electronic file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal. FINDING OF FACT The Veteran's claimed dizziness is not due to a disease or injury. CONCLUSION OF LAW The criteria for the grant of service connection for a disability manifested by dizziness have not been met. 38 U.S.C.A. §§ 101, 106, 1131 (West 2002); 38 C.F.R. §§ 3.6, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist 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), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the 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 also notes the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) (West 2002), requires that notice to a claimant pursuant to the VCAA be provided 'at the time' that or 'immediately after' VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The timing requirement enunciated in Pelegrini applies equally to the initial-disability-rating and effective-date elements of a service-connection claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). Pursuant to the Board's remand directive, the Veteran was provided all required notice in via correspondence dated in June 2012. Although the Veteran was not provided complete notice until after the initial adjudication of the claim, the Board finds that there is no prejudice to him in proceeding with the issuance of a final decision. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). In this regard, the Board notes that following the provision of the required notice and the completion of all indicated development of the record, the originating agency readjudicated the Veteran's claim. There is no indication in the record or reason to believe that the ultimate decision of the originating agency on the merits of the claim would have been different had complete VCAA notice been provided at an earlier time. See Overton v. Nicholson, 20 Vet. App. 427, 437 (2006) (A timing error may be cured by a new VCAA notification followed by a readjudication of the claim). The duty to assist has also been met in this case. The Board acknowledges that the Veteran's service treatment records for his period of active duty from July 1955 to February 1959 have not been associated with the claims file. The Board finds such a defect is not prejudicial to the Veteran's claim. As set out below, the Veteran has not alleged that he had had a disorder manifested by dizziness while on active duty. In addition, the reports of medical history all indicate that his dizziness began twenty or more years after his discharge. A remand to attempt to obtain the service treatment records would not result in any change in this decision based on the Veteran's self-reported history. The lack of pertinent evidence in the service treatment records is not a reason for the denial of the claim and has no bearing on the outcome. Records from the Veteran's National Guard service have been obtained and associated with the claims file. All pertinent VA and private medical records identified by the Veteran have been obtained to the extent possible The Veteran has been afforded appropriate VA examinations in connection with the claim. The report of the May 2011 VA examination indicates the Veteran was examined in connection with his claim for service connection for Meniere's disease. The examiner had access to and reviewed the evidence in the claims file and also performed a physical examination of the Veteran. The examiner determined that the Veteran did not have Meniere's disease and no other disorder manifested by dizziness was diagnosed. He supported his opinion by and adequate rationale. Other VA examinations were conducted, the reports of which referenced the Veteran's complaints of dizziness (or the lack thereof) and either diagnosed Meniere's disease or found that no diagnosis could be made. Neither the Veteran nor his representative has identified any outstanding evidence that could be obtained to substantiate the claim. In this regard, the Board notes that in June 2012, the Veteran was sent a letter requesting him to submit any additional evidence supportive of his claim or to identify evidence that he wants VA to obtain in connection with the current claim. The Veteran did not respond to the June 2012 letter. The Board is also unaware of any additional evidence that could be obtained to substantiate the claim. Accordingly, the Board will address the merits of the claim. General Legal Criteria Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active duty or active duty for training or for disability resulting from injury incurred in or aggravated by inactive duty for training 38 U.S.C.A. §§ 101, 106, 1131 (West 2002); 38 C.F.R. §§ 3.6, 3.303. 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). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. 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. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2012); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. At 54. Factual Background and Analysis The Veteran contends that service connection is warranted for a disorder manifested by dizziness because it is due to his exposure to acoustic trauma while on active duty. His exposure to acoustic trauma as a result of jet engine noise from active duty is conceded; however, for the reasons explained below, the Board has determined that service connection is not warranted for this claimed disability. The Veteran's self reported history of experiencing dizziness is conflicting. The Veteran completed a Report of Medical History in February 1965 in connection with his enlistment in the United States Army Reserve. On this document, he affirmatively denied having or ever having had dizziness or fainting spells. In April 1985 and again in February 1989, the Veteran completed Reports of Medical History wherein he denied having or ever having had dizziness or fainting spells. A February 2001 private clinical record includes the annotation that the Veteran had been diagnosed with Meniere's disease. There was another annotation referencing complaints of vertigo and being off balance occasionally. This is the first evidence of the Veteran informing any health care professional that he had had problems with dizziness. Thereafter the Veteran again denies, on several occasions, experiencing dizziness or vertigo. At the time of a March 2006 VA audiological evaluation, it was written that the Veteran reported a prior diagnosis of Meniere's disease but denied a history of vertigo and fluctuating hearing loss. In April 2006, a VA examiner reported that the Veteran denied having vertigo. In May 2006, the Veteran wrote that he denied informing the examiner who conducted the March 2006 VA examination that he had been diagnosed with Meniere's disease. He reported that he showed the examiner a copy of a medical record which included the diagnosis. The Veteran wrote, "I made the statement that I did not have Meniere's Disease because I did not have the symptoms that is related to Meniere's Disease i.e. dizziness, nausea, vomiting, etc." In March 2009, the Veteran informed a VA examiner that he began to experience dizziness episodes approximately in 1989 to 1990 with one episode per month for a duration of 15 to 20 minutes. At the time of a May 2011 VA ear disease examination, the Veteran informed the examiner that he experienced intermittent dizziness which began in 2000 and occurred monthly. The duration was five minutes to one to two hours. The examiner found that the Veteran did not have Meniere's disease. No diagnosis was made. The somewhat conflicting reports of the dizziness symptomatology set out above cause the Board to question the probative value of the statements. Regardless, when read in the light most favorable to the Veteran and assuming the veracity of the allegations, the Board finds this evidence documents, at best, that the symptomatology began many years after discharge. In any event, dizziness alone is not subject to service connection absent an underlying disability. See Sanchez- Benitez v. West, 13 Vet. App. 282, 285 (1999) (appeal dismissed in part, and vacated and remanded in part, sub nom). Sanchez-Benitez v. Principi, 239 F.3d 1356 (Fed. Cir. 2001). In this case, there is some medical evidence linking the Veteran's dizziness to Meniere's disease; however, as explained in the Board's June 2012 decision, the preponderance of the evidence established that the Veteran does not have Meniere's disease. There is no medical evidence attributing the Veteran's dizziness to any other disease or injury. Therefore, service connection for this claimed disability must be denied. In reaching this decision, the Board has considered the Veteran's statements. The Board acknowledges that the Veteran is competent to report that he experiences dizziness; however, as a lay person, he is not competent to link the dizziness to a disease or injury. The Board has also considered the doctrine of reasonable doubt but finds that it is not applicable to this claim because the preponderance of the evidence is against the claim. (CONTINUED ON NEXT PAGE) ORDER Entitlement to service connection for disability manifested by dizziness is denied. ____________________________________________ Shane A. Durkin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs