Citation Nr: 1308200 Decision Date: 03/12/13 Archive Date: 03/20/13 DOCKET NO. 10-03 255 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to service connection for Meniere's Disease or other ear disease manifesting peripheral vestibular disorder, to include as secondary to the service-connected hearing loss and tinnitus. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Carole Kammel, Counsel INTRODUCTION The Veteran had active military service from July 1965 to June 1967. This matter is before the Board of Veterans' Appeals (Board) on appeal from a June 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in White River Junction, Vermont. By that rating action, the RO denied service connection for Meniere's syndrome, to include as secondary to the service-connected bilateral hearing loss disability and tinnitus. The Veteran appealed this rating action to the Board. Jurisdiction of the appeal currently resides with the Detroit, Michigan RO. In August 2012, the Board requested a specialist medical opinion from the Veterans Health Administration (VHA). 38 C.F.R. § 20.901(a) (2012). This opinion was provided by a board certified otolaryngologist in November 2012. A copy of the November 2012 opinion has been associated with the claims file. After the VHA report was associated with the claims file, the Veteran waived RO jurisdiction of this report, as well as additional private treatment reports submitted in support of the claim. (See Medical Opinion Response Form, dated and signed by the Veteran in mid-January 2013). As the Veteran has waived initial RO consideration of the above-cited VA and private evidence, the Board finds no prejudice will result in proceeding with appellate review of the claim. FINDINGS OF FACT 1. The evidence of record reflects that the Veteran does not have Meniere's disease. 2. The evidence of record fails to support a finding that the Veteran has a disability manifested by imbalance and dizziness, to include a peripheral vestibular disorder, that had its onset during or is otherwise etiologically related to military service. CONCLUSIONS OF LAW 1. Meniere's disease was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.303 (2012). 2. A disability manifested by imbalance and dizziness, to include a peripheral vestibular disorder, was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to Notify and Assist Before addressing the merits of the issues of entitlement to service connection for Meniere's Disease VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. §§ 3.159, 3.326(a). Proper VCAA notice must inform the claimant of any information and evidence not of record that is necessary to substantiate the claim. The claimant should be informed as to what portion of the information and evidence VA will seek to provide, and what portion of such the claimant is expected to provide. Proper notification must also invite the claimant to provide any evidence in his possession that pertains to the claim in accordance with 38 C.F.R. § 3.159(b)(1). See also Pelegrini v. Principi (Pelegrini II), 18 Vet. App. 112, 120-21 (2004). In Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006), the Federal Circuit held that a comprehensive VCAA letter, as opposed to a patchwork of other post-decisional documents (e.g., statements or supplemental statements of the case), was required. The Federal Circuit further held that such a letter should be sent prior to the appealed rating decision or, if sent after the rating decision, before a readjudication of the appeal. Id. The notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). VA, however, may proceed with adjudication of a claim if errors in the timing or content of the VCAA notice are not prejudicial to the claimant. Mayfield v. Nicholson, 19 Vet. App. 103 (2005); Dunlap v. Nicholson, 21 Vet. App. 112 (2007); see also Pelegrini, 18 Vet. App. at 121; Sanders v. Nicholson, 487 F.3d 892 (Fed. Cir. 2007). VA provided the Veteran with pre-adjudication notice on the Pelegrini II VCAA elements in a December 2007 letter. The letter informed the Veteran to let VA know of any evidence he thought would support his claim for service connection for Meniere's Disease on a secondary basis, that it was his responsibility to make sure that VA received all requested records not in the possession of a Federal entity, and told him where to send such evidence. The elements necessary to prevail on the direct service connection component of this claim were not provided. Notwithstanding this omission, the RO addressed the direct and secondary service connection components of the claim in a December 2009 statement of the case (SOC). (See December 2009 SOC, page (pg.) 27)). The Veteran was also provided with the laws and regulations applicable to direct service connection. (See December 2008 SOC, pages (pgs.) 11-16)). In addition, in written statements to the Board, the Veteran has evidenced his actual knowledge of the requirements for establishing service connection by producing articles discussing the etiology of his claimed Meniere's Disease. Thus, the Board's proceeding with the merits of the claim for service connection for Meniere's Disease without a remand to the RO will not prejudice the Veteran. Bernard, supra. The United States Court of Appeals for Veterans Claims (Court) has also held that the VCAA 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. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The RO has not informed the Veteran of the Dingess elements. However, because the service connection claim will be denied in the analysis below, no effective date or rating will be assigned, thus, there is no prejudice to the Veteran in proceeding with the appeal. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). The Board finds that VA satisfied its duty to notify under the VCAA in accordance with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)(1). Neither the Veteran nor his representative has alleged prejudice with respect to notice, as is required. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009); Goodwin v. Peake, 22 Vet. App. 128 (2008). VA has also fulfilled its duty to assist the Veteran with respect to his increased evaluation and service connection claims decided herein. The Veteran's service treatment records (STRs) and post-service private and VA treatment and examination reports have been associated with the claims files. As noted in the Introduction, in August 2012, the Board requested a specialist medical opinion from the VHA to determine the etiology of any currently present Meniere's Disease. This opinion was provided by a board certified otolaryngologist in November 2012. A copy of the November 2012 opinion has been associated with the claims file. The VA otolaryngologist's opinion was based on a review of the entire claims file, to specifically include the Veteran's previous audiograms, as well as medical literature. The November 2012 VA otolaryngologist's opinion is adequate for VA adjudication purposes. See Barr v. Nicholson, 21 Vet. App. 303 (2007). Indeed, the medical evidence has been thoroughly developed in this case. The Veteran was afforded a VA ear disease examination in April 2008 and a November 2012 VHA opinion from a board certified otolaryngologist. As explained below, the competent and credible evidence fails to support a finding that any currently diagnosed peripheral vestibular disorder (other than Meniere's Disease) is etiologically related to his period of active military service. Thus, no additional medical examination or opinion is necessary under the circumstances of this case. The Board finds that no further assistance is warranted with respect to service connection claim decided herein. VA may proceed with the consideration of the claim in the analysis below. II. Laws and Regulations Generally, applicable law provides that service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active duty. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.304. 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"). However, the Federal Circuit recently held that the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic 38 C.F.R. § 3.309(a). Walker v. Shinseki, No. 10-2634, 2011 WL 2020827 (Vet. App. May 25, 2011). If there is at least an approximate balance of positive and negative evidence regarding any issue material to the claim, the claimant shall be given the benefit of the doubt in resolving each such issue. 38 U.S.C.A. § 5107 ; Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); 38 C.F.R. §§ 3.102. On the other hand, if the Board determines that the preponderance of the evidence is against the claim, it has necessarily found that the evidence is not in approximate balance, and the benefit of the doubt rule is not applicable. Ortiz, 274 F.3d at 1365. Service connection may also be awarded for a disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995) (the language of § 3.310 requires consideration of whether service-connected disability has made the claimed disability chronically worse, even if the service-connected disability did not cause the claimed disability). When service connection is established for a secondary condition, the secondary condition shall be considered a part of the original condition. Id. III. Legal Analysis The Veteran seeks service connection for Meniere's Disease, to include as secondary to his service-connected bilateral hearing loss and tinnitus. The Board finds that the preponderance of the competent evidence of record is against a finding that the Veteran currently has a diagnosis of Meniere's Disease; thus, his claim will be denied on this basis. In addition, the Board also finds that the preponderance of the competent evidence of record does not show that any currently diagnosed peripheral vestibular disorder manifested by problems with imbalance and dizziness had its onset during military service or is otherwise etiologically related thereto. The Board will discuss each disability separately in it is analysis below. (i) Meniere's Disease The initial question is whether the preponderance of the evidence of record shows that the Veteran currently has Meniere's Disease. If and only if that question is answered in the affirmative, is it necessary to determine whether it is related to the Veteran's period of military service, or to his service-connected bilateral hearing loss and tinnitus. The Board finds that the preponderance of the competent evidence of record is against a finding that the Veteran currently has a diagnosis of Meniere's Disease; thus, his claim will be denied on this basis. Private treatment records reflect that a few physicians have suspected that the Veteran might have had Meniere's Disease. For example, an October 2002 report, prepared by W. K. R., D. O., reflects that the Veteran gave a history of an onset of sudden hearing loss six (6) to eight (8) weeks previously, along with some dizziness. The Veteran also reported having similar problems in his left ear in the 1980s. Dr. W. R. noted that the Veteran had in-service noise exposure and a "significant history of noise exposure having worked at GM for over 30 years," but at fairly low noise levels. Dr. W. K. R. suspected a diagnosis, in part, of cochlear Meniere's disease. A December 2006 report, prepared by S. M. B., M. D., noted that the Veteran had complaints of vertigo, tinnitus and hearing loss, which was most likely an "end organ disease" and perhaps Meniere's [Disease]. In July and October 2007 reports, V. DuT., M. D., and K. S., M. D., referred the Veteran to an ear, nose and throat specialist to specifically determine whether or not he had Meniere's Disease, and an assessment, in part, of "Suspect Meniere's Disease" was recorded, respectively. (See July and October 2007 reports, prepared by V. DuT., M. D. and K. S., M. D., respectively). The first evidence of the Veteran having been clearly diagnosed with Meniere's Disease was in April 2008. (See April 2008 report, prepared by a private audiologist and Doctor of Audiology Candidate, Bieri Hearing Services, and VA ear disease examination report). The private audiologists opined, after a review of the Veteran's previous audiograms, that it could not be resolved without resort to mere speculation that his Meniere's Disease was secondary to his service-connected hearing loss and tinnitus. (See April 2008 report, prepared by Bieri Hearing Services). An April 2008 VA advanced practice registered nurse (APRN) opined, after a review of the claims files, to include the Veteran's reported history of having an onset of lightheadedness and dizziness as early as the late 1980s, physical evaluation of his ears, and review of medical literature, that his Meniere's disease was not caused by or a result of his service-connected hearing loss and tinnitus, stating that there was no credible support in the medical literature relating Meniere's disease to acoustic trauma. (See April 2008 VA ear disease examination report). In a January 2010 report, K. M. S., M. D., after noting the Veteran's history of in-service noise exposure (a discussion on the Veteran's post-service occupational noise exposure was not provided), opined that "there is a strong possibility that this is not an inherited condition due to family history, and [is] instead due to the noise exposure." In September 2010, K. M. S. attributed the Veteran's reports of vertigo to Meniere's Disease. (See January and September 2010 reports, prepared by K. M. S., M. D.) In view of the conflicting medical evidence as to whether or not the Veteran had a diagnosis of Meniere's Disease and, if present, its etiology, the Board requested a specialist medical opinion from the VHA. This opinion was provided by a board certified otolaryngologist in November 2012. After a review of the entire evidence of record and medical literature, the board certified otolaryngologist provided the following opinion: "As to his diagnosis of Meniere's disease, I find in his record no audiologic evidence of that condition. Rather his audiograms are typical of a noise-induced bilateral sensorineural hearing loss. Most often, people suffering from Meniere's disease have during an attack a unilateral hearing loss predominately in the low frequencies. Often times the speech discrimination in the affected ear will significantly decrease during the attack. Following an attack, the hearing loss usually improves, however the loss frequently becomes permanent after multiple attacks. This individual has normal hearing in the low and speech frequencies which is not consistent with Meniere's disease in the first place. In conclusion, the audiometric studies on the patient are not consistent with Meniere's disease but are consistent with acoustic trauma and/or presbycusis." (November 2012 VHA opinion). While the Board acknowledges the above-cited April 2008 private audiologist's and VA ARNP's reports containing diagnoses of Meniere's disease, there was no explanation as to why the diagnoses were given in the treatment reports and no indication that these disorders was related to the Veteran's active duty service. In fact, the April 2008 VA examiner specifically concluded that the Veteran's Meniere's disease was not related to acoustic trauma or to the service-connected hearing loss and tinnitus. McLain v. Nicholson, 21 Vet. App. 319, 321 (2007) (holding that the requirement that a claimant have a current disability before service connection may be awarded for that disability is also satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim, even if no disability is present at the time of the claim's adjudication). Notwithstanding the holding in McLain, the Board notes that a VA specialist was specifically asked to determine if the Veteran had Meniere's Disease that was related to the Veteran's conceded in-service noise exposure, or otherwise etiologically related to his service-connected hearing loss and tinnitus. In November 2012, after a review of the claims files, to include the Veteran's audiograms, and medical literature, a board certified otolaryngologist, a specialist in disorders of the head and neck, concluded that the Veteran's audiograms were not consistent with Meniere's disease, but rather a noise-indicated bilateral sensorineural hearing loss. The board certified otolaryngologist provided a full and complete rationale for his opinion that the Veteran's medical picture was inconsistent with a diagnosis of Meniere's Disease, to include evidence from the Veteran's previous audiograms and medical literature. Furthermore with regard to the issue of potentially conflicting diagnoses with respect to any Meniere's disease, the Board finds the November 2012 board certified otolaryngologist's opinion to be the most persuasive medical evidence in addressing the Veteran's claimed disability because it was provided by a physician whose specialty is in disorders of the ear, nose, and throat, and it was based on medical literature and studies. In contrast, the April 2008 diagnoses of Meniere's disease were provided by a private audiologist and VA nurse practitioner, and without sufficient medical reasoning as to why the evidence supported a diagnosis of Meniere's Disease. As held by the Court, "the probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion the physician reaches." Guerrieri v. Brown, 4 Vet. App. 467, 470 (1993). The credibility and weight to be attached to the November opinion is within the province of the Board. Id. See also Owens v. Brown, 7 Vet. App. 429, 433 (1995) (holding that VA may favor the opinion of one competent medical expert over that of another when VA gives an adequate statement of reasons and bases). As the November 2012 board certified otolaryngologist's opinion is based upon a review of the Veteran's medical history, specifically his audiograms, and a thorough analysis of the medical literature, the Board finds that it is entitled to the most weight regarding his diagnosis of the Veteran, to include a finding that he did not have a diagnosis of Meniere's Disease. The Board finds that this specialist is the most qualified of the individuals to render an opinion on this subject matter in view of his training and experience in the specific area of medicine at issue in this case. (ii) Disability manifested by imbalance and dizziness, to include a peripheral vestibular disorder Notwithstanding the Board's conclusion that the preponderance of the evidence is against a finding of Meniere's Disease, the above-cited evidence shows that the Veteran suffers from a peripheral vestibular disorder manifested by balance and vertigo problems in accordance with Diagnostic Code (DC) 6204, the diagnostic code used to evaluated these disabilities. See 38 C.F.R. § 4.86, Diagnostic Code 6204 (2012), the DC used to evaluated peripheral vestibular disorders. The competent evidence fails to support a finding that any peripheral vestibular disorder is etiologically related to his period of active military service, or that it was manifested to a compensable degree within the initial post-service year. The Veteran's STRs show that the Veteran complained of dizziness on two occasions in January 1966, which were separately attributed to two separate and distinct etiologies, namely suspected carbon monoxide poisoning and the flu, respectively. The remainder of the STRs, to include a June 1967 service separation examination report, shows that the Veteran's ears were evaluated as "normal. On a June 1967 Report of Medical History, the Veteran denied having had dizziness or fainting spells. In addition, although a private physician, K. M. S., M. D., indicated in a January 2010 statement that there was a strong possibility that the Veteran's history of vertigo was due to noise exposure, he subsequently concluded in a September 2010 report that it was most likely caused by Meniere's disease. (See January and September 2010 reports, prepared by K. M. S., M. D.). As the Board has concluded in its analysis above that service connection for Meniere's Disease is not warranted, similarly, any disability attributed thereto, such as the Veteran's complaints of vertigo, is also not warranted. IV. Conclusion In support of his claim, the Veteran has submitted numerous written statements and medical literature to illustrate the fact that he has Meniere's Disease that is etiologically related to his service-connected hearing loss and tinnitus. The Board acknowledges that he is competent to testify that as to periods that he experienced dizziness and lightheadedness during service and thereafter. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006), and lay witnesses may, in some circumstances, opine on questions of diagnosis and etiology. See Davidson v. Shinseki, 581 F.3d 131, 1316 (Fed. Cir. 2009). (Board's categorical statement that "a valid medical opinion" was required to establish nexus, and that a layperson was "not competent" to provide testimony as to nexus because she was a layperson, conflicts with Jandreau). However, statements that he has Meniere's Disease that is secondary to his service-connected hearing loss and tinnitus, or that he has another peripheral vestibular disorder that is etiologically related to his in-service acoustic trauma is unlike testimony as to a separated shoulder, varicose veins, or flat feet, which are capable of direct observation. See Jandreau, 492 F.3d at 1376 (lay witness capable of diagnosing dislocated shoulder); Barr, 21 Vet. App. at 308-309 (lay testimony is competent to establish the presence of varicose veins); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (unlike varicose veins or a dislocated shoulder, rheumatic fever is not a condition capable of lay diagnosis). The record does not show, nor does the Veteran contend, that he has specialized education, training, or experience that would qualify him to provide an opinion on this matter. Accordingly, his statements are entitled to limited or no probative value in this regard. See Bostain v. West, 11 Vet. App. 124, 127 (1998); See also Routen v. Brown, 10 Vet. App. 183, 186 (1997). The Board observes that the Veteran also submitted internet articles discussing the etiology of Meniere's Disease. Generally, evidence in the nature of medical treatise evidence that simply provides speculative or generic statements that are not case specific or related to the facts of a veteran's specific claim is insufficient to establish service connection by means of such evidence. See Wallin v. West, 11 Vet. App. 509, 514 (1998). Rather, such evidence must discuss generic relationships with a degree of certainty such that, under the facts of a specific case, there is at least plausible causality based on objective facts. Sachs v. West, 11 Vet. App. 314, 317 (1998). There is no indication that such information as described by the Veteran would provide the requisite degree of certainty that he has a diagnosis of Meniere's Disease that is etiologically related to his in-service exposure to acoustic trauma or to his service-connected bilateral hearing loss or tinnitus, or that he has a peripheral vestibular disorder that is of service origin. In fact, and as noted above, a November 2012 board certified otolaryngologist concluded that the Veteran did not have Meniere's Disease. In summary, the Board finds that the preponderance of the competent and probative medical and other evidence of record does not demonstrate that the Veteran currently has Meniere's Disease or that any other diagnosed peripheral vestibular disorder is etiologically related to any incident of service. The Board therefore concludes that the preponderance of evidence is against the claim for service connection for Meniere's disease, to include as secondary to the service-connected hearing loss and tinnitus. In view of the foregoing, the benefit of the doubt doctrine is not for application, and the claim for service connection for Meniere's disease, to include as secondary to the service-connected hearing loss and tinnitus, must be denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence weighs against the Meniere's disease claim, that doctrine is not applicable. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Service connection for Meniere's disease, to include as secondary to the service-connected hearing loss and tinnitus are denied. ____________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs