Citation Nr: 1308263	
Decision Date: 03/12/13    Archive Date: 03/20/13

DOCKET NO.  09-46 253	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Boston, Massachusetts


THE ISSUES

1.  Entitlement to a compensable rating for service-connected hearing loss.

2.  Entitlement to service connection for vertigo, to include as due to service-connected hearing loss.


REPRESENTATION

Veteran represented by:	Michael James Kelley, Esq.


WITNESS AT HEARING ON APPEAL

The Veteran

ATTORNEY FOR THE BOARD

Laura E. Collins, Associate Counsel


INTRODUCTION

The Veteran served on active duty from November 1959 to February 1962.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2009 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts.  The rating decision confirmed and continued a noncompensable disability evaluation for service-connected hearing loss.  

In August 2011 the Veteran testified before the undersigned Veterans Law Judge (VLJ) at the RO.  Subsequent to the hearing, the Veteran submitted additional evidence with a waiver of RO consideration.  38 C.F.R. § 20.1304 (2012).  Therefore, the Board may properly consider such newly received evidence

In June 2012, the Board requested the opinion of a medical specialist from the Veterans Health Administration (VHA).  The requested opinion was received in October 2012.  In the same month, the Board informed the Veteran and his representative that it had requested a specialist's opinion in conjunction with the adjudication of his appeal, provided him a copy of that opinion and indicated that he was entitled to submit additional evidence or argument provided within 60 days of the date of that letter.  In a signed statement, dated and received at the Board in December 2012, the Veteran's representative requested a 30 day extension to submit additional evidence.  An extension was granted, and in February 2013 new evidence was submitted with a waiver of RO consideration.  Accordingly, the Board will proceed with the consideration of his case.

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).

FINDINGS OF FACT

1.  Since the grant of service connection, the Veteran has had, at worst, Level II hearing in the right ear and Level I hearing in the left ear.

2.  Resolving all doubt in favor of the Veteran, vertigo is etiologically related to service-connected hearing loss.


CONCLUSIONS OF LAW

1.  The criteria for a compensable rating for bilateral hearing loss have not been met.  38 U.S.C.A. §§ 1154(a), 1155, 5107(b) (West 2002); §38 C.F.R. §§ 3.102, 4.3, 4.7, 4.85, 4.86, Diagnostic Code (DC) 6100 (2012).

2.  The criteria for service connection for vertigo have been met.  38 U.S.C.A. §§ 1131, 1154(a), 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  VA's Duty to Notify and Assist

In this decision, the Board grants service connection for vertigo.  As this represents a complete grant of the benefit sought on appeal with respect to that issue, no discussion of VA's duty to notify and assist is necessary for that claim.

The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance.  38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012).  Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). 

The notice requirements apply to all five elements of a service connection claim, including Veteran status, existence of a disability, a connection between the Veteran's service and the disability, degree of disability, and effective date of the disability.  38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2012); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  Notice must be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on the claim for VA benefits.  38 U.S.C.A. § 5103(a) (West 2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004).  However, the VCAA notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant.  Id.

With respect to the Veteran's claim for increased rating for service-connected hearing loss, the Board finds that the duty to notify has been met.  Specifically, a March 2009 letter provided notice, before the initial unfavorable decision in August 2009, regarding what information and evidence is needed to substantiate his claim for increased rating, as well as what information and evidence must be submitted by the Veteran and what information and evidence will be obtained by VA.  It also advised the Veteran of how disability evaluations and effective dates are assigned, and the type of evidence that impacts those determinations.  

VA also has a duty to assist the Veteran in the development of the claim.  This duty includes assisting the Veteran in the procurement of service treatment records, pertinent treatment records, and providing an examination when necessary.  38 C.F.R. § 5103A; 38 C.F.R. § 3.159.  The Veteran's service treatment records, VA treatment records, and private treatment records have been obtained and considered.  He has not indicated there are any additional records that VA should seek to obtain on his behalf.  

He was also provided with an audiological VA examination in March 2009.  The Board finds that the VA examination report is adequate for evaluation purposes because the examiner conducted a clinical evaluation, reviewed the Veteran's medical history, and described the hearing loss in sufficient detail so that the Board's evaluation is an informed determination.  See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008).  Further, in Martinak v. Nicholson, 21 Vet. App. 447 (2007), the United States Court of Appeals for Veterans Claims (Court), noted that VA had revised its hearing examination worksheets to include the effect of the Veteran's hearing loss disability on occupational functioning and daily activities.  See Revised Disability Examination Worksheets, Fast Letter 07-10 (Dep't of Veterans Affairs Veterans Apr. 24, 2007); see also 38 C.F.R. § 4.10 (2012).  The Court also noted, however, that even if an audiologist's description of the functional effects of the Veteran's hearing disability was somehow defective, the Veteran bears the burden of demonstrating any prejudice caused by a deficiency in the examination.  In this case, the examiner that conducted the 2009 audiology evaluation specifically addressed the effect of the Veteran's hearing loss on his daily activities and his employment.  Thus, the Board finds that the examination was adequate.

The Veteran has not alleged, nor does the record show, that his service-connected hearing loss has worsened in severity since the most recent examination in 2009.  As such, a new examination is not required.  See Palczewski v. Nicholson, 21 Vet. App. 174 (2007).  

The Veteran testified at a hearing held before the undersigned VLJ in support of his service connection and increased rating claims.  In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) requires that the VLJ who chairs 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, during the hearing, the VLJ noted the basis of the prior determination and noted the elements of the claims that were lacking to substantiate the claims for benefits.  Specifically, the VLJ addressed the Veteran's hearing loss and how it was related to his vertigo.  In addition, the VLJ sought to identify any pertinent evidence not currently associated with the claims folder that might have been overlooked or was outstanding that might substantiate the claim through specific pertinent questioning.  Moreover, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2) nor has identified any prejudice in the conduct of the VLJ hearing.  By contrast, the hearing focused on the elements necessary to substantiate the claims and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claims for benefits.  As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2) and that the Board can adjudicate the claims based on the current record.  

The Board finds that all relevant facts have been properly developed, and all reasonable efforts were made by VA to obtain evidence necessary to substantiate the Veteran's claims, and no further assistance to develop evidence is required.  Therefore, the Veteran will not be prejudiced as a result of the Board proceeding to the merits of his claims.

II.  Compensable Rating Claim

Disability evaluations are determined by the application of a schedule of ratings, which is based on the average impairment of earning capacity.  Separate diagnostic codes identify the various disabilities.  38 U.S.C.A. § 1155; 38 C.F.R., Part 4.  Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating.  Otherwise, the lower rating is to be assigned.  38 C.F.R. § 4.7.  The Veteran's entire history is reviewed when making disability evaluations.  See Schafrath v. Derwinski, 1 Vet. App. 589 (1995).  After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran.  38 C.F.R. § 4.3.  

Where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibits symptoms that would warrant different evaluations during the course of the appeal, the assignment of staged ratings is appropriate.  See Fenderson v. West, 12 Vet. App. 119, 126-127 (1999); Francisco v. Brown, 7 Vet. App. 55, 58 (1994). 


A.  Hearing Loss

The Veteran's service-connected hearing loss disability is currently rated as noncompensably disabling.  He seeks a higher rating.

In cases for which the evaluation of hearing loss is at issue, an examination for VA purposes must be conducted by a state-licensed audiologist and must include a controlled speech discrimination test (Maryland CNC) and a pure tone audiometry test.  Examinations will be conducted without the use of hearing aids.  38 C.F.R. § 4.85(a).  In addition to dictating objective test results, a VA audiologist must fully describe the functional effects caused by a hearing disability in the final report.  Martinak, 21 Vet. App. 447.  VA must also consider whether an extraschedular evaluation under 38 C.F.R. § 3.321(b) should be assigned in the case where the disability affect on the Veteran's occupational function and daily activities.  Id. at 454-55.

Hearing loss ratings range from noncompensable to 100 percent based on organic impairment of hearing acuity, as measured by controlled speech discrimination tests in conjunction with average hearing thresholds determined by puretone audiometric testing at frequencies of 1000, 2000, 3000 and 4000 cycles per second.  "Puretone threshold average" is the sum of the puretone thresholds at 1000, 2000, 3000 and 4000 Hertz divided by four.  This average is used in all cases (including those in §4.86) to determine the Roman numeral designation for hearing impairment from Table VI or VIa. 38 C.F.R. § 4.85, DC 6100.

The rating schedule establishes eleven auditory acuity levels, designated from Level I for essentially normal hearing acuity, through Level XI for profound deafness.  38 C.F.R. § 4.85.  The horizontal rows in Table VI (in 38 C.F.R. § 4.85) represent nine categories of the percentage of discrimination based on the controlled speech discrimination test.  The vertical columns in Table VI represent nine categories of decibel loss based on the puretone audiometry test.  The Roman numeral designation is located at the point where the percentage of speech discrimination and puretone threshold average intersect.  See 38 C.F.R. §§ 4.85, 4.87.

The regulations also provide that in cases of exceptional hearing loss, i.e. when the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more, the Roman numeral designation will be determined for hearing impairment, separately, from either Table VI or Table VIa, whichever results in the higher numeral.  38 C.F.R. § 4.86.  A Roman numeral designation will also be determined from either Table VI or Table VIa, whichever results in the higher numeral, when the puretone threshold is 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz.  That numeral will then be elevated to the next higher Roman numeral.

At a VA audiology examination in March 2009, the Veteran reported that his hearing loss causes difficulty in conversation.  Pure tone threshold levels, in decibels, were as follows: 

HERTZ
500
1000
2000
3000
4000
RIGHT
N.A.
25
50
30
55
LEFT
N.A.
15
15
20
25

Pure tone threshold levels averaged 40 decibels for the right ear and 18.75 decibels for his left ear.  Speech discrimination testing was 80 percent in the right ear and 100 percent in the left ear.  These results correspond to Level II hearing on the right and Level I hearing on the left pursuant to Table VI.  These results further correspond to a noncompensable evaluation pursuant to Table VII.  A pattern of exceptional hearing loss under 38 C.F.R. § 4.86 is not demonstrated.

A VA treatment record dated July 2009 includes an audiogram as part of an audiology assessment.  The Veteran reported decreased hearing since his 2007 VA examination, difficulty hearing in a car, and having to ask for repetition.  Pure tone threshold levels, in decibels, were as follows:

HERTZ
500
1000
2000
3000
4000
RIGHT
N.A.
25
50
25
55
LEFT
N.A.
10
15
n/a
20

Pure tone threshold levels averaged 38.75 decibels for the right ear and 15 decibels for his left ear.  Speech discrimination testing was 92 percent in the right ear and 100 percent in the left ear.  These results correspond to Level I hearing on the right and Level I hearing on the left pursuant to Table VI.  The results further correspond to a noncompensable evaluation pursuant to Table VII.  A pattern of exceptional hearing loss under 38 C.F.R. § 4.86 is not demonstrated.

Based on the results of the audiological evaluations discussed above, and in the absence of any additional medical evidence showing a more severe hearing disability, a compensable evaluation is not warranted.  The Board does not discount the difficulties the Veteran has with his auditory acuity.  However, the Board has no discretion in this matter and must predicate its determination on the basis of the results of the audiology studies of record.  See Lendenmann v. Principi, 3 Vet. App. 345 (1992).  

Further, as discussed above, in Martinak, 21 Vet. App. 447, the Court noted that VA had revised its hearing examination worksheets to include the effect of the Veteran's hearing loss disability on occupational functioning and daily activities.  See Revised Disability Examination Worksheets, Fast Letter 07-10 (Dep't of Veterans Affairs Veterans Apr. 24, 2007); see also 38 C.F.R. § 4.10 (2012).  The Court also noted, however, that even if an audiologist's description of the functional effects of the Veteran's hearing disability was somehow defective, the Veteran bears the burden of demonstrating any prejudice caused by a deficiency in the examination.  In this case, both VA examination reports contain a detailed description of the Veteran's subjective complaints, as indicated above.  Neither audiologist found occupational effects.  They did find an effect on daily activities, namely difficulty in conversation, difficulty hearing in a car, and having to ask for repetition.  Thus, the Board finds that the examinations were adequate. 

Based on the May 2009 audiological examination report and July 2009 audiological evaluation, there is no evidence that the Veteran's bilateral hearing loss has approximated the criteria for a compensable evaluation at any time during this appeal.

B.  Extraschedular Rating

In exceptional cases an extraschedular rating may be provided.  38 C.F.R. § 3.321.  The Court has set out a three-part test, based on the language of 38 C.F.R. § 3.321(b)(1), for determining whether a Veteran is entitled to an extraschedular rating: (1) the established schedular criteria must be inadequate to describe the severity and symptoms of the claimant's disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extraschedular disability rating must be in the interest of justice.  Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009).  

The Board finds that the rating criteria contemplate the Veteran's disability.  The Veteran's hearing loss disability is productive of decreased hearing acuity and this manifestation is contemplated in the respective applicable rating criteria.  In making this determination, the Board is cognizant of the holding of Martinak, 21 Vet. App. 447.  In that decision, the Court noted that unlike the rating schedule for hearing loss, the extraschedular provisions do not rely exclusively on objective test results to determine whether referral for an extraschedular rating was warranted.  The Court held that in addition to dictating objective test results, a VA audiologist must fully describe the functional effects caused by a hearing disability in his or her final report.  Id. at 455.  Here, the March 2009 and July 2009 evaluations contain a detailed description of the Veteran's subjective complaints, as indicated above.  Neither audiologist found occupational effects.  They did find an effect on daily activities, namely difficulty in conversation, difficulty hearing in a car, and having to ask for repetition.  While the Board has considered this evidence in light of Martinak and the provisions of 38 C.F.R. § 3.321(b)(1), the Board does not find that the Veteran has described functional effects that are "exceptional" or not otherwise contemplated by the assigned evaluation.  Rather, his description of difficulties with hearing is consistent with the degree of disability addressed by such evaluation.  

The rating criteria are therefore adequate to evaluate the Veteran's disabilities and referral for consideration of an extraschedular rating is not warranted.  

C.  TDIU

The Court has held that entitlement to a TDIU is an element of all appeals for a higher rating.  Rice v. Shinseki, 22 Vet. App. 447 (2009).  Entitlement to a TDIU is raised when a Veteran: (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability.  As there is no evidence of unemployability due to the Veteran's hearing loss, the question of entitlement to a TDIU is not raised.

III.  Service Connection Claim

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).  

In addition, 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.  Further, the Court has held that the term "disability" as used in 38 U.S.C.A. § 1110 should refer to "any additional impairment of earning capacity resulting from an already service-connected condition, regardless of whether or not the additional impairment is itself a separate disease or injury caused by the service-connected condition."  Allen v. Brown, 7 Vet. App. 439, 448 (1995).  The Board notes that, effective October 10, 2006, 38 C.F.R. § 3.310 was amended in order to implement the holding in Allen regarding secondary service connection on the basis of the aggravation of a nonservice-connected disorder by a service-connected disability.  See 71 Fed. Reg. 52744 (2006).  As this claim was filed in 2009, the amended regulation applies. 

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 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); Jandreau, 492 F.3d at 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).  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 Secretary shall give the benefit of the doubt to the claimant.  38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).

The Veteran contends that his currently diagnosed vertigo is related to his service-connected hearing loss.

The record shows that the Veteran has a current disability of vertigo.  Private treatment records show that in June 2007 primary care physician Dr. E. diagnosed him with vertigo and referred him to neurologist Dr. Pasinski.  Dr. Pasinski first diagnosed him with vertigo in May 2008, and stated in a letter dated September 2011 that she has continued to follow him for this diagnosis, as well as hearing loss and tinnitus.  Private treatment records dated March 2011 show that the Veteran was seen by neurologist Dr. Parker for benign positional vertigo (BPV).  The Board finds that the Veteran has a current disability of vertigo.

Service treatment records are silent for complaints of vertigo or dizziness.  Reports of medical history given to Drs. E., Pasinski, Parker, and VA physicians show an onset of vertigo symptoms around 2006.  The Veteran testified at his hearing that he had experienced the vertigo for years and couldn't remember when it first started but in the last three or four years, it had begun to really bother him.  He testified that in the last few years because the symptoms had worsened enough that he sought treatment for them.  He testified that he has been told by a physician that his vertigo is related to his noise exposure in service that caused his hearing loss.

The Veteran submitted statements from Dr. E, Dr. Pasinski, and Dr. Parker.  Dr. E evaluated the Veteran in January 2007 when he was hospitalized for complaints of dizziness and diagnosed inner ear crystals causing dizziness and off-balance sensation.  In February 2009, Dr. E wrote a letter to the Veteran stating, "This is to confirm that you suffer from tinnitus, hearing loss[,] and dizziness due to noise exposure in the service."

Dr. Pasinski submitted multiple statements.  The first, dated February 2009, states that the Veteran has a history of traumatic noise injury due to his work as a paratrooper in the military.  In a September 2009 treatment note she mentioned that he parachuted from planes during Vietnam and had impressions of chronic imbalance, tinnitus and hearing loss with dizziness.  In a September 2011 letter, she noted that she had followed the Veteran for multiple neurologic issues including hearing loss, vertigo, and chronic imbalance since May 2008.  "His right ear hearing loss is service related, due to traumatic noise exposure as a paratrooper.  Over recent years he has developed vertigo and imbalance which appear to be related to his service connected hearing loss."

In January 2013, Dr. E wrote a letter stating that he had been the Veteran's physician for 25 years.  The Veteran had suffered intermittent vertigo for the past several years and "his neurologist feels that it is likely his vertigo is due to his right ear damage.  I believe that it is as likely as not that his vertigo is related to his service connected hearing damage."

In February 2011 Dr. Parker evaluated the Veteran on referral from Dr. E.  He had findings consistent with BPV coming from the posterior semicircular canal of the right inner ear.  In addition to the BPV he had gait instability with uncertain etiology that might resolve with effective treatment of the BPV but Dr. Parker noted, "It is more likely that there is more widespread inner ear damage or there is a problem involving the brain.  The fact that the patient has hearing loss in the right ear suggests that there may be more widespread damage to the right ear than can be explained by BPV.  BPV is not typically associated with hearing loss." (emphasis added).  Dr. Parker performed a modified Epley maneuver and taught the Veteran Brandt-Daroff exercises.  He saw the Veteran again in March 2011 and noted that the symptoms of dizziness and instability of gait resolved completely for a period of time after this appointment, but had returned the day prior.  After examination, Dr. Parker stated that "it appears the dizziness is coming from the right ear since it occurs in the right ear down position.  This is ear from which the patient was having dizziness in the past.  I cannot be certain whether this represents some particles falling back into the posterior semicircular canal and causing dizziness or more widespread damage to the right ear."

At the March 2009 VA audiological examination, the examiner noted that the Veteran had been under ENT and neurological care for vertigo and was told it was related to his ear.  She opined that the Veteran's right hearing loss was related to his vertigo.  In an October 2009 VA treatment record, a VA optometrist noted that the Veteran complained his glasses were giving him vertigo.

The October 2012 VHA specialist opined that the Veteran's vertigo was very unlikely to be service connected.  The examiner reviewed the claims file and stated that while the symptoms are in same ear as the hearing loss and tinnitus, vertigo is not typically associated with hearing loss.  He provided a fully articulated and detailed rationale that BPV is related to the vestibular portion of the temporal bone, not the hearing part.  He notes Dr. Parker's suggestion of a more central cause for the gait imbalance.  The Board finds the examiner's opinion is probative.

In summary, the Veteran's two treating physicians Dr. E and Dr. Pasinski opine that his vertigo is related to his hearing loss.  Dr. Parker did not provide a clear opinion on the etiology of the vertigo, stating that the dizziness is coming from the right ear but he could not be certain of its cause.  The 2009 VA examiner related the Veteran's hearing loss to his vertigo, and the VHA opinion is negative.  There are three opinions suggesting a relationship between the hearing loss/right ear damage due to noise exposure and vertigo, one non-opinion, and one negative opinion.  The Board finds that the medical evidence is in equipoise.

The Board concludes that the evidence supports service connection.  Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability.  Allen, supra.  A current disability has been shown to exist, and the medical evidence of record is in equipoise with respect to whether the vertigo was proximately caused by the Veteran's service-connected hearing loss.  Therefore, resolving reasonable doubt in favor of the Veteran, service connection for such disability on a secondary basis is warranted.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102, Gilbert, supra.


ORDER

A compensable rating for hearing loss is denied.

Service connection for vertigo is granted.



____________________________________________
STEVEN D. REISS
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs