Citation Nr: 1311255 Decision Date: 04/04/13 Archive Date: 04/19/13 DOCKET NO. 10-23 157 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to service connection for vertigo. 2. Entitlement to service connection for an acquired psychiatric disorder. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD S. Lipstein INTRODUCTION The Veteran served on active duty from September 1945 to March 1947. This matter came before the Board of Veterans' Appeals (Board) on appeal of a July 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. The Board previously remanded the claims on appeal in November 2012. 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). The Veteran's psychiatric disability claim is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT The Veteran's vertigo had its onset in service. CONCLUSION OF LAW Vertigo was incurred in service. 38 U.S.C.A. §§ 1110, 1131, 1154(a), 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In this decision, the Board grants service connection for vertigo. As this represents a complete grant of the benefit sought on appeal, no discussion of VA's duty to notify and assist is necessary. 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 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 United States Court of Appeals for Veterans Claims (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). 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."). Service treatment records reflect that in November 1946, the Veteran reported that he was doing well until he had been hit on the head by a battle lantern and, though not knocked out, had experienced headaches ever since. Treatment records from Clinton Family Physicians dated in October 2004 reflect that the Veteran reported that dizziness had resolved. The Veteran underwent a VA examination in July 2007. He reported dizziness when looking up or turning his head quickly. He stated that he went to physical therapy for balance therapy. Treatment records from Clinton Family Physicians starting in September 2007 reflect that vertigo was noted. The Veteran had a VA examination in March 2010. He reported that he was on a ship in February 1946 when a battery light fell and hit him on the head, knocking him out briefly. He remembered coming around in a cabin where the laceration was repaired. He stated that he subsequently had some dizzy spells. He stated that he had some dizziness that came and went over the previous 63 years. He described this as a woozy lightheadedness, vertiginous, that comes with moving. He reported that this comes and goes and may not be present for many days or weeks and then can recur. No assessment of the Veteran's vertigo was included in the report. In a December 2012 VA examination addendum, the examiner noted that the Veteran complained of dizziness and vertigo that followed an injury while in the service, which started during the service and continued following this. The examiner noted that his complaints of woozy lightheadedness with some vertiginous component, which was helped with Meclizine and aggravated by movement, is consistent with vestibular type vertiginous symptoms that are intermittent. The examiner stated that this is certainly not uncommon and appears very likely related to the service injury. The examiner noted that traumatic injury can make someone very susceptible and can cause positional vertigo related to vestibular dysfunction. The examiner opined that the vertigo is more than likely related to service. The Board finds that the Veteran currently has vertigo, and there is evidence of record to support the conclusion that the vertigo was incurred during service. Given the foregoing, and resolving all doubt in favor of the Veteran, as is required, the Board finds that service connection for vertigo is warranted. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for vertigo is granted. REMAND The Board previously remanded the depression claim in November 2012. For the reasons noted below, the Board finds that it must remand this claim again. The Court has held that a remand by the Board confers on the Veteran, as a matter of law, the right to compliance with the remand orders. Stegall v. West, 11 Vet. App. 268 (1998). The Court in Stegall has indicated, moreover, that if the Board proceeds with final disposition of an appeal, and the remand orders have not been complied with, the Board itself errs in failing to ensure compliance. Id. at 271. In November 2012, the Board remanded the claim for service connection for an acquired psychiatric disorder in part to obtain a VA examination addendum opinion that addressed whether it is at least as likely as not that any psychiatric disability found to be present is caused or aggravated by the Veteran's service-connected disabilities. In January 2013, a VA examination addendum opinion was obtained. The examiner opined that it does not appear to be as likely as not that any psychiatric disability the Veteran has from depression was caused or aggravated by his service-connected disability as there did not seem to be any cumulative impact of the service-connected schizoid disorder over the course of his life before he presented for depression. This addendum opinion did not address whether the depression was caused or aggravated by the Veteran's other service-connected disabilities, including hearing loss, tinnitus, tension headaches, and now vertigo. Finally, relevant ongoing medical records should also be requested. 38 U.S.C.A. § 5103A(c) (West 2002); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Accordingly, the case is REMANDED for the following actions: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. The RO should notify the Veteran that he may submit lay statements from individuals who have first-hand knowledge, and/or were contemporaneously informed his in-service and post-service depression symptomatology. He should also be advised that he can submit lay and/or medical evidence indicating a relationship between his service-connected disabilities and his psychiatric disability. The Veteran should be provided an appropriate amount of time to submit this evidence. 2. The Veteran's Mountain Home VA medical center treatment records dated from November 2012 and thereafter should be obtained and associated with his claims folder. 3. After associating any pertinent, outstanding records with the claims folder, return the claims files to the January 2013 VA examiner who provided an addendum to the July 2009 VA psychiatric examination report. If the examiner is not available, a suitable replacement may prepare the report. The Veteran need not be reexamined unless an examination is deemed necessary. If a psychiatric examination is deemed necessary, all indicated testing should be accomplished. The claims files should be made available to and reviewed by the examiner. The VA examiner must opine as to whether it is at least as likely as not that any psychiatric disability found to be present is caused or aggravated by his service-connected disabilities, to include hearing loss, tinnitus, schizoid personality, tension headache, and vertigo disabilities. The opinion should include the cumulative impact of service-connected conditions. The examiner should set forth the complete rationale for all opinions expressed and conclusions reached. 4. Thereafter, the RO should readjudicate the appeal. If the issue on appeal remains denied, a supplemental statement of the case should be provided to the Veteran. After the Veteran has had an adequate opportunity to respond, the appeal should be returned to the Board for appellate review. 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). ______________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs