Citation Nr: 1316832 Decision Date: 05/22/13 Archive Date: 05/31/13 DOCKET NO. 05-16 934 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for a disorder manifested by nausea and balance problems (including vertigo), to include as secondary to a service-connected disability. REPRESENTATION Appellant represented by: John R. Worman, Attorney At Law ATTORNEY FOR THE BOARD A. M. Clark, Counsel INTRODUCTION The Veteran had active service from May 1985 to March 1988. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In February 2007, November 2007, April 2009, December 2010, and April 2012, the Board remanded this claim for further development. In February 2007, the Board remanded the claim to be readjudicated so that additional medical evidence could be considered. In the November 2007 Remand, the Board instructed the agency of original jurisdiction (AOJ) to schedule the Veteran for a VA examination to determine the nature and etiology of his vertigo. In January 2008, the Appeals Management Center (AMC) initiated a request to have the Veteran scheduled for a VA examination in connection to his claimed disability. This examination was completed in February 2008, and a copy of the VA examination report was associated with the Veteran's claims file. In April 2009, the Board denied the Veteran's claims seeking service connection for a psychiatric disability, to include as secondary to a service connected disability; residuals of TORP surgery; a disability manifested by a sensation of numbness in the left ear; a disability manifested by unusual taste sensation on the left side, and a disability manifested by swollen and stuffy left ear sensation. In addition, the Board combined the issues of entitlement to service connection for vertigo and service connection for a disability manifested by nausea and balance problems, and recharacterized the issue as one for service connection for vertigo, to include a disability manifested by nausea and balance problems. The Board then remanded this, and other issues, for additional evidentiary development. In December 2010 the Board denied the Veteran's claims seeking an initial compensable rating for left ear hearing loss and an effective date prior to May 6, 2004, for the grant of service connection for left ear hearing loss. The Board then remanded several claims, including the Veteran's claim seeking entitlement to service connection for vertigo, to include a disability manifested by nausea and balance problems for additional evidentiary development. With respect to the Board's April 2009 decision, the Veteran appealed the portion of that decision that denied entitlement to service connection for the psychiatric disability, to include as secondary to a service-connected disability, to the United States Court of Appeals for Veterans Claims (Court). In October 2011, the Court vacated the portion of the Board's decision denying service connection for a psychiatric disability, and remanded the matter for proceedings consistent with the Memorandum Decision filed in this case. In April 2012, the Board remanded the service connection claim remaining on appeal, as well as claims for service connection for a psychiatric disorder and service connection for sleep apnea, and for an effective date prior to May 6, 2004 for the grant of service connection for tinnitus. In July 2012, the RO granted service connection for an anxiety disorder, not otherwise specified (30 percent from August 6, 2004). Because he has not appealed the rating or effective date assigned, no claim regarding a psychiatric disorder is in appellate status at this time. With respect to his claims for service connection for sleep apnea and for an effective date prior to May 6, 2004 for the grant of service connection for tinnitus, the Board remanded these issues in April 2012 to accord the RO an opportunity to issue an SOC to the Veteran and to allow him to perfect his appeal if he so desired. Manlincon v. West, 12 Vet. App. 238, 240-41 (1999). The RO issued an SOC on these issues in January 2013, but the record does not reflect that the Veteran perfected his appeal to the Board by timely filing a substantive appeal on either issue. Thus, the Board has no jurisdiction over these claims. 38 C.F.R. § 20.302(b). With respect to his claim for a disability manifested by nausea and balance problems (including vertigo), this claim was most recently remanded by the Board in April 2012 for additional development. Pursuant to that Remand, the agency of original jurisdiction (AOJ) was instructed to provide the Veteran with an additional notice letter and with an additional VA examination. An August 2012 supplemental statement of the case was issued, and the case is once again before the Board. The issue of entitlement to a total disability rating based on individual unemployability (TDIU) has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. FINDING OF FACT The discontinuity of the Veteran's middle ear ossicles, manifested by vertigo and a cerebellar gait, have been aggravated by service-connected left ear hearing loss. CONCLUSION OF LAW Discontinuity of the middle ear ossicles, manifested by vertigo and a cerebellar gait, was aggravated by the Veteran's service-connected left ear hearing loss. 38 U.S.C.A. §§ 1131, 1132, 5103(a), 5103A, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.310 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). In this case, the Board is granting in full the benefit sought on appeal. Accordingly, assuming, without deciding, that there was any error with respect to either the duty to notify or the duty to assist, such error was harmless and will not be further discussed. Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1131 (West 2002). Generally, the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004) (citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002); Caluza v. Brown, 7 Vet. App. 498, 505 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (table)). Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic, or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b) (2012). The provisions of § 3.303(b), however, only apply to the list of disabilities identified under § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. Feb. 2013). Service connection may be granted for any disease diagnosed after discharge from active duty when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2012). The Board must determine whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either case, or whether the preponderance of the evidence is against the claim, in which case, service connection must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Under section 3.310(a) of VA regulations, service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a) (2012). 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 v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Where a service-connected disability aggravates a nonservice-connected condition, a veteran may be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. Allen, 7 Vet. App. at 448. Service connection cannot be awarded on an aggravation basis without establishing a pre-aggravation baseline level of disability and comparing it to current level of disability. 71 Fed. Reg. 52744-47 (Sept. 7, 2006). Temporary or intermittent flare-ups of symptoms of a condition, alone, do not constitute sufficient evidence of aggravation unless the underlying condition worsened. Cf. Davis v. Principi, 276 F. 3d 1341, 1346-47 (Fed. Cir. 2002); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). 38 C.F.R. § 3.310 was amended effective October 10, 2006. This new regulatory amendment appears to pose a new restriction on claimants. Nonetheless, because the Veteran's claim was pending before the regulatory change was made, the Board will consider the version of 38 C.F.R. § 3.310 in effect before the revision, as this version is more favorable. VAOGCPREC 7-03 and VAOPGCPREC 3-00. In the current appeal, the Veteran claims that the discontinuity of his middle ear ossicles, manifested by vertigo and a cerebellar gait, is secondary to his service-connected left ear hearing loss. The Board finds that the requirements for a grant of secondary service connection have been met. First, the medical evidence of record demonstrates that the Veteran is currently diagnosed with discontinuity of the middle ear ossicles and that this disability is manifested by vertigo and a cerebellar gait. See June 2012 VA examination. Second, it is undisputed that the Veteran is currently service-connected for left ear hearing loss. Turning to crucial medical nexus question, the Board notes that a June 2012 VA examiner opined that, although it was less likely than not that his claimed dizziness is secondary to his left hearing loss, "dizziness/vertigo are found in conjunction with hearing loss." A reasonable reading of this medical professional's opinion is that the Veteran's service-connected left ear hearing loss is a contributing factor for aggravation of the discontinuity of his middle ear ossicles, which is manifested by vertigo and a cerebellar gait. Based on the evidence above, and resolving all reasonable doubt in favor of the Veteran, the Board finds that the objective evidence supports a finding that the discontinuity of his middle ear ossicles, which is manifested by vertigo and a cerebellar gait, has been aggravated by his service-connected left ear hearing loss. Accordingly, service connection for discontinuity of the middle ear ossicles, manifested by vertigo and a cerebellar gait, is granted on a secondary basis. ORDER Service connection for discontinuity of the middle ear ossicles, manifested by vertigo and a cerebellar gait, as secondary to the service-connected left ear hearing loss, is granted. ____________________________________________ THERESA M. CATINO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs