Citation Nr: 1317813	
Decision Date: 05/31/13    Archive Date: 06/06/13

DOCKET NO.  07-17 281A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Houston, Texas


THE ISSUE

Entitlement to service connection for vertigo.


WITNESSES AT HEARING ON APPEAL

The Veteran and his wife


ATTORNEY FOR THE BOARD

A.E.H. Gibson, Associate Counsel







INTRODUCTION

The Veteran served on active duty in the United States Army from June 1956 to June 1958.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas.

The Veteran's claim to service connect vertigo was last before the Board in February 2012 and remanded for additional development.

In August 2009, the Veteran testified before the undersigned Veterans Law Judge (VLJ) at a hearing held at the Houston RO. A copy of the transcript has been associated with the claims file. In January 2013, the asked the Veteran to clarify his representation. The Veteran advised by letter dated in April 2013 that he desired to be represented by the Texas Veterans Commission, who had represented him at an August 2009 Travel Board hearing. 

THE ISSUE OF SERVICE CONNECTION FOR HEADACHES HAS BEEN RAISED BY THE RECORD, BUT HAS NOT BEEN ADJUDICATED BY THE AOJ; HOWEVER, THE BOARD DOES NOT HAVE JURISDICTION OVER IT. THEREFORE, THIS ISSUE IS AGAIN REFERRED TO THE AOJ FOR APPROPRIATE ACTION. If the Veteran desires to pursue this claim, he should contact the RO.


FINDING OF FACT

The preponderance of the evidence is against a finding that the Veteran has a current disability manifested by vertigo.




CONCLUSION OF LAW

The criteria to establish service connection for vertigo are not met or approximated. 38 U.S.C.A. §§ 1101, 1110, 1131, 1137 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

In this decision, the Board will discuss the relevant law which it is required to apply. This includes statutes enacted by Congress and published in Title 38, United States Code ("38 U.S.C.A."); regulations promulgated by VA under the law and published in Title 38 of the Code of Federal Regulations ("38 C.F.R.") and the precedential rulings of the Court of Appeals for the Federal Circuit (as noted by citations to "Fed. Cir.") and the Court of Appeals for Veterans Claims (as noted by citations to "Vet. App.").

The Board is bound by statute to set forth specifically the issue under appellate consideration and its decision must also include separately stated findings of fact and conclusions of law on all material issues of fact and law presented on the record, and the reasons or bases for those findings and conclusions. See 38 U.S.C.A. § 7104(d); see also 38 C.F.R. § 19.7 (implementing the cited statute); see also Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999); Gilbert v. Derwinski, 1 Vet. App. 49, 56-57 (1990) (the Board's statement of reasons and bases for its findings and conclusions on all material facts and law presented on the record must be sufficient to enable the claimant to understand the precise basis for the Board's decision, as well as to facilitate review of the decision by courts of competent appellate jurisdiction). The Board must also consider and discuss all applicable statutory and regulatory law, as well as the controlling decisions of the appellate courts.

VA is to give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability benefits. 38 U.S.C.A. § 1154(a) (West 2002). The Federal Circuit held that medical evidence is not always or categorically required in every instance to establish the required nexus or linkage between the claimed disability and the Veteran's military service. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); but see Waters v. Shinseki, 601 F.3d 1274 at 1278 (Fed. Cir. 2010) ("VA must consider lay evidence but may give it whatever weight it concludes the evidence is entitled to"). Citing to its previous decisions in Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) and Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007), the Federal Circuit stated in Davidson that it has previously and explicitly rejected the view that competent medical evidence is always required when the determinative issue in a claim for benefits involves either medical etiology or a medical diagnosis. See id. at 1316. 

The Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a 3-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303 at 308 (2007) (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. 

Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159. Lay evidence may be competent and sufficient to establish a diagnosis of a condition when:

(1) a layperson is competent to identify the medical condition (i.e., when the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer);

(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. 

Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009) (where widow seeking service connection for cause of death of her husband, the Veteran, the Court holding that medical opinion not required to prove nexus between service connected mental disorder and drowning which caused Veteran's death). In essence, lay testimony is competent when it regards the readily observable features or symptoms of injury or illness and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465 (1994). 

In ascertaining the competency of lay evidence, the Courts have generally held that a layperson is not capable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183 (1997). In certain instances, however, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." See, e.g., Barr v. Nicholson, 21 Vet. App. 303 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398 (1995) (flatfeet). Laypersons have been found to not be competent to provide evidence in more complex medical situations. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (concerning rheumatic fever). 

Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1).

After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this function, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 511-512 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table); see Madden v. Brown, 125 F.3d 1447 (Fed Cir. 1997) (holding that the Board has the "authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence").

The standard of proof to be applied in decisions on compensation claims is set forth in 38 U.S.C.A. § 5107 (West 2002). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. 
See 38 C.F.R. § 3.102. When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet.App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet.App. 518 (1996).


Duty to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's 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 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). 

Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 
38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2011); 38 C.F.R. § 3.159(b) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002). 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 C.F.R. § 3.159(b)(1). 

The Veteran was provided with VCAA notice in April 2005, which informed him of his and VA's respective duties for obtaining evidence, and was provided prior to adjudications by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004). He was advised of the manner in which effective dates and disability ratings are assigned in a separate notice sent in June 2006. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The claims were readjudicated in April 2007.

VA also has a duty to assist in the development of the claim. This duty includes assisting in the procurement of service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.

All necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The RO has obtained his post-service VA treatment records, but the Veteran has not asked for any private medical records to be associated with his claim. 

Service treatment records (STRs) were not obtained, and are presumed lost. The law provides that when, through no fault of the Veteran, records under the control of the Government are unavailable, the duty to assist is heightened. Dixon v. Derwinski, 3 Vet.App. 261, 263 (1992). VA must advise the Veteran of his right to support his claim by submitting alternate sources of evidence, including service medical or personnel statements, or lay evidence, such as "buddy" affidavits or statements. Id. The Veteran was notified of the unavailability of his STRs via letter of July 8, 2005. The RO explained what efforts were made, and asked the Veteran to complete and return NA Form 13055, Request for Information Needed to Reconstruct Medical Data, which would be used to continue searching for the STRs. In responding to the form's questions, the Veteran did not provide a narrow enough time frame for additional sources to be searched, which was noted in the April 2007 statement of the case (SOC). He has not provided further information nor further elaboration during his Travel Board hearing.  

VA's duty to assist includes providing a VA examination and opinion where there is "an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service," but there is "insufficient competent medical evidence on file for the Secretary to make a decision on the claim." See 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4)(i); McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). Pursuant to the Board's February 2012 remand, a medical opinion regarding vertigo was obtained in July 2012. In this opinion, the VA examiner noted review of the claim file and medical records, considered the Veteran's lay statements, and rendered an opinion supported by explanatory rationale and which addressed the Veteran's contentions. Nieves- Rodriguez v. Peake, 22 Vet.App. 295 (2008) (the probative value of a medical opinion depends upon whether it is factually accurate, fully articulated, and contains sound reasoning for the conclusion).

With regard to the Veteran's hearing before the Board, the transcript reflects that the presiding VLJ conducted the hearing in accordance with the statutory duties to "explain fully the issues and suggest the submission of evidence which the claimant may have overlooked and which would be of advantage to the claimant's position," pursuant to 38 C.F.R. § 3.103(c)(2). Bryant v. Shinseki, 23 Vet. App. 488 (2010). The issue under consideration was discussed, and testimony regarding the Veteran's past and (then) current symptoms and how they affect his employment and daily life was presented. The VLJ also questioned the Veteran on the availability of alternate medical records, and held the record open for additional evidence, if located. The Board finds the August 2009 hearing was legally sufficient and that the VLJ met the duties under 38 C.F.R. § 3.103(c)(2).

The RO/AMC complied with the Board's January 2010 and February 2012 remand directives. Stegall v. West, 11 Vet. App. 268 (1998); see D'Aries v. Peake, 22 Vet. App. 97 (2008) (finding that only substantial compliance, rather than strict compliance, with the terms of a Board engagement letter requesting a medical opinion is required). The RO/AMC asked the Veteran about updated treatment with private physicians, obtained VA treatment records, scheduled VA examinations, and readjudicated the claim as necessary.  

Accordingly, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist the Veteran in the development of this claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002).

Service Connection

The Veteran asserts he has had vertigo since he was allegedly hit in the face with a cue ball during service. He complains of headaches, blurry vision, and dizziness. He has also alleged that vertigo is connected to his hearing loss. As the preponderance of the evidence is against service connection, the Board is denying his appeal.

Service connection may be granted if it is shown the Veteran develops a disability resulting from an injury sustained or disease contracted in the line of duty, or for aggravation during service of a pre-existing condition beyond its natural progression. 38 U.S.C.A. §§ 1110, 1131, 1153; 38 C.F.R. §§ 3.303, 3.306. 
	
A three-element test must be satisfied in order to establish entitlement to service connection. Specifically, the evidence must show (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and, (3) a causal relationship between the current disability and the disease or injury incurred or aggravated during service-the so-called "nexus" requirement. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (citing Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004)).  

Under 38 C.F.R. § 3.303(b), claims for certain chronic diseases-namely those listed in 38 C.F.R. § 3.309(a)-benefit from a somewhat more relaxed evidentiary standard. See Walker, 708 F.3d at 1339 (holding that "[t]he clear purpose of the regulation is to relax the requirements of § 3.303(a) for establishing service connection for certain chronic diseases."). When a chronic disease is established during active service, then subsequent manifestations of the same chronic disease at any later date, however remote, will be entitled to service connection, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). In order to establish the existence of a chronic disease in service, the evidence must show a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic."  Id. Thus, the mere manifestation during service of potentially relevant symptoms (such as joint pain or abnormal heart action in claims for arthritis or heart disease, for example) does not establish a chronic disease at that time unless the identity of the disease is established and its chronicity may not be legitimately questioned. Id. If chronicity in service is not established, then a showing of continuity of symptoms after discharge is required to support the claim. Id.  

Not all diseases that may be considered "chronic" from a medical standpoint qualify for the relaxed evidentiary standard under section 3.303(b). Rather, the Federal Circuit held that this subsection only applies to the specific chronic diseases listed under 38 C.F.R. § 3.309(a). Walker, supra. Thus, if the veteran does not have one of the chronic diseases enumerated in section 3.309(a), then the more relaxed continuity-of-symptomatology standard does not apply, and the "nexus" requirement of the three-element test must be met. Id. Vertigo is not listed among the chronic diseases under section 3.309(a), therefore service connection cannot be presumed under 38 C.F.R. § 3.307, nor can it be established under the relaxed "continuity of symptomatology" evidentiary standard under 38 C.F.R. § 3.303(b). 

Additionally, if a veteran served continuously for ninety (90) or more days during a period of war or after December 31, 1946, and if a chronic disease, listed in section 3.309(a) became manifest to a degree of 10 percent or more within one year from the date of the veteran's termination of such service, that condition would be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 C.F.R. § 3.307(a). Such a presumption would be rebuttable, however, by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309.

In cases such as this, where the Veteran's STRs are unavailable through no fault of his own, the law provides that VA has a heightened duty to explain its findings and conclusions, as well as a heightened duty to consider the benefit-of-the-doubt rule. O'Hare v. Derwinski, 1 Vet.App. 365, 367 (1991); Dixon, 3 Vet.App. at 263-264. However, medical evidence indicates that the Veteran does not have vertigo - the STRs would therefore be of little relevance. 

The July 2012 VA examiner opined that it was not likely that the claimed condition is related to service; indeed, he did not find the Veteran had vertigo. The examiner observed that vertigo is a very specific symptom, a feeling of illusory movement, with some people perceiving themselves as moving and others perceiving the environment as moving. The examiner noted that if present, vertigo would only be connected to hearing loss if the Veteran also had Meniere's disease, which the Veteran does not have. He further noted that the Veteran's hearing loss has been attributed to acoustic trauma. He stated that vertigo was never defined as a specific complaint by the Veteran; rather, the Veteran has infrequently complained of dizziness. He noted the Veteran has been diagnosed with atrial fibrillation, which causes dizziness for more greatly than any ENT (ear, nose, and throat) issues. See VA examination dated July 23, 2012.

In light of the July 2012 VA examination report, the Veteran's testimony regarding vertigo is not probative. Although the Veteran has asserted continuous feelings of vertigo since active duty, he has not been diagnosed with a disease that manifests as vertigo, nor has the specific symptom been noted by any of his treating physicians. When describing his vertigo, he testified to feeling dizzy and having headaches and having blurred vision. However, medical opinion indicates that these symptoms as alleged by the Veteran do not describe vertigo. His records show two complaints of occasional dizziness made in the last fifteen years. See VA treatment dated April 3, 2003; VA examination dated October 11, 2005. Although laypeople are competent to attest to symptoms that are non-medical in nature, such as a having a rash or feeling pain, Barr v. Nicholson, 21 Vet. App. 303 (2007), he has not been shown to have the training or expertise to adequately label his symptoms as vertigo. Indeed, the evidence does not show him to have ever complained of "illusory movement" or anything similar. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372, 1376-77 (Fed. Cir. 2007); Barr v. Nicholson, 21 Vet. App. 303, 309 (2007); Washington v. Nicholson, 19 Vet. App. 362, 368 (2005); Layno v. Brown, 6 Vet. App. 465, 469-71 (1994).   

Because the Veteran does not vertigo, service connection cannot be granted as a matter of law. 38 U.S.C.A. § 1110; Boyer v. West, 210 F.3d 1351 (Fed. Cir. 2000); Brammer v. Derwinski, 3 Vet. App. 223 (1992) (generally observing that in the absence of proof of a current disability, there can be no valid claim); see also Sanchez-Benitez v. Principi, 239 F.3d 1356 (Fed. Cir. 2001) and Sanchez-Benitez v. West, 13 Vet.App. 282 (1999) (service connection may not be granted for symptoms unaccompanied by a diagnosed disability). Accordingly, the preponderance of the evidence is against this claim, and under these circumstances, the benefit-of-the-doubt doctrine does not apply, and the claim must be denied. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2011).  See also Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990).


ORDER

Service connection for vertigo is denied.



____________________________________________
Vito A. Clementi
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs