Citation Nr: 1322296 Decision Date: 07/11/13 Archive Date: 07/18/13 DOCKET NO. 08-27 925 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUE Entitlement to service connection for dizziness, to include as secondary to service-connected headaches. REPRESENTATION Appellant represented by: Oregon Department of Veterans' Affairs ATTORNEY FOR THE BOARD K. Fitch, Counsel INTRODUCTION The Veteran had active service from June 2001 to September 2004. His decorations include a Combat Infantryman Badge. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2005 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO), in Portland, Oregon, that, in pertinent part, awarded service connection for headaches, assigning an initial noncompensable disability rating effective as of September 18, 2004; and denied service connection for dizziness and for temporomandibular joint dysfunction. In September 2010, the Veteran testified at a hearing over which the undersigned Veterans Law Judge presided while at the RO. A transcript of that hearing has been associated with his claims file. This matter was previously before the Board in February 2011, at which time it was remanded for additional development. In that decision, the Board noted that with regard to the claims of service connection for dizziness and temporomandibular joint dysfunction, the claims were initially denied in March 2005, and the denials were confirmed in a December 2005 rating decision. As the Veteran had filed a notice of disagreement more than one year following the initial March 2005 denial of the claims (in October 2006), new and material evidence would be required to reopen those claims. However, in the recent case Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011), the United States Court of Appeals for the Federal Circuit (Federal Circuit) held that when VA receives a submission of new and material evidence within one year of a rating decision addressing the condition, 38 C.F.R. § 3.156(b) (2011) requires any subsequent decision to relate back to the original claim. See also Buie v. Shinseki, 24 Vet. App. 242 (2010). In this regard, following the issuance of the March 2005 rating decision, in September 2005, the Veteran underwent relevant VA examinations the results of which contain new and material evidence pertaining to the claims. As such, the March 2005 rating action is the proper rating action on appeal, and the issues have been re-characterized as set forth above. In September 2012, the Board denied an initial disability rating in excess of 30 percent for service-connected headaches. Afterward, in a May 2013 decision, the RO granted entitlement to service connection for myofacial pain syndrome secondary to bruxism, claimed as temporomandibular joint disorder. The remaining matter of entitlement to service connection for dizziness has been returned to the Board for further review. In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim. A review of the documents in such file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issues on appeal. FINDING OF FACT The medical evidence does not indicate that the Veteran has had a diagnosed condition manifested by dizziness during the appeal period. CONCLUSION OF LAW The criteria for an award of service connection for a diagnosed condition manifested by dizziness have not been met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.6, 3.159, 3.303, 3.307, 3.309, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. VCAA. 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; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). Proper notice from VA must inform the claimant of any information and medical or lay 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); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim, including the degree of disability and the effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. VCAA notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). Here, the Veteran was sent letters in November 2004, August 2005, October 2007, October 2008, and February 2011 that provided information as to what evidence was required to substantiate the claim and of the division of responsibilities between VA and a claimant in developing an appeal. The latter 3 communications explained what type of information and evidence was needed to establish a disability rating and effective date. Thus, although complete notice was not provided prior to the adverse determination on appeal, corrective notice was ultimately sent and the matter was subsequently readjudicated, most recently in May 2013. Accordingly, no further development is required with respect to the duty to notify. Next, VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting him in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). The claims file contains the Veteran's service treatment records, as well as post-service reports of VA and private treatment and examination. Moreover, his statements in support of the claim are of record, including testimony provided at a September 2010 before the undersigned. The Board has carefully reviewed such statements and concludes that no available outstanding evidence has been identified. The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claim. For the above reasons, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the 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). II. Analysis Applicable law provides that service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. §§ 3.303, 3.304. Service connection may also be granted for certain chronic diseases, such as arthritis, when the disease is manifested to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. In addition, service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that a disease was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Hickson v. West, 12 Vet. App. 247 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995); 38 C.F.R. § 3.303(a). The existence of a current disorder is the cornerstone of a claim for VA disability compensation. Degmetich v. Brown, 104 F. 3d 1328 (1997) (interpretation of 38 U.S.C.A. § 1110 and 38 U.S.C.A. § 1131 as requiring the existence of a present disorder for VA compensation purposes cannot be considered arbitrary and decision based on that interpretation must be affirmed); Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223 (1992); Rabideau v. Derwinski, 2 Vet. App. 141 (1992). That a condition or injury occurred in service alone is not enough. There must be disability resulting from that condition or injury. In the absence of proof of a present disability, there can be no valid claim or the grant of the benefit. Rabideau v. Derwinski, 2 Vet. App. 141 (1992); see also McLain v. Nicholson, 21 Vet. App. 319, 321 (2007) (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 claims adjudication). Under § 3.303(b), an alternative method of establishing the second and/or third element is through a demonstration of continuity of symptomatology. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (38 C.F.R. § 3.303(b) does not apply to any condition that has not been recognized as chronic under 38 C.F.R. § 3.309(a)). Continuity of symptomatology may establish service connection where a chronic disease under 38 C.F.R. § 3.309(a) shown as such in service or within the presumptive period, manifests at a later date. 38 C.F.R. § 3.303(b). Continuity of symptomatology is required where the condition noted during service or the presumptive period is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. Id. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. Id. In this regard, the Board notes that lay persons may provide evidence of diagnosis and nexus under 38 U.S.C.A. § 1154(a). See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (vacating a decision that stated categorically that a valid medical opinion was required to establish nexus and that a lay person was not competent to provide testimony); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (lay evidence can be competent and sufficient to establish a diagnosis of the lay person is reporting a contemporaneous medical diagnosis); see also Hickson, 12 Vet. App. at 253 (lay evidence of in-service incurrence sufficient in some circumstances for purposes of establishing service connection). In addition, service connection may be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). 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) caused by or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310(a); Allen v. Brown, 7 Vet. App. 439 (1995). The Board observes that for injuries alleged to have been incurred in combat, 38 U.S.C.A. § 1154(b) provides a relaxed evidentiary standard of proof regarding events that occurred during combat. Collette v. Brown, 82 F.3d 389 (1996). Specifically, satisfactory lay or other evidence that an injury or disease was incurred or aggravated in combat will be accepted as sufficient proof of service connection if the evidence is consistent with the circumstances, conditions or hardships of such service even though there is no official record of such incurrence or aggravation. 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(d). However, the reduced evidentiary burden only applies to the question of service incurrence, and not to the question of either the existence of a current disability or nexus between that disability and service, both of which generally require competent medical evidence. See generally, Brock v. Brown, 10 Vet. App. 155 (1997), vacated on other grounds (Fed. Cir. Dec. 15, 2000); Libertine v. Brown, 9 Vet. App. 521 (1996); Beausoleil v. Brown, 8 Vet. App. 459, 464 (1996). It is the Board's responsibility to evaluate the entire record on appeal. 38 U.S.C.A. § 7104(a). When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, reasonable doubt will be resolved in each such issue in favor of the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. An appellant need only demonstrate that there is an approximate balance of positive and negative evidence in order to prevail. To deny a claim on its merits, the evidence must preponderate against the claim. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Alemany v. Brown, 9 Vet. App. 518 (1996). In this case, the Veteran contends that he is entitled to service connection for dizziness. During his September 2010 hearing, the Veteran asserted that his dizziness was associated with his service-connected headaches. The April 2011 VA examination report indicated that the Veteran's headaches were accompanied by lightheadedness, resulting in balance so poor that he would have to sit or lie down. The examination report also indicated that the headaches were not associated with vertigo. However, as it was unclear whether the Veteran had a current disability manifested by dizziness, and if so whether such was secondary to the service-connected headaches, the Board found that an additional opinion should be obtained. Another VA examination was performed in November 2012. The examiner indicated that he was asked to evaluate the Veteran for dizziness. The claims file had been reviewed in connection with the examination. The Veteran reported that after service he experienced intermittent episodes of lightheadedness that would last for a few seconds and then clear. He considered his episodes of lightheadedness to be minor. Per the examiner, the Veteran did not describe true vertigo. Chronic neck and back problems were noted, as he had been involved in a motor vehicle accident in October 2012, with some whiplash to his neck. He had no ear ache or active ear disease. The examiner noted that the only diagnosis had been tinnitus. Vestibular testing was normal with no peripheral vestibular pathology. The examiner did not find vertigo or any condition related to the Veteran's complaints of lightheadedness. The Veteran's outpatient treatment records have also been reviewed, and these documents fail to demonstrate that any specific disorder related to lightheadedness or dizziness was diagnosed during the appeal period in this case. Based on the foregoing, the Board finds that entitlement to service connection for a condition manifested by dizziness is not warranted in this case. Here, while the Veteran is noted to have had complaints of lightheadedness, he has had no diagnosis of vertigo or peripheral vestibular pathology, and no diagnosis of any other disorder manifested by dizziness. As noted above, the existence of a current disorder is the cornerstone of a claim for VA disability compensation. Degmetich v. Brown, 104 F. 3d 1328 (1997); Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223 (1992); Rabideau v. Derwinski, 2 Vet. App. 141 (1992). In the absence of proof of a present disability, there can be no valid claim or the grant of the benefit. Rabideau v. Derwinski, 2 Vet. App. 141 (1992); see also McLain v. Nicholson, 21 Vet. App. 319, 321 (2007). The Board acknowledges the Veteran's contentions that his claimed disability is related to his service. In this regard, lay witnesses are competent to provide testimony or statements relating to symptoms or facts that the lay witness observed and is within the realm of his or her personal knowledge. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed.Cir. 2007) (noting that lay testimony may be competent to identify a particular medical condition). Lay evidence may also be competent to establish medical etiology or nexus. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). However, while VA must consider lay evidence, it may give it whatever weight it concludes the evidence is entitled to, and a mere conclusory generalized lay statement that service event or illness caused the claimant's current condition is insufficient to require VA to provide an examination. Waters v. Shinseki, 601 F.3d 1274, 1278 (2010); see also See Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011) (Lance, J. concurring) ("the Board should avoid overbroad statements about the competence of laypersons and should carefully distinguish its treatment of lay testimony of symptoms and its analysis of lay competence on issues of diagnosis or causation"). Although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions. Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). The Board finds that the diagnosis and etiology of the Veteran's claimed disorder is a complex medical question, beyond the competency of a layperson. The Board further finds that the question regarding the relationship between such disability and military service to be complex in nature. Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Therefore, as the Veteran has only provided his own conclusory statements regarding diagnosis and causation, the Board finds that the Veteran's statements to be of little probative value as he is not competent to opine on such a complex medical question. In summary, the Board concludes that the preponderance of the evidence is against the Veteran's claim. The Board may not base a decision on its own unsubstantiated medical conclusions but, rather, may reach a medical conclusion only on the basis of independent medical evidence in the record. Hensley v. Brown, 5 Vet. App. 155 (1993). Because the preponderance of the evidence is against the claim, the claim must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for a condition manifested by dizziness is denied. ____________________________________________ ERIC S. LEBOFF Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs