Citation Nr: 1323717 Decision Date: 07/25/13 Archive Date: 08/06/13 DOCKET NO. 12-24 470 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for benign positional vertigo, to include as secondary to a service-connected disability. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Shamil Patel, Counsel INTRODUCTION 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 served on active duty from January 1954 to October 1957. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which denied service connection for benign positional vertigo. The Veteran's Virtual VA file has also been reviewed as part of his appeal. FINDING OF FACT Benign positional vertigo is not etiologically related to service, and is not proximately due to or aggravated by a service-connected disability. CONCLUSION OF LAW The criteria for service connection for benign positional vertigo have not been met. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 and Supp. 2012); 38 C.F.R. §§ 3.303, 3.310 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act Under the Veterans Claims Assistance Act (VCAA), when VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 C.F.R. § 3.159 (2012). Such notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if there is a favorable disposition of the claim. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107; 38 C.F.R. §§ 3.159, 3.326; see also Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). Prior to the initial adjudication of the Veteran's claims, a letter dated in December 2009 was sent to the Veteran in accordance with the duty to notify provisions of the VCAA. 38 U.S.C.A. § 5103; 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The Veteran was notified of the evidence that was needed to substantiate his claim; what information and evidence that VA will seek to provide and what information and evidence the Veteran was expected to provide, and that VA would assist him in obtaining evidence, but that it was his responsibility to provide VA with any evidence pertaining to his claim. See Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). He was also notified of the criteria for establishing an effective date and disability rating. See Dingess. The Veteran's VA treatment records, private treatment records, and lay statements have been associated with the claims file. A January 2009 memorandum includes a formal finding that the Veteran's service treatment records were lost in a fire and are not available. In cases where service treatment records are unavailable, there is a heightened obligation to explain findings and conclusions and to consider carefully the benefit-of-the-doubt rule. O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991); Pruitt v. Derwinski, 2 Vet. App. 83, 85 (1992). The case law does not, however, lower the legal standard for proving a claim for service connection but rather increases the Board's obligation to evaluate and discuss in its decision all of the evidence that may be favorable to the appellant. See Russo v. Brown, 9 Vet. App. 46 (1996). Moreover, there is no presumption, either in favor of the claimant or against VA, arising from missing records. See Cromer v. Nicholson, 19 Vet. App. 215, 217-18 (2005) (the Court declined to apply an "adverse presumption" where records have been lost or destroyed while in Government control which would have required VA to disprove a claimant's allegation of injury or disease in service in these particular cases). The Veteran was afforded VA examinations, and an additional Veterans Health Administration (VHA) opinion was also obtained. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The VA examinations and opinion obtained in this case are adequate as they are collectively predicated on a review of the claims file; contain a description of the history of the disability at issue; document and consider the relevant medical facts and principles; and address the nature and etiology of the Veteran's claimed vertigo condition. VA's duty to assist with respect to obtaining a VA examination or opinion for the issues on appeal has been met. 38 C.F.R. § 3.159(c)(4). VA has provided the Veteran with the opportunity to submit evidence and argument in support of his claims. The Veteran has not made the Board aware of any additional evidence that needs to be obtained prior to appellate review, and no further action must be undertaken to comply with the provisions of 38 U.S.C.A. § 5103(a), § 5103A, or 38 C.F.R. § 3.159. Service Connection In order to establish service connection for a claimed disability, the facts must demonstrate that a disease or injury resulting in current disability was incurred in active military service or, if pre-existing active service, was aggravated therein. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2012). Service connection may be granted for any disease diagnosed after discharge 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). For a showing of chronic disease in service, there is required 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." Continuity of symptomatology is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. If 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). However, service connection based on a theory of continuity of symptomatology is applicable only for those disabilities explicitly recognized as "chronic" in 38 C.F.R. § 3.309. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection requires competent evidence showing: (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, 1167 (Fed. Cir. 2004), citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection is also warranted for a disability which is aggravated by, proximately due to, or the result of a service-connected disease or injury. 38 C.F.R. § 3.310 (2012). 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, should also be compensated. Allen v. Brown, 7 Vet. App. 439 (1995). When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. Id. A finding of secondary service connection requires competent medical evidence to connect the asserted secondary disability to the service-connected disability. Wallin v. West, 11 Vet. App. 509, 512 (1998); Velez v. West, 10 Vet. App. 432 (1997). Prior to receipt of the Veteran's November 2009 claim, and effective October 10, 2006, 38 C.F.R. § 3.310 was amended in order to implement the holding in Allen v. Brown, 7 Vet. App. 439 (1995), 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). The amended 38 C.F.R. § 3.310(b) institutes additional evidentiary requirements and hurdles that must be satisfied before aggravation may be conceded and service connection granted. In this regard, the recent amendment to 38 C.F.R. § 3.310 provides, in pertinent part, that VA will not concede that a nonservice-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury. The rating activity will determine the baseline and current levels of severity under the Schedule for Rating Disabilities (38 CFR part 4) and determine the extent of aggravation by deducting the baseline level of severity, as well as any increase in severity due to the natural progress of the disease, from the current level. 38 C.F.R. § 3.310(b) (2012). The evaluation of evidence generally involves a three-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 (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). 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 also 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 at 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"). As noted above, the Veteran served on active duty from January 1957 to October 1957. His military specialty was ground radio repairman. Service treatment records are not available for review. However, the Veteran reported being evaluated for dizziness on two occasions in service. Private treatment records dated November 2006 also reflect complaints of dizziness, accompanied by findings of increased blood pressure. VA records from November 2007 reflect that the Veteran denied any complaints of vertigo or imbalance. However, in private records dated May 2009, he complained of intermittent dizziness in the past 5 to 6 months. VA records from June 2009 show reports of a one and a half year history of vertigo, and the Veteran stated that he had been prescribed Meclizine for dizziness. The Veteran was afforded a VA examination on March 11, 2010. He was diagnosed with benign positional vertigo by history, and the examiner opined that the Veteran had some dizziness or vertigo during service as he reported. However, a more complete opinion was to be completed after a videonystagmography was obtained. An additional examination was conducted on March 24, 2010. An electronystagmogram revealed no nystagmus, though the Veteran did report some dizziness when sitting up. The examiner stated that vestibular findings were essentially normal, but that a medical opinion on vertigo would be deferred to the March 11 examiner. A VHA opinion was obtained in February 2013. The examiner reviewed the claims file, and noted the above history. She stated that dizziness, not true vertigo, can be associated with changes in blood pressure and position, and noted that the Veteran had been treated for hypertension. Benign positional vertigo can also be associated with sudden sensorineural hearing loss. However, the Veteran's hearing loss was chronic, and therefore vertigo was unlikely to be related to hearing loss. Tinnitus and vertigo can occur at the same time but are not caused by each other. The Veteran also had a normal electronystagmogram, which reflects normal vestibular function. Patients with significant vertigo usually have abnormalities noted during such tests. She concluded that the Veteran likely had episodes of positional vertigo or dizziness associated with alterations in blood pressure. The condition was not associated with his service-connected hearing loss or tinnitus, and was not aggravated by service as he went almost 50 years without symptoms after service. Service connection for benign positional vertigo is denied. Although the Veteran has been diagnosed with the condition, the overall weight of the evidence is against a finding that it was incurred in service, or that it is secondary to a service-connected disability. The VHA opinion definitively stated that the Veteran's vertigo was likely associated with alterations in blood pressure. It was not associated with chronic hearing loss or tinnitus. The Veteran also reported instances of dizziness in service. The Board finds these statements to be both competent and credible. However, the VHA opinion noted that current vertigo was not related to service given the intervening 50 year period without symptoms. There is no competent medical opinion to refute these conclusions or to otherwise suggest a relationship between the Veteran's claimed condition and service or a service-connected disability. The Veteran's own statements have been considered. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, the etiology of positional vertigo falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). Therefore, his assertions are not competent evidence of a link to service or a service-connected condition. The preponderance of the evidence is against finding that the Veteran has benign positional vertigo etiologically related to service or a service-connected disability. The appeal is accordingly denied. The provisions of 38 U.S.C.A. § 5107(b) regarding benefit of the doubt have been considered, but there is not such a state of equipoise of positive and negative evidence to otherwise grant the Veteran's claim. ORDER Service connection for benign positional vertigo is denied. ____________________________________________ Vito A. Clementi Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs