Citation Nr: 1324540 Decision Date: 08/01/13 Archive Date: 08/13/13 DOCKET NO. 07-27 012 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to service connection for disability manifested by dizziness and loss of equilibrium. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD C. Lawson, Counsel INTRODUCTION The Veteran served on active duty from December 1967 to December 1969. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an August 2006 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). This matter was last remanded in March 2013 for further development. The Board has reviewed the Veteran's physical claims and the Virtual VA electronic file to ensure a total review of the evidence. FINDINGS OF FACT 1. The Veteran's disability manifested by dizziness and loss of equilibrium was not manifest in service and is not otherwise causally related to service, and any arthritis or organic disease of the nervous system causing it was not manifest within one year of separation. 2. The Veteran's disability manifested by dizziness and loss of equilibrium was not caused or aggravated by a service-connected disability. CONCLUSION OF LAW The criteria for service connection for disability manifested by dizziness and loss of equilibrium are not met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1131, 1137 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Upon receipt of a complete or substantially complete application, VA 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 U.S.C.A. § 5103(a). The notice requirements apply to all five elements of a service connection claim: 1) Veteran status; 2) existence of a disability; (3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). The RO provided the Veteran pre-adjudication notice by a letter dated in May 2006. The notification complied with the requirements of Quartuccio v. Principi, 16 Vet. App. 183 (2002), identifying the evidence necessary to substantiate a claim and the relative duties of VA and the claimant to obtain evidence; and Pelegrini v. Principi, 18 Vet. App. 112 (2004). VA also has a duty to assist a claimant under the VCAA. VA has obtained service treatment records; assisted the Veteran in obtaining evidence; afforded the Veteran examinations/opinions in February 2009, April 2010, March 2012, and March 2013; and afforded the Veteran the opportunity to give testimony before the Board. All known and available records relevant to the issue on appeal have been obtained and associated with the Veteran's claims file; and the Veteran has not contended otherwise. The RO's actions on remand complied with the remand orders by obtaining a medical opinion and readjudicating the claim as indicated. VA has complied with the notice and assistance requirements and the Veteran is not prejudiced by a decision on the claim at this time. The Veteran's appeals the RO's August 2006 decision denying service connection for disability manifested by dizziness and loss of equilibrium. The issue before the Board involves a claim of entitlement to service connection. Applicable law provides that service connection will be granted if it is shown that the Veteran suffers from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. That an injury occurred in service alone is not enough; there must be chronic disability resulting from that injury. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Additionally, for Veteran's who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, such as arthritis or organic disease of the nervous system, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Service connection may be granted, on a secondary basis, for a disability which is proximately due to, or the result of an established service-connected disorder. 38 C.F.R. § 3.310. Similarly, any increase in severity of a non-service connected disease or injury that is proximately due to or the result of a service connected disease or injury, and not due to the natural progress of the nonservice connected disease, will be service connected. Allen v. Brown, 7 Vet. App. 439 (1995). In the latter instance, the non-service connected disease or injury is said to have been aggravated by the service-connected disease or injury. 38 C.F.R. § 3.310. Service connection is in effect for headaches, secondary to shell fragment wound scars, back of the head; and for scar, residual, shell fragment wound, back of the head. Service treatment records show treatment for a fragment wound to the occipital scalp on the right side of the Veteran's head in February 1969. Neurological evaluation was within normal limits. However, the Veteran felt dizzy and vomited upon assuming the upright position, so he was observed overnight. In March 1969, he complained of dizziness due to head injury. On service discharge examination in November 1969, the Veteran denied having dizziness and he was neurologically normal on clinical evaluation. On VA examination in February 1985, the Veteran reported that his head scar made walking difficult, but he did not tell in what way. No neurological impairment was found, and the examiner indicated that none of the Veteran's scars were incapacitating in any way. On VA evaluations in September 1995, March 1996, and September 1996, the Veteran denied dizziness. On VA neurology examination in November 1996, the Veteran complained of neurological problems, but not concerning dizziness and loss of equilibrium. He indicated that he was steady on his feet and was not falling. The Veteran denied dizziness on VA evaluation in March 1997. On VA examination in June 1997, the Veteran reported no difficulty with balance, related to his head injury, and the diagnosis after examination was right sub-occipital shrapnel wound injury with healed granuloma, without neurological sequelae. On VA examinations in April 2001 and November 2002, the Veteran had no complaints of dizziness or loss of equilibrium concerning his head shrapnel injury. On VA evaluations in December 2002, the Veteran had been dizzy. Cerumen was found in his ears. On VA examination in July 2003, sensory neuritis surrounding the Veteran's head shrapnel wound was found, but no other related neurological problems, and the Veteran had excellent balance. On VA evaluation in January 2006, the Veteran reported being off balance for about 2 years. In February 2006, on referral for an unsteady gait, an old cerebellar infarction was found, as was cervical spine arthritis. In May and July 2006, a VA physician opined that the Veteran's dizziness (loss of balance) was at least as likely as not related to service-connected headaches and shrapnel in his head. He assessed dizziness in May 2007. On VA examination in February 2009, the Veteran reported that he had been having an unsteady gait and dizziness which started 2-3 years prior. Medical records were reviewed including those showing an old cerebellar infarction and cervical spine arthritis in 2006. Afterwards, the examiner indicated that a direct relationship between the Veteran's imbalance and dizziness with his head injury in service could not be established. The examiner suspected that the etiology of the Veteran's unsteady gait and dizziness was probably due to a combination of his peripheral vestibular dysfunction and cervical disc disease verses old right cerebellar stroke that had been noted. On VA examination in April 2010, the Veteran's claims folder including records concerning the Veteran's in-service head injury was reviewed, and the Veteran advised that he developed dizziness 6 years prior to the examination. After examination, the assessments were gait dysfunction, believed to be related to cervical myelopathy related to cervical spondylosis. The symptoms started 6 years prior and the examiner found it difficult explaining how it could be related to the Veteran's prior injury as the examiner noted no cervical cord lesions. There had been a right cerebellar stroke but there were no significant or definite cerebellar signs on examination. Therefore, the examiner believed that the Veteran's dizziness or gait dysfunction was less likely than not to have been caused or aggravated by any events in service. On remand in March 2012, the same examiner reviewed the Veteran's claims folder and found that the Veteran's claimed condition was less likely than not proximately due to or a result of his service. He felt that the Veteran's gait dysfunction was related to cervical myelopathy related to cervical spondylosis, noting that the Veteran referred to his unsteadiness as dizziness and that it had started about 6 years prior. On remand in March 2013, to address the matter of causation or aggravation by the Veteran's service-connected residuals of shell fragments to the back of his head and/or by his service-connected headaches, the examiner felt that the Veteran's gait dysfunction or what the Veteran termed dizziness was related to if not completely explained by his cervical myelopathy. Because the symptoms began just 6 years prior to his evaluation and because of neuroanatomy, the examiner was not able to explain how dizziness and gait dysfunction were related to the Veteran's service. He indicated that the Veteran's chronic disability manifested by dizziness and/or loss of equilibrium was not caused or aggravated by the Veteran's service-connected residuals of shell fragments to the back of his head and/or by his service-connected headaches. Based on the evidence, the Board concludes that service connection is not warranted for disability manifested by dizziness and loss of equilibrium under any theory. While the Veteran had dizziness in service, this subsided and was thereafter denied and found to be absent for years following service. No evidence indicates that any disorder causing the Veteran's current disability manifested by dizziness and loss of equilibrium was manifest in service, and examiners have indicated that it is unrelated to service. Moreover, no evidence indicates that cervical spine arthritis or organic disease of the nervous system (cerebellar infarction) (causing dizziness or loss of equilibrium) was manifest to a degree of 10 percent within one year of separation. Once again, the current disability causing dizziness and loss of equilibrium was not shown until years after service. Continuity since service is not alleged or shown but instead is negated by denials by the Veteran and findings by health care providers. On the question of secondary service connection, the preponderance of the evidence indicates a disorder manifested by dizziness and loss of equilibrium was not caused or aggravated by the Veteran's service-connected residuals of shell fragments to the back of his head and/or by his service-connected headaches. This was the conclusion reached by the VA examiner in 2013. While the Veteran's VA physician gave medical opinions in 2006 indicating that dizziness (loss of balance) was at least as likely as not related to service-connected headaches and shrapnel in his head, no reasons were given for this opinion and it is unclear what, if any, information was considered in arriving at this opinion. Accordingly, the March 2013 opinion of the VA examiner to the contrary is deemed more probative, as it is clear that such examiner considered pertinent medical records. See Prejean v. West, 13 Vet. App. 444 (2000) (factors for determining probative value of medical opinions include their thoroughness and detail, whether they discussed why contrary opinions were not persuasive, and the opinion-writer's access to relevant records). The Veteran's causation contentions from March 2007, August 2007, and July 2008 have been considered. However, the question of causation involved is strictly medical in nature, and as the Veteran is a layperson without any medical qualifications, he is not competent to address this question. Medical evidence is required. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The preponderance of the evidence is against the claim and there is no doubt to be resolved. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1991). ORDER Service connection for disability manifested by dizziness and loss of equilibrium is not warranted. The appeal is denied. ____________________________________________ ALAN S. PEEVY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs