Citation Nr: 1325183 Decision Date: 08/08/13 Archive Date: 08/13/13 DOCKET NO. 06-29 126 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to service connection for a disorder characterized by vertigo, claimed as dizziness, to include as secondary to the Veteran's service-connected disabilities. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Tabitha G. Macko, Counsel INTRODUCTION The Veteran served on active duty from March 1962 to July 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2005 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. The Board remanded this case in October 2009 and April 2011 for additional development and due process concerns. FINDINGS OF FACT A disorder characterized by dizziness did not have its onset in service, is not related to service and was not caused or aggravated by the service-connected disabilities of diabetes, peripheral neuropathy of the left lower extremity and of the right lower extremity, tinnitus, fractured right mandible, fractured right thumb, bilateral hearing loss, and erectile dysfunction. CONCLUSION OF LAW The criteria for service connection for a disorder characterized by dizziness have not been met. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Service Connection The Veteran seeks service connection for a disorder characterized by vertigo, claimed as dizziness. He contends that the dizziness are either directly attributable to his military service, in particular to a fall down three floors in an elevator shaft that he experienced in August 1965 or, more generally, secondary to his service-connected disabilities. Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. 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 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). Secondary service connection shall be awarded when a disability 'is proximately due to or the result of a service-connected disease or injury.' In addition, any increase in severity of a nonservice-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. 38 C.F.R. § 3.310. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). In determining whether statements submitted by a veteran are credible, the Board may consider internal consistency, facial plausibility, consistency with other evidence, and statements made during treatment. Caluza v. Brown, 7 Vet. App. 498 (1995). A review of the service treatment records finds that in August 1965, the Veteran fell down three floors in an elevator shaft in a hotel. The record does not indicate whether he was rendered unconscious, as the clinical record noted the Veteran replied he was unsure whether he was ever unconscious. Physical examination demonstrated injuries to the mandible, forehead, chest, right knee, and left leg. The Veteran also sustained a laceration to the frontal region of the scalp with no artery or nerve involvement. Neurological evaluation was within normal limits, except for some initial complaints of dizziness. These service treatment records contain no follow-up requests for treatment or any additional complaints of dizziness. Upon separation examination in July 1967, clinical evaluations of the head, face, neck and scalp, ears and eardrums, and neurological evaluation were within normal limits. In the report of medical history completed by the Veteran at that time, he specifically denied ever having or having then "dizziness or fainting spells." In September 1998 the Veteran submitted a claim seeking service connection for a back disorder and for shrapnel in the left hand. He was afforded a VA spine examination to develop the claim and he reported the fall down the elevator shaft to the VA examiner. There was no report of experiencing dizziness subsequent to the fall in service or following service. The Veteran submitted his current claim seeking service connection for dizziness in November 2004. On the VA Form 21-5126, the Veteran dated the onset of the dizziness to 2003. In support of the claim, private treatment records from Dr. M., were requested by VA. These records spanned from October 2001 to November 2004 and they did not contain any complaints of dizziness, though the Veteran sought treatment for other disorders, including his now service-connected diabetes mellitus, and reported other symptoms. The Veteran sought VA treatment; a December 2005 primary care evaluation referred to him as a "new" patient to that clinic and to the VA system. The clinician noted the Veteran described that for the past 2 to 3 years he started to feel "dizzy", though this was more like a swinging or rocking sensation, not necessarily with head movement. The clinician also noted the Veteran felt lightheaded and a feeling of swinging when he closed his eyes. This experience had become worse in the previous five to six months. The primary care clinician assessed dizziness and imbalance most likely secondary to an inner ear problem. The Veteran was referred to neurology and audiology and for a CT scan of the head to possible CNS (central nervous system) pathology. The Veteran had the audiology consultation in late December 2005. He reported the dizziness occurred at least weekly, though he denied a spinning sensation or staggering. During testing, the clinician noted slight dizziness with intermittent negative pressure applied. The clinician referred the Veteran to the ENT (ear, nose, and throat) clinic for otologic case management of the dizziness. In January 2006, he had a neurology consultation. The "balance problems" were now referenced as "longstanding." The Veteran reported experiencing some 25 years of non-spinning vertiginous movement, of being off-balance. These episodes occurred daily, though were of variable intensity and variable duration. He also reported the fall down the elevator shaft, though the neurology report dated this event as occurring in 1963. The physician assessed longstanding episodic non-spinning vertigo, characterized by a sensation of false body movement. The physician also cancelled the CT scan and substituted a brain MRI and ordered additional testing. The ENT consultation took place in February 2006. The Veteran described a lightheaded feeling when changing position of the body or walking that had been present for many years and that improved with the use of Bonine (antihistamine, available over the counter or by prescription; see Drugs.com.) Recently, he reported minimal problems with this feeling. The Veteran also reported the unsteadiness could be precipitated by eating a large meal. The clinician noted he did not describe vertigo. The ENT clinician examined the ears and assessed normal anatomy without active disease. The impression was lightheadedness related to vascular disease without history compatible with primary disease of the labyrinth (inner ear). The physician noted he did not suggest any medication as the Veteran was asymptomatic, though he should continue with his medication for his elevated blood pressure. In February 2006 the Veteran underwent EEG (electroencephalogram) testing. His history was described as 25 years of episodic vertigo following head trauma. The findings were of a normal, drowsy EEG showing no evidence of focal brain abnormalities or ictal discharge. The March 2006 brain MRI was interpreted to show mild age-appropriate diffuse parenchymal volume loss with mild bilateral periventricular subcortical small vessel ischemic changes and an unremarkable intracranial MRA. At the March 2006 primary care evaluation, the clinician noted the consultations the Veteran had had and the testing accomplished. The Veteran reported much less dizzy spells since the last primary care evaluation. The clinician observed the January 2006 Neurology impression and referred the Veteran back to neurology. The neurology follow-up consultation occurred in September 2006, though the Veteran sought treatment and reported other symptoms. His dizziness "comes and goes." In a March 2007 primary care evaluation the Veteran reported he only felt off balance "sometimes," if he moved sideways suddenly. In a November 2007 neurology follow-up evaluation, the clinician observed he was doing well in terms of his walking and balance. In October 2008, the Veteran was afforded a neurology VA examination. The examiner reviewed the claims file and the service treatment records. The Veteran reported the fall down the elevator shaft in service that broke his jaw and that he did not receive treatment for dizziness in service. Post-service, he reported that sought treatment, not from a neurologist but from an ENT and was given Bonine. He then consulted with a neurologist at VA. Following an objective examination, the examiner declined to give an opinion as to whether the current dizziness was due to or a result of the in-service fall and head injury without resorting to speculation, because while the service treatment records noted the fall down the elevator shaft, the records, including the separation physical, did not reveal any residuals from that fall. He also noted there were no contemporaneous complaints from the Veteran of dizziness and there were no immediate post-service treatment records regarding treatment for dizziness. The examiner did review the current VA treatment reports of record and testing results, including the MRI that was unremarkable. Following the October 2009 remand order, which included the Board's findings that the Veteran did not have dizziness in service and that credible, probative evidence dated the onset of the dizziness to 2003, the claims file was returned to the same examiner who had conducted the October 2008 examination. In March 2010, the examiner reviewed the claims file, service treatment records, the Board's 2009 findings, and current VA treatment records. The examiner noted the service separation physical had not found any residuals of dizziness from the fall and the Veteran had denied any residuals of dizziness. He also noted in 2006 the Veteran had reported the onset of the dizziness as 25 years prior, which would have been approximately 1981, and that in current follow-up evaluations with neurology, the Veteran did not seek treatment for dizziness. The examiner opined the current dizziness was not caused by service or by the current service-connected disabilities, though he couched his opinion in terms of continuity of treatment. Following the 2011 remand by the Board, the same examiner in May 2011 again reviewed the claims file, service treatment records, and current VA treatment reports. The examiner found no evidence the Veteran suffered from post-service dizziness that was related to the injury he suffered in service. Further, there were no complaints by the Veteran to his clinicians that his service-connected disabilities were aggravating the dizziness and no reported symptoms of dizziness as related to the service-connected disabilities. Therefore, the examiner opined the dizziness was not caused by or worsened by the service-connected disabilities. After having carefully reviewed the evidence of record, the Board finds that service connection is not warranted for a disorder characterized by vertigo, claimed as dizziness, because the preponderance of the evidence is against a finding that dizziness or vertigo disorder was present in service or is related to service. The Board acknowledges that the Veteran suffered a fall down three floors in an elevator shaft in August 1965 and experienced injuries, to include a broken jaw. However, after an initial report of dizziness, the Veteran did not report dizziness again and denied having experienced dizziness at separation from service, on the medical history form. The probative evidence weighs against dizziness or a vertigo disorder that had its onset in service. Rather the evidence suggests that the August 1965 report was an acute reaction to the accidental fall, rather than a manifestation of a chronic disorder, as subsequent service treatment records reflect no histories suggestive of persistent symptoms and the Veteran specifically denied at service discharge ever having or having then dizziness or fainting spells. The first evidence suggestive of a chronic disorder dates more than 30 years after service discharge, which is evidence against the claim. See Maxson v. Gober, 230 F.3rd. 1330, 1333 (Fed. Cir. 2000). Additionally, when the Veteran first submitted a claim for VA benefits in 1998, it was for left hand and back disorder, and not for dizziness, which is evidence against there being a chronic disorder characterized by dizziness or vertigo that started in service. More specifically, the Veteran reported the fall at the time he was examined in connection with the 1998 claims. At no time did the Veteran report having dizziness at that time. He attributed the back disability to the fall. If he was having additional symptoms that he believed were related to the fall, the Board finds he would have reported them, such as dizziness. See Kahana v. Shinseki, 24 Vet. App. 428, 440 (2011), (Court held that Board could use silence in medical records as contradictory evidence if the alleged injury, disease, or related symptoms would ordinarily have been recorded in the these records, citing to Fed.R.Evid. 803(7) (the absence of an entry in a record may be evidence against the existence of a fact if such a fact would ordinarily be recorded)). To the extent that the Veteran has subsequently alleged he had dizziness in service, the Board rejects those reports as not credible (as described in the 2009 remand). He specifically denied any history of "dizziness or fainting spells" in the July 1967 report of medical history completed at separation. In providing that history, the Veteran attested to the truth of such statement. The Board accords significantly more probative value to the report of history the Veteran reported contemporaneously with his service in 1967 than his statements made in connection with his claim for service connection for dizziness made more than 35 years following discharge from service. Regarding the onset of dizziness, the Board notes that when the Veteran submitted his current claim for service connection, he indicated that dizziness began in 2003. See VA Form 21-526, Veteran's Application for Compensation or Pension. This is also consistent with the Board's conclusion that had the Veteran been experiencing dizziness back in 1998, he would have reported it. In the December 2005 VA treatment record, he reported a two-to-three-year history of dizziness. This report is consistent with what he indicated on his application. However, one month later, the Veteran began reporting these symptoms for the past 25 years. Thus, to the extent that the Veteran has claimed a 25-year history of dizziness, the Board rejects this report as contradictory to his previous statement. The Veteran reported the onset of dizziness in 2003 on his application and reiterated such history when he was treated in December 2005. Additionally, the private medical records, dated from 2002 to 2004, are silent for complaints of dizziness, though these reports do include the Veteran's complaints of other symptoms and his receipt of treatment for various disorders from his private clinician. The absence of evidence in support of an alleged fact clearly is an evidentiary circumstance that weighs against the existence of the alleged fact. Therefore, while the Veteran is competent to report the onset of symptoms, the Board finds the Veteran is not a credible historian as a result of his changed medical history. Furthermore, a VA examiner has opined that a dizziness disorder was not caused by service and the Board finds the examiner's opinion is probative, as the examiner provided a rationale based on the credible evidence of record. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (opinion's probative value determined by whether it is supported by a detailed rationale/explanation); Kowalski v. Nicholson, 19 Vet. App. 171 (2005). In the absence of countervailing probative evidence of a dizziness or vertigo disorder during service, the Board finds the evidence weighs against a dizziness or vertigo disorder was present during service. Additionally, the competent and probative evidence does not establish a link between the current disorder characterized by vertigo or dizziness and service. The Board notes there is no positive opinion of record from any clinician. The references in VA treatment reports to the Veteran having a history of dizziness status post head injury or after a fall were the recitations by clinicians of the history the Veteran had told them, as there is no evidence these clinicians had access to his service treatment reports or the private treatment records in the claims file. These statements of history were based on the Veteran's report of experiencing dizziness in service, which the Board has determined to lack credibility, and the Veteran's lay opinion that his current dizziness was due to the in-service fall, which the Board finds lack probative value. Thus, these statements of history in the VA treatment records are not probative opinions. See Kowalski, 19 Vet. App. 171; Coburn v. Nicholson, 19 Vet. App. 427 (2006) (the Board may reject a medical opinion if the Board finds that other facts present in the record contradict the facts provided by the Veteran that formed the basis for the opinion). In contrast, the Board finds the VA examiner's opinions probative as they are based on facts that the Board accepts are true (which is that the Veteran's statements regarding dizziness for decades lack credibility) and are supported by rationale. A Veteran bears the "'evidentiary burden' to establish all elements of a claim, including the nexus requirement." Fagan v. Shinseki, 573 F.3d 1282, 1287-88 (2009). The Board's duty is to first determine the probative value of all pertinent medical and lay evidence of record based on its credibility and competency, and then weigh the probative value of the evidence regarding all material elements of a claim. See 38 U.S.C.A. § 7104(d); Kahana, 24 Vet. App. at 433; see also Layno v. Brown, 6 Vet. App. 465, 469 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). In making all determinations, the Board must also fully weigh the probative value of the lay evidence of record against the remaining evidence of record. See King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012). If credible, 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(a). Thus, a layperson is competent to report on the onset and any continuity of his symptomatology. See Kahana, 24 Vet. App. at 438; Layno, 6 Vet. App. at 470 (a veteran is competent to report on that of which he or she has personal knowledge). Moreover, lay evidence must not be categorically dismissed as incompetent evidence of medical causation merely because it is lay evidence. See King, 700 F.3d at 1345. Rather, lay evidence may be competent and sufficient evidence of a diagnosis or nexus if (1) the particular condition at issue is the type of condition that is within the competence of a layperson, (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. See Davidson, 581 F.3d at 1316; Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The Board must determine on a case-by-case basis whether a particular condition is the type of condition that is within the competence of a lay person. See Jandreau, 492 F.3d 1367-77. The Board finds that the Veteran is not competent to provide a probative opinion relating to a complicated, internal system as the head, brain, or nervous systems; therefore, his opinions relating the dizziness or vertigo to an in-service fall are not probative. Finally, the competent and probative evidence also does not establish a link between the disorder characterized by vertigo or dizziness and the service-connected disabilities of diabetes mellitus, peripheral neuropathy of the left lower extremity and of the right lower extremity, tinnitus, fractured right mandible, fractured right thumb, bilateral hearing loss, and erectile dysfunction. The record does not include any medical findings of a link between the non-service connected dizziness or vertigo and the service-connected-disabilities, though it does include the probative opinion that the disorders are not related, either through causation or aggravation. The Board acknowledges that the Veteran generally contends the disorders are related; however, the Veteran is not competent to offer an opinion as to whether his service-connected disabilities caused or aggravated the dizziness or vertigo as such a determination is a question of medical complexity which requires specialized knowledge that the record does not suggest the Veteran has. See Davidson, 581 F.3d at 1316; Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007); Jandreau, 492 F.3d at 1376-77. In the absence of probative evidence of a link between the service-connected disabilities and the dizziness or vertigo, the Board finds the disorder characterized by vertigo or dizziness is not secondary to any of the service-connected disabilities. In sum, the Board finds that the probative evidence weighs against the disorder characterized by vertigo or dizziness having had an onset in service, is causally related to service, or was caused or aggravated by the service connected disabilities of diabetes mellitus, peripheral neuropathy of the left lower extremity and of the right lower extremity, tinnitus, fractured right mandible, fractured right thumb, bilateral hearing loss, and erectile dysfunction. Thus, the claim is denied. Notice and Assistance Upon receipt of a complete or substantially complete application for benefits and prior to an initial unfavorable decision on a claim by an agency of original jurisdiction, VA is required to notify the appellant of the information and evidence not of record that is necessary to substantiate the claim. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159; Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The notice should also address the rating criteria or effective date provisions that are pertinent to the appellant's claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). Compliant notice was sent in December 2004 and then after the rating decision in April 2008 and in April 2011, with the claims being readjudicated in July 2008 and March 2012 supplemental statements of the case. Mayfield, 444 F.3d at 1333. VA has obtained service treatment records, assisted the appellant in obtaining evidence, afforded the appellant an examination, obtained a probative medical opinions as to the relationship between the dizziness or vertigo and service and the various service-connected disabilities. The appellant declined the opportunity to give testimony before the Board. The Board acknowledges that VA treatment reports in the claims file span through October 2008; however, the Board will not order a remand for more current records as there is no suggestion there are relevant treatment records missing. Neither the Veteran or his representative have made any statement to the Board of relevant treatment or relevant opinion for this claim for service connection and the VA examiner noted in his review of the current records there was no report of complaints of the symptom of dizziness. In the absence of any report or indication of additional records not yet obtained relevant to the appealed claims, VA need not assist the Veteran in soliciting any additional records and need not seek to obtain any for association with the claims file prior to the Board's adjudication of the claim adjudicated herein. Therefore, all known and available records relevant to the issue on appeal have been obtained and associated with the appellant's claims file (and either adjudicated by the AOJ or had such adjudication waived), and the appellant has not contended otherwise. Finally, the Board is satisfied that there has been substantial compliance with the remand directives issued in the previous Board remands: the record includes probative opinions as to the whether the disorder characterized by vertigo or dizziness onset in service, is causally related to service, was caused or aggravated by the service-connected disabilities. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). VA has substantially complied with the notice and assistance requirements and the appellant is not prejudiced by a decision on the claim at this time. ORDER Service connection for a disorder characterized by vertigo, claimed as dizziness, is denied. ____________________________________________ Alexandra P. Simpson Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs