Citation Nr: 1326204 Decision Date: 08/16/13 Archive Date: 08/26/13 DOCKET NO. 10-45 027 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee THE ISSUE Entitlement to service connection for Meniere's disease, status-post endolymphatic shunt surgery. REPRESENTATION Appellant represented by: Tennessee Department of Veterans' Affairs WITNESSES AT HEARING ON APPEAL The Veteran and his daughter ATTORNEY FOR THE BOARD Mary C. Suffoletta, Counsel INTRODUCTION The Veteran served on active duty from July 1955 to August 1957. This matter initially came to the Board of Veterans' Appeals (Board) on appeal from an April 2009 decision of the RO that, in pertinent part, declined to reopen a claim for service connection for Meniere's disease on the basis that new and material evidence had not been received. The Veteran timely appealed. In November 2011, the Veteran and his daughter testified during a video conference hearing before the undersigned. Following the hearing, the Veteran submitted additional evidence and waived initial consideration of the evidence by the RO. In January 2012, the Board found new and material evidence to reopen the Veteran's claim, and remanded the matter for service connection for Meniere's disease for additional development. The Board again remanded the matter in February 2013. The Board is satisfied there was substantial compliance with its remand orders. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999); Stegall v. West, 11 Vet. App. 268, 271 (1998). Consistent with the evidence of record, the Board has recharacterized the issue on appeal as shown on the title page of this decision. In June 2013, VA's Appeals Management Center (AMC) granted service connection for bilateral hearing loss and assigned an initial 50 percent evaluation effective November 25, 2008. Lastly, in addition to reviewing the Veteran's paper claims file, the Board has surveyed the contents of his Virtual VA file. 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). FINDING OF FACT Resolving all doubt in the Veteran's favor, Meniere's disease had its onset in service. CONCLUSION OF LAW Meniere's disease, status-post endolymphatic shunt surgery, was incurred in service. 38 U.S.C.A. §§ 1110, 1131, 5103, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist Before addressing the merits of the claim on appeal, the Board is required to ensure that the VA's duty to notify and duty to assist obligations have been satisfied. See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2012). However, the grant of service connection constitutes a complete grant of the benefits sought on appeal with respect to that issue. As such, any defect with regard to VA's duty to notify and assist the appellant with the development of his claim is harmless error, and no further discussion of VA's duty to notify and assist is necessary. II. Analysis Service connection is awarded for disability that is the result of a disease or injury in active service. 38 U.S.C.A. §§ 1110, 1131. 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). For the showing of chronic disease, there must be a combination of sufficient manifestations to identify the disease entity and sufficient observation at the time, as distinguished from isolated findings or a diagnosis including the word "chronic". 38 C.F.R. § 3.303 (2012). As a preliminary matter, the Board notes that most of the Veteran's service treatment records are not available and may have been destroyed in a fire at the National Personnel Records Center (NPRC). Moreover, Surgeon General's Office records are also not available. The RO has made several attempts to locate these records, and has notified the Veteran of the information needed to reconstruct medical data. In this regard, copies of applicable sick and/or morning reports for the Veteran's assigned unit have been associated with the claims file; and the Veteran submitted a statement from his wife in February 2012. It is incumbent upon the VA to afford the Veteran's claim heightened consideration due to the unfortunate loss of most of his service treatment records. See, e.g., Cromer v. Nicholson, 19 Vet. App. 215, 217 (2005) (citing O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991)). Here, the Board notes that there are sick or morning reports of record, which document the Veteran's hospitalization for a period of time in October 1955 during active service. Unfortunately, these reports neither show a diagnosis nor provide an indication as to the disease or injury being treated. The Veteran contends that the onset of his Meniere's disease involved headaches and dizziness he experienced in active duty, along with hearing loss. While he reportedly had vertigo, balance problems, and dizziness in active service, the Veteran indicated that he was first diagnosed and treated for Meniere's disease post-service in 1965. In July 1976, the Veteran reported that, after his service discharge he was bothered with dizziness and ear ringing every three-to-six months; and in 1965, he suffered more severely and constantly-with dizziness, ear ringing, and balance problems. VA hospital records show that the Veteran underwent an endolymphatic shunt procedure on his right ear in August 1976. At the time he complained of dizziness, and right ear and right side of head pain. He also reported a history of numerous attacks of Meniere's disease for the past 15 years, which were unresponsive to medication; and that multiple ear, nose, and throat work-ups did not treat his problem. Some improvement in vertigo was noted following the 1976 surgery, although the Veteran still had slight unsteadiness. He also reported worsening right ear hearing loss ever since then. The final diagnosis in 1976 was Meniere's disease. With heightened consideration afforded, the Board finds the Veteran's statements to be credible, as well as competent to relate that he experienced dizziness and vertigo in service, which continued thereafter. In May 2009, the Veteran's treating physician, Dr. English, opined that the Veteran's Meniere's disease with vertigo was linked to his active service. In this regard, Dr. English indicated that the Veteran had presented him with records which documented treatment in active service; and that he had no other reason to believe otherwise. Nor did Dr. English believe that any diagnosis had pre-existed active service. During an audiology consult in July 2010, the Veteran reported a history of artillery noise exposure while in active service; and also reported having dizzy spells, which were more loss of balance than vertigo now. Records show that he was not a good candidate for right ear amplification at the time. In November 2011, the Veteran testified that he was on field duty during active service and had reported having hearing problems, including ringing in his ears and dizziness; and that he was not allowed to go to the dispensary at the time. He testified that later his ear problem was discovered when he was hospitalized at Fort Sill, Oklahoma, in active service; and that he was told at the time that "it was because of the weapon that [he] was on." The Veteran is competent to testify on factual matters of which he has first-hand knowledge. Washington v. Nicholson, 19 Vet. App. 362 (2005). The Veteran underwent another VA examination in March 2013. He reported being hospitalized in active service after he passed out secondary to loud noise during firing large artillery; and reported being hospitalized post-service for the endolymphatic shunt procedure in 1976, and also secondary to vertigo. The Veteran reported a history of tinnitus, and a history of vertigo or dizziness which occurred monthly and lasted for weeks; and his balance problems post-service were constant. Following examination, the diagnosis in March 2013 was Meniere's disease. The March 2013 examiner noted that the etiology of Meniere's disease was not definitely known in the medical literature, so that one could not comment on whether the Veteran's Meniere's disease was related to active service. That notwithstanding, the March 2013 examiner opined that it was more likely than not that the Veteran developed all of the symptoms of Meniere's disease prior to his discharge from active service. In support of the opinion, the examiner noted the Veteran's credible testimony and his personal report; and that the Veteran had a diagnosis of Meniere's disease at least by 1976, at the time he underwent surgery. In a May 2013 addendum, another VA examiner indicated that there is no support in the medical literature for acoustical trauma as the cause of Meniere's disease. The examiner explained that the medical literature listed abnormal immunology, allergies, viral infections, genetic disposition, and head trauma as diseases implicated in the etiology of Meniere's disease. The examiner also noted that the clinical course of Meniere's disease can be progressive episodic vertigo and hearing loss to the point of total deafness. The Court has admonished the Board for relying on medical opinions that were unable to establish this required linkage, without resorting to mere speculation, as cause for denying the Veteran's claim. See Jones v. Shinseki, 23 Vet. App. 382 (2010). In Jones, the Court noted it was unclear whether the examiners were unable to provide this requested definitive medical comment on etiology because they actually were unable to since the limits of medical knowledge had been exhausted; or, instead, for example, needed further information to assist in making this determination (e.g., additional records and/or diagnostic studies) or other procurable and assembled data. Id. The Court in Jones acknowledged there are instances where a definitive opinion cannot be provided because required information is missing or can no longer be obtained, or current medical knowledge yields multiple possible etiologies with none more likely than not the cause of the claimed disability. See Clemons v. Shinseki, 23 Vet. App. 1, 6 (2009) (noting the Board need not obtain further medical evidence where the medical evidence "indicates that determining the cause is speculative"). The Court in Jones held, however, that in order to rely upon a statement that an opinion cannot be provided without resort to mere speculation, it must be clear that the procurable and assembled data were fully considered and the basis for the opinion must be provided by the examiner or apparent upon a review of the record. Here, the Veteran's service treatment records are not available, and a VA physician indicated in May 2013 that a proper etiology opinion could not be rendered because the etiology of Meniere's disease was not definitely known in the medical literature. In Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006), the Federal Circuit Court indicated that, where lay evidence provided is competent and credible, the absence of contemporaneous medical documentation during service or since, such as in treatment records, does not preclude further evaluation as to the etiology of the claimed disorder. And the Veteran, even as a layman, is competent to proclaim that he developed all of the symptoms of Meniere's disease during active service. Here, the Veteran is competent to report what occurred in service because his statements regard his first-hand knowledge of a factual matter. He also reported dizziness and balance problems after active service, which required an endolymphatic shunt procedure on his right ear in 1976. This is further corroborated by Dr. English and by a VA hospital summary in 1976. The Board finds the Veteran's lay statements concerning dizziness and balance problems are not only competent, but also are credible, to show that he has continued to suffer from intermittent vertigo and unsteadiness post-service and the symptoms were eventually diagnosed as Meniere's disease. His lay statements, therefore, have probative value. See Rucker v. Brown, 10 Vet. App. 67 (1997) and 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")). Certainly then, when considering his competent and credible lay statements with the medical opinion of March 2013 substantiating his claim, and resolving all reasonable doubt in his favor, the Board finds that Meniere's disease had its onset in service. See 38 C.F.R. § 3.102 (2012). Accordingly, service connection is warranted for Meniere's disease, status-post endolymphatic shunt surgery. In reaching this decision, the Board has extended the benefit of the doubt to the Veteran. 38 U.S.C.A. § 5107. ORDER Service connection for Meniere's disease, status-post endolymphatic shunt surgery, is granted. ____________________________________________ S. S. TOTH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs