Citation Nr: 1328393 Decision Date: 09/05/13 Archive Date: 09/16/13 DOCKET NO. 09-30 301 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUES 1. Entitlement to service connection for chronic ear infections. 2. Entitlement to service connection for vertigo or syncopal episodes. REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. ATTORNEY FOR THE BOARD McBrine, M., Counsel INTRODUCTION The Veteran served on active duty from January 2006 to April 2007. She is the recipient of, among other decorations, the Combat Action Badge. These matters come before the Board of Veterans' Appeals (Board) on appeal from multiple rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska. This issues were remanded for further development in August 2012 and now return again before the Board. FINDINGS OF FACT 1. The preponderance of the evidence is against a finding that the Veteran has a disability manifested by chronic ear infections which is etiologically related to a disease, injury, or event in service, or secondary to any service connected disability. 2. The preponderance of the evidence is against a finding that the Veteran has a disability manifested by vertigo or syncopal episodes etiologically related to a disease, injury, or event in service. CONCLUSIONS OF LAW 1. A disability manifested by chronic ear infections was not incurred in or aggravated by service, nor may it be presumed to be so incurred, nor is such disability secondary to any service connected disability. 38 U.S.C.A. §§ 1101, 1110, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309, 3.310 (2012). 2. A disability manifested by vertigo or syncopal episodes was not incurred in or aggravated by service, nor may it be presumed to be so incurred. 38 U.S.C.A. §§ 1101, 1110, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all the evidence submitted by or on behalf of the Veteran. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). Stegall Considerations As noted above, the Board previously remanded this claim in August 2012 for further development, specifically for VA examinations with opinions, as well as additional medical records. Those records were obtained, with the exception of any additional Reserve records; however, the RO issued a formal finding that those records were unavailable. Further, the Veteran received three further examinations, in September 2012. These claims were readjudicated in a March 2013 Supplemental Statement of the Case. As such, the Board finds there is compliance with the Board's remand instructions. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (noting that where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance). Veterans Claims Assistance Act of 2000 (VCAA) With respect to the Veteran's claims, VA has met all statutory and regulatory notice and duty to assist provisions. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the Veteran and his or her representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the United States Court of Appeals for Veterans Claims (Court) held that VA must inform the Veteran of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the Veteran is expected to provide; and (4) request that the Veteran provide any evidence in his or her possession that pertains to the claim. The requirement of requesting that the Veteran provide any evidence in his possession that pertains to the claim was eliminated by the Secretary during the course of this appeal. See 73 Fed. Reg. 23353 (final rule eliminating fourth element notice as required under Pelegrini II, effective May 30, 2008). Thus, any error related to this element is harmless. VCAA letters dated in July 2007, February 2009, July 2009, August 2009, and August 2012, and an August 2012 Board remand, satisfied the duty to notify provisions. See 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(b)(1) (2012). The Veteran was advised that it was ultimately his responsibility to give VA any evidence pertaining to the claims. These documents informed him that additional information or evidence was needed to support his claims, and asked him to send the information or evidence to VA. Furthermore, even if any notice deficiency is present in this case, the Board finds that any prejudice due to such error has been overcome in this case by the following: (1) based on the communications sent to the Veteran over the course of this appeal, the Veteran clearly has actual knowledge of the evidence the Veteran is required to submit in this case; and (2) based on the Veteran's contentions as well as the communications provided to the Veteran by VA, it is reasonable to expect that the Veteran understands what was needed to prevail. See Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009); Fenstermacher v. Phila. Nat'l Bank, 493 F.2d 333, 337 (3d Cir. 1974) ("[N]o error can be predicated on insufficiency of notice since its purpose had been served."). In order to ensure that no prejudice resulted from a notice error, "the record must demonstrate that, despite the error, the adjudication was nevertheless essentially fair." Dunlap v. Nicholson, 21 Vet. App. 112, 118 (2007). The Board also concludes that VA's duty to assist has been satisfied. The Veteran's service treatment records and relevant VA medical records are in the file. All records identified by the Veteran as relating to the claims have been obtained, to the extent possible. While full Reserve records were not associated with the Veteran's claims file, a thorough search was made for these records, and they were found to be unavailable. The Board finds that the record contains sufficient evidence to make a decision on the claims. The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4)(i) (2012). In this case, the Board notes that the Veteran was provided with multiple VA examinations. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Service Connection Law The Veteran claims that she has both a disability manifested by an ear infection and a disability manifested by vertigo or syncopal episodes related to service. Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in- service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). If certain diseases, such as certain neurological disorders, become manifest to a degree of 10 percent within one year of separation from active service, they may be presumed to have been incurred during active service, even though there is no evidence of such disease during service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. An alternative method of establishing the second and third elements of service connection for those disabilities identified as a "chronic condition" under 38 C.F.R. § 3.309(a) is through a demonstration of continuity of symptomatology. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). A claimant can establish continuity of symptomatology with competent evidence showing: (1) that a condition was "noted" during service; (2) post-service continuity of the same symptomatology; and (3) a nexus between a current disability and the post-service symptomatology. 38 C.F.R. § 3.303(b). Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection may also be established for disability which is proximately due to or the result of a service- connected disability. 38 C.F.R. § 3.310(a). Further, a disability which is aggravated by a service-connected disability may be service-connected to the degree that the aggravation is shown. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995). The standard of proof to be applied in decisions on claims for VA benefits is set forth in 38 U.S.C.A. § 5107(b). Under that provision, VA shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. The Board must determine the value of all evidence submitted, including lay and medical evidence. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). 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. See Barr v. Nicholson, 21 Vet.App. 303 at 308 (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(a). 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. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009) (where widow seeking service connection for cause of death of her husband, the Veteran, the Court holding that medical opinion not required to prove nexus between service connected mental disorder and drowning which caused Veteran's death). 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. 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 Jandreau v. Nicholson, supra (concerning a dislocated shoulder). 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. 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"). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b) (West 2002); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Facts and Analysis Taking into account all evidence of record, the Board finds that service connection is not warranted for a disability manifested by ear infections, or a disability manifested by vertigo or syncopal episodes. As regards the Veteran's claim of ear infection, the Board finds that the medical evidence of record does not show that the Veteran has any current or chronic diagnosis of ear infections, nor does she have any ear disability, including ear infections or issues with cerumen, related to her service connected rhinosinusitis. By way of background, the Board notes that the Veteran's December 2003 enlistment report of medical history reflects a history of an ear infection requiring antibiotics at the age of 12. The Veteran's report of medical examination on entry into service reflects a physical finding of bilateral tympanic membrane (TM) scars. A July 2004 service treatment record (Reserves) reflects that the Veteran reported experiencing ear pain, a runny nose, and sinus congestion. Examination of her ears revealed that her TMs were pink and bulging, and she was diagnosed with otitis media and prescribed Augmentin for treatment. A few months post-service, an August 2007 VA ear disease examination report (see also the August 2007 general VA examination) reflects findings of a left ear large cerumen impaction, and a diagnosis of near-total cerumen obstruction was recorded. No etiology opinion, however, was provided. Subsequently, May 2008 VA treatment records reflect that the Veteran was diagnosed with left ear cerumen impaction. An April 2009 VA treatment record reflects that the Veteran reported that an ear infection was resolving. A February 2010 VA treatment record reflects treatment for eczema of the ear canal. The Veteran received a VA examination for her ears in September 2012. At that time, her medical history was noted, including her in service treatment for otitis media, and two pre service treatments for otitis media. The Veteran was also noted to have tinnitus, as well as reported episodes of vertigo and staggering. Examination of the external ears was normal. Examination of the ear canal and tympanic membranes was also normal. On testing, gait and coordination were normal, and vertigo testing was normal. On audio testing, no cerumen was noted in the ear canals, and hearing was essentially normal. The examiner indicated that the Veteran incurred three acute insults while in the service to her ears, predominantly on the left side, however, the examiner did not see any long term sequelae of these insults to diagnose the Veteran with a chronic ear condition at this time. The examiner indicated that the Veteran would need further testing regarding her reported traumatic brain injury, however, the examiner stated that, given this examination and nonreproducible symptoms, and also objective findings on her audiogram, in his opinion the Veteran does not have a chronic ear disease, either one directed related to service, or related to her recent cerumen impaction, nor was it exacerbated by her service connected rhinosinusitis. The acute ear infection condition (now resolved), was more likely than not exacerbated while on active duty, however, this condition has resolved. A December 2012 addendum to this opinion noted that the Veteran's claims file and medical record had been reviewed, and there was no change in the opinion offered in September 2012. Therefore, considering this and all evidence of record, the Board finds that the preponderance of the evidence of record shows that the Veteran does not currently have a chronic ear disability related to service, or secondary to her service connected rhinosinusitis. The evidence clearly indicates that the Veteran had an ear infection in service, however, the VA examiner acknowledged a history of multiple ear infections, but found that they were most appropriately considered acute and transitory, that they resolved without sequelae, and that the Veteran currently does not have any chronic ear disability, related to that past history. As such, the Board finds that the preponderance of the evidence of record is against a grant of service connection for chronic ear infections. The Veteran also claims that she experiences vertigo or syncopal episodes (claimed as fainting/passing out) that had their onset in service or, in the alternative, that are secondary to her ear infection condition or service- connected rhinosinusitis. Also, in the alternative, she asserts that her syncopal episodes are attributable to an undiagnosed illness that is entitled to presumptive service connection under 38 C.F.R. § 3.317. As noted below however, her reported symptoms have been attributable to a known diagnosis of an anxiety disorder, and therefore, 38 C.F.R. § 3.317 does not apply. Reviewing the relevant evidence of record, an August 2007 general VA examination report reflects a diagnosis of vertigo/syncopal episodes, episodic, but that the Veteran was referred to an ENT specialist for further evaluation (such that it appears to have been intended as a provisional diagnosis). A subsequent August 2007 ear disease VA examination report (and the September 2007 addendum) reflects that videonystagmography (VNG) testing was performed and the examiner opined that there was no evidence of vestibular system weakness or benign paroxysmal positional vertigo. The Board notes, however, that it appears that the Veteran's service treatment records were not associated with the claims file until after the time of the above August 2007 VA examinations. After the Veteran's service treatment records were associated with the claims file, she was provided with a June 2010 ear disease VA examination (and July 2010 addendum), which reflects that a VNG revealed a normal VNG exam, no inner ear pathology, and that the examiner further opined that the Veteran's disequilibrium was not related to her sinusitis. The examiner did not, however, provide any opinion concerning direct service connection. June and July 2008 VA treatment records from the Minneapolis, Minnesota VA Polytrauma Center reflect that the Veteran was evaluated for TBI and that "mild TBI could not be ruled-out." The Veteran's September 2012 VA ears examination, discussed in more detail above, noted that on testing, gait and coordination were normal, and vertigo testing was normal. The Veteran received an examination for a traumatic brain injury in September 2012. The Veteran was found to have subjective symptoms of the type which could be related to a TBI, specifically, dizziness or vertigo. An MRI of the Veteran's brain at that time was essentially normal. The examiner commented that it was really unknown as to whether the Veteran truly suffered direct closed head contact. An explosive device went off near her vehicle, and she may have had some blast effect, but she does not remember bumping her head. She does report passing out and vertigo type episodes once every three months, which she attributes to stress. These would cause her to sit down, and lasted about 30 minutes. While the Veteran continued to get occasional vertigo/syncopal type episodes, the examiner felt these episodes were less likely related to nay traumatic brain injury, and more likely related to anxiety. The examiner indicated that there was no specific closed head injury, and further that, in his experience, he had never seem smoke or exhaust exposure have any relation to traumatic brain injuries, nor would they cause syncope or vertigo type episodes. It was also noted that the Veteran had thorough ENT workups in the past, to include negative VNG testing, so there is no evidence of any auricular/inner ear disease. For the same reasons, he stated there was no evidence of aggravation. The Veteran received a VA psychiatric examination in September 2012. At that time, the Veteran's diagnosis of PTSD with associated depressive symptoms was noted. Past history of adjustment disorder was noted, as well as a history of borderline personality traits, and a cognitive disorder. The Veteran's report of a traumatic brain injury was noted to meet the definition of a traumatic brain injury, however, it was also noted that a separate September 2012 VA examination found the Veteran to have no residuals of her reported traumatic brain injury. The examiner found no evidence of a cognitive disorder on neuropsychological testing. The examiner as well found no symptomatology attributable to residuals of a traumatic brain injury. The Veteran was noted to have a complaint of mild memory loss, which was felt to be more than likely related to her service connected PTSD diagnosis. Motor activity was noted to be normal, and there were no subjective symptoms of neurobehavioral effects relatable to a traumatic brain injury. In sum, the examiner indicated that the Veteran did not currently have any residuals of a traumatic brain injury in service, to include vertigo or syncopal episodes. In support of this opinion, the examiner noted that the Veteran's report of feeling dazed after being exposed to a blast in service does meet the definition of a traumatic brain injury, however, the Veteran currently has no symptomatology related to that. She continues to have symptoms of PTSD and associated depression, but she is no longer in psychiatric treatment and is not taking medications to treat PTSD. Thus, considering all evidence of record, and even conceding that the Veteran might have sustained a traumatic brain injury in service, the medical evidence of record does not find that the current claimed symptomatology of vertigo related to that traumatic brain injury, and actually finds the Veteran's subject reports of vertigo and syncope to be symptoms related to her service connected psychiatric disorder. The Veteran is certainly competent to testify to experiencing symptomatology such as feeling vertigo and experiencing syncope, as she has, however, the medical etiology of that symptomatology is found by the Board to be one requiring medical expertise, and to be outside the scope of the Veteran's lay experience. Thus, the Board finds the preponderance of the evidence of record is against a grant of service connection for any ear disorder or vertigo or syncopal episodes. As the preponderance of the evidence is against the claims, the benefit-of-the-doubt doctrine does not apply, and they must be denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App 49, 55-57 (1990). ORDER Entitlement to service connection for chronic ear infections is denied. Entitlement to service connection for vertigo or syncopal episodes is denied. ____________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs