Citation Nr: 1329506	
Decision Date: 09/13/13    Archive Date: 09/20/13

DOCKET NO.  09-50 571	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Louis, 
Missouri


THE ISSUE

Entitlement to service connection for an ear disease 
manifested by hearing loss, balance problems, vertigo, 
headaches, and nausea, to include Meniere's disease.  


REPRESENTATION

Veteran represented by:	Missouri Veterans Commission


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

D. M. Ames, Counsel


INTRODUCTION

The Veteran had active service from May 1977 to September 
1980.  

This matter comes before the Board of Veterans' Appeals 
(Board) on appeal from a March 2009 rating decision of the 
Department of Veterans Affairs (VA) Regional Office (RO) in 
St. Louis, Missouri.  

A review of the Virtual VA paperless claims processing 
system reveals additional VA treatment records from January 
2013 to March 2013.  The RO has not reviewed them.  However, 
none of the records are pertinent to the Veteran's claim for 
service connection for an ear disease.  Therefore, there is 
no prejudice to the Veteran in the Board's adjudication of 
his claim.  

The Veteran testified at a hearing in November 2011 before 
the undersigned.  A copy of the transcript has been 
associated with his claims file.  

In April 2013, the Veteran submitted additional evidence and 
waived his right to have initially considered by the RO.  
38 C.F.R. §§ 20.800, 20.1304(c) (2012).  

In its June 2013 remand, the Board recharacterized the 
issues on appeal because it appeared that the Veteran's 
claimed hearing loss may have been due to pathology other 
than acoustic trauma, such as Meniere's disease.  See, e.g., 
38 C.F.R. § 4.87, Diagnostic Code 6205 (2012); see also 
Ingram v. Nicholson, 21 Vet. App. 232, 256-7 (2007); Clemons 
v. Shinseki, 23 Vet. App. 1, 5 (2009); Robinson v. 
Nicholson, 21 Vet. App. 545, 552 (2008).  

In June 2012 and June 2013 the Board remanded this case 
to the RO via the Appeals Management Center (AMC) for 
further development and it has now been returned to the 
Board.  


FINDING OF FACT

The preponderance of the evidence reflects that the Veteran 
does not have an ear disease due to any incident of his 
active duty service. 


CONCLUSION OF LAW

An ear disease was not incurred or aggravated in service.  
38 U.S.C.A. §§ 1101, 1110, 1131, 5107 (West 2002 & Supp. 
2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2012). 


REASONS AND BASES FOR FINDING AND CONCLUSION

Duty to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA) describes 
VA's duty to notify and assist claimants in substantiating a 
claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 
5103A, 5107, 5126 (West 2002 and Supp. 2012); 38 C.F.R. §§ 
3.102, 3.156(a), 3.159, 3.326(a) (2012).

Upon receipt of a complete or substantially complete 
application for benefits, VA is required to notify the 
Veteran and his representative, if any, of any information 
and medical or lay evidence that is necessary to 
substantiate the claim, and to indicate 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); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 
Vet. App. 183 (2002).  VCAA 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/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006).  
The notice must be provided to the Veteran prior to the 
initial adjudication of his claim.  Pelegrini v. Principi, 
18 Vet. App. 112 (2004).  

VA has satisfied its duty to notify by issuing a pre-
adjudication notice letter in October 2008.  This letter 
advised the Veteran of what evidence was required to 
substantiate his claims, and of his and VA's respective 
duties for obtaining evidence.  The October 2008 letter 
provided notice regarding the disability evaluation and 
effective date elements of a service connection claim.  
Dingess, 19 Vet. App. at 473.  

The duty to assist provisions of the VCAA have been met.  
The claims file contains service treatment records (STRs), 
reports of post-service medical treatment, and the reports 
of a VA examination in June 2013.  The examination was 
adequate because it was based on a thorough examination, a 
description of the Veteran's pertinent medical history, a 
complete review of the claims folder, and appropriate 
diagnostic tests.  The examiner also provided a rationale 
for the opinion.  See Barr v. Nicholson, 21 Vet. App. 303, 
312 (2007); Stefl v. Nicholson, 21 Vet. App. 120, 124-25 
(2007) (holding an examination is considered adequate when 
it is based on consideration of the appellant's prior 
medical history and examinations and also describes the 
disability in sufficient detail so that the Board's 
evaluation of the disability will be a fully informed one). 

The Veteran testified at a hearing before the undersigned in 
November 2011.  At a hearing on appeal, 38 C.F.R. § 
3.103(c)(2) (2012) requires that a Veterans Law Judge has a 
duty to explain fully the issues and a duty to suggest the 
submission of evidence that may have been overlooked.  
Bryant v. Shinseki, 23 Vet. App. 488, 492 (2010).  In this 
case, the Veteran's representative set forth the issue on 
appeal as entitlement to service connection for bilateral 
hearing loss to include central auditory processing 
disorder.  As noted above, in June 2013, the Board separated 
the Veteran's claim into two separate issues: entitlement to 
service connection for bilateral hearing loss to include as 
due to central auditory processing disorder and entitlement 
to service connection for an ear disease, to include 
Meniere's disease.  Although this issue was not specifically 
described in November 2011, the Veteran testified regarding 
his symptoms such as having headaches, feelings of 
disequilibrium, and nausea.  Further, the undersigned 
suggested the submission of evidence that would assist the 
Veteran in substantiating his claim.  Specifically, he was 
asked if he had been evaluated for central auditory 
processing disorder and whether he had undergone 
audiological testing since his most recent examination in 
August 2010.  

Further, the Veteran received a letter in October 2008 that 
substantially explained what was required to substantiate 
his service connection claim and there is no indication that 
he does not understand what is necessary to substantiate his 
claims.  Additionally, the record does not indicate that 
there is any relevant overlooked evidence that the Veteran 
could submit that would aid in substantiating his claim; 
hence, he is not prejudiced.

Lastly, the Veteran and his representative had ample 
opportunity to submit evidence and argument to substantiate 
the claim.  Additionally, the Board remanded the matter, 
thereby requesting additional development and providing the 
Veteran with additional opportunities to submit evidence and 
argument. On appellate review, neither the Veteran nor his 
representative has asserted that VA failed to comply with 38 
C.F.R. § 3.103(c)(2), nor has either individual identified 
any prejudice in the conduct of the Board hearing.  No 
additional action in this regard is warranted. 

This case was remanded in June 2012 and June 2013 so that 
the Veteran could undergo an adequate VA examination during 
which the examiner rendered an etiology opinion accompanied 
by a rationale.  Such an examination was provided in June 
2013.  There was substantial compliance with the Board's 
remand directives.  See Stegall v. West, 11 Vet. App. 268 
(1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999).  

The Veteran has not made the RO or the Board aware of any 
additional evidence that must be obtained in order to fairly 
decide the appeal.  He has been given ample opportunity to 
present evidence and argument in support of his claim.  
Pursuant to 38 C.F.R. § 3.655, all relevant evidence 
necessary for an equitable disposition of the Veteran's 
appeal of this issue has been obtained and the case is ready 
for appellate review.  General due process considerations 
have been complied with by VA.  See 38 C.F.R. § 3.103 
(2012). 

Service Connection Claim 

Service connection may be granted for a disability resulting 
from disease or injury incurred in or aggravated by active 
military service.  38 U.S.C.A. § 1110; 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.  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 for certain diseases.  38 C.F.R. 
§§ 3.303(a),(b), 3.309(a); see also Walker v. Shinseki, 708 
F.3d 1331 (Fed. Cir. 2013).  Service connection may also 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).

In order to establish service connection for the claimed 
disorder, there must be (1) medical evidence of a current 
disability; (2) medical, or in certain circumstances, lay 
evidence of in-service incurrence or aggravation of a 
disease or injury; and (3) medical, or in certain 
circumstances, lay evidence of a nexus between the claimed 
in-service disease or injury and the current disability.  
See 38 C.F.R. § 3.303; see also Hickson v. West, 12 Vet. 
App. 247, 253 (1999); Davidson v. Shinseki, 581 F.3d 1313, 
1316 (Fed. Cir. 2009).  The requirement of a current 
disability is "satisfied when a claimant has a disability at 
the time a claim for VA disability compensation is filed or 
during the pendency of that claim."  See McClain v. 
Nicholson, 21 Vet. App. 319, 321 (2007).

Alternatively, the nexus requirement may be satisfied by 
evidence that a chronic disease subject to presumptive 
service connection manifested itself to a compensable degree 
within one year of separation from service.  38 U.S.C.A. 
§§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309.  To the extent 
that Meniere's disease may be defined as a chronic disease 
under "organic disease of the nervous system" (38 C.F.R. 
§ 3.309(a)), a VA examiner has concluded that the Veteran 
does not have Meniere's disease.  Therefore, consideration 
of presumptive service connection would not be applicable in 
this case.  

Although the Board has an obligation to provide reasons and 
bases supporting this decision, there is no need to discuss, 
in detail, all of the evidence submitted by the Veteran or 
on his behalf.  See Gonzales v. West, 218 F.3d 1378, 1380-81 
(Fed. Cir. 2000) (finding that the Board must review the 
entire record, but does not have to discuss each piece of 
evidence).  The analysis herein focuses on the most salient 
and relevant evidence and on what this evidence shows, or 
fails to show, on the claim.  See Timberlake v. Gober, 14 
Vet. App. 122 (2000) (holding that the law requires only 
that the Board address its reasons for rejecting evidence 
favorable to the Veteran). 

The Board must determine the value of all evidence 
submitted, including lay and medical evidence.  Buchanan v. 
Nicholson, 451 F.3d 1331 (Fed. Cir. 2006).  The evaluation 
of evidence generally involves a 3-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, 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.  

The standard of proof to be applied in decisions on claims 
for veterans' benefits is set forth in 38 U.S.C.A. § 5107 
(West 2002).  A claimant is entitled to the benefit of the 
doubt when there is an approximate balance of positive and 
negative evidence. See 38 C.F.R. § 3.102.  When a claimant 
seeks benefits and the evidence is in relative equipoise, 
the claimant prevails.  See Gilbert v. Derwinski, 1 Vet. 
App. 49 (1990).  The preponderance of the evidence must be 
against the claim for benefits to be denied.  See Alemany v. 
Brown, 9 Vet. App. 518 (1996). 

The June 2013 VA examiner diagnosed the Veteran with non-
allergic vasomotor rhinitis "for about 15 years" and 
dizziness.  While the examiner indicated that the Veteran 
had dizziness, he also indicated that he did not have 
vertigo; and the dizziness was of unknown etiology.  The 
examiner also indicated that the Veteran did not have a 
peripheral vestibular disorder although he did report 
tinnitus (for which, the Board notes, service connection has 
been established); did not have infectious, inflammatory or 
other ear condition; or tumors or neoplasm.  Thus, while it 
does appear that the Veteran does not have an ear disease, 
the examiner did confirm the Veteran's report that he had 
dizziness albeit of unknown etiology.  Thus, arguably the 
first element of a service connection claim has been met.  
Hickson, 12 Vet. App. at 253.  His STRs show that in 
February 1978, he complained of dizziness, nausea, and head 
congestion for two days for which he was prescribed aspirin, 
Ornade, and bed rest for 24 hours.  This satisfies the 
second element of a service connection claim.  Id.  

The Veteran underwent a VA examination in June 2013.  He 
reported nasal congestion that began in the 1990s and noted 
that he "...had a fractured nose about 30 years ago."  He 
reported receiving emergency treatment and stated that his 
nose injury was asymptomatic until approximately 15 years 
ago.  The examiner noted that the Veteran did not have 
sinusitis.  The Veteran complained of mild dizziness that 
began approximately 10 years earlier.  He reported weekly 
episodes that lasted up to several hours.  He described 
feeling "somewhat faint."  The examiner concluded that the 
Veteran did "...not describe vertigo."  The Veteran reported 
that in service, he was exposed to acoustic trauma from a 
155 Howitzer.  

Upon examination, the Veteran had normal ear drums, nose, 
nasopharynx, mouth, larynx, and neck.  His Romberg sign was 
negative, indicating that the Veteran did not have a 
vestibular or sensory disorder.  He used a walker but 
informed the examiner that it was because of foot problems 
and not dizziness.  The examiner diagnosed the Veteran with 
non-allergic rhinitis for approximately 15 years with no 
nasal obstruction, polyps, or chronic sinusitis.  He noted 
that the Veteran had dizziness, but no vertigo and that the 
etiology of the dizziness was "unknown."  The examiner 
concluded that the Veteran "...does not have Meniere's 
disease."  The examiner also found that the Veteran did not 
have a peripheral vestibular disorder; did not have an 
infectious, inflammatory or other ear condition; and did not 
have a tumor or neoplasm.  The examiner opined that the 
Veteran's dizziness was not related to his period of active 
service because it did not manifest until 10 years ago.  The 
examiner's opinion provides probative weight against the 
Veteran's claim.  

The other VA examinations of record do not address ear 
disease and pertain to his previously denied hearing loss 
claim.  The Veteran's VA and private treatment records do 
not discuss whether there is a nexus between a disorder 
manifested by dizziness and his period of active service.  

At his November 2011 hearing, he testified that he was 
exposed to noise in service, and he stated that he believed 
this caused his symptoms.  The Veteran is competent to 
describe observable symptoms such as dizziness.  Layno v. 
Brown, 6 Vet. App. 465 (1994).  Further, there is nothing in 
the record to indicate his statements regarding noise 
exposure are not credible.  Barr v. Nicholson, 21 Vet. App. 
303, 308 (2007).  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, whether in-service noise exposure or 
other incidents or injuries caused a disorder manifested by 
dizziness, 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).  Further, his assertion been investigated by 
competent medical examination and found not supportable.  
Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). 

The Veteran has not submitted other lay evidence pertaining 
to his ear disease claim; his lay statements and those from 
his wife relate to his hearing loss.  

There are no medical opinions of record that support a nexus 
between his period of active service and any disorder 
manifested by dizziness.  The VA examiner noted that the 
Veteran reported first onset of symptoms in approximately 
2003, 23 years after separation, and also noted that the 
dizziness was of unknown etiology.  Although not 
dispositive, a lengthy period without complaint or treatment 
is considered evidence that there has not been a continuity 
of symptomatology and weighs heavily against the claim.  
Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000).  

As the etiology of the Veteran's dizziness is unknown it 
cannot be considered a chronic condition as set forth in 38 
C.F.R. § 3.303(a).  Therefore, the theory of continuity of 
symptomatology is not applicable in this case.  38 C.F.R. § 
3.303(a),(b); see also Walker v. Shinseki, 708 F.3d 1331 
(Fed. Cir. 2013). 

The nexus element of a service connection claim is not 
satisfied.  Hickson, 12 Vet. App. at 253.  The Board finds 
that the preponderance of the evidence is against service 
connection for an ear disease.  38 U.S.C.A. § 5107(b).   
Since the preponderance of the evidence is against the 
claim, the provisions of 38 U. S. C. A. 5107(b) regarding 
reasonable doubt are not applicable, and his claim must be 
denied.  See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; 
Alemany v. Brown, 9 Vet. App. 518, 519 (1996).


ORDER

Service connection for an ear disease manifested by hearing 
loss, balance problems, vertigo, headaches, and nausea, to 
include Meniere's disease is denied.  



____________________________________________
S. L. Kennedy
Veterans Law Judge, Board of Veterans' Appeals




 Department of Veterans Affairs