Citation Nr: 1331971 Decision Date: 10/03/13 Archive Date: 10/07/13 DOCKET NO. 05-01 466 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Salt Lake City, Utah THE ISSUE Entitlement to service connection for a disability manifested by nausea, dizziness, and loss of balance, variously diagnosed as Meniere's disease or vertiginous migraines, to include as secondary to service-connected hearing loss and tinnitus. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD R. Erdheim, Counsel INTRODUCTION The Veteran served on active duty from October 1966 to September 1968. This matter comes before the Board of Veterans' Appeals (Board) from an October 2004 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) that denied service connection for dizziness, nausea, and loss of balance. The claim was remanded in July 2008, March 2010, August 2011, and August 2012. In May 2013, the Board obtained a VHA opinion on the matter. FINDING OF FACT A disability manifested by nausea, dizziness, and loss of balance, variously diagnosed as Meniere's disease or vertiginous migraines, is not shown to be causally or etiologically related to any disease, injury, or incident during service and was not caused or aggravated by any service-connected disability. CONCLUSION OF LAW The criteria for service connection for a disability manifested by nausea, dizziness, and loss of balance, variously diagnosed as Meniere's disease or vertiginous migraines have not been met. 38 U.S.C.A. §§ 1101, 1112, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. VA's Duties to Notify and Assist VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). See also 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); Dingess v. Nicholson, 19 Vet. App. 473 (2006). In the instant case, the Board finds that VA has satisfied its duty to notify through April 2004 and May 2009 letters. The claims were subsequently readjudicated, most recently in a February 2013 supplemental statement of the case. Mayfield, 444 F. 3d at 1333-34. Relevant to the duty to assist, the Veteran's service treatment records and VA treatment records have been obtained and considered. The Veteran has not identified any additional, outstanding records necessary to decide his pending appeal. The Board has also reviewed the Veteran's paperless Virtual VA claims file and notes no additional evidence. Additionally, the Veteran was afforded VA examinations in September 2004, December 2008, and January 2013, with an additional opinion received in May 2013, in order to adjudicate his service connection claim. The Board finds that the proffered opinions, when reviewed as a whole, regarding the etiology of the Veteran's symptoms of nausea, dizziness, and loss of balance were based on current or past interviews with the Veteran and review of the record, including multiple physical examinations. From these examinations, clear conclusions with reasoned medical explanations were reached and are sufficient to decide the Veteran's claims. The Board notes that the Veteran's claim was remanded in July 2008, March 2010, August 2011, and August 2012 in order to provide the Veteran with notice of the elements to substantiate a claim based upon secondary service connection and to obtain VA examinations with opinions. As such directives have been substantially complied with, no further action is necessary in this regard. Thus, the Board finds that VA has fully satisfied the duty to assist. In the circumstances of this case, additional efforts to assist or notify the Veteran in accordance with the VCAA would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements of the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the Veteran); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the Veteran are to be avoided). VA has satisfied its duty to inform and assist the Veteran at every stage in this case, at least insofar as any errors committed were not harmful to the essential fairness of the proceeding. Therefore, the Veteran will not be prejudiced as a result of the Board proceeding to the merits of his claim. II. Analysis The Veteran is seeking service connection for a disability manifested by nausea, dizziness, and loss of balance, variously diagnosed as Meniere's disease or vertiginous migraines. The Veteran contends that his symptoms were caused or aggravated by his combat service, stating that while in service he experienced hearing loss and tinnitus, as well as symptoms of nausea, dizziness, and loss of balance. He alternatively contends that his Meniere's disease was caused or aggravated by his service-connected tinnitus and hearing loss, stating that his symptoms often begin when experiencing tinnitus. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease 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). Direct service connection may not be granted without medical evidence of a current disability; medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. 38 U.S.C.A. § 1112; 38 C.F.R. § 3.304. See also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996) [(table)]. Alternatively, service connection may be established under 38 C.F.R. § 3.303(b) by evidence of (i) the existence of a chronic disease in service or during an applicable presumption period under 38 C.F.R. § 3.307, (ii) present manifestations of the same chronic disease, and (iii) evidence of continuity of symptomatology. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Such does not include the Veteran's claimed symptoms. In that case, credible lay and medical evidence can demonstrate continuous symptoms since service. Where a Veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests certain chronic diseases to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown , 7 Vet. App. 439, 448 (1995) (en banc). During the course of this appeal, VA amended 38 C.F.R. § 3.310 effective October 10, 2006), to implement the decision in Allen. See 71 Fed. Reg. 52,744 -47 (Sept. 7, 2006). The existing provision at 38 C.F.R. § 3.310 (b) was moved to sub-section (c). The amended 38 C.F.R. § 3.310 (b) institutes additional evidentiary requirements and hurdles that must be satisfied before aggravation may be conceded and service connection granted. To whatever extent the revised regulation may be more restrictive than the previous one, the Board will afford the Veteran review under both the old and new versions. See VAOPGCPREC 7-2003 (Nov. 19, 2003). If an injury or disease was alleged to have been incurred or aggravated in combat, such incurrence or aggravation may be shown by satisfactory lay evidence, consistent with the circumstances, conditions, or hardships of combat, even if there is no official record of the incident. 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(d). However, the provisions of 38 U.S.C.A. § 1154(b) do not establish a presumption of service connection; instead, they ease the combat veteran's burden of demonstrating the occurrence of some in-service incident to which the current disability may be connected. See Caluza. The statute provides a basis for determining whether a particular injury was incurred in service but not a basis to link the injury etiologically to the current condition. See Cohen v. Brown, 10 Vet. App. 128, 138 (1997). 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; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran's service treatment records show that on February 1966 pre-induction examination, he was diagnosed with hearing loss. He had high frequency hearing loss at 6000 Hz. In June 1968, he reported ringing in the ears since he was stationed in Vietnam in a rocket attachment. Examination of the ears was negative. In July 1968, he continued to have trouble hearing and with tinnitus. There was evidence of an old ear infection on the right side. He was to wear ear plugs. On August 1968 separation examination, no hearing loss was diagnosed. He did not report tinnitus or any inner ear symptoms. He has since been awarded service connection for both hearing loss and tinnitus. An April 2003 general physical examination conducted at the VA shows that the Veteran denied any hearing loss, pain, discharge, tinnitus, or vertigo. At a September 2004 VA examination, the Veteran reported a long history of hearing loss, tinnitus, and dizziness. It was noted that he worked as a tank gunner in service and was exposed to loud combat noise. He described inner ear symptoms that had begun in the previous two years, consisting of intermittent pressure and increased ringing and popping of the right ear. He would then get sudden dizziness that lasted for a few hours. The examiner felt that the duration and quality of those symptoms made it likely that he had Meniere's disease. At a December 2008 VA examination, the Veteran stated that he had been experiencing dizziness and nausea since his early 20s, following his service in Vietnam. He stated that his internist felt that his symptoms were related to his PTSD. The Veteran described his symptoms as dizziness, nausea, and vomiting that came and went from anywhere from one to three times per week and sometimes just once per month. He mostly had these spells upon awakening in the middle of the night or in the morning, saying that he woke up dizzy. He also had episodes when he would get a pop in his ear during the day followed by a dizzy spell. His chronic tinnitus would get louder during these episodes. He would get very photophobic. He had to lie down about once per month. The examiner felt that the Veteran's symptoms were possibly indicative of Meniere's disease but that they were more in line with vertiginous migraines. The examiner concluded that his symptoms were not related to his service-connected "ear disability." At a February 2012 VA examination, the Veteran reported having had multiple serious ear infections in his youth, including a couple of tympanic membrane perforations, bilaterally. He had since formed scar tissue in both ear drums. He denied ongoing ear infections in adulthood. He had not had any head trauma while in Vietnam. He could not remember the exact date of onset of his dizziness. He would have an onset of dizziness with right aural fullness, followed by nausea. His tinnitus would worsen. He would have the sensation of imbalance. The symptoms occurred once a month to once every several months. The examiner felt that the Veteran's symptoms were consistent with but not definitive for Meniere's disease. The examiner felt that because there were no reported symptoms of Meniere's disease in service or for many years following service, it was likely that the etiology was genetic and not related to his service-connected "ear disability." At a January 2013 VA examination, the Veteran stated that his symptoms of ringing, popping, fullness, nausea, and dizziness began while in service. His right side was worse than the left side. He stated that the episodes were worse when he was young. Sleeping would often resolve the symptoms. He said that he had been diagnosed with Meniere's disease in 1980. The examiner felt that the Veteran did have Meniere's disease, which was thought to have a genetic link. Thus, it was highly unlikely that it was related to his combat. In May 2013, a VHA examiner reviewed the claims file and concluded that it was less likely than not that the Veteran's current symptoms of nausea, dizziness, and loss of balance, which he also termed as Meniere's disease, were caused or aggravated by service or a service-connected disability. First, the examiner explained that the Veteran's hearing loss followed a degenerative pattern common with age, especially in higher frequencies. However, the examiner distinguished the Veteran's symptoms from Meniere's disease. He reviewed the Veteran's report of attacks and explained that Meniere's disease was characterized with prolonged episodes with four symptoms that occurred concurrently in a unilateral pattern: aural pressure, tinnitus, vertigo, and decreased hearing, coming on at the same time and disappearing at the same time. Over time of having such attacks, the individual would begin to experience low frequency hearing loss and constant tinnitus. Those symptoms occurred after years attacks and did not precede the attacks. The examiner noted that there were no complaints of dizziness, one of the most prominent symptoms of Meniere's disease, in service. Usually, there would be a medical record identifying multiple episodes of disabling vertigo and at least some audiograms to show some degree of fluctuating hearing. It was hard to explain why there would be no such records for someone who was suffering with Meniere's syndrome. Additionally, the Veteran's hearing loss was a typical high frequency age/noise-induced pattern and did not show hearing loss in the low frequencies in the affected ear. Moreover, the Veteran's symptoms were not caused or aggravated by his service-connected hearing loss or tinnitus because hearing loss and tinnitus were not considered to be a causative or aggravating factor in Meniere's syndrome, but were rather just part of the symptoms that made up the syndrome. At the outset, the Board notes that throughout the appeal period there have been various diagnoses of the Veteran's symptoms, specifically, Meniere's disease or vertiginous migraines. However, both diagnoses appear tentative. The Board further notes that in order to meet the criteria for service connection, there must be a diagnosed disability. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); (recognizing that "[a] service connection claim must be accompanied by evidence which establishes that the claimant currently has the claimed disability"). Thus, in order to analyze whether service connection is warranted in this case, the Board will focus on whether the Veteran's Meniere's disease or vertiginous headaches are related to service or to a service-connected disability, assuming those are currently diagnosed conditions in light of a number of such diagnoses. In so doing, the Board notes that the Veteran's claimed symptoms of nausea, loss of balance, and dizziness are not in and of themselves disabilities for VA purposes. However, the Board finds that the weight of the credible evidence is against the Veteran's claim for service connection for either Meniere's disease or vertiginous headaches. On a direct basis, both the January 2013 and May 2013 VA examination opinions concluded that the Veteran's current ear disability was not caused or aggravated by service, to include combat. As the May 2013 VHA examiner explained, the symptoms of dizziness and vertigo that accompany Meniere's attacks are such that an individual would most likely seek medical treatment. However, the service records were negative for any indication of those symptoms, and there is no indication that the service records are incomplete. Therefore, it was difficult to find that the Veteran's symptoms began in service. Also, the VHA examiner explained that the Meniere's attacks would begin before the onset of the hearing loss, and the hearing loss would be low frequency, rather than high frequency, such as in this case. Furthermore, as the VHA examiner explained, and as was also stated by the January 2013 VA examiner, Meniere's disease was often associated with a genetic etiology. The January 2013 VA examiner felt that such was most likely the case for the Veteran, rather than a traumatic etiology. Significantly in this case, there are no medical opinions in support of the Veteran's claim. There is additionally no competent medical opinion to relate the Veteran's vertiginous headaches to service. Nor is there is any competent or probative medical opinion to relate the Veteran's disability to his PTSD, as he at one point asserted. Thus, the Board finds that when reviewing the probative medical opinions in this case, all opinions weigh against the Veteran's claim. The opinions are persuasive because they include well-reasoned rationale and clearly differentiate the Veteran's symptoms and pathology from any finding of Meniere's disease or vertiginous headaches that would be related to service. With regard to the Veteran's statements that he suffered from symptoms of Meniere's disease and vertiginous migraines in service, including in combat, the Board finds his statements lack credibility. Rather, the Veteran's statements of service onset, as well as that he had continuous symptoms since service, are generally inconsistent with the other evidence of record and were made under circumstances indicating bias or interest. See Caluza v. Brown, 7 Vet. App. 498 (1995). While the Board cannot determine that lay evidence lacks credibility solely because it is unaccompanied by contemporaneous medical evidence, the Board may, however, in the present case, consider a lack of contemporaneous medical evidence as one factor in determining the credibility of lay evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). Despite the Veteran's assertions, the service treatment records are entirely negative for symptoms of Meniere's disease or vertiginous migraines. Furthermore, the May 2013 VHA examiner explained that in-service and post-service records did not support the onset of Meniere's disease in service. Despite the Veteran's assertions, the record is otherwise completely negative for indication of symptoms or treatment for Meniere's disease or vertiginous migraines for many years following service, or, for approximately 30 years. Though he has stated that he did have these symptoms for years and they only became worse in 2002, such does not comport with the medical evidence which instead shows that hearing loss and tinnitus were precursors to his symptoms of dizziness and loss of balance, rather than the other way around. Also, his later contentions do not comport with his previous medical history as described to the VA. Accordingly, the Board finds that the weight of the credible evidence outweighs the Veteran's contentions that he developed Meniere's disease in service or while in combat. Or, that even if he experienced short term dizziness or loss of balance in combat, when affording him such presumption, that he actually developed a chronic condition to include Meniere's disease or vertiginous headaches while in service. The Board also finds that service connection for Meniere's disease or vertiginous migraines is not warranted on a secondary basis. In that regard, the May 2013 VHA examiner explained that hearing loss and tinnitus are not causative factors in the development of Meniere's disease. The medical opinions in this case do not otherwise support a theory of secondary service connection. The Veteran's contentions that his tinnitus causes him to experience symptoms of dizziness and loss of balance, on their own, are not competent to diagnose Meniere's disease or vertiginous migraines as caused or aggravated by service. In that regard, although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet.App. 428, 435 (2011), the specific issue in this case 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)." Because, while the Veteran is competent to describe his symptoms of hearing loss, tinnitus, loss of balance, dizziness, nausea and headaches, the Board accords his statements regarding the etiology of such disorders, and the relationship of those symptoms to Meniere's disease or vertiginous migraines, less probative value as he is not competent to opine on such complex medical questions. Specifically, where the determinative issue is one of medical causation, only those with specialized medical knowledge, training, or experience are competent to provide evidence on the issue. See Jones v. Brown, 7 Vet. App. 134, 137 (1994). The medical evidence does not show that his hearing loss and tinnitus have caused or aggravated his vertiginous migraines or Meniere's disease, or that such disabilities are of service etiology. Therefore, based on the competent and probative evidence of record, the Board finds that service connection is not warranted for the Veteran's ear disability, variously diagnosed as Meniere's disease or vertiginous migraines, as those conditions have not been shown to have been causally or etiologically related to any disease, injury, or incident of service, or to have been caused or aggravated by the service-connected hearing loss or tinnitus. In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran's claim. As such, that doctrine is not applicable in the instant appeal, and his claim must be denied. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert, supra. ORDER Service connection for a disability manifested by nausea, dizziness, and loss of balance, variously diagnosed as Meniere's disease or vertiginous migraines is denied. ____________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs