Citation Nr: 1335634 Decision Date: 11/04/13 Archive Date: 11/13/13 DOCKET NO. 07-34 284 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUE Entitlement to service connection for chronic disability manifested by dizziness, to include a claim for service connection for dizziness as a qualifying chronic disability under 38 C.F.R. § 3.317 (2013). REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD T. Hal Smith, Counsel INTRODUCTION The Veteran served on active duty from February 1989 to April 1992, including service in Southwest Asia. This matter is before the Board of Veterans' Appeals (Board) on appeal from an April 2007 rating decision of the Waco, Texas, Regional Office (RO) of the Department of Veterans Affairs (VA). In June 2010, the Board remanded this and other claims for further development. In June 2013, the Board addressed the Veteran's claims for entitlement to service connection for chronic disabilities manifested by numbness, headaches, fatigue, stiffness, and joint pain, to include as a qualifying chronic disability under 38 C.F.R. § 3.317. Those claims are no longer on appeal. The current claim was remanded again for additional evidentiary development, and it has now been returned to the Board for further appellate consideration. During the course of the appeal, jurisdiction of the claim was transferred to the RO in New Orleans, Louisiana, which forwarded the appeal to the Board. The following determinations are based on review of the Veteran's claims file in addition to his Virtual VA "eFolder." FINDINGS OF FACT 1. The Veteran served in the Southwest Asia Theater of Operations during the Persian Gulf War. 2. The Veteran did not manifest chronic dizziness or postural hypotension during his active service, lay observation is not competent to link the current complaints of dizziness to the Veteran's service, and the medical evidence, which discloses that the Veteran's dizziness has been medically determined to be transient postural hypotension, is unfavorable to his claim. CONCLUSION OF LAW The Veteran does not have chronic dizziness as the result of disease or injury incurred in or aggravated by active military service, and it may not be presumed to be due to an undiagnosed illness or an unexplained chronic multisymptom illness incurred in service. 38 U.S.C.A. §§ 1110, 1117, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.137 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating their claims for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information, and any 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). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1) (2013). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In addition, the holding in Dingess v. Nicholson, 19 Vet. App. 473 (2006) requires more extensive notice in claims for compensation, e.g., as to potential downstream issues such as disability rating and effective date. Prior to the initial denial of the present claims, the RO advised the Veteran of what the evidence must show to establish entitlement to service-connected compensation benefits a notice letter sent in in July 2006. The RO also explained what evidence VA would obtain and make reasonable efforts to obtain on the Veteran's behalf in support of his claim. The RO further described what evidence that the Veteran should provide in support of his claim. Moreover, the RO explained how VA determines the disability rating and effective date of a disability once service connection has been established, which satisfied Dingess notice requirements. Because the Veteran was provided with proper notice with respect to his claim by way of the July 2006 pre-adjudication notice letter, the Board concludes that VA's duty to notify has been met, and there is no outstanding duty to inform the Veteran that any additional information or evidence is needed. Moreover, the Veteran and his representative were provided with copies of the above rating decision, the statement of the case (SOC), and the supplemental statement of the case (SSOC), which include discussion of the facts of the claims, pertinent laws and regulations, notification of the bases for the decision, and a summary of the evidence considered to reach the decision. Neither the Veteran nor his representative has alleged prejudice with respect to notice. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009). None is found by the Board. Regarding VA's statutory duty to assist in claims development, the record also reflects that VA has made reasonable efforts to obtain or to assist in obtaining all relevant records pertinent to the matters on appeal. Pertinent medical evidence associated with the claims files consists of service and VA treatment records, private treatment records, and the reports of VA examinations. In this regard, pursuant to the Board's June 2010 and June 2013 remands, the Veteran was afforded additional VA examinations in December 2011 and July 2013, respectively. As noted by the Board in its June 2013 remand, the 2010 examination report was deemed to be inadequate in that it only addressed whether dizziness was due to toxic exposure. Thus, additional examination was requested that addressed whether dizziness was related to service other than on the basis of toxic exposures, to include whether dizziness was a manifestation of an undiagnosed disorder. A review of those reports shows that all subjective and objective findings necessary for evaluation of the Veteran's claims were observed and recorded. Thus, the examination reports, when considered together, are complete and adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). Accordingly, the Board finds that VA substantially complied with the Board's remand directives in further developing the Veteran's claims. Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141 (1999). Also of record and considered in connection with the appeal are various statements submitted by the Veteran and his representative, on his behalf. Neither the Veteran nor his representative throughout the course of this appeal has made the RO or the Board aware of any other evidence relevant to his appeal that needs to be obtained. Based on the foregoing, the Board finds that all relevant facts have been properly and sufficiently developed in this appeal and no further development is required to comply with the duty to assist the Veteran in developing the facts pertinent to the claims adjudicated herein. Therefore, in view of the foregoing, the Board will proceed with appellate review. II. Service Connection It is the Board's responsibility to evaluate the entire record. See 38 U.S.C.A. § 7104(a) (West 2002 & Supp. 2013). The Board has reviewed all the evidence in the record. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss in detail, each item of evidence. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (Board must review entire record, but is not required 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). When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b) (West 2002 & Supp. 2013); 38 C.F.R. § 3.102 (2013). An appellant need only demonstrate that there is an "approximate balance of positive and negative evidence" in order to prevail. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Court has also stated, "It is clear that to deny a claim on its merits, the evidence must preponderate against the claim." Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert. Service connection may be granted for disability or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). As a general matter, service connection for a disability on the basis of the merits of such claim requires (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). 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 U.S.C.A. § 1113(b); 38 C.F.R. § 3.303(d). Further, 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 U.S.C.A. § 1113(b); 38 C.F.R. § 3.303(d). The Board must determine whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either case, or whether the preponderance of the evidence is against the claim, in which case, service connection must be denied. Gilbert, supra. Service connection may be warranted for a Persian Gulf Veteran who exhibits objective indications of a qualifying chronic disability that became manifest during active service in the Southwest Asia Theater of operations during the Persian Gulf War, or to a degree of 10 percent or more not later than December 31, 2011. See 38 U.S.C.A. § 1117; 38 C.F.R. § 3.317. Unlike service connection on a direct basis as discussed below, the provisions of 38 U.S.C.A. § 1117 and 38 C.F.R. § 3.317 do not require competent medical nexus of a link between the qualifying chronic disability and military service. Service connection is presumed unless there is affirmative evidence to the contrary, where the criteria are met. See 38 C.F.R. § 3.317(c) (2013); Gutierrez v. Principi, 19 Vet. App. 1 (2004). The term "Persian Gulf Veteran" means a Veteran who, during the Persian Gulf War, served on active military, naval, or air service in the Southwest Asia Theater of operations. The Veteran in this case has been awarded a medal based on such service, according to his DD214. For purposes of § 3.317, there are three types of qualifying chronic disabilities: (1) an undiagnosed illness; (2) a medically unexplained chronic multi-symptom illness; and (3) a diagnosed illness that the Secretary determines in regulations prescribed under 38 U.S.C.A. § 1117(d) warrants a presumption of service connection. 38 C.F.R. § 3.317(a)(2). An undiagnosed illness is defined as a condition that by history, physical examination, and laboratory tests cannot be attributed to a known clinical diagnosis. Further, laypersons are competent to report objective signs of illness. See Gutierrez v. Principi, 19 Vet. App. 1 (2004). A medically unexplained chronic multi-symptom illness is one defined by a cluster of signs or symptoms, and specifically includes chronic fatigue syndrome, fibromyalgia, and irritable bowel syndrome. A medically unexplained chronic multi-symptom illness means a diagnosed illness without conclusive pathophysiology or etiology that is characterized by overlapping symptoms and signs and has features such as fatigue, pain, disability out of proportion to physical findings, and inconsistent demonstration of laboratory abnormalities. Chronic multi-symptom illnesses of partially understood etiology and pathophysiology will not be considered medically unexplained. See 38 C.F.R. § 3.317(a)(2). There are currently no diagnosed illnesses that have been determined by the Secretary to warrant a presumption of service connection under 38 C.F.R. § 3.317(a)(2)(c). Where the evidence does not warrant presumptive service connection, the United States Court of Appeals for the Federal Circuit has determined that a Veteran is not precluded from establishing service connection with proof of direct causation. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (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. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Lay persons can also provide an eye-witness account of an individual's visible symptoms. See Davidson v. Shinseki, 581 F.3d 1313 (2009) (noting that a layperson may comment on lay-observable symptoms). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter 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"). The Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1137 (Fed. Cir. 2006). Factors for consideration in assessing credibility include a showing of interest, bias, inconsistent statements, consistency with other evidence, and a lack of contemporaneous medical evidence, although that alone may not bar a claim for service connection. Buchanan, 451 F.3d at 1336-37; Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996), superseded in irrelevant part by statute, Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000). 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). Entitlement to service connection for chronic disability manifested by dizziness, to include as a qualifying chronic disability The Veteran asserts that he has dizziness that may be related to his exposure to chemical and biological agents, including smoke from oil wells, destroyed weapons arsenals and vaccinations during his service in the Gulf War in the early part of 1991. The service treatment records are negative for dizziness or a diagnosis of postural hypotension. The Veteran's blood pressure at the time of examination for service entry was 110/74 in July 1988; his blood pressure was 114/64 in April 1992 when recorded for purposes of service separation. The Veteran did not report a complaint of dizziness at separation. Post service treatment records show intermittent reports of dizziness. It appears that the first clinical notation of such was in 2004. Private and VA records show continued reports of dizziness in subsequent years (through 2008). At the time of VA general medical examination in June 2009, he denied dizziness. VA outpatient clinical records dated in 2009 and 2010, including more than 150 pages of clinical records, disclose that the Veteran's blood pressure was recorded at least 25 times. In addition, the Veteran underwent knee arthroscopy in 2010, and his blood pressure was monitored prior to, during, and following that procedure. No provider determined that the Veteran manifested hypotension or required treatment for hypotension after 2008. The Veteran provided a statement setting forth his belief that he had several symptoms, including dizziness, as a result of exposure to fire from oil wells, vaccinations, or other biological or chemical agents to which he was exposed during service. The Veteran did not allege that any health care provider had advised him that his dizziness was due to the environmental exposure. The Veteran's statements reflect a belief that there is no other explanation for his symptom of dizziness. In June 2010, the Board remanded the claim for an examination and opinion as to whether there were objective findings that the Veteran currently manifested dizziness and if so, the examiner was asked to state whether the Veteran's dizziness is due to a specific disease entity, including hypertension or treatment of hypertension. If the Veteran's dizziness was due to a specific disease entity, the examiner was asked to provide an opinion as to whether the Veteran's dizziness was related to his service. If dizziness was found to be unrelated to a specific disease entity, the examiner was asked to opinion as to whether it was an objective indication of chronic disability related to his service in the Persian Gulf or a medically unexplained chronic multisymptom illness. Pursuant to the Board's remand, the Veteran underwent a VA ear disease examination in July 2010 at which time he presented with a history of dizziness during a period of incarceration after his active service. The date of onset was noted to be sometime after 2002. The "diagnosis" provided was, "[t]his is not otogenic dizziness and it is not temporally related to his time in Saudi Arabia." The examiner opined that "toxic exposures are not likely involved with this." However, the diagnosis associated with the Veteran's dizziness, or whether dizziness was associated with an undiagnosed disorder, remained unclear. In the Board's June 2013 remand, it was noted that the Veteran's claim for service connection for dizziness was not limited to otogenic dizziness. Thus, the examination and opinion addressed only a portion of the question posited by the Board. As it remained unclear whether the Veteran's dizziness was related to his service other than on the basis of toxic exposures, to include whether the Veteran had dizziness as a manifestation of an undiagnosed disorder, additional examination was requested that addressed the issues of direct and presumptive service connection for the Veteran's dizziness. The requested examination was conducted in July 2013 and the report is included in the claims file for review. The examiner noted that she reviewed the claims file, to include the previous July 2010 exam report. At this time, examination was normal. There were no objective findings of dizziness, and the Veteran had a normal gait and no nystagmus. In fact, the reviewer found no ongoing or current clinical reports of symptoms of dizziness. She opined that his complaints of such were most likely due to a specific disease entity. The history of symptoms given in the July 2010 exam was consistent with a finding of dizziness secondary to transient postural hypotension. Moreover, the examiner indicated that it was less than likely that his claimed disability was due to active duty military service or to any chemical exposure. Analysis Based on the medical evidence of record, the claim for service connection for dizziness must be denied. As noted above, based on review of the VA clinical records, the reviewer who conducted the July 2013 review opined that the Veteran's disability pattern was a disease with a clear and specific etiology and diagnosed dizziness as secondary to transient postural hypotension which was not at least as likely as not related to a specific exposure event. Thus, in this case, the Board notes that the Veteran's complaints of dizziness have been attributed to transient postural hypotension due to a specific disease entity, and which has resolved. The transient postural hypotension is not unexplained and is not medically considered a multisymptom. Therefore, the Veteran's dizziness does not fall within the purview of the undiagnosed illness presumptive provisions, and presumptive service connection under 38 U.S.C.A. § 1117 and 38 C.F.R. § 3.317 is not warranted. With regard to entitlement to service connection for dizziness on a direct basis, on review of the evidence above, the Board finds the Veteran does not have dizziness that is etiologically related to his service. In addition, the record includes the 2010 opinion that the Veteran's dizziness is not related to inservice toxic exposure, and the 2013 VA medical opinion that the Veteran's complaints of dizziness are not attributable to his active service or any environmental exposure during service. For the opinions expressed, the Board notes that the examiners provided an explanation in support of their conclusions. The medical providers, who addressed separate etiological questions, had the requisite medical expertise to provide a competent medical opinion regarding the etiology of the Veteran's complaints of dizziness. These examiners had sufficient data on which to base the conclusions-i.e., review of the Veteran's treatment records, post-service treatment records, and other pertinent evidence included in the claims file, and their own interview and examination of the Veteran or the lengthy VA and other clinical records. Moreover, there are no contrary medical opinions of record. Moreover, there is no record that the Veteran sought post-service evaluation for dizziness until over a decade after his discharge from active duty. The Veteran himself does not allege that dizziness was manifested in service, proximate to service, or chronically after service. Rather, he alleges a belief that his dizziness is a result of something to which he was exposed in service. While the Veteran is competent to state that he has dizziness, he is not competent to determine the cause of the described symptom, since, in this case, the Veteran is unable to observe a cause for dizziness, and he has not provided any observation linking his dizziness to his service other than the observation that he was exposed to environmental hazards. His observation that he was exposed to environmental hazards during service is credible. Nevertheless, his assertion that a link between his service and his post-service complaints of dizziness is possible does not place the evidence is equipoise, and does not warrant a grant of service connection. Under each applicable theory of entitlement to service connection, the preponderance of the evidence is against the claim for service connection for chronic dizziness. This condition was not shown in service, or until many years after service, when it was medically attributed to a disorder for which service connection is not in effect (transient postural hypotension). The Veteran's dizziness is not an undiagnosed disorder or chronic multisymptom illness under the provisions pertaining to Persian Gulf veterans since the cause of the Veteran's fatigue is medically known. The claim for service connection for chronic dizziness must be denied. III. Environmental hazards claims The Veteran himself does not claim that his dizziness began until sometime after 2002. If he claimed that this condition had begun during service or persisted since service, the Board would have to consider the Veteran's credibility before weighing his statements along with other evidence in the claims file. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). This is not the case here, as the Veteran readily conceded in 2010 that this condition began during his post service incarceration. Instead, his claim is based on the belief that dizziness is related to incidents of his service. The Board recognizes the sincerity of the arguments advanced by the Veteran that he has dizziness that is due to environmental hazards he encountered during his service. As noted above, the Veteran is competent to report that he has experienced dizziness. However, he is not competent to report that dizziness is related to his service because he does not have the education, training, or experience to offer a competent medical opinion and dizziness is not a symptom for a cause is readily observable by a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-1377 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1131, 1336 (Fed. Cir. 2006). The Board finds that while the Veteran is competent to describe symptoms such as vertigo and dizziness, the question of whether the Veteran currently has these symptoms due to his military service is too complex to be addressed by a layperson. This connection or etiology is not amenable to observation alone. See Davidson, 581 F.3d 1313; Jandreau, 492 F.3d 1372 at 1376-1377 (lay witness capable of diagnosing dislocated shoulder); Barr, supra, (lay testimony is competent to establish the presence of varicose veins); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (unlike varicose veins or a dislocated shoulder, rheumatic fever is not a condition capable of lay diagnosis). The probative value of the VA medical opinions in this case far outweighs the probative value of the Veteran's lay belief as to this medically complex matter. Nothing in the record demonstrates that the Veteran received any special training or acquired any medical expertise in evaluating and determining causal connections for hypotension or disorders due to environmental or chemical exposures. See King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2013). Hence, the Veteran's opinion as to the etiology of his dizziness is not competent evidence and is entitled to low probative weight. Therefore, based upon the reasons and bases set forth above, the Board finds the preponderance of the evidence is against the claim, on a direct basis or presumptive bases (i.e., as a chronic disease and undiagnosed illness), and the benefit-of-the-doubt doctrine is not for application. Gilbert, supra; 38 U.S.C.A. § 5107(b) (West 2002 & Supp. 2013); 38 C.F.R. § 3.102 (2013). ORDER Entitlement to service connection for chronic disability manifested by dizziness, to include a claim for service connection for dizziness as a qualifying chronic disability under 38 C.F.R. § 3.317, is denied. ____________________________________________ TRESA M. SCHLECHT Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs