Citation Nr: 1336590 Decision Date: 11/08/13 Archive Date: 11/22/13 DOCKET NO. 09-32 835 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for vision loss in the left eye. 2. Entitlement to service connection for a disability manifested by dizzy spells. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD Jeanne Schlegel, Counsel INTRODUCTION The Veteran served on active duty from October 1986 to September 1991. This case comes before the Board of Veterans' Appeals (Board) on appeal from a March 2008 rating decision by the above Department of Veterans Affairs (VA) Regional Office (RO). This case was previously before the Board in January 2013, at which time the pending claims were remanded for further development. There has been substantial compliance with the actions requested in that Remand relating to the claim for dizzy spells and that claim is ready for appellate consideration. See D'Aries v. Peake, 22 Vet. App. 97 (2008) (finding that only substantial compliance, rather than strict compliance, with the terms of a Board's remand directives is required). As will be explained herein, further development of the service connection claim for left eye vision loss is required. The Board notes that service connection claims for a left thumb condition, a right knee condition and a dental injury were also in appellate status and were remanded by the Board in January 2013. All of those claims were granted in a May 2013 rating action. Accordingly, those claims, having been fully resolved, are no longer in appellate status before the Board. A November 2013 review of the Virtual VA (VVA) paperless claims processing system does not reveal any additional documents pertinent to the present appeal. Service connection claims for bilateral hearing loss, tinnitus, and a right eye condition, have been raised by the record but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. The service connection claim for left eye vision loss is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT The record includes a current diagnosis of dizziness, credible lay accounts of a motorcycle accident in service with chronic residuals including dizziness, and a medical opinion to the effect that dizziness is at least as likely as not linked to the Veteran's period of service. CONCLUSION OF LAW Resolving all reasonable doubt in the Veteran's favor, the criteria for a grant of service connection for dizzy spells have been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA's Duties to Notify and Assist The Veterans Claims Assistance Act of 2000, 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2002 & Supp. 2013), 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013), requires VA to assist a claimant at the time that he or she files a claim for benefits. As part of this assistance, VA is required to notify claimants of what they must do to substantiate their claims. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). Since the Board is granting the Veteran's service connection claim for dizzy spells, there is no need to discuss in detail whether there has been compliance with the notice and duty to assist provisions of the VCAA because even if, for the sake of argument, there has not been, this is inconsequential and, therefore, at most harmless error. See 38 C.F.R. § 20.1102. Factual Background The Veteran's initial claim for dizzy spells was filed in November 2006. On that form the only treatment source identified was VA. The file contains the Veteran's service personnel records, but no service treatment records (STRs). In a letter issued to him by VA in August 2007, the Veteran was advised that neither his original claims file or STRs could be located, and was asked to submit any STRs in his possession. A formal finding of unavailability of service treatment records was made in March 2008. The file contains VA records dated from November 2006, when he became a new VA patient forward. A November 2006 entry reflects that the Veteran reported having occasional dizziness episodes since service, mostly at movement. It was noted that he had been twice hospitalized for dizziness, and that CT scan, EKG and Holter testing had been normal, per the Veteran. The entry indicated that the last episode was in 2004. When seen in December 2006, the Veteran reported having a history of dizziness and headaches since sustaining a head injury since a motor vehicle accident. He stated that a CT scan done a year previously was negative. He indicated that he had not had dizziness or headaches since August 2006. In September 2007, the Veteran's gave a history of headaches and dizziness since a motorcycle accident in 1989; current complaints included difficulty sleeping and intermittent dizzy spells. A September 2007 record indicates that X-ray films revealed the presence of a metallic fragment in the Veteran's skull; assessments included possible post concussion syndrome. VA records also include an entry of February 2008 at which time the Veteran requested pills for his dizzy spells. At that time, he mentioned that he had been given medication by a private doctor in Ft. Stockton, which had helped. In a statement authored by the Veteran received in November 2007, he stated that his dizzy spells began after receiving Anthrax shots at Fort Campbell before going on a mission. An April 2011 VA psychiatry note reflects that the accident which happened during service at Fort Campbell occurred when the Veteran was the lead motorcycle on a training mission with night vision glasses and did not see a ditch, plunging into it, driving the clutch handle into his neck. The psychiatrist noted that it would appear that there was a period of loss of consciousness with some residual symptoms and recurring headaches. The file contains a buddy statement dated in May 2011 from L.C., reports having been on a training mission with the 160th Task force, and having seen the Veteran wreck on his motorcycle and land in a ditch. L. C. attested that he observed that the Veteran was unconscious, bleeding from the mouth, and had lost some teeth. In September 2011, the Veteran's service personnel records were obtained from the NPRC. However, no STRs were obtained. In April 2012, information was obtained from the Social Security Administration to the effect that no decision or records relating to the Veteran were on file. Pursuant to a Board Remand issued in January 2013, a VA examination was conducted in February 2013, at which time a diagnosis of tinnitus/dizziness was made. The Veteran gave a history of dizziness and passing out during active duty and noted that dizziness was a side-effect of his PTSD medication. The examiner opined that dizziness/vertigo was at least as likely as not related to service, possibly to a vasovagal incident in active duty or secondary to medications used to treat service-connected PTSD. Analysis The Veteran has asserted that he sustained multiple injuries during service, to include as a result of a motorcycle accident during service, with chronic residual symptoms, such as dizzy spells. At the outset, it appears that the Veteran's STRs in this case are unavailable. In such a case, the Board's obligation to explain its findings and conclusions, and to consider carefully the benefit-of- the-doubt rule, is heightened. See O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991); Pruitt v. Derwinski, 2 Vet. App. 83, 85 (1992). The Board must point out, however, the O'Hare precedent does not raise a presumption that the missing medical records would, if they still existed, necessarily support the claim. Case law does not establish a heightened "benefit of the doubt," only a heightened duty of the Board to consider the applicability of the benefit of the doubt, to assist the claimant in developing the claim, and to explain its decision when a veteran's medical records have been destroyed. See Ussery v. Brown, 8 Vet. App. 64 (1995). Similarly, the case law does not lower the legal standard for proving a claim for service connection, but rather increases the Board's obligation to evaluate and discuss in its decision all of the evidence that may be favorable to the appellant. Russo v. Brown, 9 Vet. App. 46 (1996). Generally, in order to prevail on the issue of service connection, there must be (1) evidence of a current disability; (2) medical evidence, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) evidence of a nexus between an in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131. 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. 38 C.F.R. § 3.303(b). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." Continuity of symptomatology is required only where the condition noted during service is not, in fact, shown to be chronic, or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). In addition, service connection may be granted for any disease diagnosed after service when all the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C.A. § 5107(b). When a reasonable doubt arises regarding service origin, such doubt will be resolved in the favor of the claimant. Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102. The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied. See Gilbert v. Derwinski, 1 Vet. App. 49, 53-54 (1990). With respect to dizziness, this condition was diagnosed upon VA examination of February 2013. Accordingly, the presence of currently claimed dizzy spells is established. With regard to Hickson element (2), the Veteran has reported sustaining multiple injuries during service, to include as a result of a motorcycle accident which occurred therein. Reference to such a history is contained in the VA outpatient treatment reports, to include one such report dated December 14, 2006, that noted a history to include dizziness, a head injury due to a motorcycle accident said to have been incurred in service, and a face injury that involved an incision to the chin due to a motor vehicle accident said to have been incurred in service. The Veteran has provided a similar history as shown in other post-service VA records. The Veteran is competent to describe a motorcycle accident occurring during service and his statements to this effect are considered credible. Barr v. Nicholson, 21 Vet. App. 303 (2007). Unfortunately, in the absence of any STRs there is no way to objectively corroborate the injuries/treatment resulting from this accident. However, in this case supporting and corroborating information in the form of a buddy statement of L. C. dated in May 2011 was provided to the effect that he had been on a training mission with the Veteran in 160th Task Force, and saw the Veteran wreck on his motorcycle and land in a ditch. L. C. attested that he observed that the Veteran was unconscious, bleeding from the mouth, and had lost some teeth. Significantly, in a May 2013 rating action, service connection was established for a dental injury with loss of teeth, resulting from a motorcycle accident in service, reflecting that VA has accepted the Veteran's lay account of the accident in service as competent and credible. Post-service treatment for dizzy spells (see eg. February 1, 2008, VA outpatient treatment report) is demonstrated and a May 2011 VA examination report included a recommendation that Magnetic Resonance Imaging (MRI) studied be done secondary to the Veteran's complaints of vertigo, said to have begun with a chin injury claimed to have been incurred in service. Numerous VA medical records reveal that the Veteran has given a history of chronic and continuous episodes of dizzy spells since the accident in service. In this case, the Board finds that the Veteran's lay statements describing the onset and chronicity of his dizzy spells in and since service are competent and credible, as they are consistent with the nature of his in-service accident. The file also contains a competent medical opinions addressing the issue of the onset and etiology of the Veteran's dizziness. In this regard, the file contains a February 2013 VA examination report reflecting that the examiner opined that dizziness/vertigo was at least as likely as not related to service, possibly to a vasovagal incident in active duty. There is no contrary opinion on file. Given the clinical evidence and opinion already provided for the file, the Board concludes that the evidence is at least in equipoise regarding the matter of service incurrence of the currently claimed dizzy spells. Accordingly, further evidentiary development is not necessary. Cf. Mariano v. Principi, 17 Vet. App. 305, 312 (2003) (noting that, because it is not permissible for VA to undertake additional development to obtain evidence against an appellant's case, VA must provide an adequate statement of reasons or bases for its decision to pursue such development where such development could be reasonably construed as obtaining additional evidence for that purpose.). With resolution of all reasonable doubt in the Veteran's favor, the service connection claim for dizzy spells is granted. The Board notes that in reaching this conclusion, the evidence is at least in equipoise, and the benefit of the doubt doctrine has been applied. See 38 U.S.C.A. § 5107; Gilbert, 1 Vet. App. at 49. ORDER Entitlement to service connection for dizzy spells is granted. REMAND Additional development is warranted with respect to the Veteran's service connection claim for vision loss in the left eye. In a statement provided in December 2006, the Veteran stated that during a training session in service, an instructor with a laser pointer turned towards the Veteran, hit him with a beam of light in the left eye. He reports that as a result, he was seen during service by an eye doctor and given a heavy pair of glasses to wear. He indicated that his vision has never been the same since. In a January 2013 Remand issued by the Board it was observed that given the history described by the Veteran and shown in the medical reports as set forth above and the heightened duty to assist, the Board finds a VA examination that includes an opinion as to whether the Veteran has vision loss in the right eye, as a result of service is necessary in this case in order to comply with the duty to assist the Veteran. See 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). Accordingly, a VA eye examination was conducted in January 2013. At that time uncorrected left eye vision was 20/50, uncorrected near vision was 20/40 or better. Corrected distance and near vision of the left eye was 20/40 or better. The examiner concluded that the Veteran had no laser point maculopathy in either eye and that essentially no other abnormality of the eyes was shown. The examiner noted that the Veteran initially complained of visual disturbance in the left eye, but on examination complained of residual visual disturbance in the right eye. In April 2013, an addendum was provided based on review of the claims folder. At that time, the examiner concluded that the Veteran was not found to have a visual disability, service-connected or otherwise. As an initial matter, the Board notes that in the January 2013 Remand, the Board mischaracterized the issue on appeal as entitlement to service connection for vision loss of the right eye and hence it appears that the issue developed and subsequently adjudicated by the RO was not the issue on appeal (see January 2013 Board Remand, and Supplemental Statement of the Case dated June 18, 2013). As this error may be considered potentially prejudicial to the Veteran, this matter must be corrected on Remand. The Board also notes that essentially the VA examiner found no diagnosable eye condition on VA examination of 2013. Yet, it appears that some mild degree of left eye visual impairment was shown on that examination. Further in the January 2013 Board Remand it was requested that the examiner address the matter of whether it was at least as likely as not that vision loss in the (right) eye was causally or etiologically related to the Veteran's service. Once VA undertakes the effort to provide an examination when developing a service connection claim, even if not statutorily obligated to do so, it must provide one that is adequate for purposes of the determination being made. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Here, given the concerns identified above, the Board concludes that another remand is required in this case. See Stegall, 11 Vet. App. at 271. Accordingly, the case is REMANDED for the following action: 1. Forward the entire claims file, to include a complete copy of this REMAND, to the same VA examiner who conducted the February 2013 eye examination and provided the April 2013 addendum and request that the following matters be addressed: a. Provide a diagnosis relating to the Veteran's left eye vision loss. If no diagnosis is warranted, explain the reasons why. b. Provide an adequate opinion with complete rationale addressing whether it is at least as likely as not (i.e., there is a 50 percent or greater probability) that the Veteran's claimed left eye vision loss was caused by or is a result of military service, or any incident therein, or is otherwise etiologically related to service. In providing this rationale, the examiner should specifically consider and discuss: the Veteran's lay statements relating to the onset and course of his claimed left eye vision loss; as well all other pertinent post-service medical evidence such as VA records. In answering the question posed above, the examiner is advised that the Veteran is generally considered competent to provide lay reports relating to matters within his personal knowledge, such as injuries, types and severity of symptoms, and historical medical treatment. Such lay reports should be considered, to the extent made, in formulating the requested opinions. If the Veteran's lay reports are discounted, the examiner should provide a rationale for doing so. A complete rationale should be given for any opinion expressed. (c) If the prior examiner is not available, or further examination of the Veteran is deemed warranted, the RO should arrange for the Veteran to undergo another VA eye examination, to obtain medical opinions addressing the questions posed above. In this event, the entire claims file, to include a complete copy of the REMAND, must be made available to the individual designated to examine the Veteran, and the examination report should include discussion of the Veteran's documented medical history and assertions. All appropriate tests and studies relating to the left eye should be accomplished (with all results made available to the examining physician prior to the completion of his or her report), and all clinical findings should be reported in detail. 2. Readjudicate the Veteran's claim of entitlement to service connection for left eye vision loss. If any action taken is adverse to the Veteran, he and his representative should be furnished a supplemental statement of the case and afforded an appropriate opportunity to respond. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). No action is required of the appellant until further notice. However, the Board takes this opportunity to advise the appellant that the conduct of the efforts as directed in this remand, as well as any other development deemed necessary, is needed for a comprehensive and correct adjudication of his claim. His cooperation in VA's efforts to develop his claim, including reporting for any scheduled VA examination, is both critical and appreciated. The appellant is also advised that failure to report for any scheduled examination may result in the denial of a claim. 38 C.F.R. § 3.655 This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs