Citation Nr: 1338241 Decision Date: 11/21/13 Archive Date: 12/06/13 DOCKET NO. 11-15 401 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manchester, New Hampshire THE ISSUE Entitlement to service connection for vertigo or balance problems. ATTORNEY FOR THE BOARD R. Chakraborty, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from June 1965 to June 1967. This case comes before the Board of Veterans' Appeals (the Board) on appeal from a March 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Manchester, New Hampshire, which denied entitlement to service connection for ear imbalance. Although the issue on appeal has been characterized as being for service connection for an "ear imbalance," the Board finds that it is more appropriately broadened as being for vertigo or balance problems to more accurately reflect the Veteran's complaints. See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (holding that the scope of a health disability claim includes any disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record). The Board notes that in addition to the paper claim file, there is an electronic claim file associated with the Veteran's claim. The Board has reviewed the documents in both the paper claim file and the electronic claim file in rendering this decision. FINDING OF FACT The weight of the evidence is against a finding that the Veteran has vertigo and/or balance problems that are etiologically related to service. CONCLUSION OF LAW Vertigo or balance problems were not incurred in service. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. § 3.303 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist In correspondence dated in November 2009, prior to the March 2010 rating decision, the RO satisfied its duty to notify the Veteran under 38 U.S.C.A. § 5103(a) (West 2002) and 38 C.F.R. § 3.159(b) (2013), known as the Veterans Claims Assistance Act of 2000 (VCAA). Specifically, the RO notified the Veteran of: information and evidence necessary to substantiate the claims; information and evidence that VA would seek to provide; and information and evidence that the Veteran was expected to provide. That letter also notified the Veteran of the process by which disability ratings and effective dates are established. Dingess v. Nicholson, 19 Vet. App. 473 (2006). VA has done everything reasonably possible to assist the Veteran with respect to his claims for benefits in accordance with 38 U.S.C.A. § 5103A (West 2002) and 38 C.F.R. § 3.159(c) (2013). The Veteran's service treatment records (STRs) are in the claims folder, and the Veteran was provided with a VA examination. This examination report reflects that the examiner reviewed the Veteran's past medical history, recorded his current complaints, conducted an appropriate evaluation of the Veteran, and rendered an appropriate diagnosis and opinions consistent with the remainder of the evidence of record. The Board, therefore, concludes that this examination report is adequate for purposes of rendering a decision in the instant appeal. See 38 C.F.R. § 4.2 (2013); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Veteran has not contended otherwise. Additionally, the Veteran declined to present testimony in support of his claims. Thus, the duties to notify and assist have been met. Analysis In general, service connection may be granted for disability or injury incurred in or aggravated by active military service. See 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2013). 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) evidence of a nexus between the claimed in-service disease or injury and the current disability. See Shedden v. Principi, 381 F.3d 1163, 166 (Fed. Cir. 2004). In order to show a chronic disability 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." When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support a claim. There must be competent medical evidence unless the evidence relates to a condition as to which lay observation is competent to identify its existence. See 38 C.F.R. § 3.303(b) (2013). Service connection may be granted on a presumptive basis for certain chronic diseases, including other organic, if they are shown to be manifest to a degree of 10 percent or more within one year following the Veteran's separation from active military service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2013). Here, the Veteran's complaints of balance problems or vertigo have not been attributed to an underlying neurological disease that was identified or shown to be manifested to a compensable degree within the requisite time period. The Veteran claims that he has a disability manifested by balance problems. A January 2002 private treatment record noted that the Veteran had intermittent transient vertigo. A March 2003 private treatment record indicated that the Veteran felt pressure in his right ear and "at times feels that his balance is 'off.' " A November 2004 private treatment record indicated that the Veteran had vague recurrent symptoms of vertigo or unsteadiness that had recently worsened, and that they could be related to his ENT (ear, nose, and throat) issues or have a neurologic etiology. A February 2005 note indicated that the Veteran was undergoing an evaluation with Dr. N but that the "vertigo/imbalance episodes have been 'fairly quiet' over the past few weeks, though [he] had an episode last week." A June 2005 private medical record noted that the Veteran experienced "brief episodes of vertigo/imbalance," but that they have been minimal. The etiology remained obscure, and they would "pursue [a] course of watchful waiting." A September 2007 private medical record made the same indication regarding vertigo and balance and gait. A September 2008 private medical record indicated that the Veteran had not experienced "any significant vertigo episodes for some time," and denied vertigo and difficulty with balance or gait. A November 2008 private medical report from Dr. S. stated that the history the Veteran provides is "relatively poor" but "describes times where he will bend over and his body will feel like rubber. He will often feel like objects around him are moving. His symptoms are always related to movement in the position of his head." He opined that "it is possible that he has a right-sided benign positional vertigo." In the March 2010 VA examination, the VA examiner also diagnosed the Veteran with benign positional vertigo, intermittent, with associated imbalance. Thus, while the etiology of the Veteran's complaints was unclear for some time, the greater weight of the evidence suggests that he has benign positional vertigo. Shedden element one, medical evidence of a current disability, is therefore met. With respect to Shedden element two, medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury, the STRs indicated that the Veteran noted dizziness on his April 1967 Report of Medical History. In addition, in addressing the Veteran's complaint of imbalance, the November 2008 private medical report from Dr. S. mentioned the Veteran's treatment with quinine in service. The STRs also note treatment for malaria with quinine in June 1966. Therefore, Shedden element two is met. With respect to crucial Shedden element three, nexus, the Board notes that the Veteran was provided with a VA examination in March 2010. The examiner noted that the Veteran's examination in service "has a notation of occasional rare dizziness but there is no further elaboration in the record nor do available records show any specific treatment for dizziness." It was noted that he underwent treatment for malaria in service, but did not recall experiencing any dizziness as a side effect of his medication. When asked, the Veteran could not relate the specific nature of any dizziness that occurred in service nor recall any episodes of vertigo type dizziness. The examiner opined that the Veteran's benign positional vertigo with intermittent imbalance was less likely as not caused by or a result of the patient's military service and is less likely as not related to the statement of occasional dizziness noted on his separation exam. He explained that there was nothing in the STRs specifying that the Veteran experienced a vertigo type of dizziness and that the Veteran could not recall having that type of dizziness in service. The examiner stated that, based on the record and the Veteran's statement, the Veteran's current symptoms did not appear to start until the 1990s. He opined that "[b]enign positional vertigo is more commonly seen in people as a part of the aging process which would be consistent with the onset date of his symptoms." The examiner also explained that quinine therapy was unlikely to be the cause of his current symptoms, as dizziness was generally considered to be a transient side effect and there was no evidence to suggest that he had symptoms while being treated in service or during the time period between his treatment and the onset of his current complaints. 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 Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996); Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). The Board finds the VA examination report to be highly probative, as it is based on a thorough review of the Veteran's medical records and cites to relevant medical principles. The opinions are also supported by a detailed rationale. The conclusions of the VA examiner are consistent with the record and a comprehensive medical history was obtained. The examiner acknowledged the report of dizziness at separation, but explained that there was no evidence to support that it was the same vertigo type dizziness that the Veteran was currently experiencing. In fact, the examiner noted that although the Veteran was vague, he reported that his current vertigo had its onset in the 1990's. The examiner also considered the possibility that the claimed symptoms were related to quinine, but explained why such a relationship was unlikely. The Board has considered the clinical findings of Dr. S., a private physician who noted the possibility that the Veteran's vertigo may be related to quinine therapy administered in service. In a November 2008 report, Dr. S. reasoned that he could have "permanent bilateral vestibulopathy caused by [q]uinine therapy. Quinine is notorious for causing an acute ototoxicity called cinchonism." Significantly, however, Dr. S. also noted that "this is generally reversible and dose limited and I am not certain if there can be any permanent otologic effects." Given this acknowledgement by Dr. S. that dizziness is generally a dose limited side effect of quinine, which is consistent with the opinion of the VA examiner, the Board finds Dr. S.'s earlier suggestion of a relationship to be of very limited probative value. The Board also acknowledges the Veteran's contention in his April 2010 notice of disagreement (NOD) that he has experienced an "imbalance condition" for most of his adult life, which could suggest that an onset during service. However, the record reflects that the Veteran has been inconsistent as to the date of onset of his symptoms. As noted, when asked by the examiner, the Veteran could not recall the nature of the dizziness reported at separation. In addition, he indicated that his current vertigo symptoms had their onset in the 1990's, which is decades after separation. The Board ultimately finds statements made directly to a health care specialist to be inherently more credible than statements made in support of a claim. For this reason, the Board finds that any suggestion by the Veteran that he has experienced chronic vertigo since service is not credible. The Board has also considered whether the issue of secondary service connection has been raised by the record with respect to the Veteran's service-connected malaria. In this regard, the Board notes that the claim for vertigo on appeal was not specifically raised by the Veteran, but instead was construed by the RO from the medical records in which Dr. S. discussed the possibility of a relationship between his vertigo and his quinine therapy in service. However, the Board notes that neither the Veteran nor any health care provider have ever suggested a relationship between the claimed vertigo and the service-connected malaria. In fact, in January 2010, the Veteran underwent an examination in regards to his service-connected malaria and he made no mention of his balance problems or vertigo when asked to report symptoms he believed to be associated with his malaria. The examiner noted a history of benign positional vertigo in passing, but made no suggestion that it was in any way related to his history of malaria. Furthermore, Dr. S. only discussed the Veteran's malaria in regards to explaining the quinine therapy administered in service, and made no suggestion that the vertigo or balance problems could be related to malaria. Similarly, the March 2010 VA examiner also made no such suggestion. For these reasons, the Board finds that the issue of entitlement to service connection for vertigo or balance problems as secondary to a service-connected disability has not been reasonably raised by the record and need not be further considered. In summary, for the reasons and bases set forth above, the Board concludes that the preponderance of the evidence is against finding that the Veteran's balance problems and/or vertigo had its onset during or is otherwise related to his military service. Thus, the benefit sought on appeal is denied. ORDER Service connection for vertigo and/or balance problems is denied. ____________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs