Citation Nr: 1338792 Decision Date: 11/25/13 Archive Date: 12/06/13 DOCKET NO. 10-20 346 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for a peripheral vestibular disorder, to include vertigo (hereinafter "balance disorder"), claimed as secondary to service-connected bilateral hearing loss. 2. Entitlement to a disability evaluation in excess of 30 percent for service-connected bilateral hearing loss. REPRESENTATION Veteran represented by: Jeffrey A. Miller WITNESS AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD A. Nigam, Counsel INTRODUCTION The Veteran served on active duty from September 1954 to August 1957. This matter comes before the Board of Veterans' Appeals (hereinafter "Board") on appeal from a December 2009 rating decision of the Department of Veterans Affairs (hereinafter "VA") Regional Office (hereinafter "RO") in St. Petersburg, Florida, which denied service connection for vertigo, claimed as secondary to service-connected bilateral hearing loss and tinnitus. In May 2012, the Veteran testified at a hearing before the undersigned Veterans Law Judge (hereinafter "VLJ"). A transcript of this proceeding has been associated with the file. In November 2012, the Board remanded the matter to the Appeals Management Center (hereinafter "AMC"), in Washington, DC for additional development of the record, to include ensuring compliance with the Veterans Claims Assistance Act (hereinafter "VCAA"), obtaining any outstanding treatment records, and obtaining a clarifying medical opinion. The Board finds that there has been substantial compliance with the May 2012 remand instructions. Stegall v. West, 11 Vet. App. 268 (1998) (holding that a remand by the U.S. Court of Appeals for Veterans Claims (hereinafter "Court") or the Board confers on the Veteran or other claimant, as a matter of law, the right to compliance with the remand orders); see Dyment v. West, 13 Vet. App. 141 (1999) (holding that remand not required under Stegall v. West, 11 Vet. App. 268 (1998) where there was substantial compliance with remand directives). In this regard, the AMC issued VCAA compliant notice, attempted to obtain outstanding treatment records, and obtained a clarifying medical opinion in November 2012. The issue of entitlement to service connection for sleep apnea has been raised by the Veteran but has not been adjudicated by the Agency of Original Jurisdiction (hereinafter "AOJ"). Therefore, as the Board does not have jurisdiction over this claim, it is referred to the AOJ for appropriate action. During the course of the appeal, the Veteran executed a VA Form 21-22, Appointment of Veterans Service Organization as Claimant's Representative, in February 2008, and appointed the Disabled American Veterans as his representative. More recently, in March 2013, the Veteran revoked this power of attorney, and executed a new VA Form 21-22a, Appointment of Individual as Claimant's Representative, and appointed Jeffery A. Miller as his representative. In evaluating this case, the Board has not only reviewed the physical claims file, but has also reviewed the eFolder on Virtual VA (hereinafter "Virtual VA") to ensure a complete assessment of the evidence. Additional, pertinent medical evidence was added to Virtual VA in June 2013 and July 2013. The Board recognizes that the June 2013 and July 2013 medical evidence, which includes a VA audiology examination report and VA treatment records, constitutes new evidence without a waiver of initial Agency of Original Jurisdiction (hereinafter "AOJ") consideration. However, this evidence is essentially duplicative of the evidence of record insofar as it merely contains evidence of treatment for a balance disorder, which has already been noted in the record, and not evidence that addresses the etiology of the diagnosed balance disorder, upon which this case hinges. See 38 C.F.R. §§ 20.800; 20.1304. The Board concludes that there is no prejudice in proceeding with consideration of this case without affording the RO an opportunity to issue a supplemental statement of the case (hereinafter "SSOC"); proceeding with the claim without a remand to the RO is not prejudicial to the Veteran. As such, the Board will proceed to consider the appeal on the merits. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). The issue of entitlement to a disability evaluation in excess of 30 percent for service connected bilateral hearing loss is addressed in the REMAND portion of the decision below and is REMANDED to the RO. FINDINGS OF FACT 1. All notification and development action needed to fairly adjudicate the claim on appeal has been accomplished. 2. The preponderance of the lay and medical evidence shows that the Veteran's balance disorder did not originate in active service, or for many years thereafter; and is not otherwise related to his service, including in-service acoustic trauma, or to a service-connected disability, including bilateral hearing loss. CONCLUSION OF LAW The criteria for entitlement to service connection for a balance disorder have not been met. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist Under the Veterans Claims Assistance Act (hereinafter "VCAA"), when VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 C.F.R. § 3.159 (2013). Here, the Veteran was provided with the relevant notice and information for establishing a claim for service connection on a direct and secondary basis in a July 2009 letter prior to the initial adjudication of his claim. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). The July 2009 letter also provided notice regarding the disability evaluation and effective date elements of a service connection claim. Dingess/Hartman v. Nicholson, 19 Vet. App. at 473. He has not alleged any prejudice with regard to any notice deficiency during the adjudication of his claim; hence further VCAA notice is not required with regard to the increased rating appeal. Shinseki v. Sanders, 129 S. Ct. 1696 (2009). VA also has a duty to assist the Veteran in obtaining potentially relevant records, and providing an examination or medical opinion when necessary to make a decision on the claim. Here, the Veteran's service records, VA records, and identified private treatment records have been obtained and associated with the claims file. The Veteran was also provided with VA examination and clarifying medical opinion which, collectively, contain a description of the history of the disability at issue; document and consider the relevant medical facts and principles; and provide opinions regarding the etiology of the Veteran's claimed balance disorder. VA's duty to assist with respect to obtaining relevant records and VA examination has been met. 38 C.F.R. § 3.159(c); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Finally, the Veteran testified at hearing at the RO before the undersigned VLJ. The hearing was adequate as the undersigned VLJ and former representative for the Veteran explained the issue and identified possible sources of evidence that may have been overlooked. 38 C.F.R. 3.103(c)(2); Bryant v. Shinseki, 23 Vet. App. 488 (2010). The Veteran has been given ample opportunity to present evidence and argument in support of his claim. The Board additionally finds that general due process considerations have been complied with by VA, and the Veteran has had a meaningful opportunity to participate in the development of the claim. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006); 38 C.F.R. § 3.103 (2013). The Merits of the Claim The Veteran contends that he suffers from a chronic form of imbalance that is multifactoral with changes to the central nervous system and abnormal vestibular ocular reflex contributions. He asserts that his balance disorder is related to his service-connected hearing loss. He also asserts that his ocular reflex abnormality was caused by acoustic trauma in service. In Robinson v. Mansfield, 21 Vet. App. 545 (2007) the United States Court of Appeals for Veterans Claims (hereinafter "Court") cited Roebuck v. Nicholson, 20 Vet. App. 307, 313 (2006), which held that "although there may be multiple theories or means of establishing entitlement to a benefit for a disability, if the theories all pertain to the same benefit for the same disability, they constitute the same claim." Therefore, the Board will address these claims under both direct and secondary service connection theories of entitlement. At the outset, the Board notes that acoustic trauma in service is conceded. Additionally, the Board concedes the Veteran has a current diagnosis of a balance disorder. Service connection may be granted for a disability resulting from disease or injury incurred coincident with or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection generally requires credible and competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship ("nexus") between the present disability and the disease or injury incurred or aggravated during service. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Hickson v. West, 12 Vet .App. 247, 253 (1999). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). A finding of secondary service connection requires competent medical evidence to connect the asserted secondary disability to the service-connected disability. Wallin v. West, 11 Vet. App. 509, 512 (1998); Velez v. West, 10 Vet. App. 432 (1997). The probative value of medical opinion evidence is based on a medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion the physician reaches. Guerrieri v. Brown, 4 Vet. App. 467, 470 (1993). The credibility and weight to be attached to these opinions is within the province of the Board. Id. Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). The service treatment records are without findings for any balance disorder. Also, a May 2007 private audiology report from the "Jacksonville Hearing and Balance Institute," reflects tympanometry findings of type A tymps bilaterally, indicating normal middle ear function. Also, VA treatment records, dated in March 2008 and April 2008, show the Veteran denied vision changes, pain or diploplia; and denied any episodes of severe dizziness/vertigo or middle ear pathology. However, he was diagnosed by an optometrist with cataracts in each eye, not visibly significant, at that time. In fact, it was not until a May 2009 medical opinion from "Dr. J. Douglas Green, Jr.," a private otologist, that the Veteran was first observed to have a chronic form of imbalance. This imbalance was determined to be multifactoral with changes within the central nervous system and an abnormal vestibular ocular reflex contributing, confirmed by vestibular testing. Dr. Green noted that the Veteran had suffered significant falls as a result of this imbalance. In December 2009, the Veteran underwent a VA ear disease examination, in which the examiner observed that the Veteran's service treatment records were negative for vertigo or balance issues. The examiner, "Dr. L," noted Dr. Green's May 2009 statement showing diagnosis of chronic imbalance, as well as VA treatment records, which were negative for vertigo/balance issues. The examiner indicated the date of onset of the Veteran's imbalance/vertigo began in approximately 2001, and that these problems became worse in 2005. The Veteran reported experiencing symptoms of hearing loss and tinnitus since his service, more than 50 years prior to the date of the examination. The Veteran indicated that his vertigo/dizziness was not constant, occurred on a daily basis, and lasted a minute or less in duration. Physical examination results of the ears were normal, and no signs of a staggering gait or imbalance were observed; however, tandem gait was performed with some difficulty. The Veteran was diagnosed with disequilibrium and vertigo, which the examiner opined was not caused by, a result of, or aggravated by his service-connected hearing loss and/or tinnitus. The examiner explained that there was no relationship between hearing loss and tinnitus and disequilibrium and dizziness that started 8 years ago. Further, the examiner stated that it appeared that the disequilibrium and dizziness were caused by a central nervous system vestibular disorder, and that, consequently, there is no nexus between this disorder and the Veteran's service-connected hearing loss and/or tinnitus. In a December 2011 written statement, the Veteran's spouse provided testimony of her observations of the Veteran's balance disorder, and noted that during the previous number of years, he had fallen off the roof and ladders in their garage on multiple occasions. In May 2012, she and the Veteran testified that he believed his vertigo was related to his service-connected hearing loss. He also argued that there may be a direct service connection theory of entitlement, because of his acoustic trauma, but simultaneously noted that he did not have symptoms of vertigo in service and did not recognize that he had it until he was out of service. He initially stated that his symptoms began in 2001, but then recalled instances of vertigo earlier than that date, such as 1995. In July 2012, Dr. Green provided another medical opinion, and indicated that the Veteran has chronic imbalance with multiple falls resulting, and has an abnormal vestibule-ocular reflex as measured on tests of the vestibular system. He concluded that the Veteran's balance issues are related to his military service "based on a reasonable degree of medical probability." Along with this medical opinion, the Veteran submitted a summary of Dr. Green's qualifications, which show that he completed an otolaryngology-head and neck surgery residency at the Medical University of South Carolina and completed a Neurontology fellowship. The profile information also says that he has won several awards for his research and has a variety of publications in peer-reviewed journals. While the July 2012 statement suggests an etiological nexus between the Veteran's balance disorder and his military service, the statement is not accompanied by any supporting rationale or explanation. Therefore, the probative value of this statement is limited, despite the fact that it was generated by a highly qualified medical expert in the fields of otolaryngology and neurontology. Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). In November 2012, a supplemental medical opinion was obtained from the December 2009 VA examiner. The examiner reviewed the statements submitted by the Veteran's private physician and provided the opinion that the Veteran's vertigo and disequilibrium are not caused by or a result of his active duty service, including in-service noise exposure. The examiner explained that based on review of the medical records, medical literature, and his clinical experience as a neurologist, there is absolutely no relationship with active duty, including the noise exposure in service, and development of balance difficulty more than 44 years after service; rather, the Veteran's vertigo and disequilibrium may be due to a peripheral vestibular disorder and/or central nervous system dysfunction. The examiner reiterated that "[t]here is no medical condition during active duty that would cause these symptoms 4 decades later," including noise exposure with subsequent hearing loss and tinnitus. The examiner further opined that the opinion of the Veteran's private physician had changed over the pendency of the appeal and contains no rationale for the positive opinion provided. Conversely, the examiner explained that the disorder experienced by the Veteran is common in the later decades of life such that his condition is likely age-related and "there is nothing here to relate his problem to military service...Not only is it unlikely, it is not possible based on the medical literature and my clinical experience." The Board has considered the Veteran's and his spouse's statements, including his hearing testimony, made in support of his claim. However, neither he nor his spouse has demonstrated any specialized knowledge or expertise to indicate they are capable of rendering competent medical opinions. Although lay persons are nonetheless 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, the etiology of coronary artery disease, including any relationship to anemia or a gastrointestinal disability, 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). Therefore, the Veteran's and his spouse's statements are not competent evidence of a medical nexus between his balance disorder and service, or between his balance disorder and his service-connected disability. Moreover, the Veteran has testified that he believes that his balance disorder is related to his hearing loss and to his in-service noise exposure, while simultaneously acknowledging that he did not experience a balance disorder in service, or for many years afterwards. The passage of so many years between his service separation and the first reports of experiencing a balance disorder (in 1995, according to the May 2012 hearing testimony) is evidence against the claim on a direct basis. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). Because they are supported by detailed explanations and rationale supported by the medical and lay record, the Board finds the December 2009 and November 2012 opinions from "Dr. L" to be the most probative evidence in determining the etiology of the Veteran's balance disorder. For this reason, the overall weight of the evidence is against finding a relationship or nexus between the Veteran's balance disorder and his service, or between his balance disorder and his service-connected bilateral hearing loss. The appeal is accordingly denied. In making this determination, the Board has considered the provisions of 38 U.S.C.A. § 5107(b) regarding benefit of the doubt, but there is not such a state of equipoise of positive and negative evidence to otherwise grant the Veteran's claim. ORDER Service connection for a balance disorder is denied. REMAND The Board finds that a claim for an increased disability evaluation for bilateral hearing loss is on appeal from an RO rating decision dated May 2010. At the time of that rating decision, claims for an increased initial rating for hearing loss and tinnitus were pending on appeal. In June 2010, the Veteran responded to a May 2010 supplemental statement of the case (hereinafter "SSOC") by electing to withdraw his appeal. One month later, in July 2010, he attempted to rescind this withdrawal and was informed by the RO that his closed or withdrawn appeal could not be reopened as it had been more than one year since the date of notification of the rating decision and more than 60 days past the mailing of the statement of the case (hereinafter "SOC"). See 38 C.F.R. §§ 19.32, 19.33. However, the July 2010 statement submitted by the Veteran stating his desire to "continue my appeal on hearing" operates as notice of disagreement (hereinafter "NOD") with the May 2010 rating decision awarding a 30 percent disability rating for bilateral hearing loss, effective May 3, 2010. See Young v. Shinseki, 22 Vet. App. 461, 466 (2009); Palmer v. Nicholson, 21 Vet. App. 434, 436 (2007). In Manlincon v. West, 12 Vet. App. 238 (1999), the United States Court of Appeals for Veterans Claims (hereinafter "Court") held that when an appellant files a timely NOD and there is no issuance of an SOC, the Board should remand, rather than refer, the issue to the RO for the issuance of an SOC. Therefore, the Veteran should be provided with an SOC on the issue of entitlement to a disability evaluation in excess of 30 percent for service-connected bilateral hearing loss. Id. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) The RO must adjudicate the claim for a disability evaluation in excess of 30 percent for service-connected bilateral hearing loss on appeal. If the full benefit sought on appeal is not granted, provide the Veteran and his representative with an SOC and allow an appropriate time for a response. The Veteran must be informed that a timely substantive appeal should be filed in order to perfect his appeal. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). 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). ______________________________________________ K. PARAKKAL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs