Citation Nr: 1342283 Decision Date: 12/20/13 Archive Date: 12/31/13 DOCKET NO. 08-13 503 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to service connection for a disorder characterized by loss of balance. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD D. Havivi, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1979 to July 1989. This initially came before the Board of Veterans' Appeals Board on appeal from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. The Board previously considered this issue in September 2011, but remanded it for a new VA examination. The requirements of the remand were fulfilled, the case now returns to the Board. A review of the Virtual VA paperless claims processing system and the Veterans Benefits Management System reveals additional records which are pertinent to the present appeal. The Appellant Brief, which reiterates his position, is located on Virtual VA. FINDING OF FACT The Veteran's claimed loss of balance is not clinically established, nor is there a disorder characterized by loss of balance that is related to in-service occasion or event. No disorder has been identified that is related to or made worse by a service connected disorder. CONCLUSION OF LAW A disorder characterized by loss of balance was not incurred in or aggravated by active service, nor is such disorder proximately due to, the result of, or aggravated by a service connected disorder. 38 U.S.C.A. §§ 1131, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.310 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist The requirements of 38 U.S.C.A. §§ 5103 and 5103A have been met. There is no issue as to providing an appropriate application form or completeness of the application. VA notified the Veteran in October 2006 of the information and evidence needed to substantiate and complete a claim, to include notice of what part of that evidence is to be provided by the claimant, what part VA will attempt to obtain, and how disability ratings and effective dates are determined. VA fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate a claim and, as warranted by law, affording the Veteran a VA examinations in November 2006, November 2009, and December 2011. There is no evidence that additional records have yet to be requested, or that additional examinations are in order to determine service connection for a loss of balance disorder. Merits of the Claim The Veteran seeks service connection for a disorder characterized by the loss of balance. Having carefully considered the claims in light of the record and the applicable law, the Board is of the opinion that the criteria for entitlement to service connection have not been met. Service connection will be granted if it is shown that a Veteran has a disability resulting from an injury or disease contracted in the line of duty, or for aggravation of a preexisting injury or disease contracted in the line of duty in the active military, naval or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. That an injury was incurred in service alone is not enough. Instead, there must be a chronic disability resulting from that injury. 38 C.F.R. § 3.303. 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). Generally, to prove service connection, the record must contain evidence concerning: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and a disease or injury incurred or aggravated during service. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In certain cases, competent lay evidence may demonstrate the presence of any of these elements. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that a disease was incurred in service. 38 C.F.R. § 3.303(d). Under 38 C.F.R. § 3.310(a), service connection may also be granted for disability that is proximately due to or the result of a service-connected disease or injury. That regulation permits service connection not only for disability caused by service-connected disability, but for the degree of disability resulting from aggravation of a nonservice-connected disability by a service-connected disability. See also Allen v. Brown, 7 Vet. App. 439, 448 (1995). Decisions of the Board shall be based on the entire record in the proceeding and upon consideration of all evidence and material of record. 38 U.S.C.A. § 7104(a). In addition, the Board must consider all information and lay medical evidence. 38 U.S.C.A. § 5107(b). In doing so, it is the Board's fundamental responsibility to evaluate the probative value of all medical and lay evidence. See Owens v. Brown, 7 Vet. App. 429 (1995). In the evaluation of evidence, VA adjudicators may properly consider internal inconsistency, facial plausibility and consistency with other evidence submitted on behalf of the Veteran. See Caluza v. Brown, 7 Vet. App. 498, 510-511 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). It has also been observed that the Board has the "authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence." Madden v. Brown, 125 F. 3d 1447, 1481 (Fed. Cir. 1997). In this case, the Board must evaluate the Veteran's statements, VA examinations, service treatment records and private medical records. At the November 2006 VA examination, the Veteran reported loss of balance a few seconds in duration occurring once per week. He also stated in his April 2008 VA-9 form that he had continued issues with dizziness, loss of balance and his gait. The Veteran is competent to testify as to this disability, as it is something of which he would have personal knowledge. Barr v. Nicholson, 21 Vet. App. 303 (2007); Layno v. Brown, 6 Vet. App. 465, 469-70 (1994) (holding that a lay witness is competent to testify to that which the witness has actually observed and is within the realm of his personal knowledge). While VA examiners noted his reports, they found no medical evidence of these disabilities. The Veteran reported that his disability began in 1984, in the middle of his service. There is no record of any loss of balance disorder, dizziness or gait issues in the Veteran's service treatment records. Despite the lack of an in service note of a disability and lack of medical evidence of the disability at any time, the disability may still be secondary to the Veteran's service-connected tinnitus or proven by lay evidence alone. Therefore, the Board must analyze all alternative theories. In a note written on a prescription pad, the Veteran's private medical care provider, Dr. C.C., wrote that tinnitus may be associated with balance disturbance. As the Veteran's tinnitus is service connected, a loss of balance stemming from it would merit compensation. After the Board's remand, the December 2011 VA examination addressed this issue, saying that there was no demonstrable dizziness or imbalance. Furthermore, the examiner opined that any lack of balance was not related to tinnitus. She cited relevant literature to support her conclusion. Therefore, we have two medical opinions that are in conflict. The Board is inclined to give greater weight to the VA examiner's opinion. Her examination and conclusion are responsive the Board's remand and her conclusion is supported by relevant medical literature. In contrast, the private examiner's note is hand-written on a prescription pad with no rationale or supporting citations. In addition, the wording of her note is "may be associated with" a loss of balance. This does not establish an etiological relationship, but merely suggests that the conditions may co-exist. The VA examiner's opinion is conclusive, stating that the imbalance and tinnitus were not related. With the presence of both opinions, the Board believes that equipoise has not been reached because the VA examiner's conclusion carries more weight. The Board must also consider direction service connection for the Veteran's loss of balance. As noted above, the Veteran's reports of his dizziness, loss of balance and changed gait are competent. He is also competent to state that the symptoms began in service, around 1984. There is no medical evidence of these symptoms, either during or after service. The Veteran's service treatment records, including examinations upon entry in 1978, in mid-service in 1984, and upon exit in 1989 do not show any complaints or findings of dizziness, loss of balance or change in gait. Furthermore, in the Veteran's private medical care and VA examinations, he does not exhibit any of the symptoms or pertinent findings. Although the Veteran stated that his symptoms only last for a few seconds once per week, the lack of medical evidence, especially during service, is inconsistent with the Veteran's reports. For this reason, the Board cannot find the Veteran's statements regarding the chronology of his symptoms credible. As there is no injury or event in service, and no other indication that disability was incurred in service, a component of the Shedden test is missing. While in service, the Veteran did show some high frequency (above those measured to determine disability ratings) hearing loss in service, though as discussed above, his service-connected tinnitus has been ruled out as a cause of the loss of balance. There is no clinical disorder identified as causing loss of balance, so there is no need for further discussion of a relationship to service connected disorders. There is also no lay nexus between the Veteran's in-service hearing loss and a loss of balance. Though he is competent to give evidence of his symptoms, in the instant case he is not competent to give an etiological opinion on his disability. Determining the etiology of the claimed loss of balance, is a complicated medical question requiring objective findings which support a diagnosis of vestibular disequilibrium in order to merit a compensable rating. The Veteran has not demonstrated he has the knowledge, education or training to provide an opinion in such a complicated matter, and therefore his opinion as to the etiology of his disease is not competent evidence in this particular case. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (explaining in footnote 4 that a Veteran may be competent to provide a diagnosis of a simple condition such as a broken leg, but not competent to provide evidence as to more complex medical questions); see also Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (reiterating this axiom in a claim for rheumatic heart disease). The Board does not require medical evidence, only competent evidence. In this particular case, the lay evidence is not competent as to causation. When there is an approximate balance of evidence in favor and against the Veteran, VA is to give the benefit of the doubt to the Veteran. 38 U.S.C.A. § 5107(b). While the Board has carefully reviewed the record, we conclude that the preponderance of the evidence is against the claim. The Board has considered the benefit of the doubt rule in this case, but as the private doctor's conclusion carries less weight than the VA examiner's, there is no evidence of an in-service injury outside of the Veteran's claim and there is no medical evidence of a loss of balance disorder, the evidence is not in equipoise, and there is no basis to apply the benefit of the doubt rule. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Accordingly, service connection for a loss of balance disorder cannot be granted. ORDER Entitlement to service connection for a disorder characterized by loss of balance is denied. ____________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs