Citation Nr: 1419158 Decision Date: 04/30/14 Archive Date: 05/06/14 DOCKET NO. 04-40 708 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for an inner ear disorder, to include vertigo and dizziness, on a direct basis and as secondary to service-connected tinnitus and bilateral hearing loss. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. Cherry, Counsel INTRODUCTION The Veteran had active service from November 1952 to September 1954. This matter comes before the Board of Veterans' Appeals (BVA or Board) from a September 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. Jurisdiction of this case belongs to the RO in Waco, Texas. In July 2008 the Veteran testified at a hearing before the undersigned Acting Veterans Law Judge at the RO; a transcript of that hearing is of record. In September 2008, June 2009, September 2010, and June 2011, the Board remanded the claim for further development. Although the Board has previously characterized the issue on appeal as entitlement to service connection for an inner ear disorder, to include vertigo and dizziness, as just secondary to service-connected tinnitus and bilateral hearing loss, the Veteran claims that he suffered in-service ear trauma and VA has considered his claim on a direct service connection basis. In Schroeder v. West, 212 F.3d 1265, 1271 (Fed. Cir. 2000), the United States Court of Appeals for the Federal Circuit (the Federal Circuit) held that VA's duty to assist attaches to the investigation of all possible causes of a current disability, including those unknown to the claimant. Therefore, the issue is as stated on the title page and the appellant is not prejudiced by the Board's consideration of a direct-service-connection theory of entitlement. Bernard v. Brown, 4 Vet. App. 384 (1993). In November 2012, the Board requested a Veterans Health Administration (VHA) expert opinion and in February 2013 this opinion was provided. In March 2013, the Board provided a copy of the February 2013 VHA expert opinion to the Veteran and his representative and afforded them 60 days to respond. The Veteran's response was to request another Travel Board hearing, and he had previously made that request in July 2012. In July 2013, the undersigned Acting Veterans Law Judge denied the appellant's request for another Travel Board hearing. 38 C.F.R. § 20.700(a) (2013). In September 2013 the Board requested an addendum to the February 2013 VHA expert report and an addendum was provided in November 2013. The Board requested another addendum to the February 2013 VHA expert opinion and that addendum was provided in February 2014. In March 2014, the Board provided a copies of the February 2013 VHA expert's November 2013 and February 2014 addendums to the February 2013 medical opinion to the Veteran and his representative and afforded them 60 days to respond. The Veteran later in March 2014 submitted an additional statement and photographs showing that he was exposed to artillery fire noise in service. The appellant indicated that he did not waive agency of original jurisdiction (AOJ) consideration of such evidence. This evidence, however, is cumulative of the claimant's previous contentions. Therefore, a remand for AOJ consideration of such evidence is not warranted. 38 C.F.R. § 20.1304(c) (2013). The Board notes that there are printed copies of VA treatment records added to the claims file after an October 2012 supplemental statement of the case. These records are duplicate copies of the electronic records considered by the Appeals Management Center (AMC) in the October 2012 supplemental statement of the case. The Board's review includes the electronic and paper records. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDING OF FACT The weight of the evidence is against findings that there is a nexus between a current diagnosis of an inner ear disorder, to include vertigo and dizziness, and service; or that the an inner ear disorder, to include vertigo and dizziness, was caused or aggravated by the service-connected tinnitus or bilateral hearing loss. CONCLUSION OF LAW An inner ear disorder, to include vertigo and dizziness, was not incurred in or aggravated by service and was not caused or aggravated by the service-connected tinnitus or bilateral hearing loss. 38 U.S.C.A. §§ 1110, 1154, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 The requirements of the 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 February, May, and December 2004, March 2006, November and December 2007, February, April, and October 2008, and September 2010 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, and notice of what part VA will attempt to obtain. In the March 2006 letter, VA notified the appellant of how VA determines the disability rating and effective date. The claim was most recently readjudicated in an October 2012 supplemental statement of the case. VA has fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate a claim, and as warranted by law, affording a VA examination. The majority of the Veteran's service treatment records do not appear to be available. In the April 2008 letter, VA informed the appellant of its efforts to obtain his service treatment records. VA has a heightened duty to assist the Veteran in developing his claim. O'Hare v. Derwinski, 1 Vet. App. 365 (1991). The case law does not, however, 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. See Russo v. Brown, 9 Vet. App. 46, 51 (1996). The Veteran submitted private treatment records. The RO and AMC obtained VA treatment records, to include pursuant to the September 2008 Board remand. The Veteran underwent a VA ear disease examination in April 2004 and the examiner rendered an opinion on whether the vertigo was related to active service. It does not appear that the April 2004 ear disease examiner reviewed the claims file and instead relied on the history reported by the Veteran to a March 2004 VA audiological examiner. The April 2004 VA examiner did address whether vertigo and dizziness are caused by hearing loss and tinnitus. The examiner provided a basis for that opinion. The examiner rendered an appropriate opinion on secondary service connection by way of causation with basis for that opinion. The Board therefore concludes that the April 2004 VA examination report is adequate for purposes of rendering a decision in the instant appeal as to secondary service connection by way of causation. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Veteran and his representative have not contended otherwise. Pursuant to the June 2009 Board remand, the appellant underwent another VA audiology examination in January 2010 to address secondary service connection. The audiologist indicated that she could provide an opinion without resorting to mere speculation because rendering an opinion was beyond her scope of practice. The claimant underwent an ear disease examination in January 2010 by the examiner who conducted the April 2004 VA examination and that examiner rendered an opinion on whether the tinnitus and hearing loss "have anything to do with the dizziness." In September 2010, the April 2004 and January 2010 VA examiner reviewed the claims file and prepared an addendum in which he opined that it was unlikely that the dizziness and vertigo were caused by hearing loss and tinnitus and that the dizziness was not related to the Veteran's military days. In an October 2010 note, the examiner indicated that he had reviewed the claims file when he prepared the September 2010 addendum. The evidence reveals that the VA examiner reviewed the Veteran's claims file and his past medical history, and rendered an appropriate opinion on secondary service connection by way of causation with basis for that opinion. The Board therefore concludes that the September 2010 addendum is adequate for purposes of rendering a decision in the instant appeal. See Barr, 21 Vet. App. at 312. The Veteran and his representative have not contended otherwise. Pursuant to the June 2011 Board remand, the Veteran underwent additional VA examinations to address secondary service connection on an aggravation basis. The VA audiological examination in August 2011 was performed by the same audiologist who conducted the January 2010 VA audiological examination. Again, the January 2010 and August 2011 VA examiner indicated that an opinion on whether the inner ear disease, to include vertigo and dizziness, was aggravated by service-connected tinnitus and hearing loss was beyond her scope of practice. In a June 2011 statement, the appellant requested that his ear disease examination be performed by a different one than the one who had conducted the previous examinations. The Veteran underwent a VA ear disease examination in October 2011 conducted by a different examiner. That examiner noted that there was not enough data to draw a meaningful conclusion, and he recommended a full vestibular and orthostatics workup to include all of the following: video nystagmography, rotary chair testing, platform balance testing, vestibular-evoked myogenic potentials, tilt table, and 24-or-48-hour Holter monitoring. The examiner indicated that once all those workups were complete he would be happy to offer an interpretation of the results. The examiner, however, added that at this point no meaningful determination can be made as to the etiology of the vertigo. A September 2012 VA memorandum - the subject of which is formal finding of unavailability of locating a VA facility to perform the following procedures for the Veteran - documents VA effort's contacting four VA medical centers in Texas and determining that none of those facilities could perform the testing recommended by the October 2011 VA examiner. At this point, the Veteran had been afforded a VA ear disease examination pursuant to the June 2011 Board remand, which was done by a new examiner as the appellant requested, but the medical opinion was not provided due to the examiner's determination that the appellant needed to undergo a workup that was unavailable in four VA medical centers in Texas. In February 2013, the VHA expert provided an opinion on whether the inner ear disease, to include vertigo and dizziness, was aggravated by service-connected tinnitus and hearing loss. In an addendum prepared in November 2013 and in an addendum prepared in February 2012, the VHA expert provided an opinion on whether the inner ear disease, to include vertigo and dizziness, was caused by active service, including in-service noise exposure and an ear injury resulting in bleeding. The report of the February 2012 VHA opinion and two addendums reveal that the VHA expert reviewed the Veteran's claims file and his past medical history, and rendered appropriate opinions with bases for those opinions. The Board therefore concludes that the report of the February 2012 VHA opinion and two addendums are adequate for purposes of rendering a decision in the instant appeal. See Barr, 21 Vet. App. at 312. The Veteran and his representative have not contended otherwise other than the appellant in March 2014 statement merely expressing his disagreement with the VHA expert's opinion. Although the Secretary is required to comply with remand orders, it is substantial compliance, not absolute compliance that is required. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999). There was substantial compliance with the Board remands. Thus, VA complied with the Board's remands to the extent possible. Stegall v. West, 11 Vet. App. 268 (1998). Governing law and regulations Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection may also be warranted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In order to establish service connection for a claimed disorder, there must be (1) 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 Hickson v. West, 12 Vet. App. 247, 253 (1999). 38 U.S.C.A. § 1154(b) provides that, in the case of a veteran who engaged in combat with the enemy during a period of war, lay evidence of in-service incurrence or aggravation of a disease or injury shall be accepted if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the lack of official record of such incurrence or aggravation during service. Collette v. Brown, 82 F.3d 389, 392-94 (Fed. Cir. 1996); 38 C.F.R. § 3.304(d) . Regardless of whether a veteran is determined to have engaged in combat, that veteran is still required to show evidence of a current disability and a link between that current disability and service. Collette, 82 F.3d at 393; Boyer v. West, 11 Vet. App. 477 (1998); Wade v. West, 11 Vet. App. 202 (1998). A disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. 38 C.F.R. § 3.310(a). Secondary service connection may also be established for a nonservice-connected disability that is aggravated by a service-connected disability. In such an instance, a veteran may be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. 38 C.F.R. § 3.310(b); Allen v. Brown, 7 Vet. App. 439, 448 (1995). In order to establish service connection for a claimed disability on a secondary basis, there must be (1) medical evidence of a current disability; (2) a service-connected disability; and (3) medical evidence of a nexus between the service-connected disease or injury and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). Analysis Direct service connection The medical evidence shows a diagnosis of an inner ear disease, to include vertigo and dizziness, with differential diagnoses of transient ischemia attack, Meniere's disease, migraine-related vertigo, and cardiovascular-related dizziness. Therefore, Hickson element (1), current disability, is established. The Veteran served in an artillery unit during the Korean Conflict. At the February 1999 and March 2001 VA audiometric examinations, he reported that he had extensive noise exposure and that he suffered a traumatic perforation of the right ear tympanic membrane during artillery noise exposure in the Korean Conflict. A February 1999 VA treatment record reflects that the appellant reported a history of bleeding from the ears after a nearby explosion and that the he denied ever being told that he had a perforated tympanic membrane during the Korean Conflict. In a November 2004 VA Form 9, the claimant reported that he had bleeding in his ears after being exposed to "backfire" after artillery blasts during the Korean Conflict. The Veteran engaged in conflict with the enemy during the Korean Conflict. The appellant is competent to report that these events and the Board finds him credible. His lay evidence of in-service incurrence of these injuries are consistent with the circumstances, conditions, or hardships of such service, notwithstanding the lack of official record of such incurrence or aggravation during service. Collette, 82 F.3d at 392-94; 38 C.F.R. § 3.304(d). Therefore, Hickson element (2), injury or disease, is established. Nonetheless, the Veteran is still required to show evidence of a link between the inner ear disease, to include vertigo and dizziness, and service. Collette, 82 F.3d at 393; Boyer v. West, 11 Vet. App. 477 (1998); Wade v. West, 11 Vet. App. 202 (1998). While the Board is not free to ignore the opinion of a treating physician, neither is it required to accord it additional weight. Guerrieri v. Brown, 4 Vet. App. 467, 471-73 (1993). The United States Court of Appeals for the Federal Circuit (the Federal Circuit) has declined to adopt a "treating physician rule," which would give preference, i.e., additional evidentiary weight, to this type of evidence. White v. Principi, 243 F.3d 1378 (Fed. Cir. 2001). In assessing medical opinions, the failure of the physician to provide a basis for his opinion goes to the weight or credibility of the evidence in the adjudication of the merits. Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). Other factors for assessing the probative value of a medical opinion are the physician's access to the claims file and the thoroughness and detail of the opinion. Prejean v. West, 13 Vet. App. 444, 448-49 (2000). The United States Court of Appeals for Veterans Claims (the Court) has also held that the value of a physician's statement is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support his opinion." Bloom v. West, 12 Vet. App. 185, 187 (1999). Thus, a medical opinion is inadequate when it is unsupported by clinical evidence. Black v. Brown, 5 Vet. App. 177, 180 (1995). A medical opinion may not, however, be discounted solely because a medical professional did not review the claims file. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Rather, the question is whether the medical professional was informed of all relevant facts in rendering a medical opinion. Id. As for Hickson element (3), medical nexus, the April 2004 examiner opined that it was less likely than not that the Veteran's episodes of vertigo is related to anything that had happened in the military. It does not appear that the April 2004 ear disease examiner reviewed the claims file and instead relied on the history reported by the Veteran to a March 2004 VA audiological examiner. The history reported to March 2004 VA audiological examiner was his current complaints. Therefore, the April 2004 VA examiner did not address the in-service noise exposure and bleeding of the ears. In September 2010, the April 2004 and January 2010 VA examiner reviewed the claims file and prepared an addendum to the January 2010 VA ear disease examination report in which he opined that the dizziness was not related to the Veteran's military days. The examiner's basis was that he signed off on a physician's assistant's examination in 1999 at which time it was thought that the dizziness was related to cardiovascular disease and that he could not find anything in the record about vertigo while in the military. Again, the April 2004 and January 2010 VA examiner did not address the in-service noise exposure and bleeding of the ears. In a September 2013 addendum request, the Board requested the VHA expert address whether the appellant's inner ear disease is related to active service, including in-service noise exposure and an ear injury resulting in bleeding. In November 2013 addendum to the February 2013 VHA expert medical opinion, the doctor noted he reviewed the provided records. He indicated that the Veteran had injury to his ears in 1950s but that he did not complain of Meniere's disease, vertigo, and dizziness until the 1990s. The VHA expert opined that it was less likely than not that the injury in the 1950's would cause the Meniere's disease, vertigo, and dizziness that the claimant currently has. In a February 2014 addendum, the doctor provided a discussion of the facts and underlying medical principles for his opinion. He opined based on the review of the Veteran's records that Meniere's disease was not caused by an injury. The VHA expert noted that the appellant had the injury in the 1950's but that he did not have any symptoms until the 1990's. The doctor indicated that an injury to the ear can and will cause immediate dizziness and vertigo but that it would cause it 40 years later. The Board places great weight on this opinion because the VHA expert provided a basis for his opinion and addressed the in-service noise exposure and bleeding of the ears. In short, Hickson element (3), medical nexus, is not established. As for continuity of symptomatology, the Veteran is not claiming it. Private medical treatment records dated in 1997 show that the appellant first reported vertigo. While the report of a February 1999 VA audiological examination shows that the claimant reported a history of several episodes of vertigo, he has never claimed that he has constantly had vertigo on a regular basis since service or that it started in service. Private treatment records dated in 1999 show that he had vertigo two years ago. As for the Veteran's claim that his inner ear disease is related to active service, the Board notes that although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issues in this case, a relationship between an inner ear disease and active service falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1733 n. 4 (lay persons not competent to diagnose cancer). In summary, for the reasons and bases set forth above, the Board concludes that the weight of the evidence is against a finding that there is a nexus between a current diagnosis of an inner ear disorder, to include vertigo and dizziness, and service. Therefore, the preponderance of the evidence is against the claim as to direct service connection for an inner ear disorder, to include vertigo and dizziness, and it is denied. Secondary service connection The medical evidence shows a diagnosis of an inner ear disease, to include vertigo and dizziness, with differential diagnoses of transient ischemia attack, Meniere's disease, migraine-related vertigo, and cardiovascular-related dizziness. Therefore, Wallin element (1), current disability, is established. Service connection is in effect for tinnitus and bilateral hearing loss. Thus, Wallin element (2), service-connected disability, is shown. As for Wallin element (3), medical nexus, there is conflicting medical evidence. A November 2002 private treatment record reflects an impression of sensorineural hearing loss with vertigo. While there is no indication that the private doctor who made this impression reviewed the Veteran's claims file, more importantly that doctor did not provide a basis for the impression that the vertigo was related to the sensorineural hearing loss to the extent that doctor was relating the two disorders instead of merely noting the existence of two disorders. The April 2004 VA examination report reflect that the examiner opined that hearing loss and ringing in the ears just do not cause dizziness. The examiner also opined that given the Veteran's age and the current findings and examination, it was more likely that his episodes of vertigo were related to a vascular insufficiency to the balance system that has occurred as the appellant has aged. The Board gives great weight to this opinion because the examiner provided a basis for that opinion. In September 2010, the April 2004 and January 2010 VA examiner reviewed the claims file and prepared an addendum in which he opined that it was unlikely that the dizziness and vertigo were caused by hearing loss. The examiner's basis was that he signed off on a physician's assistant's examination in 1999 at which time it was thought that the dizziness was related to cardiovascular disease. The Board gives great weight to this opinion not merely because the examiner reviewed the claims file but also more importantly because the examiner provided a basis for his opinion. In February 2013, the VHA expert opined that the Veteran's inner ear disorder, to include vertigo and dizziness, was less likely than not aggravated by his service-connected tinnitus and hearing loss disability. The doctor noted that the predominance of peer-reviewed medical literature does not support a link connected vertigo and dizziness to tinnitus and hearing loss such as in the Veteran's case. He added that this includes no link between Meniere's disease and tinnitus and hearing loss and that this is true regarding both causation and aggravation. The Board gives great weight to this opinion not merely because the examiner reviewed the claims file but also more importantly because the examiner provided a basis for his opinion. While VA treatment records show an assessment of "chronic hearing loss/tinnitus/peripheral vertigo", there is no indication that any impression was based on a review of the Veteran's claims file. More importantly, none of the medical professionals reporting this assessment has provided a basis for the assessment that the peripheral vertigo was related to chronic hearing loss and tinnitus to the extent any medical professional was relating the three disorders instead of merely noting the existence of three disorders. As for the Veteran's claim that his inner ear disease is related to his tinnitus and hearing loss, the Board notes that although lay persons are competent to provide opinions on some medical issues, see Kahana, 24 Vet. App. at 435, as to the specific issues in this case, a relationship between an inner ear disease and tinnitus and hearing loss falls outside the realm of common knowledge of a lay person. See Jandreau, 492 F.3d at 1733 n. 4 (lay persons not competent to diagnose cancer). In short, Wallin element (3), medical nexus, is not established. In summary, for the reasons and bases set forth above, the Board concludes that the weight of the evidence is against a finding that an inner ear disorder, to include vertigo and dizziness, was caused or aggravated by the service-connected tinnitus or bilateral hearing loss. Therefore, the preponderance of the evidence is against the claim as to secondary service connection for an inner ear disorder, to include vertigo and dizziness, and it is denied. ORDER Entitlement to service connection for an inner ear disorder, to include vertigo and dizziness, on a direct basis and as secondary to service-connected tinnitus and bilateral hearing loss, is denied. ____________________________________________ J. K. BARONE Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs