Citation Nr: 1751553 Decision Date: 11/09/17 Archive Date: 11/17/17 DOCKET NO. 15-13 601 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUES 1. Entitlement to service connection for hypertension, to include as secondary to service-connected disabilities. 2. Entitlement to service connection for vertigo. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD D. Abdelbary, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1965 to December 1985. These matters come before the Board of Veterans' Appeals (Board) on appeal from rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. In January 2017, the Board remanded these issues for further development. The Board notes that in May 2017, the RO granted the Veteran's claim for entitlement to service connection for postoperative cataract, pseudokphakia, right eye (cataract of the right eye). As this action represents a full grant of benefits, this claim is no longer before the Board. In January 2017, the Board remanded for further development. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C.A. § 7107(a)(2) (West 2014). The issue of entitlement to service connection for hypertension, to include as secondary to service-connected disabilities, is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT The competent credible evidence of record is against a finding that the Veteran's vertigo was caused or aggravated by his active service, or otherwise etiologically related to the Veteran's active service. CONCLUSION OF LAW The criteria for service connection for vertigo have not been met. 38 U.S.C.A. §§ 1110, 1137, 5107 (West 2014); 38 C.F.R. § 3.303 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION I. Service Connection A. Legal Principles and Regulations Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a link between the claimed in-service disease or injury and the present disability. Romanowsky v. Shinseki, 26 Vet. App. 289, 293 (2013). Service connection may be granted for any disease initially diagnosed after service when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. B. Analysis The Veteran seeks service connection for vertigo, which he relates to his service. Specifically, the Veteran contends that during service, when he would suffer from what he then referred to as sea sickness, he would experience vertigo greatly. See July 2013 Statement in Support of Claim. With respect to the first element of service connection, a current disability, the Veteran has a current diagnosis of benign paroxysmal positional vertigo (BPPV). See March 2017 VA ear conditions examination report. Additionally, the Veteran was initially assessed with vertigo in July 1993. See July 1993 VA Naval Hospital San Diego medical records. Thus, the first element of service connection is satisfied. With respect to the second element of service connection, in-service incurrence or aggravation of a disease or injury, the Veteran's service treatment records reveal the Veteran reported "sea sickness" while aboard the ship in 1976. See March 1976 Chronological Record of Medical Care. As previously mentioned, the Veteran asserts that the "sea sickness" he experienced during service was associated with vertigo. Thus, the second element of service connection is satisfied. Therefore, the dispositive issue in this case is with respect to the third element, a causal relationship, i.e., nexus between the claimed in-service disease or injury and the current disability. The Board finds that the medical evidence of record is against a finding of a nexus between the Veteran's diagnosis of vertigo and his active service for the reasons discussed below. Upon discharge from service, the Veteran's medical examination report does not note any problems related to vertigo, sea sickness, or dizziness. See November 1985 Report of Medical Examination. Post-service treatment records, as previously mentioned, reflect that the Veteran was assessed with vertigo in 1993, and his records show that he continued to suffer from recurrent episodes since then. For example, in a February 2005 radiologic examination report, the Veteran was seen for dizziness. Also, in a November 2005 VA Naval Medical Center treatment note, the Veteran sought emergency care for his vertigo symptoms. It was noted that the Veteran has a history of vertigo. The Veteran described his current symptoms as feeling seasick, which he equates as the way he has felt in the past. The Board notes that although the Veteran's post service treatment records reflect recurrent episodes of dizziness and vertigo, the evidence does not provide an etiological link between the Veteran's vertigo related symptoms and his active service. Thus, in January 2017, the Board remanded this claim to afford the Veteran with a VA examination to determine the nature and etiology the Veteran's claimed vertigo. In a March 2017 VA ear conditions examination report, the VA examiner noted that the Veteran reported that he suffers from dizziness and vomiting that began abroad ships while he was in active service. Also, the Veteran reported that upon separation from service, he experienced vertigo on dry land as well. This would typically occur while he was laying or turning in bed and would last seconds to minutes. The VA examiner reviewed the Veteran's medical history and noted that the Veteran's service treatment records mention "sea sickness" (1976), as well as multiple visits for "dizziness" throughout 1993, and a 2005 ultrasound for "syncope and dizziness." The VA examiner confirmed a diagnosis of BPPV, opined that the Veteran's condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The rationale provided was that although the Veteran has BPPV, it is unlikely related to, or caused by the vertigo that he experienced while abroad ships in the military (as described as "sea sickness"). The reason being, as the VA examiner explained, was that sea sickness, a common phenomenon, is not typically related to BPPV, as these two diseases have different pathophysiologic mechanisms that are unrelated to one another. Furthermore, the first evidence within the Veteran's medical records of the Veteran's possible BPPV did not occur until eight years after his exit from service, which the VA examiner noted, makes the connection between the two diseases even more implausible. Additionally, the Board finds that the evidence does not establish service connection by continuity of symptomology. Although the Veteran's vertigo was initially diagnosed after service, as stated by the March 2017 VA examiner, the Veteran's current diagnosis of vertigo is not related to his in-service symptomology of "sea sickness". Thus, the evidence, including that pertinent to service, does not establish that the Veteran's vertigo was incurred in service. 38 C.F.R. § 3.303(d). Give such, as the competent medical evidence does not reflect that the Veteran's current diagnosis of vertigo had its onset during service, or is otherwise related to his period of active service, the third element of service connection is not satisfied. To the extent that the Veteran has offered his opinion that his current diagnosis of vertigo is related to his active service, these statements appear to pertain to an internal medical process which extends beyond an immediately observable cause-and-effect relationship. Opinions of this type have been found to be beyond the competence of lay witnesses, as is the Veteran. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) ("sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer"). Given such, it cannot be stated that the Veteran is competent to provide a nexus statement. All in all, the Veteran's lay statements have been reviewed and considered. However, the Board finds that the March 2017 VA medical opinion, which set forth an accurate medical history, considered the Veteran's lay statements, and was formulated after a review the Veteran's claims file, is highly probative as the VA examiner applied medical analysis to the significant facts of the case to reach the conclusions expressed in the opinion. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (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). Significantly, there is no contrary medical opinion. Therefore, based on the foregoing, the claim is denied. In reaching this decision, the Board considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against the claim, the doctrine is not for application. 38 U.S.C.A. § 5107. ORDER Entitlement to service connection for vertigo is denied. REMAND Hypertension The Veteran in this case seeks entitlement to service connection for hypertension, to include as secondary to a service-connected disability. Specifically, the Veteran contends that his diagnosis of hypertension is related to his time in service, as well as his service-connected diabetes metillus. Additionally, the Veteran contends that he experiences stress and anxiety, which elevate his blood pressure. See July 2013 Notice of Disagreement. Here, the Board finds that a remand is necessary to provide an adequate opinion as to whether the Veteran's hypertension is proximately due to or the result of his service-connected diabetes mellitus. The evidence of record reveals that, although the February 2017 VA medical opinion addressed whether the Veteran's hypertension was caused by the Veteran's service (direct service connection) and whether the Veteran's hypertension was aggravated by the Veteran's service-connected disabilities, the VA examiner did not address whether the Veteran's hypertension was proximately due to or a result of the Veteran's service-connected diabetes mellitus. Significantly, the Veteran's contention is that his hypertension is related to his service-connected diabetes metillus. Also, while the August 2014 VA hypertension examination report provided an opinion that the Veteran's hypertension was less likely than not proximately due to or the result of his diabetes, the Board finds that the examination report is internally inconsistent; and thus, inadequate. The August 2014 VA examiner noted the Veteran was diagnosed with hypertension in the "mid 2000s." The VA examiner ultimately opined that the Veteran's hypertension was less likely than not due to his diabetes, based on the fact that the Veteran's hypertension predated his diabetes diagnosis by almost a decade. However, the same VA examiner in an August 2014 VA diabetes mellitus examination report noted that the Veteran was diagnosed with diabetes mellitus in 2004. Thus, this is statement is internally inconsistent as the VA examiner noted that both the diagnoses were approximately in the mid 2000s, thus the Veteran's hypertension could not have predated the Veteran's diabetes by a decade. Furthermore, the evidence of record reflects that the Veteran was initially diagnosed with hypertension in 2004 by a civilian provider (as documented in June 2013 letter by Dr. Jose B. De La Rosa). Consequently, a medical opinion based upon an inaccurate factual premise has no probative value, and thus an addendum opinion as to whether the Veteran's hypertension is proximately due to, or the result of his diabetes mellitus is required. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993); see also Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (where VA provides the veteran with an examination in service connection, the examination must be adequate). Thus, prior to adjudicating the claim, the Board finds an adequate medical opinion addressing whether the Veteran's hypertension was proximately due to or the result of his service-connected diabetes mellitus is required. 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). Expedited handling is requested.) 1. Request an addendum opinion from an appropriate health care professional. A VA examination should only be scheduled if the examiner deems it necessary. The examiner should respond to the following, after reviewing and considering all the Veteran's pertinent lay and medical evidence: Is it at least as likely as not (i.e. probability of 50 percent or greater) that the Veteran's hypertension is proximately caused by or the result of the Veteran's service-connected diabetes mellitus. A complete rationale should be given for all opinions and conclusions expressed. 2. When the development requested has been completed, the case should be readjudicated by the AOJ. If any benefit sought is not granted in full, the Veteran and his representative should be furnished a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The Veteran 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). 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 2014). ______________________________________________ YVETTE R. WHITE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs