Citation Nr: 1751746 Decision Date: 11/13/17 Archive Date: 11/22/17 DOCKET NO. 11-18 177 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to service connection for a disorder characterized by vertigo/dizziness/lightheadedness, to include as secondary to a service-connected disability. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD H. Fisher, Associate Counsel INTRODUCTION The Veteran had honorable active duty service with the Navy from December 1969 to July 1970. He passed away in June 2016 during the pendency of the appeal. The Appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2009 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. After the Veteran's death, the Appellant submitted a motion for substitution to continue the appeal to completion. The Agency of Original Jurisdiction (AOJ) granted the Appellant's request for substitution. 38 U.S.C.A. § 5121A (West 2014). The Board remanded the Veteran's underlying claim in July 2014, April 2015, and May 2017 for additional evidentiary development, to include additional medical opinions. FINDING OF FACT A disorder characterized by vertigo/dizziness/lightheadedness initially manifested many years after separation from service, and has not been shown to be etiologically related to service or to service-connected disabilities. CONCLUSION OF LAW The criteria for entitlement to service connection for a disorder characterized by vertigo/dizziness/lightheadedness have not been met. 38 U.S.C.A. §§ 1110, 1112, 1113, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.310 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Neither the Veteran, the Appellant, nor their representative have raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). The Appellant contends that the Veteran had a disorder characterized by vertigo/dizziness/lightheadedness that was etiologically related to active duty service or a service-connected disability. Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131 (West 2014); 38 C.F.R. § 3.303 (2017). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Service connection may be granted for a disability that is proximately due to, the result of, or aggravated by a service-connected disability. 38 C.F.R. § 3.310. In such an instance, the 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); see Allen v. Brown, 7 Vet. App. 439, 448 (1995). The benefit of the doubt rule provides that a veteran will prevail in a case where the positive evidence is in a relative balance with the negative evidence. Therefore, the Veteran prevails in a claim when (1) the weight of the evidence supports the claim or (2) when the evidence is in equipoise. It is only when the weight of the evidence is against the claim that the claim must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran's service treatment records reflect a history of a left ear perforation with drainage and old scarring in June 1970. In July 1970, the Veteran was honorably discharged by reason of physical disability due to the perforation of his left tympanic membrane with chronic otitis media. In December 1984, private treatment records indicate that the Veteran complained of an episode of dizziness. He was assessed with normal tympanic membranes bilaterally. In August 2001, the Veteran complained of vertigo. VA Medical Center (VAMC) records indicate a provisional diagnosis of vertigo that presented with decreased balance, strength, and gait. At the time, the Veteran also reported falling. In a subsequent note, the Veteran described a whirling vertigo that lasted for a few minutes. A neurological evaluation in August 2001 found that his symptoms were most likely consistent with a cardiological or orthostatic etiology. In June 2002, VAMC records noted no positional vertigo upon examination. In August 2008, the Veteran underwent a VA examination to, in part, assess the etiology of his vertigo. At the time, the examiner could not comment on an etiological relationship between the vertigo and a service-connected disability. In a subsequent February 2009 addendum, the examiner noted that the Veteran's vertigo could be related to his recent diagnosis of Huntington's disease. Electronystagmography showed no peripheral vestibular disease, which indicated that the vertigo was more likely to be related to the central nervous system. In December 2011, VAMC records indicate the issuance of an anti-vertigo prescription. In April 2012, the Veteran reported lightheadedness when standing, but no vertigo. In August 2014, the Veteran complained of vertigo while experiencing full body tremors. Upon examination, benign positional paroxysmal vertigo was not evident. The responses to warm and cool water caloric irrigations to both ears were normal and symmetrical. The Veteran demonstrated good suppression of the caloric nystagmus with visual fixation. Overall, testing showed no evidence of peripheral vestibular or ocular motor dysfunction. In an October 2014 VA examination assessing cranial nerve conditions, the Veteran reported that his balance problems started in 1997. He noted that he had no vertigo in terms of the sensation of things spinning around, but he did feel lightheaded at times. The examiner concluded that the Veteran did not have vertigo, as vertigo is defined as a spinning sensation, which he did not experience. The Veteran did have lightheadedness and balance problems. Multiple factors contributed to those symptoms: marked orthostais on standing, peripheral neuropathy due to diabetes, and tremors due to the conversion disorder with a family history of essential tremor. In a November 2014 VA examination, the Veteran again reported experiencing vertigo beginning in 1997. He was later diagnosed with tremors in 2009 which caused his body to feel "off balance" or "leaning to the side." After examination, the examiner concluded that the Veteran did not have vertigo, concurring with multiple previous examinations. In January 2016, the Veteran underwent another VA examination to assess his vertigo. The Veteran reported that his cardiac medication cased lightheadedness when he stood too quickly from a sitting position. He also reported balance problems and a reliance on assistive devices to ambulate. The examiner concurred with the determinations of previous examination reports and concluded that the Veteran did not have peripheral vertigo. As he worked as an auto mechanic for 22 years after service, the Veteran would have experienced episodes while working under cars or when cars were on the lift. However, he did not report vertigo symptoms until 1997. The examiner further determined that his dizziness was a result of the cardiac condition and cardiac medications he took regularly. At the time, he was on several medications that caused dizziness and/or lightheadedness as a side effect. Based upon that, the examiner concluded that the Veteran's condition characterized by vertigo/dizziness/lightheadedness was less likely than not related to his service-connected disabilities. Instead, these symptoms were caused by his cardiac condition and cardiac medications. In a June 2017 addendum, the examiner noted that the condition was less likely than not related to active duty service as almost 30 years passed between discharge and onset of symptoms. The Veteran himself reported dizziness and lightheadedness associated with beginning prescription cardiac medications. The Veteran is competent to report on matters observed or within his personal knowledge. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). However, he is not competent to provide an etiology opinion for his disorder characterized by vertigo/dizziness/lightheadedness. The Board must determine on a case-by-case basis whether a particular condition is the type of condition that is within the competence of a lay person to provide an opinion as to etiology. Kahana v. Shinseki, 24 Vet. App. 428 (2011). The Veteran in this case is not shown to possess any pertinent medical training or expertise that would make him competent to render an opinion on the etiology of any vertigo/dizziness/lightheadedness or to express an opinion about when his symptoms first warranted any medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). He is, however, competent to report onset of observable symptomatology. Thus, the Veteran's opinion that his current vertigo is etiologically related to his active duty service or service-connected disabilities is not a competent medical opinion and it cannot be assigned any probative weight. Rather, the medical findings and opinions of trained medical professionals warrant greater probative weight than the Veteran's lay contentions. Multiple examiners have determined that the Veteran did not have vertigo. Testing has not shown peripheral vestibular weakness, and was within normal limits. He did not report the characteristic spinning sensation of vertigo, but instead reported lightheadedness and dizziness, particularly when standing from a sitting position. Even assuming that the Veteran's vertigo/dizziness/lightheadedness constituted a disability during the appeal period for the purposes of service connection, probative evidence of record does not demonstrate a nexus between these symptoms and either active duty service, or a service-connected disability. In reviewing his medical history, multiple examiners have determined that his feelings of dizziness and lightheadedness were caused by other health problems, including his cardiac condition and side effects of the medications taken for that condition. The Veteran himself reported experiencing dizziness and lightheadedness associated with the new prescriptions for his cardiac condition. He also did not report an onset of symptoms for nearly 30 years after service. There was one instance of dizziness in December 1984, but even that occurrence was approximately 14 years after service, and his tympanic membranes were found to be normal bilaterally. Regarding secondary service connection, in June 2017, a VA examiner stated that it was unlikely that the Veteran's history of dizziness and/or vertigo was caused or aggravated by his service-connected tinnitus, otitis media, left tympanic membrane perforation, and history of hearing loss. The examiner noted that the Veteran's symptoms first appeared when he was started on prescription cardiac medications including beta blockers and nitroglycerin tablets. Given the above, the preponderance of the competent, credible, probative evidence of record weighs against a finding that the Veteran's condition characterized by vertigo/dizziness/lightheadedness was either incurred in service or a result of a service-connected disability. As the preponderance of the evidence is against the claim, the benefit-of-the doubt doctrine is not applicable. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Accordingly, service connection is not warranted. ORDER Entitlement to service connection for a disorder characterized by vertigo/dizziness/lightheadedness, to include as secondary to a service-connected disability is denied. ____________________________________________ D. Martz Ames Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs