Citation Nr: 1752499 Decision Date: 11/16/17 Archive Date: 11/22/17 DOCKET NO. 14-02 470 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUE Entitlement to service connection for vertigo. REPRESENTATION Appellant represented by: To be clarified ATTORNEY FOR THE BOARD K. Mitchell, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1957 to June 1979. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office in Seattle, Washington. In response to the Veteran's request for a hearing before the Board, the RO sent him a letter stating he had been placed on the list of persons wanting to appear for a Travel Board hearing. In response, the Veteran stated he wished to withdraw his request for a Board hearing. Accordingly, the request for a hearing is considered withdrawn. 38 C.F.R. § 20.704(d) (2017). In April 1999, the Veteran appointed AMVETS as his representative before VA. In a notation on the appointment form dated in late April 2009, in the block designated for VA use only, an individual indicated that this representation had been revoked due to a new power of attorney. In a claims transmittal document, dated in March 2009 and received by VA in April 2009, Veterans of Foreign Wars of the United States (VFW) noted the submission of multiple documents, including a VA Form 21-22, which form is used for appointment of a service organization to represent a claimant's representative. The Veteran's electronic claims file, however, does not include the actual VA Form 21-22, presumably dated March 2009. Thus, it appears that the March 2009 VA Form 21-22 was at one point a part of the claims file, as a VA representative noted that the 2009 appointment of AMVETS was revoked due to the appointment of a new representative. Nevertheless, the electronic claims file does not contain the necessary documentation to recognize VFW as the Veteran's representative. Thus, he must be notified of this and afforded the opportunity to appoint VFW or another organization/individual as his representative before VA. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2014). FINDING OF FACT The Veteran currently has a vertigo condition that is etiologically related to his active duty. CONCLUSION OF LAW The criteria for establishing service connection for vertigo have been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107 (2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist VA Duties to Notify and Assist - VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5103, 5103A (2014); 38 C.F.R. § 3.159 (2017). In this case, the Board is granting in full the benefit sought on appeal. Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and need not be further considered. Service Connection 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. § 1110 (2014); 38 C.F.R. § 3.303 (a) (2017). To establish a right to compensation for a present disability, a veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). The Veteran contends that his currently diagnosed benign paroxysmal positional vertigo (BPPV) had its onset on active duty. A review of the Veteran's service treatment records reflects that the Veteran complained of headaches, dizziness when turning his head to either side, and lightheadedness in March 1976. The treating physician noted the lightheadedness was not vertigo and diagnosed tension headaches to be treated with Valium as needed. In July 1978, the Veteran complained of dizziness, ringing in his ears, and lightheadedness. The physician noted a normal examination and prescribed Codeine. In September 1978, the Veteran was diagnosed with positional vertigo after he reported that two weeks prior he experienced true vertigo symptoms associated with changes in head position. Another September 1978 treatment note from Fitzsimons Army Medical Center shows that the Veteran had experienced vertiginous episodes associated with an increase in tinnitus symptoms, but that the vertigo had since resolved. The impression was vertigo of unknown etiology, resolved. Post service, an August 1979 VA examination reflects that the Veteran reported ringing in his ears, occasional earaches and loss of hearing, and some dizziness or swaying sensation when he turned his head quickly. Based on that examination, the Veteran was diagnosed with otitis media, chronic left ear; tinnitus; and deafness secondary to the otitis media and noise exposure. The Veteran was subsequently granted service connection for tinnitus and otitis media, left ear, with deafness. Post-service treatment records also reflect ongoing complaints of vertigo. A May 2009 ear, nose and throat evaluation note reflects the Veteran reported intermittent vertigo about three times per month. A December 2013 note shows the Veteran complained of dizziness and nausea for the past three days, which he stated occurred on and off previously but always resolved on its own. He described a sensation of the room spinning with associated nausea. The Veteran reported it occurred when lying in bed and turning his head from side to side. The physician assessed BPPV and instructed the Veteran on how to perform the Epley maneuver at home, a procedure used to treat BPPV. In November 2013, the Veteran was scheduled for a VA examination to determine the nature and etiology of his vertigo. The Veteran reported that he continued to experience mild vertigo or dizziness, about once a week, lasting for one to two minutes, occurring mostly when he bends down. The examiner opined it was less likely than not the Veteran's current vertigo was incurred in or caused by the claimed in-service injury, event, or illness. The examiner also stated the Veteran's described symptom is less likely than not associated with dizziness or vertigo associated with any ear pathology. The rationale provided was that a review of the Veteran's medical records showed that dizziness was mentioned three times during service, and other entries referred back to those three instances. The examiner also stated that the Veteran is 73 years old and his present symptoms are less likely than not associated with his occasional complaint of dizziness during military service. The Board finds that the weight of the evidence supports the Veteran's claim for service connection for vertigo. First, the Veteran had a diagnosis of vertigo during active duty service and has a diagnosis of vertigo currently. Additionally, while the November 2013 VA examiner provided a negative opinion, that opinion was largely based on one symptom of dizziness and neglects to address the in-service diagnoses of vertigo. Accordingly, less probative weight is given to the November 2013 VA opinion. Lastly, the Veteran is competent to report symptoms that he experiences, and he has reported experiencing symptoms of vertigo intermittently since onset in service. Therefore, resolving reasonable doubt in favor of the Veteran, service connection for vertigo is warranted. ORDER Entitlement to service connection for vertigo is granted. ____________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs