Citation Nr: 1756465	
Decision Date: 12/07/17    Archive Date: 12/15/17

DOCKET NO.  14-09 115A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in North Little Rock, Arkansas


THE ISSUES

1. Entitlement to service connection for labyrinthitis (claimed as vertigo), to include whether new and material evidence has been submitted to reopen a prior final denial.

2. Entitlement to a disability rating in excess of 10 percent for a service-connected bilateral foot disability.

3. Entitlement to a disability rating in excess of 10 percent for right knee chondromalacia.

4. Entitlement to a disability rating in excess of 10 percent for left knee chondromalacia.


REPRESENTATION

Veteran represented by:	Veterans of Foreign Wars of the United States

WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

C. Orie, Associate Counsel


INTRODUCTION

The Veteran served on active duty in the United States Air Force from September 1976 to September 1996.

These matters come before the Board of Veterans' Appeals on appeal from rating decisions from the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas.  

In July 2017, the Veteran testified before the undersigned Veterans Law Judge at a Travel Board hearing.  A copy of that transcript is of record.

The issues of entitlement to a rating in excess of 10 percent for a bilateral foot disability, entitlement to a rating in excess of 10 percent for right knee chondromalacia and entitlement to a rating in excess of 10 percent for right knee chondromalacia are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDING OF FACT

The Veteran's vertigo disability is related to her period of service.


CONCLUSION OF LAW

The criteria for reopening and allowing service connection for vertigo have been met.  38 U.S.C. §§ 1110, 1131, 5107, 5108 (2012); 38 C.F.R. §§ 3.102, 3.156, 3.303 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

New and Material Evidence

The Veteran seeks to establish service connection for labyrinthitis (vertigo).  Service connection is established for disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during periods of active service.  38 U.S.C. § 1110.  In general, service connection requires competent evidence showing: (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, 1167 (Fed. Cir. 2004).

Under pertinent legal authority, VA may reopen and review a claim that has been previously denied if new and material evidence is submitted by or on behalf of the Veteran.  38 U.S.C. § 5108; 38 C.F.R. § 3.156(a).  Under the applicable provisions, a claim shall be reopened and reviewed if "new and material" evidence is presented or secured with respect to a claim that is final.  Evidence is considered "new" if it was not of record at the time of the last final disallowance of the claim.  "Material" evidence is evidence which relates to an unestablished fact necessary to substantiate the claim.  New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial and must raise a reasonable possibility of substantiating the claim.  38 U.S.C. § 5108; 38 C.F.R. § 3.156(a).  If it is determined that new and material evidence has been received, the claim must be reopened.  VA may then proceed to the merits of the claim on the basis of all of the evidence of record.

The Board must presume the credibility of evidence for the purpose of determining whether it constitutes new and material evidence needed to reopen the claims and may not assess its probative weight in relation or comparison to other evidence for reopening purposes.  See Justus v. Principi, 3 Vet. App. 510, 513 (1992) (in determining whether evidence is new and material, "credibility" of newly presented evidence is to be presumed unless evidence is inherently incredible or beyond competence of witness).

The Veteran originally filed for service connection for labyrinthitis in January 1997.  A February 1998 rating decision denied the Veteran's claim.  The relevant evidence before the AOJ at the time of the February 1998 rating decision consisted of the Veteran's service treatment records, a September 1997 VA examination, which found no evidence of labyrinthitis, and the Veteran's lay statements.  Based on this evidence, the AOJ denied claim, reasoning that there was no evidence of a current disability.  The Veteran did not appeal or submit new and material evidence within one year of notification of the denial.  Thus, the February 1998 rating decision became final.  See 38 U.S.C.A. §§ 5108, 7105 (West 1991); 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103 (1997).

Since that time, the evidence consists of a VA examination, private treatment records, and nexus opinions suggesting that the Veteran does in fact have vertigo that may be related to her period of service.  The evidence is new as it was not previously associated with the Veteran's claim folder at the time of the 2004 denial.  The evidence is material as it relates to the nexus criteria for service connection.  See 38 C.F.R. §§ 3.156(a), 3.304(f); Shade v. Shinseki, 24 Vet. App. 110 (2010) (holding that the threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low" and in determining whether this low threshold is met, consideration need not be limited to consideration of whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the VA's duty to assist or through consideration of an alternative theory of entitlement).  Thus, the claim is reopened.

Service Connection

As noted above, establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability.  Shedden, 381 F.3d at 1167.

If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection if the disability is one that is listed in 38 C.F.R. § 3.309(a).  38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  Other specifically enumerated disorders will be presumed to have been incurred in service if they manifested to a compensable degree within the first year following separation from active duty.  38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309.

Service connection may also be granted for a disease first diagnosed after discharge 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).

The Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant.  Kahana v. Shinseki, 24 Vet. App. 428, 433 (2011).  This includes weighing the credibility and probative value of lay evidence against the remaining evidence of record.  Id. at 433-34.  A lay person is competent to report on the onset and continuity of his symptomatology.  Id. at 438.  Moreover, lay evidence may be competent and sufficient evidence of a diagnosis or nexus if (1) the particular condition at issue is the type of condition that is within the competence or common knowledge of a layperson, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.  Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007).  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.  See Kahana, 24 Vet. App. at 433 n.4. 

A Veteran bears the evidentiary burden to establish all elements of a service connection claim, including the nexus requirement.  Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009).  In making its ultimate determination, the Board must give a veteran the benefit of the doubt on any issue material to the claim when there is an approximate balance of positive and negative evidence.  Id. at 1287 (quoting 38 U.S.C. § 5107(b)).

Turning to the facts of the case, the Veteran's service treatment records demonstrate her periodic complaints of vertigo.  The duration of her symptoms ranged from a few days to several weeks.  At times, her dizziness was aggravated by certain movements and were accompanied with upset stomach; but there was no evidence of concurrent tinnitus or hearing loss.  See Service Treatment Records dated April 27, 1986, May 15, 1988, June 22, 1988, and March 20, 1994.

Post-service treatment records demonstrate the Veteran's periodic complaints of vertigo.  While relaying her symptoms to her treating physician, the Veteran indicated that her symptoms had waxed and waned since service.  Clinicians diagnosed vertigo and examined the Veteran, but did not provide an etiology for his symptoms.

The Veteran was afforded a VA examination in June 2012.  At that time, the clinician diagnosed benign paroxysmal positional vertigo (BPPV) and noted that the Veteran's symptoms were initiated by head movements, tilting or turning of her head or lying down or getting up.  The clinician also noted that the Veteran sustained several injuries, including a head injury, in January 2012, after fainting.  Upon review of the record and examination of the Veteran, the clinician opined that it was as likely as not the Veteran's current vertigo is related to or a continuation of the symptoms she experienced in service.  The clinician further opined that it was less likely than not that the January 2012 injuries were caused by or related to the Veteran's vertigo, as it is not clear that the Veteran experienced an episode of BPPV upon fainting.

Based on the above, the Board finds that service connection for vertigo is warranted.  There is competent, credible evidence linking the Veteran's current symptoms to her period of service and the record lacks sufficient evidence to contradict this conclusion.  The claim is granted.


ORDER

The claim of entitlement to service connection for vertigo is reopened and granted.


REMAND

As for the remaining issues on appeal, additional development is required prior to appellate adjudication.  

Specifically, the Board finds that updated VA examinations are required to accurately ascertain then current severity of the Veteran's bilateral foot and bilateral knee conditions.  The Veteran's orthopedic disabilities were last evaluated in 2011, six years ago.  The mere passage of time, alone, since an otherwise adequate examination, does not obligate VA to have the Veteran reexamined simply as a matter of course.  Palczewski v. Nicholson, 21 Vet. App. 174 (2007) (the passage of time alone, without an allegation of worsening, does not warrant a new examination).  However, recent correspondence documents the Veteran's contentions of a worsening of her disabilities. 

 In addition, recent court decisions have established examination standards that must be complied with before assigning an adequate disability rating.  Indeed, in Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held "that the final sentence of § 4.59 creates a requirement that certain range of motion testing be conducted whenever possible in cases of joint disabilities."  Id, at 8.  Specifically, range of motion studies must be performed that test active and passive range of motion as well as in weight-bearing and nonweight-bearing.

Additionally, the April 2016 VA examiner's assessment that determining the extent of motion loss during flares required resort to speculation does not comply with a recent holding in Sharp v. Shulkin, 2017 U.S. Vet. App. Claims LEXIS 1266 (2017).

The Board finds that the examinations of record are inadequate in light of the holdings in Correia and Sharp so that the matter must be remanded for new examinations.  

Accordingly, the case is REMANDED for the following action:

1. Associate with the claims folder updated private and VA treatment records.

2. Schedule the Veteran for VA examinations to determine the severity of her service-connected bilateral foot and bilateral knee disabilities.  The Veteran's electronic claims file must be made available for review. 

In order to comply with Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017), the examiner is asked to describe whether pain, weakness, fatigue and/or incoordination significantly limits functional ability during flares or repetitive use, and if so, the examiner must estimate range of motion during flares or repetitive use.  If the examination does not take place during a flare, the examiner should have the Veteran describe and/or demonstrate the extent of motion loss during flares or repetitive use and provide the extent of motion loss described in terms of degrees.  If there is no pain and/or no limitation of function, such facts must be noted in the report.  The examiner should comment as to whether there is any medical reason to accept or reject the Veteran's description of reduced range of motion during flares or repetitive use.

Also, in order to comply with the Court's decision in Correia, the VA examination must include range of motion testing in the following areas: 

• Active motion;
• Passive motion;
• Weight-bearing; and
• Nonweight-bearing.

If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so.  The VA examiner should provide a complete rationale for any opinions provided.

3. After completing the aforementioned, and conducting any additional development deemed necessary, readjudicate the issue on appeal in light of all additional evidence received.  If any of the benefits sought on appeal are not granted in full, the Veteran should be furnished with a supplemental statement of the case and afforded an opportunity to respond before the file is returned to the Board for further appellate consideration.

The Veteran has the right to submit additional evidence and argument on the 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. §§ 5109B, 7112 (2012).




______________________________________________
T. MAINELLI 
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs