Citation Nr: 18144016 Decision Date: 10/22/18 Archive Date: 10/22/18 DOCKET NO. 16-02 522 DATE: October 22, 2018 ORDER Entitlement to service connection for Meniere’s disease, to include vertigo, as secondary to service-connected tinnitus, is denied. FINDING OF FACT The most probative evidence of record indicates the Veteran’s Meniere’s disease/vertigo did not manifest in service or within one year thereafter, is not related to service, and was not caused or aggravated by her service-connected tinnitus. CONCLUSION OF LAW The criteria for establishing service connection for Meniere’s disease, to include vertigo, have not been met. 38 U.S.C. §§ 1110, 1112, 1131, 1137, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1988 to November 1992. This matter comes before the Board of Veterans’ Appeals (Board) from a May 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). Entitlement to service connection for Meniere's disease, to include vertigo, as secondary to service-connected tinnitus Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110, 1131; 38 C.F.R. § 3.303. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a chronic condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331, 1340 (Fed. Cir. 2013) (holding that only conditions listed as chronic diseases in 38 C.F.R. § 3.309 (a) may be considered for service connection under 38 C.F.R. § 3.303(b)). 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. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341(1999). Moreover, where a veteran served continuously for 90 days or more during a period of war, or during peacetime service after December 31, 1946, and an organic disease of the nervous system becomes manifest to a degree of 10 percent within one year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Service connection may also be established for a disability that is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310(a). Further, a disability that is aggravated by a service-connected disability may be service-connected to the degree that the aggravation is shown. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995). However, VA will not concede that a nonservice-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury. 38 C.F.R. § 3.310(b). The Veteran contends that her current vertigo is due to her military service, or due to or aggravated by her service-connected tinnitus. In a December 2015 statement, the Veteran asserted she did not have vertigo upon entry into service, that she was exposed to extreme noise, head trauma and physical exertion as a firefighter in the Navy for four years, and that this exposure resulted in hearing impairment and Meniere’s problems, including vertigo, during service. She stated her service treatment records (STRs) do not contain complaints, treatments or a diagnosis of vertigo because she did not report the condition, as it would have disqualified her from service and that, because of this, she did seek post-service treatment from the VA and did not seek private treatment until 2005. Id. In a June 2015 statement, she stated her condition has progressively worsened and lasts days at a time; that her duties as a fire fighter were physically taxing on her body and head and manifested into dizziness, loss of balance, unsteadiness, and staggering, and headaches on most days; and that she now has tinnitus because of her Meniere’s disease. In a May 2015 statement, she stated that the ringing in her ears is followed by vertigo and has since service. As an initial matter, the record indicates the Veteran has a current diagnosis of Meniere’s disease, to include vertigo, and is service-connected for tinnitus. The question for the Board is whether the Veteran’s Meniere’s disease is related to service or to her service-connected tinnitus. Upon review of the record, the Board finds that the most probative evidence is against the claim. The Veteran’s STRs do not show any diagnoses or medical treatment pertaining to Meniere’s disease, vertigo or associated symptoms. In her October 1992 separation examination, her ears and head were noted as normal, with no pertinent findings. In the October 1992 separation report of medical history, the Veteran denied dizziness, fainting spells, ear trouble, head injury or significant illness or injury while in active duty. Further, in her October 1992 discharge medical screen, she denied vertigo. In her service dental records, she denied dizziness or fainting. The first medical evidence of record indicating symptoms of Meniere’s disease or vertigo is a September 2005 private treatment record indicating the Veteran incidentally reported she had developed vertigo in the last four or five days and that she had not had vertigo before that time. She reported no ear pain or tinnitus, slight nausea initially, that the vertigo was worse the first couple days and now comes and goes, and that it is better when she lies down and remains still. She denied headaches, shaking/tremors, dizziness, loss of balance, and change in gait or coordination. The physician concluded the vertigo was probably due to labyrinthitis. In an April 2008 private treatment record, the Veteran reported symptoms of the room spinning and dizziness that started two days earlier, that were relieved with rest and lying down but provoked by sitting up and rapid head movements. She denied light headedness, recent illness, ear pain and tinnitus. The physician concluded it was most likely benign positional vertigo. In a May 2008 private treatment record, the Veteran reported no ongoing health problems. In a June 2008 private treatment record, the Veteran reported her earlier vertigo episode but that the symptoms had resolved. In a September 2011 private treatment record, the Veteran reported having some episodes of vertigo since 2008 that seem to be more frequent and are associated with headaches and tearing of the eyes. The assessment was some recurrent vertiginous episodes. As Meniere’s disease was not shown in service or within one year following discharge from service, competent evidence linking the Veteran’s current Meniere’s disease to service is needed to substantiate the claim. On this question, the competent and probative evidence is against the claim. In a November 2014 VA hearing loss and tinnitus examination, the Veteran reported her vertigo attacks were brought on by ringing in her right ear and they last several hours, and that driving worsened the vertigo. There were no pertinent findings pertaining to vertigo. In a separate November 2014 VA examination, the examiner provided a negative direct service connection opinion, concluding that the Veteran’s vertigo was less likely than not related to service. After examining the Veteran, obtaining her medical history and reviewing the claims file, the examiner concluded that vertigo was not reported while on active duty and there was no documented incidents of head injury, illness or acoustic trauma that would account for vertigo symptoms. She indicated the Veteran’s tinnitus was always present and accompanied by vertigo, and concluded both conditions had unknown etiology, particularly in light of her normal hearing test. She diagnosed vertigo, occurring more than once weekly and lasting one to 24 hours. On examination, the ears and gait were normal, with normal findings on Romberg, Dix Hallpike, and limb coordination tests. Functional impact was limitation on the Veteran’s productivity at work due to some vertigo episodes lasting up to one day, during which she may not be able to work or drive. The Veteran described the extreme noise during service with sirens and alarms and conducting loud drills and that she frequently went below deck where there was grinding, banging and welding; that sometimes the tinnitus was so loud it led to vertigo episodes that could last up to one day and occur twice per week; and that the tinnitus was louder during vertigo episodes. She described a vertigo episode fifteen years prior that was so severe she could not get out of bed, that she sought treatment from her primary care physician, with negative findings on the Dix Hallpike test, and that she was prescribed medication and her symptoms slowly improved. A March 2015 VA examination report provided a diagnosis of Meniere’s syndrome. After reviewing the claims file, the examiner concluded that the Veteran’s medical history indicated episodic vertigo plus hearing loss, with prescribed medication that is not continuously required; and hearing impairment with vertigo, tinnitus and vertigo more than once weekly. On examination, the ears and gait were normal, and findings were normal for the Romberg and limb coordination tests and abnormal for Dix Hallpike. Functional impact was an effect on the ability to drive. A nexus opinion pertaining to vertigo was not provided. In a March 2015 private treatment record, the Veteran reported episodic vertigo three to four times per week that last from twenty minutes to a few hours, that she thought her vertigo was due to intense training and helmet packs that she wore in the military, that she had minor head injuries while in the military, and that she had a form for her physician to sign for her military disability application. The physical examination was negative for dizziness, weakness and headaches, with normal coordination, gate and Romberg testing, and a positive Briney maneuver for vertigo. In an April 2015 VA examination report, the Veteran reported changes in her hearing, especially in conjunction with the frequency of her episodes of vertigo, but reported she was not able to tell if the fluctuations in her hearing occurred during episodes of vertigo. The Veteran stated she felt her tinnitus was brought on episodes of vertigo and, in turn, her tinnitus became louder. In May 2015, the same VA examiner provided a negative secondary service connection opinion, concluding the Veteran’s Meniere’s disease was less likely than not proximately due to or the result of the service-connected tinnitus. After reviewing the claims file, she indicated tinnitus was the perception of noises in the heads/ear and can be caused by noise exposure, medications, medical pathology such as an acoustic schwannoma or cerumen impaction; and that tinnitus is a symptom of Meniere’s disease and hearing loss, not the cause. Citing the Mayo Clinic, she indicated “tinnitus isn’t a condition itself – it’s a symptom of an underlying condition” and that “tinnitus can be an early indicator of Meniere’s disease, an inner ear disorder that may be caused by abnormal inner ear fluid pressure, autoimmune disease, migraines or viral infections.” Further, she indicated the cause of Meniere’s is not well known. A December 2015 VA examiner provided a negative direct service connection opinion, concluding that the Veteran’s Meniere’s disease was less likely than not related to service. Based on review of the claims file, she described the Veteran’s prior military service and medical records indicating she began experiencing vertigo in 2005, which was intermittent at first and now occurred several times per week; and that the condition was eventually diagnosed as bilateral Meniere’s disease, for which she takes medication. The examiner found the STRs did not reveal any complaints or treatment for vertigo while in service and that the first medical evidence of vertigo was a 2005 private treatment record, thirteen years after discharge. The examiner indicated she had performed a thorough review of otolaryngology literature and that, although extensively studied, a causative relationship between loud noise exposure and Meniere’s disease had not been established; that Meniere’s disease has many causes, including viral illness, genetic abnormalities and autoimmune diseases; that, although noise exposure does cause hearing loss and tinnitus, it has not been shown to cause the changes in the inner ear that are responsible for Meniere’s symptoms/vertigo; and that the etiology of this veteran’s Meniere’s disease is unknown. She concluded that tinnitus is a symptom of Meniere’s disease, and the Veteran’s service-connected tinnitus (due to loud noise exposure) is likely aggravated during Meniere’s attacks, but there was no evidence connecting her service-related experiences to the Meniere’s condition, which commenced more than ten years after discharge. Further, she concluded there was no medical evidence that supports a relationship between noise exposure and Meniere’s disease. In April 2016, the same VA examiner provided negative direct service connection and secondary service connection opinions. She concluded the Veteran’s Meniere’s disease was less likely than not incurred in service or caused by military noise exposure during service and was less likely than not proximately due to or the result of the service-connected tinnitus. The diagnosis was Meniere’s syndrome. During the examination, the Veteran reported serving as a fire fighter and being exposed to loud noise daily; that during service she began experiencing balance issues, was falling down stairs/ladders while wearing heavy gear and being fatigued; that she hit her head on more than one occasion; that she recalled being on a cruise just prior to discharge and having difficulty with motion sickness, which was a new problem for her; that she began to have vertigo attacks, which were brief while on active duty, but did not report them as vertigo because she would be disqualified as a fire fighter; that she recalled applying to be a civilian fire fighter shortly after discharge but did not list vertigo as a medical issue on her application for fear it would disqualify her; that she did not pass the strenuous physical portion of the exam because of vertigo; that she did not seek medical care for vertigo until 2000 but it was attributed to pregnancy; and that she had a severe vertigo attack in 2005, at which time she had a comprehensive medical evaluation and was diagnosed with bilateral Meniere’s disease. Further, she reported she currently does not seek medical care but manages it with motion sickness medication several times per week and avoiding activities that induce motion sickness. On examination, the ears and gait were normal, as were findings of the Romberg, Dix Hallpike and limb coordination tests. The examiner concluded that the STRs contained no evidence of complaints or treatment for vertigo, falls, or motion sickness or head injuries while on active duty; that in October 1992, the Veteran checked “no” to vertigo on her discharge duty health record screen; that private medical records did not indicate vertigo symptoms until 2005; that the Veteran had symptoms attributable to Meniere’s disease; and that an increase in tinnitus may follow an episode of vertigo. She acknowledged the Veteran’s reported statement that she intentionally answered “no” to questions about vertigo during service because of disqualification concerns but concluded it was impossible to know if she had vertigo at that time as there was no diagnosis. Further, although the Veteran stated she fell frequently and hit her head, there was no evidence of treatment for head injuries. The examiner indicated she had thoroughly reviewed otolaryngology literature and concluded a causative relationship between loud noise exposure and Meniere’s disease has not been established; that, although noise exposure does cause hearing loss and tinnitus, it has not been shown to cause the changes in the inner ear that are responsible for Meniere’s symptoms/vertigo; that the etiology of the Veteran’s Meniere’s disease is unknown; that tinnitus is a symptom of Meniere’s disease and likely aggravated during Meniere’s attacks but that tinnitus did not cause Meniere’s disease. The Board finds the combined May 2015, December 2015 and April 2016 VA examiners’ opinions highly probative and entitled to great weight. The conclusions were based on a thorough review of the claims file and comprehensive medical history elicited from the Veteran, examination of the relevant facts and review of the pertinent medical literature; they were also supported by an articulated rationale for the conclusions reached that were consistent with the evidence of record. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Taken together, the VA opinions establish that the Veteran’s Meniere’s disease did not manifest during service or within the year thereafter, and is less likely than not related to service, or caused or aggravated by the service-connected tinnitus. The combined rationale is that the Veteran’s STRs, including her discharge medical records, indicated normal ears and hearing with no evidence of Meniere’s symptoms, including no complaints of or treatment for dizziness, head injuries, vertigo, headaches, falls, motion sickness, difficulty waking, fatigue or weakness. The medical literature reviewed did not establish that noise exposure causes the changes in the inner ear that were responsible for the Veteran’s present symptoms and, moreover, tinnitus was a symptom of Meniere’s disease, not the cause. As such, the opinions do not establish a medical nexus between the Veteran’s Meniere’s disease and service or her service-connected tinnitus. To the extent the Veteran has reported her Meniere’s disease began in service and continued since, the Board finds the assertion is not persuasive. Although the Veteran is competent to report symptoms of Meniere’s disease, those symptoms were not reported until 13 years after service, and there is no medical evidence to link the Veteran’s presents symptoms to her service. During service, including at the time of separation, the Veteran denied problems with hearing, vertigo or any other medical problems and did not seek medical treatment for the condition until thirteen years later. See Buchanan v. Nicholson, 451 F.3d 1331, 1336-1337 (2006) (the lack of contemporaneous medical records, the significant time delay between the affiant’s observations and the date on which the statements were written, and conflicting statements of the veteran are factors that the Board can consider and weigh against a veteran’s lay evidence). Further, the evidence contains some inconsistencies that diminish the reliability of the Veteran’s current recollections regarding the onset of her symptoms. In statements on appeal, the Veteran reported her Meniere’s disease began during service; however, in April 2005, she reported she had not experienced it before. Based on the Veteran’s conflicting statements, the Board does not find the Veteran’s contentions of onset during service to be reliable or persuasive. See Caluza v. Brown, 7 Vet. App. 498 (1995) (finding that in weighing credibility, VA may consider inconsistent statements, internal inconsistency, and consistency with other evidence of record). The Board finds that the Veteran’s statements to the treatment providers in 2005 to be more probative than her current assertions. Further, while the Veteran believes her vertigo is related to service or to her service-connected tinnitus, the Veteran, as a lay person, has not shown she is competent to provide such an opinion, as such matters require medical expertise to determine. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting lay person’s general competence to testify as to symptoms but not to medical diagnosis). Thus, the Veteran’s opinion as to the diagnosis of her symptoms and etiology of her vertigo is not competent medical evidence. The Board finds the opinions of the VA examiners to be significantly more probative than the Veteran’s lay assertions. There is no medical opinion to the contrary. In sum, the probative evidence of record does not link the Veteran’s current Meniere’s disease/vertigo to her military service or to her service-connected tinnitus. Accordingly, service connection for Meniere’s disease, to include vertigo, is denied. In reaching this conclusion the Board has considered the applicability of the benefit of the doubt doctrine. As the preponderance of the evidence is against the Veteran’s claim, the doctrine is not for application. See 38 U.S.C. § 5107(b) (2012); 38 C.F.R. § 3.102 (2018); see also Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). K. A. BANFIELD Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. C. Birder, Associate Counsel