Citation Nr: 18145388 Decision Date: 10/30/18 Archive Date: 10/26/18 DOCKET NO. 14-44 120A DATE: October 30, 2018 ORDER Service connection for vertigo is denied. REMANDED Entitlement to service connection for a neck disorder is remanded. Entitlement to service connection for a right knee disorder is remanded. Entitlement to service connection for a left knee disorder is remanded. Entitlement to service connection for a jaw disorder is remanded. Entitlement to service connection for headaches, to include as secondary to a jaw disorder, is remanded. FINDING OF FACT At no time during the pendency of the claim does the Veteran have a current disability of vertigo, and the record does not contain a recent diagnosis of disability prior to the Veteran’s filing of a claim. CONCLUSION OF LAW The criteria for service connection for vertigo have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1965 to November 3, 1975, and from November 6, 1975, to March 1981. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2013 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In May 2018, the Veteran and his spouse testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. At such time, the Veteran waived Agency of Original Jurisdiction (AOJ) consideration of the evidence associated with the record since the issuance of the December 2014 statement of the case. 38 C.F.R. § 20.1304(c). Therefore, the Board may properly consider such evidence. The undersigned also held the record open for 30 days for the submission of additional evidence; however, none has been received to date. With regard to the characterization of the Veteran’s claims, the Board observes that the RO denied service connection for a neck disorder, a right knee disorder, a left knee disorder, a jaw disorder, and headaches in rating decisions issued in December 2004 and May 2005, and denied service connection for vertigo in a rating decision issued in February 2011. At such times, it was noted that the Veteran’s service treatment records (STRs) were unavailable. Thereafter, in February 2012, the Veteran’s STRs from March 1975 to December 1980, to include March 1978 STRs that were completed around the time of his helicopter crash, which is the basis for the current claims, were associated with the record. VA regulations provide that, at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim, notwithstanding paragraph (a) of the same section (which defines new and material evidence). 38 C.F.R. § 3.156(c). The regulation further identifies service records related to a claimed in-service event, injury, or disease as relevant service department records. 38 C.F.R. § 3.156(c)(1)(i). Here, as the newly received service records address the Veteran’s in-service injuries associated with a March 1978 helicopter crash, the Board finds that 38 C.F.R. § 3.156(c) is applicable and his original claims are reviewed on a de novo basis. Entitlement to service connection for vertigo. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease 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). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. Id.; see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff’d, 78 F.3d 604 (Fed. Cir. 1996). Pertinent to a claim for service connection, such a determination requires a finding of a current disability that is related to an injury or disease in service. Watson v. Brown, 4 Vet. App. 309 (1993); see also Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992). Under applicable regulation, the term “disability” means impairment in earning capacity resulting from diseases and injuries and their residual conditions. 38 C.F.R. § 4.1; see also Hunt v. Derwinski, 1 Vet. App. 292, 296 (1991); Allen v. Brown, 7 Vet. App. 439 (1995); Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018) (the term “disability” as used in 38 U.S.C. § 1110 “refers to the functional impairment of earning capacity, not the underlying cause of said disability,” and held that “pain alone can serve as a functional impairment and therefore qualify as a disability”). In McClain v. Nicholson, 21 Vet. App. 319, 321 (2007), the United States Court of Appeals for Veterans Claims (Court) held that the requirement of the existence of a current disability is satisfied when a claimant has a disability at the time he files his claim for service connection or during the pendency of that claim, even if the disability resolves prior to adjudication of the claim. However, in Romanowsky v. Shinseki, 26 Vet. App. 289 (2013), the Court held that when the record contains a recent diagnosis of disability prior to a claimant filing a claim for benefits based on that disability, the report of diagnosis is relevant evidence that the Board must address in determining whether a current disability existed at the time the claim was filed or during its pendency. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.R.F. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran’s essential contention is that he currently has vertigo as a result of an in-service helicopter crash that occurred in approximately 1978. As such, he claims that service connection for such disorder is warranted. In this regard, the Veteran’s STRs reflect that he was involved in a helicopter crash in March 1978. As relevant to the instant claim, it was noted that he lost consciousness either during or immediately following the crash and a mild cerebral concussion was diagnosed. However, the STRs pertinent to such treatment are negative for any complaints, treatment, or diagnoses referable to vertigo. Two years after the crash, an April 1980 STR reflects the Veteran’s report that his balance was unsteady and an assessment of rule out vestibular neuronitis was rendered. An additional April 1980 indicates the Veteran’s report of some difficulty with balance and unsteadiness of gait; however, upon examination, the examiner noted that the Veteran’s ears were normal; his motor and sensory were normal; and he was oriented times three. Notably, Reports of Examination dated in March 1979, March 1980, and December 1980 note that clinical evaluation of the Veteran’s ears and neurologic system were found to be normal. The above examination reports contain sections for reporting significant or interval history and a summary of defects and diagnoses, which contain no relevant remarks. The concurrent medical history reports contain the Veteran’s denial of all pertinent symptoms, to include dizziness. The Veteran’s post-service treatment records likewise show no complaints, treatment, or diagnosis referable to vertigo. Furthermore, he underwent a VA examination in August 2012, at which time he attributed his vertigo to a traumatic brain injury (TBI) due to an in-service helicopter crash. In this regard, he described “on and off” vertigo since such time and specifically reported “vaguely” significant vertigo since approximately two years previously. However, he denied any limitation or incapacitation due to his vertigo, or significant treatment for his symptoms from service to the present. Furthermore, upon examination, the VA examiner found that the Veteran did not have any subjective symptoms or any mental, physical, or neurological conditions or residuals attributable to a traumatic brain injury (TBI), to include dizziness/ vertigo. Here, he indicated that the Veteran was erroneously accepting that all of his perceived abnormalities of memory problems, vertigo, and communication and thought processing difficulties were attributable to his claimed TBI from a helicopter crash, and rationalized his overvalued beliefs and ideas by faulty self-reasoning. The examiner further indicated that the Veteran essentially had limited to no insight into his claimed TBI and related conditions likely due to the lack of bio-psycho-social education. Additionally, he reported that the Veteran did not have vertigo by normal head movements, and the Dix-Hallpike Positional Test was normal with no immediate vertigo, no vertigo after a latent period of 20 seconds, and no immediate or latent nystagmus. Based on the foregoing, the examiner concluded that the Veteran’s STRs did not support his contention that he had residual vertigo related to a TBI during a helicopter crash in March 1978. He further concluded that the Veteran’s neurological examination was normal and no specific findings in support of his claimed vertigo were found. As such, the examiner found that there was no persuasive evidence to support the Veteran’s contention of residual vertigo related to a TBI during a helicopter crash in March 1978. Based on the foregoing, the Board finds that the preponderance of the evidence is against a finding that the Veteran has had a disability of vertigo at any time during, or prior to, the pendency of his claim. In this regard, the Board finds that the August 2012 VA examiner’s opinion that there was no evidence of vertigo is entitled to great probative weight as such considered all of the pertinent evidence of record, to include the statements of the Veteran. Additionally, the Board observes that the examiner’s opinion is supported by the medical records on file, which are entirely negative for a current diagnosis of vertigo. Furthermore, neither the Veteran nor his representative have submitted any statements, or any other evidence, suggesting a confirmed diagnosis of vertigo. The Board has also considered the Veteran’s assertions that he currently has vertigo related to his military service. As a layperson, he is certainly competent to report matters within his personal knowledge, such as the occurrence of an injury or event, or his own symptoms. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). However, although the Veteran is competent to report his current discomfort, he is not competent to diagnose vertigo, or render an opinion as to the etiology of such a disorder, as this requires medical training and testing. Davidson v. Shinseki, 81 F.3d 1313 (Fed. Cir. 2009); Jandreau, supra; Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). In the instant case, there is no indication that the Veteran is competent to address the nature or etiology of his alleged vertigo as he has not been shown to possess the requisite medical training, expertise, or credentials needed to render a diagnosis or opinion as to medical causation. Accordingly, the Veteran’s assertions in this regard are afforded no probative weight. The Board finds that service connection for vertigo cannot be established as the Veteran does not have a current disability related to such during the pendency of his claim. In this regard, even in consideration of the Veteran’s subjective reports of vertigo, he acknowledged that he had limitation or incapacitation due to such symptoms. Furthermore, the record does not contain a recent disability of vertigo prior to the Veteran’s filing of a claim. See McClain, supra; Romanowsky, supra. Thus, where, as here, there is no probative evidence indicating that the Veteran has the disability for which service connection is sought, there can be no valid claim service connection. See Brammer, supra. For the foregoing reasons, the Board finds that service connection for vertigo must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, supra. REASONS FOR REMAND 2. Entitlement to service connection for a neck disorder. 3. Entitlement to service connection for a right knee disorder. 4. Entitlement to service connection for a left knee disorder. 5. Entitlement to service connection for a jaw disorder. 6. Entitlement to service connection for headaches. The Veteran contends that he currently has a neck disorder, bilateral knee disorder, a jaw disorder, and headaches as a result of an in-service helicopter crash that occurred in approximately 1978. As such, he claims that service connection for such disorders is warranted. As noted previously, the Veteran’s STRs reflect that he was involved in a helicopter crash in March 1978. Such further show that he lost consciousness either during or immediately following the crash and complained of pain in his legs. Upon examination, the Veteran’s knees were found to be normal with full range of motion. The examiner noted the following final diagnoses: mild cerebral concussion and right calf contusion. An April 1980 STR indicates the Veteran’s complaint that the left side of his neck was painful and stiff. Reports of Examination dated in March 1979, March 1980, and December 1980 note that clinical evaluation of the Veteran’s head, face, neck, and scalp; mouth and throat; lower extremities; and neurologic system were normal. A March 1979 Officer Physical Examination Questionnaire reveals that the Veteran denied that he had painful joints or headaches; and a Questionnaire completed in March 1980 reveals that the Veteran denied that he had painful joints, and seldom experienced headaches; however, he reported right upper neck/occipital aching. The Veteran’s post-service treatment records include a May 1995 private treatment record in which the provider noted that he had an injury flying a helicopter many years prior and possibly suffered a cartilage tear. He further noted that, in March 1993, the Veteran was playing basketball and his knees knocked out from under him and he had instability in his knees since such time. An impression of anterior cruciate ligament deficiency was rendered. June 1995 and November 1995 private treatment records reveal that the Veteran underwent anterior cruciate ligament reconstruction for instability of the left and right knees, respectively. A November 2012 VA treatment record reveals an assessment of TMJ and chronic headaches. VA treatment records dated in 2014 and 2015 indicate diagnoses of chronic headache, TMJ disorder, and chronic bilateral knee pain. The Veteran was afforded a VA examination in March 2005 with respect to his claimed bilateral knee pain, neck pain, jaw pain, and headaches. At such time, he reported that he was a copilot of a helicopter that crashed in March 1978 during a training exercise. The Veteran further reported that the control panel of the helicopter crushed his knees and he was hospitalized. He indicated that, since such time, he had constant pain that had increased in severity over time. Additionally, the Veteran reported that he injured his neck at the same time that he injured his knees in the helicopter crash. Here, he indicated that such pain is constant and affects his range of motion. Furthermore, the Veteran reported that he had a click in his jaw on the left side, as well as pain on both sides of his TMJs. Here, he indicated that such pain started after the helicopter crash and was given a bite guard to wear at night by a dentist as his jaw occasionally locked. Moreover, he reported that his headaches were associated with his neck pain and TMJ flare-ups. The March 2005 VA examiner noted diagnoses of bilateral knee pain, neck pain, TMJ pain, and tension headaches. The examiner found that it was less likely than not that the Veteran’s bilateral knee condition was derived from the helicopter crash; rather, it was likely related to basketball injuries and other subsequent aging and trauma. As rationale for the opinion, the examiner reported that a May 1995 private treatment record stated that the Veteran injured his knees flying in a helicopter; however, in March 1993, his knees knocked out from under him when he was playing basketball and he had some instability since that time. Here, the examiner explained that the Veteran did not report that he had any other injuries, but from such record, it appeared as though he was doing well with his knees up until the time of the basketball injury. Additionally, the examiner determined that he could not resolve whether the Veteran’s neck pain, jaw pain, or headaches were related to his helicopter crash without resorting to mere speculation. Here, the examiner explained that a March 1978 STR showed that the Veteran was involved in a helicopter crash and suffered multiple contusions, but his condition was good and his prognosis was excellent. The examiner further explained that such report did not give any information about his neck or his jaw condition. As previously noted, the Veteran’s STRs from March 1975 to December 1980 were received in February 2012. Accordingly, the Veteran underwent VA examinations in August 2012 with respect to his headaches, knees, and neck. In this regard, the VA examiner noted diagnoses of chronic headache, bilateral knee osteoarthritis and arthroscopically-aided anterior cruciate ligament repair/ augmentation or reconstruction, and cervical spine osteoarthritis. He found that the Veteran’s cervical spine osteoarthritis was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. As rationale for the opinion, the examiner reported that it was very probable that the Veteran’s osteoarthritis had progressed in the previous seven years, and there was no mention in the Veteran’s STRs of neck pain or dysfunction following the March 1978 helicopter crash, proximal to the event, or through and including his separation examination in June 1981. He further reported that the Veteran was admitted for examination and observation following the crash and was noted to have no pain to his head or neck, his neck was supple, and X-rays of the head and neck were normal at that time. The examiner indicated that in none of the intervening annual medical examinations did the Veteran report neck pain, and no neck pathology was recorded. He also noted that the Veteran now claimed that he had neck pain almost immediately after the crash and since such time. Here, the examiner explained that, while aviators were notorious for under reporting conditions to avoid being grounded, they were usually very open about existing conditions during the separation examinations. He further explained that, as the most proximally documented evidence was probably the most reliable (especially as now the Veteran stated he had memory problems), it was reasonable to conclude that he did not suffer a significant insult to his neck at the time of the crash as there was no documented neck injury or disorder in his STRs despite multiple medical assessments, to include his separation examination. Additionally, the August 2012 VA examiner found that the Veteran’s bilateral knee osteoarthritis was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. As rationale for the opinion, he noted that the Veteran alleged he suffered bilateral knee pain at the time of the March 1978 helicopter crash, and he was given exercises to do that, after six months, made the knee pain resolve; however, such pain returned a few years later. The examiner further observed that the Veteran denied a significant knee injury while playing basketball years later, and the May 1995 private physician did not record knee pain from the time of the crash. He indicated that the Veteran’s STRs showed X-rays and examination of his lower extremities during his admission on the day of the crash, which resulted in a determination that the knees were normal. The examiner also observed that the remainder of the Veteran’s STRs do not contain any mention of a knee problem. Here, he noted that, while aviators often minimized or failed to report medical conditions that could interfere with their flying status, this was usually not the case at the time of their separation examination. The examiner concluded that the Veteran’s STRs did not support the existence of a post-crash knee derangement to the bilateral knees. Furthermore, the August 2012 VA examiner found that the Veteran’s chronic headache was less likely than not proximately due to or the result of his service-connected condition. Here, the examiner explained that the Veteran’s TMJ disorder was not service-connected; however, it was probable and as likely as not that the Veteran’s headaches were caused at least in part by his TMJ disorder. The examiner further explained that the Veteran reported that his headaches were often brought on when he clenched his teeth, which he did when he was angry, stressed out, or performing a physically stressful activity. Thereafter, the Veteran underwent an additional VA examination later in August 2012 with respect to his jaw disorder. In this regard, the VA examiner noted a diagnosis of temporomandibular disorder, not otherwise specified. The examiner found that the Veteran’s TMJ disorder/jaw pain was as likely as not (less than 50/50 probability) caused by or a result of combat wounds or service trauma (March 1978 helicopter accident). As rationale for the opinion, he reported that there appeared to be no evidence of any jaw pain following the Veteran’s accident. The examiner further reported that the hospital note following the accident only noted “mild muscle pain in the Veteran’s right calf, but is otherwise doing well.” He indicated that a December 1980 STR documented a history of jaw pain and joint clicking. Here, the examiner explained that such record indicated that the Veteran had a nine-year history of popping/locking of his jaw bilaterally. The examiner further explained that such would suggest that the Veteran’s jaw pain began long before the accident and there was no mention that the jaw pain was aggravated by his previous accident. However, at the Veteran’s May 2018 Board hearing, he and his spouse provided additional information regarding his bilateral knee disorder, neck disorder, jaw disorder, and headaches, which was not considered by the August 2012 VA examiners. Specifically, the Veteran reported that the March 1978 helicopter crash was a forward crash rather than straight down to the ground. He indicated that everything in the front of the helicopter folded up, which resulted in injury to his knees as such went right into the cockpit. The Veteran further explained that the items in the back of the helicopter came over the top of his seat and hit him in the helmet. Additionally, he also stated that he believed his jaw pain, which began immediately following the helicopter crash, was due to the strap on his helmet. Here, he further explained that the crash was extremely violent and he was thrown in the cockpit like a ping-pong ball. The Veteran indicated that he believed his neck issue was due to striking the ground at a fast speed, and the weight on his head from the helmet. Furthermore, he reported that he began experiencing pain in his neck, knees, and jaw and headaches immediately following the crash. In this regard, the Veteran explained that he tried to hide his pain so that he could keep flying; however, such became worse. Specifically, he indicated that, while he remained in service for three years after the helicopter crash, he was experiencing the pain and headaches during such time, but did not report it because he was afraid that he would be pulled from flight status. He further noted that he continued to have such pain following his separation from service. Moreover, the Veteran’s spouse reported that the Veteran had difficulties with his neck, knees, jaw, and headaches their entire married life. Here, she noted that she married the Veteran in 1987. She further reported that, at the time she met the Veteran, he told her that the above issues occurred from an aircraft crash in the Marine Corps. Therefore, the Board finds that a remand is necessary in order to obtain an addendum opinion regarding the etiology of the Veteran’s neck disorder, bilateral knee disorder, jaw disorder, and headaches that takes into account his and his spouse’s recent statements regarding the nature and onset of such disorders. Furthermore, with respect to the Veteran’s neck disorder, the non-documentation described by the August 2012 VA examiner is not consistent with the evidence of record. Specifically, the examiner reported that there was no mention in the Veteran’s STRs of neck pain or dysfunction following the March 1978 helicopter crash, proximal to the event, or through and including his separation examination in June 1981. To the contrary, the record reveals that an April 1980 STR indicated the Veteran’s complaint that the left side of his neck was painful and stiff. Additionally, a March 1980 Officer Physical Examination Questionnaire revealed that the Veteran reported right upper neck/occipital aching. Therefore, the opinion appears to be based, at least in part, on an incomplete factual history and the addendum opinion should take such facts into account. The matters are REMANDED for the following action: Return the record to either VA examiner who offered the August 2012 medical opinions. The record and a copy of this Remand must be made available to the examiner. If neither examiner is available, the record should be provided to an appropriate medical professional so as to render the requested opinion. The need for an additional examination is left to the discretion of the examiner. After reviewing the record, the examiner should address the following inquiries: (A) Is it at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran’s neck disorder had its onset during his military service, manifested within one year of his military service, or is otherwise related to his military service, to include the March 1978 helicopter crash and/or his reported symptoms of neck pain/stiffness thereafter as documented in a March 1980 Officer Physical Examination Questionnaire (report of right upper neck/occipital aching) and an April 1980 STR (complaint that the left side of the neck was painful and stiff)? (B) Is it at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran’s bilateral knee disorder had its onset during his military service, manifested within one year of his military service, or is otherwise related to his military service, to include the March 1978 helicopter crash and/or his reported symptoms of leg pain following the crash? (C) Is it at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran’s jaw disorder had its onset during, or is otherwise related to, his military service, to include the March 1978 helicopter crash? (D) Is it at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran’s headaches had its onset during, or is otherwise related to, his military service, to include the March 1978 helicopter crash and/or his reported symptoms of headaches following the March 1978 helicopter crash? In rendering such opinions, the examiner should consider the Veteran’s May 2018 Board hearing testimony in which he explicitly described the nature of the March 1978 helicopter crash; reported that his neck, bilateral knee, jaw, and headache symptoms began immediately following the crash and have continued to the present time, to include during the remainder of his period of service; and why he did not report such symptoms, and his spouse’s hearing testimony regarding her report that the Veteran’s neck, bilateral knees, jaw, and headache symptoms had been present since they married in 1987. A rationale should be provided for any opinion offered. A. JAEGER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Koria B. Stanton, Associate Counsel