Citation Nr: 18145701 Decision Date: 10/29/18 Archive Date: 10/29/18 DOCKET NO. 18-35 146 DATE: October 29, 2018 ORDER Entitlement to service connection for vertigo including as secondary to service-connected tinnitus or medications for service-connected disabilities is denied. FINDING OF FACT The Veteran’s benign positional vertigo first manifested many years after active service and is not caused by an injury in service or by tinnitus or medications for service-connected disabilities. CONCLUSION OF LAW The criteria for entitlement to service connection for vertigo, claimed as secondary to service-connected tinnitus have not been met. 38 U.S.C. § 1110, 1131 (2012); 38 C.F.R. §§ 3.303, 3.310 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1981 to September 2003 in the United States Marine Corps including service in Kuwait. This current appeal comes to the Board of Veterans’ Appeals (Board) from a May 2, 2017 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston Salem, North Carolina. Duty to Notify and Assist Neither the Veteran nor his representative identified any shortcomings in fulfilling VA’s duty to notify and assist. Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). The Board thus finds that further action is unnecessary under 38 U.S.C. § 5103A and 38 C.F.R. § 3.159. The Veteran will not be prejudiced because of the Board’s adjudication of the claims below. Service Connection Generally, to establish service connection 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 incurred or aggravated during service.” Davidson v. Shinseki, 581 F.3d 1313, 1315–16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for any or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In the absence of proof of a present disability, there can be no valid claim for service connection. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Secondary service connection may be granted for a disability that is proximately due to a service-connected disease or injury, or that a service-connected disease or injury aggravated (increased in severity) the nonservice-connected disability for which service connection is sought. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. § 3.310. Vertigo Service treatment records (STRs) do not show complaints for dizziness or complaints associated with vertigo. In a May 10, 2003 post-deployment health assessment, the Veteran denied dizziness, fainting, or light headedness. While there is not a record of a separation physical examination, the Veteran’s final dental physical, on May 28, 2003, shows the Veteran denied a history of or current fainting or dizziness. The Veteran was seen on June 19, 2016 at a military clinic for “dizzy spells” which started in the last 24 hours. She said she felt like the room was spinning, and her prior episode lasted 3 days. There was no notation of a mental health disorder or medication for a mental health disorder. An examiner noted the following: Outer ear- normal; external auditory canal- normal; Right and Left ears, external auditory canal- normal; tympanic membrane- no bulging and not erythematous; Middle ear- no fluid. Her neurological exam was “reassuring.” She was prescribed medication for her dizzy spells and referred for an otolaryngology consult. The Veteran was referred to and examined by a private physician Dr. C., in October 2016. The Veteran reported that she experienced “room spinning vertigo lasting less than a minute” and that symptoms occurred when she turned “her head to the left when she lays down in bed.” She reported that the symptoms had been occurring on and off since May 2016. A previous MRI was normal. The physician listed several medications that the Veteran reported to be ineffective. The physician also listed all medications currently prescribed including several for mental health. She did not report a dramatic change in hearing, but did say she experienced ringing; there was no nausea, vomiting, or fullness in the ears. Dr. C. diagnosed benign positional vertigo, left. Dr. C. noted: I performed the Epley maneuver for the patient 3 and by the third time she had no room spinning vertigo with no horizontal jerk nystagmus . . . . The patient does have a history of migraine but I do not think that’s the cause of her current problem. The physician did not indicate that any medication was a cause for the disorder. A compensation and pension (C&P) exam was performed on January 6, 2017 by a VA contract otolaryngologist. The specialist noted a review of the electronic claims file and listed the medications prescribed by her neurologist. The specialist found that the Veteran had a normal ear examination and did not have an ear or peripheral vestibular condition, including vertigo. The reported history of vertigo stated, The date of onset of the symptoms is on or about 28 May 2016. The first incident happened at home, when I tried to get out of bed and got dizzy and felt weak and the room was spinning. I still get dizzy if I lay on my left side or if I tilt my head back. Now if I reach up with my head back I get lightheaded for 15-20 seconds. When I’m lying and I turn on my left side, I get headaches and mild, brief dizziness. This happens once or twice a week. The examiner also noted that the Veteran was prescribed medication by a neurologist. There were no symptoms of Meniere’s Syndrome. There were no findings, signs, or symptoms for chronic ear infection, inflammation, cholesteatoma, or any other diagnoses. No benign neoplasm of the ear was found. The physical examination of the ear was normal. The examiner does say that electronystagmography (ENG) testing was done and that it was normal with no evidence for vestibular disease; it must be noted that the examiner records the date of the ENG as February 3, 2017, one month after the examination here. However, the examiner says, “for the claimant’s claimed condition of VERTIGO, there is no diagnosis because there is no pathology to render a diagnosis.” The ENT evaluation from October 13, 2016 was mentioned, and the examiner records that the ENT showed there was possible benign positional vertigo, but also records than an ENG was not performed. The examiner concludes that vertigo is not related to tinnitus because there is no pathology to render a diagnosis for vertigo. The Veteran’s February 19, 2018 notice of disagreement (NOD) stated that she experienced dizziness since service. On March 6, 2018, a former co-worker provided a statement saying that she worked with the Veteran for over 3 years and has witnessed episodes of vertigo. The co-worker described a specific incident where the Veteran was “sweating, staggering and her eyes looked very abnormal.” It took the Veteran 20 minutes to compose herself, and she had another episode several hours later which took 30 minutes to recover from. Another co-worker, and also a physical therapist, also provided a statement on April 19, 2018. He stated that he has witnessed episodes of the Veteran’s vertigo for 1.5 years. He says the episodes affect her balance and stability, and that on many occasions she needs to rest for 5-10 minutes. Additionally, he is aware of the techniques she is using to limit her vertigo and also says her other medications may be impacting her performance at work. Also on April 19, 2018, a Doctor of Osteopathic Medicine, and co-worker, Dr. S., provided a statement. The physician’s letterhead indicated that he worked in a sports medicine clinic. He also endorsed witnessing several episodes of vertigo over the past several years that occurred both when the Veteran was sitting at her desk and standing up. The episodes can take as long as 10 minutes to get under control, and will last 30-90 seconds several times a day. The Veteran has told Dr. S. that despite her medication the condition is getting worse. The physician attributed worsening symptoms to two specific medications prescribed for posttraumatic stress disorder without further explanation or rationale. Dr. S. did not indicate that he personally examined the Veteran or performed any testing. Analysis It is somewhat difficult to ascertain whether there is a current disability for vertigo. But, in giving the benefit of the doubt to the Veteran (see 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990)), meaning taking her statement, and other lay statements as true (see Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007)), and giving weight to the October 2016 examination by Dr. C. and the Veteran’s and her coworkers reports of observable symptoms, the Board finds that the Veteran does have a current disability of benign positional vertigo. However, this disability did not manifest during active service or within one year of service. The weight of competent evidence is that it is not caused by injury in service or by medications for service-connected disabilities. Addressing direct service connection first, the Veteran noted in her NOD that she experienced dizziness during service. This is inconsistent with the post-deployment and dental records concurrent with her final physical in which she denied any fainting or dizziness during service. See Curry v. Brown, 7 Vet. App. 59, 68 (1994). She not only denied vertigo symptoms at separation from service, but she also explained to multiple examiners in 2016 and 2017 that she first experienced symptoms in May 2016. Her co-workers even state that they first began seeing her have issues around May 2016. Furthermore, in not diagnosing the Veteran with vertigo, or any other peripheral vestibular condition, the VA examiner in January 2017 stated there was no pathology that would render a diagnosis at all; and, her other examination in October 2016 did not relate vertigo to an event in-service. Additionally, no medical professional has explained that the Veteran’s vertigo was caused by any in-service event. Given these facts, the Board denies direct service connection for vertigo. Secondary service connection is also denied because the weight of competent evidence does not show that it is at least as likely as not that vertigo is caused by service-connected tinnitus or by medication for service-connected disabilities including a psychiatric disorder. Starting with the lay statements, all three state they have witnessed episodes of vertigo experienced by the Veteran—which they are competent to report since they have witnessed these episodes. Jandreau, 492 F.3d at 1377. None of those three statements explain why the vertigo is caused by tinnitus. In fact, even if they did give a nexus opinion, none of those individuals seem to have the medical experience necessary to make that determination. But since none of the statements have attempted a nexus opinion, a credibility, competency, and weight of evidence analysis is not necessary. Turning to the medical examinations from October 2016 and January 2017, only the latter actually gives a nexus opinion, and it denies that tinnitus causes or aggravates vertigo. This specialist’s examination is also given more weight in general as the testing and examination was more detailed than the October 2016 exam. In both examinations, the Veteran explained that her symptoms only occur when lying on her left side or tilting her head back. At no time does she explain that a ringing in her ears sets off vertigo, and the VA exam in January 2017 also states that tinnitus is not the cause for vertigo. The Board considered the statement by the sports medicine physician in April 2018 but finds that it warrants low probative weight because earlier specialists who performed detailed examinations noted awareness of the various medications prescribed for the Veteran and did not find that these medications had any relationship to the benign vertigo as would have been expected during the examinations. Had there been a causative or aggravating effect, it would have been noted and recommendations for changes or cessation of the medication been made. Moreover, the sports medicine physician did not provide a rationale for his finding. Therefore, the claim for entitlement to service connection for vertigo secondary to tinnitus and medications is denied. J.W. FRANCIS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Harner, Associate Counsel