Citation Nr: 18146297 Decision Date: 10/31/18 Archive Date: 10/31/18 DOCKET NO. 16-20 193 DATE: October 31, 2018 ORDER 1. The application to reopen a claim of entitlement to service connection for a disorder manifested with vertigo and dizziness with headaches is granted. 2. Entitlement to service connection for a disorder manifested with vertigo and dizziness with headaches, to include as secondary to service-connected tinnitus and bilateral hearing loss, is denied. 3. Entitlement to service connection for Meniere’s disease, to include as secondary to service-connected tinnitus and bilateral hearing loss, is denied. FINDINGS OF FACT 1. In a July 2009 rating decision, the Regional Office (RO) denied the issue of entitlement to service connection for dizziness and vertigo with headaches. The Veteran was notified of this decision by an August 2009 letter, but he did not appeal this decision or submit new and material evidence within one year; thus, the July 2009 rating decision became final. 2. Evidence associated with the claims file since the July 2009 rating decision, when considered by itself or in connection with evidence previously assembled, relates to an unestablished fact necessary to substantiate the claim of entitlement to service connection for a disorder manifested with vertigo and dizziness with headaches, and raises a reasonable possibility of substantiating the claim. 3. The Veteran’s current disorder manifested with vertigo and dizziness with headaches, to include benign paroxysmal positional vertigo (BPPV), is not caused by or otherwise related to his active duty service, and it is not caused or aggravated by his service-connected bilateral hearing loss or tinnitus. 4. The Veteran’s current Meniere’s disease is not caused by or otherwise related to his active duty service, and it is not caused or aggravated by his service-connected bilateral hearing loss or tinnitus. CONCLUSIONS OF LAW 1. The July 2009 rating decision denying the claim of entitlement to service connection for dizziness and vertigo with headaches is final. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 3.104(a), 20.302(a), 20.1103 (2017). 2. As evidence received since the July 2009 rating decision is new and material, the criteria for reopening the claim of entitlement to service connection for a disorder manifested with vertigo and dizziness with headaches have been met. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. § 3.156 (2017). 3. The criteria for entitlement to service connection for a disorder manifested with vertigo and dizziness with headaches, to include as secondary to service-connected tinnitus and bilateral hearing loss, have not been met. 38 U.S.C. §§ 1101, 1131, 1137, 5107(b) (2012); 38 C.F.R. §§ 3.303, 3.304, 3.310 (2017). 4. The criteria for entitlement to service connection for Meniere’s disease, to include as secondary to service-connected tinnitus and bilateral hearing loss, have not been met. 38 U.S.C. §§ 1101, 1131, 1137, 5107(b); 38 C.F.R. §§ 3.303, 3.304, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from October 1976 to February 1984. 1. Application to Reopen Entitlement to Service Connection The Veteran submitted an application to reopen the claim of entitlement to service connection for a disorder manifested with vertigo and dizziness with headaches in March 2015. VA may reopen and review a claim that has been previously denied if new and material evidence is submitted by or on behalf of a veteran. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a); see Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). VA defines “new” evidence as evidence not previously submitted to agency decision makers and “material” evidence as evidence that, by itself or when considered with previous evidence of record, 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 final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is “low.” See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). In determining whether this low threshold is met, VA should not limit its consideration to 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 Secretary’s duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. When determining whether the claim should be reopened, the credibility of the newly submitted evidence is presumed. See Justus v. Principi, 3 Vet. App. 510 (1992). The newly presented evidence need not be probative of all the elements required to award the claim, just probative of each element (or at least one element) that was a specified basis for the last disallowance of the claim. See Evans v. Brown, 9 Vet. App. 273, 283 (1996). In a July 2009 rating decision, the RO denied the claim of entitlement to service connection for dizziness and vertigo with headaches because the record at the time did not show the presence of a chronic dizziness/vertigo/headache disorder in service and post service. The RO explained that service connection for a chronic disability manifested with dizziness and vertigo with headaches was denied since there was no evidence that the claimed disorder existed that was a result of the Veteran’s military service. The Veteran was notified of this decision by an August 2009 letter, but he did not appeal this decision or submit new and material evidence within one year. Thus, the July 2009 rating decision is final as to the evidence of record, and is not subject to revision on the same factual basis. See 38 U.S.C. § 7105(b); see also 38 C.F.R. §§ 3.104, 3.156(a), 20.302, 20.1103. Since that time, new evidence has been associated with the claims file to show the presence of a current disorder manifested with vertigo and dizziness with headaches during the appeal. Specifically, the July 2015 VA examiner diagnosed the Veteran with BPPV, as well as Meniere’s syndrome or endolymphatic hydrops. While the Board notes that in an October 2015 VA addendum medical opinion another examiner determined that this diagnosis of BPPV was in error, based on the evidence of record and after affording the Veteran the benefit of the doubt, the Board determines that the Veteran has a current disorder manifested with vertigo and dizziness with headaches, namely, BPPV. Given that the threshold for substantiating a claim to reopen is low, this evidence, when considered by itself or in connection with evidence previously assembled, relates to an unestablished fact necessary to substantiate the claim, namely, shows the presence of a current disability during the appeal, and raises a reasonable possibility of substantiating the claim. Thus, the claim of entitlement to service connection for a disorder manifested with vertigo and dizziness with headaches is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 2. & 3. Service Connection for a Disorder Manifested with Vertigo and Dizziness with Headaches and Meniere’s Disease The Veteran asserts that his current disorder manifested with vertigo and dizziness with headaches and Meniere’s disease were caused by his active duty service and/or caused or aggravated by his service-connected bilateral hearing loss and tinnitus disabilities. Because the evidence pertaining to these disorders is located in the same or similar documents, the Board shall analyze them together below. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. See 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). “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.” Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010). Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Service connection may also be granted for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). When service connection is established for a secondary disability, the secondary disability shall be considered a part of the original disability. Id. Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). When all the evidence is assembled, the Board is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether the preponderance of the evidence is against the claim, in which case the claim is denied. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the Veteran. 38 U.S.C. § 5107; 38 C.F.R. § 3.102 (2017). In deciding claims, it is the Board’s responsibility to evaluate the entire record on appeal. See 38 U.S.C. § 7104(a) (2012). Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss each and every piece of evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Rather, the Board’s analysis below will focus specifically on what evidence is needed to substantiate the claims and what the evidence in the claims file shows, or fails to show, with respect to the claims. See Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). The Veteran contends that his current disorder manifested with vertigo and dizziness with headaches, to include BPPV, and Meniere’s disease were caused by his active duty service and/or caused or aggravated by his service-connected bilateral hearing loss and tinnitus disabilities. In numerous statements throughout the appeal, including in an August 2015 notice of disagreement (NOD), May 2016 substantive appeal to the Board (VA Form 9), and an October 2017 statement of an accredited representative in an appealed case (VA Form 646), the Veteran and his representative asserted that his service treatment records show that he had symptoms of vertigo, headaches, and dizziness, and that these symptoms have continued since separation from active duty service. Regarding the first element of direct and secondary service connection, the record shows that the Veteran has been diagnosed with BPPV and Meniere’s disease. Specifically, VA treatment records during the appeal show that the Veteran complained of dizziness and vertigo. Additionally, the July 2015 VA examiner diagnosed the Veteran with BPPV and Meniere’s disease or endolymphatic hydrops following an in-person examination and review of the Veteran’s pertinent records. While the October 2015 VA examiner, who provided an addendum VA medical opinion, determined that the Veteran should not have been diagnosed with these disorders, after resolving all doubt in the Veteran’s favor, the Board determines that, for purposes of determining entitlement to compensation benefits, the Veteran has current BPPV and Meniere’s disease disabilities. Thus, the first element of service connection is met. Regarding the second element of direct service connection, namely, an in-service incurrence or aggravation of a disease or injury, the Veteran’s service treatment records show that he complained of vertigo, dizziness, and headache symptoms on several occasions while in service. For example, a November 1977 service treatment record showed that the Veteran complained headaches with dizziness and lightheadedness. Similarly, a January 1978 service treatment record showed that he complained of a fever, headaches, and slightly dizzy spells. He was diagnosed with a mild viral syndrome. A June 1981 service treatment record showed that the Veteran complained of vertigo and nausea, and that he was again diagnosed with early viral syndrome. Additionally, he complained of car, train, sea, or air sickness in a February 1983 periodic report of medical history and his February 1984 service separation report of medical history. Furthermore, the Veteran complained of dizziness or fainting spells during the February 1984 service separation evaluation, during which the evaluator noted that the Veteran had occasional dizziness that was transient and not currently disabling. Thus, the second element of service connection is met. The only questions to be answered are whether the Veteran’s current BPPV and Meniere’s disease are caused by or otherwise related to his active duty service or caused or aggravated by his service-connected disabilities. Regarding the nexus requirement of direct and secondary service connection, the claims file contains the statements from the Veteran and his representative and the opinions and findings of the July 2015 and October 2015 VA examiners. While the claims file also contains many VA and private treatment records since the Veteran filed the present claims on appeal, which discuss the Veteran’s current bilateral ear and vestibular disorder symptomatology, these treatment records do not discuss the cause of these disorders or their relationship to the Veteran’s active duty service or service-connected disabilities. The Veteran contended in his August 2015 NOD that his vertigo and symptoms of Meniere’s disease began in service and have continued since that time. He stated that he did not seek medical attention in service because his symptoms were not emergent. He also contended that his current disorders were directly related to his bilateral hearing loss and tinnitus disabilities. He made similar contentions in his May 2016 VA Form 9, in which he stated that his symptoms of Meniere’s disease, poor balance, vertigo, and dizziness have affected his daily life. He contended that while such episodes were present during his active duty service, they were not recorded in his service treatment records because he did not seek medical attention for episodes that were mild and he treated such episodes with over-the-counter medication. After reviewing the Veteran’s claims life, performing an in-person examination, and noting the Veteran’s self-reported symptoms and history, the July 2015 VA examiner opined that the Veteran’s vertigo, or BPPV, is less likely as not incurred in or caused by his dizziness during active duty service. Furthermore, this examiner determined that the Veteran’s Meniere’s disease is less likely as not proximately due to or the result of his bilateral hearing loss or tinnitus. Similarly, this examiner opined that the Veteran’s Meniere’s disease is less likely as not aggravated beyond its natural progression by his service-connected bilateral hearing loss or tinnitus. In October 2015 VA addendum medical opinions, another VA examiner explained that he had reviewed the conflicting medical evidence and determined that there was no pathophysiological, functional, or anatomical medical evidence that the Veteran’s BPPV or Meniere’s disease was caused by, the result of, or aggravated by his sensorineural hearing loss or tinnitus. The examiner explained that hearing loss and tinnitus occurred within the cochlea, whereas BPPV occurred within the semicircular canals. Additionally, the examiner explained that Meniere’s disease is associated with endolymphatic hydrops, which is an abnormal fluid of an ion homeostasis of the endolymph channels of the labyrinthine system of the inner ear. The examiner stated that this abnormal fluid and ion disorder results in episodic vertigo, sensorineural hearing loss, and tinnitus. However, the examiner stated that sensorineural hearing loss and tinnitus over time do not lead to endolymphatic hydrops and Meniere’s disease. The examiner noted that Meniere’s disease included characteristic low frequency hearing loss and loud, roaring-like tinnitus sounds. Additionally, the examiner wrote, in Meniere’s disease, the hearing loss and tinnitus begin as episodic, occurring with each episode of hydrops, and the hearing returns and the tinnitus subsides when the fluid disturbance resides. However, the examiner noted that hearing loss and tinnitus can worsen and assume a more permanent status over time. The examiner further noted that the Veteran’s hearing loss, as reviewed from the time of his service separation through the most recent audiogram, showed a mildly asymmetric, very high frequency of 4,000 Hertz and higher hearing loss that had slowly worsened over the decades. The examiner explained the Veteran’s hearing loss had not been episodic. The examiner further explained that the Veteran’s complaints of vertigo during his active duty service were related to his seasickness and that this was an acute disorder that resolved without residuals. The examiner also determined that chronicity and treatment of these disorders was not established. The examiner explained that the Veteran did not complain of vertigo until 2014, following a trip to Southeast Asia. Additionally, the examiner explained that the Veteran did not describe any loud, roaring tinnitus, and that there was no sudden worsening of his hearing. The examiner’s findings are supported by the record, including many instances where the Veteran denied having vertigo in VA treatment records, such as in January 2002. Given this evidence, the Board finds that the Veteran’s current disorder manifested with vertigo and dizziness with headaches, to include BPPV, and Meniere’s disease are not caused by or otherwise related to his active duty service, and are not caused or aggravated by his service-connected bilateral hearing loss or tinnitus. The Board acknowledges the Veteran’s contentions that his current vertigo, dizziness, headaches, and Meniere’s disease symptoms began in service and have continued since that time. The Veteran is competent to report symptoms that he perceived through his own senses. However, he is not competent to offer opinions as to the cause of his current symptoms due to the medical complexity of the matters involved. BPPV and Meniere’s disease require specialized training for a determination as to diagnosis, causation, and progression, and are therefore not susceptible to lay opinions on causation or aggravation. Thus, the Veteran is not competent to render an opinion or attempt to present lay assertions to establish the causation of his current disorder manifested with vertigo and dizziness with headaches and Meniere’s disease disabilities. The July 2015 and October 2015 VA examiners’ opinions, which are competent on the issue of causation of medically complicated matters, are of more probative value. These examiners concluded that the Veteran’s disorder manifested with vertigo and dizziness with headaches and Meniere’s disease are less likely as not caused by or otherwise related to his active duty service, and that these disorders were less likely as not caused or aggravated by service-connected bilateral hearing loss and tinnitus. These examiners’ opinions are highly probative evidence regarding the cause of these disorders because of the examiners’ expertise, training, education, proper support and explanations, and thorough review of the Veteran’s records and self-reported symptoms. Therefore, as the preponderance of the evidence is against entitlement to service connection for a disorder manifested with vertigo and dizziness with headaches and Meniere’s disease, the benefit of the doubt doctrine does not apply, and the Veteran’s claims must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). A. P. SIMPSON Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Hodzic, Counsel