Citation Nr: 18155612 Decision Date: 12/04/18 Archive Date: 12/04/18 DOCKET NO. 17-17 550 DATE: December 4, 2018 ORDER Entitlement to service connection for a disability manifested by dizziness, including vertigo, Meniere’s disease, vestibular dysfunction, and benign positional vertigo, to include as secondary to service-connected disabilities, is denied. FINDING OF FACT The Veteran does not have a disability manifested by dizziness, including vertigo, Meniere’s disease, vestibular dysfunction, and benign positional vertigo that is related to service, or caused or aggravated by a service connected disease or injury. CONCLUSION OF LAW The criteria for service connection for a disability manifested by dizziness, including vertigo, Meniere’s disease, vestibular dysfunction, and benign positional vertigo, to include on a secondary basis, have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active military service from March 1957 to February 1959. This matter initially came before the Board of Veterans’ Appeals (Board) on appeal from a December 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In September 2017, the Board remanded the claim for additional development. 1. Entitlement to service connection for a disability manifested by dizziness Service connection will be granted if the evidence demonstrates that current disability resulted from an injury suffered or disease contracted in active military, naval, or air service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service injury or disease; and (3) a relationship between the two. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection is also warranted for disability proximately due to, the result of, or aggravated by a service-connected disease or injury. 38 C.F.R. § 3.310(a), (b). In relevant part, 38 U.S.C. § 1154(a) requires that VA give “due consideration” to “all pertinent medical and lay evidence” in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that “[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (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, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (“[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence”). “Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology.” Savage v. Gober, 10 Vet. App. 488, 496 (1997) (citing Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991)). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno v. Brown, 6 Vet. App. 465, 469 (1994) (distinguishing between competency (“a legal concept determining whether testimony may be heard and considered”) and credibility (“a factual determination going to the probative value of the evidence to be made after the evidence has been admitted”)). 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; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran contends that he experiences vertigo as result of an in-service injury, or alternatively, due to his service-connected bilateral hearing loss or ankylosing spondylitis of the cervical and thoracolumbar spine. Specifically, the Veteran reported that he injured his head in 1957 and is diagnosed with post-concussive trauma. The Board also notes that the Veteran is currently service-connected for bilateral hearing loss rated as 40 percent disabling; ankylosing spondylitis of the cervical spine rated as 30 percent disabling, and ankylosing spondylitis of the thoracolumbar spine rated as 10 percent disabling. Medical treatment records reflect diagnoses for benign positional vertigo and vestibular dysfunction, and complaints of occasional dizziness when lying on his left side or standing up too quickly. A November 2016 traumatic brain injury VA examination report reflects a past medical history of benign positional vertigo and review of the Veteran’s claims file, to include the in-service head injury. The VA examiner opined that it was less likely than not that the Veteran’s dizziness/vertigo/Meniere’s disease was due to his in-service head injury because if it were attributable to the incident, “one would expect these symptoms to occur proximate to the incident” and there was “no evidence of treatment for these problems” proximate to the incident. A November 2017 VA examination conducted by a neurologist reflects that the Veteran’s dizziness was less likely than not due to service, or due to or aggravated by his service-connected hearing loss. The examiner referenced several medical articles addressing vertigo, presyncope, disequilibrium, and dizziness; and noted the Veteran’s complaints of dizziness when sitting, standing, looking up, and lying on his side. On examination, she found that he had orthostatic hypotension, which was commonly is associated with a history of “dizziness” associated with “standing up too quickly.” She opined that there was insufficient documentation to support a diagnosis of benign paroxysmal positional vertigo (BPPV), even though those terms had been assigned to the Veteran. She explained that to diagnose BPPV, specific findings, including positive Dix-Hallpike maneuver, should be documented, and that the condition could be treated effectively. She also noted that the term “vertigo” was notoriously unreliable, and therefore the term itself could not be relied upon to support a specific diagnosis without corresponding findings on physical examination or specific studies such as an electronystagmography (ENG) that could evaluate for true vertigo. Finally, she explained that Ménière's disease was a condition in which vertigo and hearing loss were associated, but that a history of hearing loss and documentation of the term “vertigo” were not sufficient to make this diagnosis. Instead, she stated that there had to be a typical pattern of hearing loss, typical course of progressive vestibular decline, expected physical examination abnormalities, and expected abnormal test results from an ENG and other vestibular tests, which was not the case with this Veteran. A March 2018 VA examination report reflects review of the case file and in-person examination. The Veteran reported that he occasionally experienced dizziness when he stood up, rolled over in bed, or lifted his head too fast from looking down. He did not experience a swimming or room moving in circles event; and he denied secondary symptoms such as nausea, vomiting, visual impairment, chest pain, and shortness of breath. She noted that the Veteran’s cardiac evaluation was unremarkable as to a cardiac etiology for his dizziness; but that he was on several medications that could cause orthostatic hypotension, which was a possible etiology of his “vague dizziness.” She remarked that the November 2017 VA examiner diagnosed orthostatic hypotension during her examination. She diagnosed the Veteran with non-specific dizziness. She opined that the Veteran’s dizziness was not secondary to, or aggravated by, his military service or his service-connected hearing loss and ankylosing spondylitis. She found that there were no reports of true vertigo to consider a diagnosis of Ménière's disease or BPPV, that he did not have any complaints or diagnosis of vertigo in-service or within one year of discharge, and that neither hearing loss with tinnitus by itself nor ankylosing spondylitis caused non-specific dizziness. Instead, she opined that his dizziness was more likely than not caused by the orthostatic hypotension that came on with aging; and/or was secondary to his cardiac medications, although it was not due to or aggravated by the actual cardiac disease. Based on the evidence of record, the Board finds that service connection for a disability manifested by dizziness is not warranted. At the outset, the Board finds that the Veteran has a current disability and therefore meets the first criterion for service connection. Further, the record reflects that he injured his head during service, and therefore meets the second criterion of an in-service injury or disease. In addition, he contends that his dizziness is due to his service-connected hearing loss or his ankylosis spondylitis. However, the November 2016 VA examiner opined that his dizziness was not due to his in-service injury. Specifically, the examiner explained that if it were attributable to the incident, “one would expect these symptoms to occur proximate to the incident” and there was “no evidence of treatment for these problems” proximate to the incident. The Board finds this opinion probative as the VA examiner took into consideration the Veteran’s STRs, VA treatment records, and lay statements in his rationale. The examiner based his opinion on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). In addition, both the November 2017 and March 2018 VA examiners opined that the Veteran’s dizziness was less likely than not due to or aggravated by his service-connected hearing loss or ankylosing spondylitis. The November 2017 VA examiner noted the Veteran’s complaints of dizziness with sitting, standing, and lying down; and diagnosed orthostatic hypotension, which was commonly associated with a history of “dizziness” associated with “standing up too quickly.” She found that there was insufficient evidence to support a diagnosis of BPPV, and explained that having hearing loss and dizziness did not automatically diagnose Ménière's disease. Instead, she explained that Ménière's required a typical pattern of hearing loss, typical course of progressive vestibular decline, expected physical examination abnormalities, and expected abnormal test results from an ENG and other vestibular tests, which was not the case with this Veteran. Likewise, the March 2018 VA examiner noted the Veteran’s reports of occasional dizziness and that he was on several medications to lower his blood pressure. She explained that these medications could cause orthostatic hypotension, and noted the November 2017 VA examiner’s diagnosis of the same. She explained that the Veteran’s dizziness was less likely than not due to or aggravated by his service-connected hearing loss or ankylosing spondylitis because there were no reports of true vertigo to consider a diagnosis of Meniere’s disease or BPPV, and neither hearing loss with tinnitus by itself nor ankylosing spondylitis caused non-specific dizziness. Instead, she opined that the Veteran’s dizziness was more likely than not caused by the orthostatic hypotension; and/or was secondary to his cardiac medications, although it was not due to or aggravated by the actual cardiac disease. The Board notes the Veteran’s allegations that the November 2017 and March 2018 VA examiners’ opinions were inadequate, and his contentions that his VA and private physicians told him that his dizziness was due to his hearing loss. The Board finds that the Veteran is competent to relay his doctors’ opinions on the cause of his disability, and that he is credible in his assertions. Jandreau, 492 F.3d at 1377, n. 4. However, the Board finds that the VA examiners’ opinions are more probative that the opinions of the Veteran’s VA and private physicians because the VA examiners took into consideration the Veteran’s STRs, VA treatment records, medical articles, and lay statements in their rationale that his dizziness was less likely than not related to service or secondary to a service-connected disability. The reported opinions by the Veteran did not contain any rationale. See Nieves-Rodriguez, 22 Vet. App. at 304 (most of the probative value of a medical opinion comes from its rationale). The Board has also reviewed the Veteran’s numerous statements and the medical articles he submitted linking his dizziness with his service-connected hearing loss and/or ankylosing spondylitis. While the Veteran is competent to report symptoms such as dizziness, in this case, the question of a nexus is one as to which lay evidence is not competent. Jandreau, 492 F.3d at 1377, n.4 (“sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer”). In addition, the probative weight of the medical articles submitted, which addressed a general association between the various disabilities is outweighed by the specific medical opinions, which also took account of relevant medical literature and specifically addressed the facts of this case. See Sacks v. West, 11 Vet. App. 314, 317 (1998) (treatise materials generally are not specific enough to show nexus); Herlehy v. Brown, 4 Vet. App. 122, 123 (1993) (medical opinions directed at specific patients generally are more probative than medical treatises). (Continued on the next page)   The Board is sympathetic to the Veteran’s symptoms of dizziness and their effects on his life, but is bound by the laws and regulations that apply to veterans claims. 38 U.S.C. § 7104(c) (2012); 38 C.F.R. §§ 19.5, 20.101(a) (2018). Those laws and regulations reflect that service connection for a disability manifested by dizziness, including vertigo, Ménière's disease, vestibular dysfunction, and benign positional vertigo, to include as secondary to a service-connected disease or injury, is not warranted in this case. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD L. Leifert, Associate Counsel