Citation Nr: 1806761 Decision Date: 02/01/18 Archive Date: 02/14/18 DOCKET NO. 15-27 451A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for an equilibrium disorder, to include benign positional vertigo and/or orthostasis, to include as secondary to a service-connected disability. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD S. Medina, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1951 to December 1953. This matter comes before the Board of Veteran's Appeals (Board) on appeal from a March 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office. The Veteran testified at a November 2016 Travel Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. This matter was previously remanded in September 2014, June 2017, and September 2017 for further development, which has now been completed. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (West 2012). FINDING OF FACT The most probative evidence indicates that the Veteran's equilibrium disorder, to include benign positional vertigo and/or orthostasis, is not related to service and is not caused or aggravated by his service-connected bilateral hearing loss disability and/or tinnitus. CONCLUSION OF LAW The criteria for establishing service connection for equilibrium disorder have not been met. 38 U.S.C. §§ 1110, 1112, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Service connection may be established 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. 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 (2012); 38 C.F.R. §§ 3.307, 3.309. Service connection may also be established for a disability which is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310(a). Further, a disability which is aggravated by a service-connected disability may be service-connected to the degree that the aggravation is shown. Allen v. Brown, 7 Vet. App. 439 (1995). Any increase in severity of a nonservice-connected disease that is proximately due to or the result of a service-connected disease, and not due to the natural progress of the nonservice-connected disease, will be service-connected. 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 Board has reviewed all the evidence in the record. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate each claim and what the evidence in the claims file shows, or fails to show, with respect to each claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102 (2017); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran is service connected for bilateral hearing loss and tinnitus. He claims his service-connected disabilities have affected his balance or equilibrium such that he has trouble walking on uneven surfaces/slight incline and has fallen/stumbled, warranting service connection. At his 2016 Board hearing, he alleged he has suffered from balance problems since returning from Korea. The record reflects a current diagnosis of orthostasis; thus, the remaining question before the Board is whether the disability is related to service or to a service-connected disability. Upon review of the record, the Board finds that the most probative evidence is against the claim. At the outset, the Board notes that the Veteran's service treatment records (STRs) are not available and are presumed to have been destroyed in a fire at the National Personnel Records Center (NPRC) in 1973. In this case, the RO attempted to obtain additional records by alternative means. In March 2011, the RO advised the Veteran that his STRs were destroyed in a fire and requested that he submit any relevant documents in his possession. In June 2014, the RO received some of the Veteran's service treatment records; however only his December 1953 separation examination was included. The Board acknowledges its heightened duty "to consider the applicability of the benefit of the doubt rule, to assist the claimant in developing the claim, and to explain its decision" when serviced records are lost or missing. See Cromer v. Nicholson, 19 Vet. App. 215, 217-18 (2005) (citing Russo v. Brown, 9 Vet. App. 46, 51 (1996)); see also Cuevas v. Principi, 3 Vet. App. 542, 548 (1992) and O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). However, no presumption, either in favor of the claimant or against VA, arises when there are lost or missing service records. See Cromer, 19 Vet. App. at 217-18 (2005) (Court declined to apply "adverse presumption" against VA where records had been lost or destroyed while in Government control because bad faith or negligent destruction of the documents had not been shown). The Veteran's separation examination revealed a normal ear evaluation. In the "Notes" section, there was a discussion of several conditions prior to service and occurring during service. There was no mention of dizziness, vertigo, or ear problems. It was specifically noted in the "Notes" section that the Veteran "[d]enies all else." Following service, VA treatment records dated in December 2010 show that the Veteran was seen for hearing loss and also reported balance issues when he stands up and turns around. He also reported that he has fallen three to four times in the last two years, gets disoriented when he is on uneven surfaces, and a spinning sensation at times that lasts a few seconds. He stated that vertigo occurs approximately two to three times a week. The audiologist noted that the etiology of dizziness was unknown at the time and balance issues were most likely orthostatic in nature. In January 2011, the Veteran was seen for VA follow-up treatment and formal vertigo testing for his balance issues. The audiologist noted that the Veteran was suffering periodic imbalance and stumbling while walking. He also noted that there were a few predisposing factors described as: cardio-vascular disease, status-post cerebral vascular accident (CVA/stroke) in 2004 and diabetes. The audiologist noted there were no precipitating factors described and the Veteran does not describe true vertigo. The audiologist also found no abnormalities. In this regard, the audiologist stated that functional balance was normal and without deficiency. He further remarked that of all of the tests performed, motor control, lower extremity reaction times, was borderline normal or demonstrated the weakest findings. The audiologist stated that there was no evidence of any oculo-motor system; any semi-circular canal; benign paroxysmal positioning vertigo; positional nystagmus or central vestibular system pathology. The audiologist stated that the Veteran's imbalance and stumbling gait are of non-vestibular system origin. In November 2011, the Veteran underwent a VA examination in connection with his claim. At that time, the Veteran reported that over the past three years, he has occasional positional vertigo when he turns his head suddenly. He also noted stumbling and falling that typically occurs when he walks on an uneven surface. The examiner diagnosed benign positional vertigo with an onset date of 2008 and opined that the Veteran's benign positional vertigo and disequilibrium were not secondary to his hearing loss because hearing loss is not an etiology for benign positional vertigo and disequilibrium. The examiner also noted that the Veteran has no evidence of Meniere's disease. Moreover, the Board notes that during the Veteran's August 2013 VA audiology examination, the examiner noted that the Veteran had a history of dizziness/vertigo and balance problems, the Veteran has fallen a couple of time, and medications are taken for blood thinning. The Veteran underwent VA examination for his equilibrium problems in June 2015. At that time, the Veteran reported that he developed vertigo prior to or about 2010, had formal vertigo testing in 2011 that was negative, he loses his balance when walking on uneven ground or up an incline, and that he has fallen. He endorsed getting dizzy when getting up out of his chair and bed, but denied dizziness when moving his head side to side. The examiner provided a negative nexus opinion and reasoned that the Veteran did not have a diagnosis of benign positional vertigo. As her reasoning, the examiner explained that formal vertigo testing in 2011 was negative for vertigo. She stated that the Veteran's history and examination today were more consistent with orthostasis related to his diabetes, hypertension, and history of CVA Per the Board's June 2017 remand, an addendum opinion addressing aggravation was obtained in June 2017. The examiner opined that the Veteran's orthostasis claimed as benign positional vertigo and disequilibrium is less likely than not to have been worsened beyond normal progression by the Veteran's service-connected hearing loss and/or tinnitus. The examiner referenced the articles submitted by the Veteran on benign positional vertigo, sensorineural hearing loss, and vestibular disorders. He also referenced the June 2015 VA opinion and VA treatment records from July 2013 to June 2017. He stated that the treatment records revealed that the Veteran has not had significant problems with dizziness/falls; his neurological examinations during that time have not revealed any gross deficits; he has had stable vital signs, including his blood pressures; he has not had any issues with unstable blood pressure drops that have occurred and had to be dealt with during this time; and there have been no hospitalizations or operative procedures for the orthostasis Thus, the examiner explained that the information demonstrates that the Veteran's orthostasis condition has been stable for the past four years and reveals no deterioration that has occurred. As to the articles submitted by the Veteran, the examiner stated that the articles shed no conflicting information which has challenged the documented stable clinical control that the Veteran has had related to his orthostasis claimed condition. Therefore, the examiner opined that no aggravation of the claimed condition has occurred due to the Veteran's service-connected hearing loss and/or tinnitus. Private treatment records dated October 2016 also show that the Veteran denied light-headedness or dizziness on a new patient health questionnaire. However, a July 2017 VA treatment record shows that the Veteran mentioned he was concerned about his vertigo and the physician prescribed him a trial of meclizine. Upon review of the record, the Board finds that the preponderance of the evidence is against the Veteran's claim for service connection. In this regard, the Board finds the June 2015 and June 2017 VA examiners' opinions to be highly probative. The Board notes that both the 2015 and 2017 opinions considered the Veteran's history, referenced treatment reports, and contained adequate rationale for the conclusions reached. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). There is no probative medical opinion to the contrary. The Board notes that during his November 2016 hearing the Veteran alleged the balance problems began shortly after he left Korea. However, the Board does not find such assertion to be persuasive. In this regard, he had no complaints concerning balance problems on his separation examination. On his initial claim for balance problems, he claimed them secondary to his hearing loss and tinnitus. In a March 2011 statement addressing claims for service connection for hearing loss, tinnitus, and balance problems, the Veteran provided a detailed discussion of the onset and chronology of his hearing loss and tinnitus during service. However, he did not allege balance problems arose in service or shortly thereafter. Rather, he stated that during the past year he has suffered from trouble walking on any uneven service and has stumbled and fallen several times. Moreover, at his November 2011 VA examination, the Veteran reported that over the past three years, he has occasional positional vertigo when he turns his head suddenly. He also noted stumbling and falling that typically occurs when he walks on an uneven surface. The examiner diagnosed benign positional vertigo with an onset date of 2008. In light of the inconsistency in the Veteran's reports of the onset of the balance problems between the time he initially filed the claim and his 2016 hearing, the Board finds the later assertion that his balance problems arose during or shortly following service lacks credibility. Caluza v. Brown, 7 Vet. App. 498, 511 (1995) (The credibility of a witness can be impeached by a showing of interest, bias, or inconsistent statements). While the Veteran believes that his equilibrium disorder is related to service or his service-connected hearing loss and tinnitus, he has not shown that he has specialized training sufficient to render such an opinion. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). In this regard, the diagnosis and etiology of equilibrium disorders are matters not capable of lay observation, and require medical expertise to determine. Accordingly, the Veteran's opinion as to the diagnosis and etiology of his equilibrium disorder is not competent medical evidence. The Board finds the opinion of the VA examiners to be significantly more probative than the Veteran's lay assertions. Finally, although the Veteran has presented medical articles concerning equilibrium disorders, this evidence is general in nature and has not been specifically related to the Veteran by a competent medical professional. See Sacks v. West, 11 Vet. App. 314, 317 (1998) ("This is not to say that medical article and treatise evidence are irrelevant or unimportant; they can provide important support when combined with an opinion of a medical professional."). In this regard, the 2017 VA examiner did not find such articles persuasive as to the Veteran's claim. As such, the Board affords it minimal, if any, probative value. In sum, the probative evidence does not reflect the Veteran had an equilibrium disorder at separation from service or for many years thereafter, and the most probative evidence indicates the Veteran's current equilibrium disorder is not caused or aggravated by his service-connected hearing loss and/or tinnitus. Accordingly, the claim for service connection for an equilibrium disorder, to include benign positional vertigo and orthostasis is denied. In reaching the above 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 in the instant appeal. See 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert, 1 Vet. App. at 55-56. ORDER Entitlement to service connection for an equilibrium disorder, to include benign positional vertigo and orthostasis, is denied. ____________________________________________ K.A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs