Citation Nr: 20002974 Decision Date: 01/14/20 Archive Date: 01/14/20 DOCKET NO. 14-38 208 DATE: January 14, 2020 ORDER Service connection for a vestibular disability, claimed as vertigo is denied. FINDING OF FACT A vestibular disability manifested by imbalance did not have onset during active service or within one year thereafter, was not caused by active service, and was not caused or aggravated by a service-connected disability. CONCLUSION OF LAW The criteria for service connection for vertigo have not been met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.303, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 1982 to July 1992. The Veteran seeks service connection for vertigo. He contends that this condition is related to multiple ear infections and eardrum perforations during his active duty service. The Veteran is service-connected for residuals of a right tympanoplasty; bilateral hearing loss; right ear scar; and tinnitus. Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131. Generally, the evidence 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. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Regulations also provide that service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury which was incurred in or aggravated by service. 38 C.F.R. § 3.303 (d). Certain chronic diseases are subject to presumptive service connection if manifest to a compensable degree within one year from separation from 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. §§ 1112, 1113; 38 C.F.R. §§ 3.307 (a)(3), 3.309(a). An alternative method of establishing the second and third Shedden elements for disabilities identified as chronic diseases in 38 C.F.R. § 3.309 (a) is through a demonstration of continuity of symptomatology. 38 C.F.R. § 3.303 (b). Service connection may alternatively be established on a secondary basis for a disability which is proximately due to, or the result of, a service-connected disability. 38 C.F.R. § 3.310 (a). In order to prevail on the issue of secondary service connection, the record must show: (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). The available service treatment records do not mention vertigo, but they do describe ear infections, ear pain, and multiple perforations of the right tympanic membrane. The Veteran receives service-connected compensation for current residuals of a right ear tympanoplasty. The dispositive issue on appeal concerns whether there is a causal relationship between the Veteran’s current vestibular disability and either service or a service-connected disability To help decide his claim, the RO arranged for examinations with a VA physician in May 2014 and, pursuant to the Board’s May 2014 remand directives, January 2019. These opinions are against the claim on a direct and secondary (January 2019 opinion) bases. During the May 2014 VA examination, the Veteran denied vertigo and dizziness. Based on this statement, the VA examiner concluded that it was less likely than not that the Veteran had a current disability characterized by vertigo which was related to his period of active duty service. The Veteran’s representative argued that the May 2014 examination report was inadequate because the examination form revealed that a “Dix Hallpike test (Nylen-Barany test) for vertigo” was “not indicated.” According to the representative’s brief, this note suggested the availability of a clinical test for determining whether vertigo was present, which could have potentially resolved the conflict in the statements provided by the Veteran and the May 2014 examiner, respectively. Thus, in May 2018, the Board remanded the claim for an additional VA examination and opinion. In January 2019, VA reexamined the Veteran. After a review of the Veteran’s record, as well as a physical examination, the January 2019 VA examiner concluded that the Veteran likely had a central etiology for his imbalance. The VA examiner opined that there was no evidence to suggest that any of his imbalance was caused by an action in service. The VA examiner further opined that the Veteran’s imbalance may have been age-related degeneration of the vestibular system, related to central ischemic vascular disease or an undiagnosed lesion. The VA examiner noted that Hallpike and Dylen-Barany testing were negative on clinician examination. Regarding the secondary service connection theory of the claim, the VA examiner concluded that the Veteran’s previous surgeries and right ear hearing loss were likely not related to his dizziness as it appeared to be of central origin. The Board notes that although the January 2019 VA examiner recommended that the Veteran undergo a magnetic resonance imaging (MRI) scan and further vestibular testing in order to rule out any central lesions and also to assess the function of his peripheral vestibular system, his central conclusion that any imbalance and vestibular disability would not be related to service would remain unchanged. Given the January 2019 VA examiner’s opinion, the Board finds that the weight of the evidence fails to show that the Veteran’s vestibular disability manifested by imbalance manifested within one year from service discharge, or that it was either caused by service or caused or aggravated by a service-connected disability. The only evidence suggestive of such is the Veteran’s his own opinion, but he is not shown to possess the requisite medical training and/or expertise to address such a medically complex question. See Jandreau v. Nicholson, 492. F.3d 1372, 1377 n.4 (Fed. Cir. 2007). The Board places greater probative weight on the VA medical opinion interpreting the entirety of the record. In sum, based on the totality of the evidence, with the preponderance of it being against the Veteran’s claim, the benefit-of-the-doubt rule does not apply. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Carole Kammel, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.