Citation Nr: 20021995 Decision Date: 03/30/20 Archive Date: 03/30/20 DOCKET NO. 15-01 996 DATE: March 30, 2020 ORDER Entitlement to service connection for vertigo (also claimed as loss of gait/balance) is granted. REMANDED Entitlement to service connection for an acquired psychiatric disorder to include anxiety and depression as secondary to tinnitus is remanded. Entitlement to service connection for erectile disfunction (ED) as secondary to medication taken for an acquired psychiatric disorder is remanded. FINDING OF FACT The Veteran’s vertigo is attributable to his active service and his exposure to ototoxic substances. CONCLUSION OF LAW The criteria for entitlement to service connection for vertigo have been met. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1979 to March 1983. This matter comes before the Board of Veteran’s Appeals (Board) from a November 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In December 2017, the Veteran testified via videoconference before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the record. This matter was previously before the Board in July 2018 when the claims were remanded for development. The Board finds the July 2018 remand directives have been substantially complied with, and the matters are again before the Board. Stegall v. West, 11 Vet. App. 268, 271 (1998). In July 2018, the Board recharacterized the Veteran’s claim for adjustment disorders as it appears in the title page pursuant to Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). Entitlement to service connection for vertigo (also claimed as loss of gait/balance) Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110, §1131; 38 C.F.R. § 3.303. 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 the so-called “nexus” requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Lay assertions may serve to support a claim for service connection by establishing the occurrence of observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C. § 1154 (a); 38 C.F.R. § 3.303 (a). 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 claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). The Veteran’s service records and his medical records have been associated with the claims file. Post-service medical records show the Veteran has been diagnosed with acute positional vertigo. See medical records for April 2019. As the Veteran is currently diagnosed with a vertigo disability, he meets the first prong of the Shedden service-connection test, a current disability. Therefore, the remaining questions before the Board are whether the Veteran had an in-service incurrence and whether the Veteran’s current vertigo disorder is related to his in-service incurrence. The Veteran’s service records show that his military occupation specialty (MOS) was as a tactical aircraft maintenance specialist. See DD-214. The Veteran testified at the hearing that as during his service he was prescribed tetracycline as part of a treatment plan for his acne. The Veteran asserted that medical literature suggests tetracycline is an ototoxic substance. See hearing transcript page 21-22. Furthermore, in a written statement, the Veteran explained that he was prescribed high doses of tetracycline for his acne for almost 4 years while in service. See statement of August 2018. The Veteran’s service treatment records (STRs) show that he was prescribed tetracycline in October 1979, February 1980, August 1982, November 1982, and February 1983. Additionally, in October 1980 and March 1983 the Veteran reported continuous use of tetracycline for his acne. See STRs for October 1980. Furthermore, the Veteran’s written statement of August 2018 presents further arguments regarding exposure to other ototoxic substances such as jet fuel, doxycycline cream, and some antibiotics prescribed for his upper respiratory infections (URIs) while in service. See statement of August 2018. The Board finds the Veteran’s statements regarding exposure to substances he believes to be ototoxic credible and assigns them high probative value. The Veteran’s post-service treatment records show he has continuously sought treatment for his vertigo or balance problems. In September 2019, the Veteran was examined by a private physician for his vertigo. This private physician noted he revised the Veteran’s medical records and administered the Veteran a physical exam. The physician noted the Veteran’s history of balance issues, vertigo, hearing problems, severe headaches and psychiatric disorder complaints. The physician also noted the Veteran had an unsteady gait and an unsteady station with positive Romberg’s signs. The physician opined that the Veteran was in a constant state of severe dysequilibrium from toxic exposure to jet fuel, tetracycline, and acoustic trauma which seemed to have caused a sensory integration disorder making it hard for the Veteran to maintain balance. Accordingly, the examiner opined that the Veteran’s vertigo and dysequilibrium was more likely than not the result of exposure to ototoxic substances and acoustic trauma while in service. See private medical opinion of September 2019. The Board finds this examination and medical opinion adequate and affords it high probative value. In October 2019, VA administered the Veteran an Ear Conditions Disability Benefits Questionnaire (Ear DBQ). The examiner noted a diagnosis benign Paroxysmal Positional Vertigo (BPPV). The Veteran reported that his balance issues began in service, around 1981, which has gotten progressively worse to be now constant. The Veteran explained his balance/vertigo issues have gotten so bad he falls constantly and walks in a zigzag pattern due to his issues. The examiner noted the Veteran suffered vertigo more than once weekly with a duration of 1 to 24 hours. The examiner also noted the Veteran presented constant staggering with a duration of more than once weekly and a duration of more than 24 hours. The Veteran had an abnormal or positive for unsteadiness romberg test. After this examination, the examiner provided a medical opinion where he explained that the Veteran’s vertigo was less likely than not related to his service and use of tetracycline. In support of his opinion the examiner noted the Veteran was prescribed tetracycline for treatment of acne in August 1982. The examiner noted the prescription was refilled in November 1982 and then discontinued. He additionally explained that there are over 700 medication which can cause ototoxicity, to include medication such as antibiotics, aspirin, ibuprofen and Naprosyn. The examiner further commented that medical literature says dizziness is a side effect of tetracycline; but that the dizziness would be experienced while taking the medication and be of a transient nature and not a long-term side effect. The examiner additionally mentioned that the Veteran was administered an MRI in 2014 which revealed advanced peritrigonal white matter demyelination, noted to be advanced for the Veteran’s age, which was common among patients with extensive history of alcohol abuse such as in the Veteran’s case. Accordingly, the examiner opined that the Veteran’s vertigo was less likely than not incurred in or caused by the prescribed use of tetracycline during service and was most likely due to his history of alcohol abuse. See VA medical opinion of October 2019. The Board finds this examination inadequate as the examiner based his opinion on an erroneous premise. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); Reonal v. Brown, 5 Vet. App. 458, 460-61 (1993). The Veteran’s STRs show he was continuously prescribed tetracycline at high doses in October 1979, February 1980, August 1982, November 1982, and February 1983 during service. Furthermore, the Veteran’s STRs show that in October 1980 and March 1983 the Veteran reported continuous use of tetracycline for his acne. Additionally, the examiner did not address the Veteran’s report of having balance problems during service, nor did he provide an explanation for discarding them. As this examination is deemed inadequate, the Board assigns it low probative value. The Board notes there is evidence in the record in favor of the claim and also against the claim. As the Board has afforded low probative value to the VA medical opinion of October 2019 as it was based in incorrect factual premises, and high probative value to the Veteran’s lay statements and the private medical opinion of September 2019 which both weight in favor of the claim; the Board finds the preponderance of the evidence is in favor of the claim. Based on the aforementioned evidence, the Board finds the Veteran has surpassed the second and third prongs of the Shedden service connection test, an in-service incurrence and a medical nexus between his in-service incurrence and his current disability. As the preponderance of the evidence is in favor of the Veteran’s claim, the Board finds that the Veteran’s vertigo is related to his exposure to acoustic trauma and ototoxic substances in service and having surpassed the Shedden service connection test, service connection is warranted. REASONS FOR REMAND 1. Entitlement to service connection for an acquired psychiatric disorder to include anxiety and depression, as secondary to tinnitus is remanded The Veteran asserts his acquired psychiatric disorder is secondary to his service-connected tinnitus as his condition is of such severity that has caused him depression and anxiety. At the hearing. the Veteran explained that his psychiatric disorders stem from sleep deprivation which he attributes to his hearing problem of tinnitus. See hearing transcript of page 29. In December 2013, the Veteran reported that his tinnitus was causing insomnia and that he had resulted to treating his insomnia with alcohol but that he was trying to avoid it. See medical record for December 2013. The Veteran requested a psychiatric consult to help manage his psychiatric disorders. See medical records for December 2013. In October 2014 the Veteran was diagnosed with moderate major depressive disorder (MDD), panic disorder with agoraphobia, and a mild alcohol use disorder in remission. See medical records for October 2014. The Veteran has not yet been afforded a VA examination regarding his claimed psychiatric disorders as secondary to his tinnitus. The Board finds that as the Veteran is currently service connected for his tinnitus and he attributes his psychiatric disorders to this condition, a medical examination is necessary. Accordingly, the Board finds a remand is necessary. 2. Entitlement to service connection for erectile disfunction (ED) as secondary to medication taken for an acquired psychiatric disorder is remanded. The Veteran asserts that his ED is related to the medication he takes for his psychiatric disorders of depression and anxiety. See hearing transcript page 24. The Veteran has not yet been examined by VA for his ED claim. As this claim is inextricably intertwined with the Veteran’s claim for psychiatric disorders as secondary to tinnitus, the Board finds a remand is necessary. See Harris v. Derwinski, 1 Vet. App. 180 (1991). The matters are REMANDED for the following action: 1. Contact the Veteran, and, with his assistance, obtain any outstanding records of pertinent medical treatment from VA or private health care providers. Follow the procedures for obtaining the records set forth by 38 C.F.R. § 3.159 (c). If VA attempts to obtain any outstanding records which are unavailable, the Veteran should be notified in accordance with 38 C.F.R. § 3.159 (e). 2. After any outstanding medical records, please schedule a VA examination for the Veteran’s acquired psychiatric disorder(s). The examiner is asked to: a. identify any and all psychiatric disorder the Veteran currently suffers from b. identify all the medications the Veteran currently takes for his psychiatric disorders c. opine whether any of the psychiatric disorders identified in accordance with the preceding step, are caused by or otherwise aggravated by the Veteran’s tinnitus d. opine whether any of the psychiatric disorders identified are caused by or otherwise aggravated by any other of the Veteran’s service-connected disabilities, beside tinnitus. 3. After the Veteran’s examination for his psychiatric disorder has been completed, schedule a new examination for the Veteran’s ED disability. The examiner is asked to: a. list all medications the Veteran currently takes for his service-connected disabilities i. please clearly identify what medication is taken for which service-connected disability, b. determine whether the Veteran currently suffers from ED and c. opine if the Veteran’s ED is caused by or otherwise aggravated by the medications the Veteran takes for his service-connected disabilities KRISTI L. GUNN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Gonzalez-Maldonado 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.