Citation Nr: 21000273 Decision Date: 01/05/21 Archive Date: 01/05/21 DOCKET NO. 13-06 574 DATE: January 5, 2021 ORDER Service connection for vertigo is denied. FINDING OF FACT The Veteran does not have vertigo that was caused by, or is related to, his service, or that was caused or aggravated by service-connected disability. CONCLUSION OF LAW The criteria for service connection for vertigo have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION In May 2016, the Veteran was afforded a hearing before the undersigned. In June 2016, the Board remanded this claim for additional development. In June 2017, the Board denied the claim. The appellant appealed to the U.S. Court of Appeals for Veterans Claims (Court). In August 2018, while his case was pending at the Court, the VA’s Office of General Counsel and the Veteran’s representative filed a Joint Motion requesting that the Court vacate the Board’s June 2017 decision. That same month, the Court issued an Order vacating the June 2017 Board decision and remanded the case for compliance with a Joint Motion for Remand (JMR). In May 2019, the Board remanded this claim for additional development. 1. Service connection, vertigo. The Veteran asserts that he has vertigo that is due to exposure to loud noise during duties as a tank crewman during service, to include service in Korea during the Korean War. He also argues that service connection for vertigo is warranted as caused or aggravated by service-connected hearing loss and/or tinnitus. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. 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). Service connection may also be established for a current disability on the basis of a presumption under the law that certain chronic diseases manifesting themselves to a certain degree within a certain time after service must have had their onset in service. 38 U.S.C. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309(a). Organic diseases of the nervous system can be service connected on such a basis. Service connection may be granted, on a secondary basis, for a disability, which is proximately due to, or the result of an established service-connected disorder. 38 C.F.R. § 3.310. Service connection is currently in effect for hearing loss and tinnitus. The Veteran’s personnel records show that he had service with a tank battalion, with one year and five months of foreign or sea service. His specialty was tanker. His awards include the Korean Service Medal. The Veteran’s service treatment records are of record, although many are at least partially burned and therefore partially unreadable, and some may have been destroyed due to a 1973 fire. They do not show complaints, treatment, or a diagnosis involving vertigo or dizziness. The Veteran’s separation examination report, dated in April 1955, shows that his ears were clinically evaluated as normal. In the associated report of medical history, the Veteran indicated that he did not have a history of ear trouble or dizziness. As for the post-service medical evidence, private reports dated in 1998 show treatment for atherosclerotic coronary artery disease. Private reports dated in 2009 show treatment for brain metastasis, with a history that included renal cell carcinoma, hypertension, borderline diabetes. A VA examination report, dated in March 2011, shows that the examiner concluded that it is less likely than not that the Veteran’s vertigo was caused by, or the result of, noise exposure while in the military. The examiner explained that the Veteran’s service treatment records were negative for complaint, evaluation, or treatment of hearing loss, tinnitus, or vertigo. The Veteran indicated that he did not have ear problems upon separation from service, and that his hearing was normal upon separation from service. Although there are vague complaints of dizziness associated with being in bending positions, there is no substantiated diagnosis of vertigo. The Veteran has a post-service history of working for 31 years for General Motors, initially as a press operator, with suggestions that he had noise-induced changes in his hearing due to civilian occupational noise exposure. There is a lack of continuity and care for the claimed conditions, to include vertigo. A statement from H.R., M.D., dated in August 2016, shows that he states that the Veteran was seen in July 2016 for a chief complaint of impaired hearing and dizziness. The Veteran described his dizziness as lightheadedness, and unsureness of himself. He said that his dizziness is aggravated when he is in motion. An August 2016 electronystagmography (ENG) showed central nervous system dysfunction and bilateral peripheral vestibular dysfunction with marked deficiency in optokinetic tracking at 15 degrees and 25 degrees. A recent computerized tomography (CT) study of the head and neck showed circulatory abnormalities. Dr. H.R. stated, “In view of the connection of the hearing and balance function in the inner ear and the established Veteran’s service-connected hearing loss and tinnitus it is as likely as not that there is a causal relationship to his current vertigo disability and that his hearing loss and tinnitus are aggravated beyond the natural process of the disorder.” A VA hearing loss and tinnitus disability benefits questionnaire (DBQ), dated in September 2016, shows that the Veteran complained of dizziness that started approximately 10 years earlier. He reported the dizziness was intermittent. He had been evaluated twice for this problem. He was seen by a regular doctor for the problem about 10 years earlier when he had a blood pressure problem. The Veteran reported seeing another doctor again for this problem in April. He described his dizziness as imbalance, being unsure of himself, and that he finds himself staggering. He had fallen twice in the last six months. He remembered taking medication prior to the onset of dizziness, and since then he reported that his gait had not been steady. His medical history includes a brain tumor with brain surgery in 2010. He reported a history of cerumen impaction with ear wax removal, and a cardiac history with heart valve replacement. He denied a history of conditions that included head or ear trauma or ear infections. He reported having episodes of staggering more than once a week, lasting less than one hour, and dizziness. He said that he had been evaluated for dizziness two times in the last 10 years. He describes his dizziness as a feeling of “lightheadedness.” He denied feeling that he is spinning or that he has vertigo. His medical history is positive for heart condition, with history of valve replacement, and a history of brain tumor with brain surgery in 2010. See also VA hearing loss and tinnitus DBQ, dated in October 2016 (noting a similar medical history and history of reported symptoms). The examiner indicated that the Veteran’s dizziness does not have a causal relationship to his hearing loss or tinnitus. She concluded that it was less likely that his dizziness or imbalance were caused or aggravated by his hearing loss or tinnitus. She explained the following: The Veteran’s hearing loss and tinnitus are distinct diagnoses and separate problems. His dizziness is not related, residual, or aggravated by hearing loss or tinnitus. His dizziness is more likely to be attributed to other causes, including an abnormality in his circulatory pattern of his head and neck, as shown in a recent CT scan. He is also shown to have a heart condition with valve replacement and a brain tumor and a bilateral peripheral vestibular disorder by ENG. This is more likely due to his age, and not due to hearing loss or tinnitus. She noted that a review of literature indicated that the central and peripheral causes of vertigo usually include multiple medical conditions (list omitted), none of which the Veteran has reported. A vestibular evaluation, dated in January 2017, notes complaints of postural dizziness and lightheadedness, and imbalance, as well as hearing loss. The lightheadedness had been experienced for “many years.” The Veteran stated that his symptoms did not begin with a specific illness, rather, they appeared over time. He reported a history of concussive blasts during service from tank fire, but he denied a history of blast injury, or head or neck injury. His history was noted to include a brain tumor in 2006, congestive heart failure, status post pacemaker, hypertension, and chronic kidney disease. The impression noted that vestibular testing and analysis was difficult. The patient had a hard time keeping his eyes open which made interpretation difficult and the accuracy of the test was guarded. There were notations that multifactorial disequilibrium and dizziness likely explained his complaints, and that the combination of aging vision and oculomotor system, aging vestibular system, musculoskeletal degeneration, and white matter changes and disease, can lead to significant disturbances of balance function. A report from the Bronson Hospital, dated in January 2017, notes complaints of hearing loss and dizziness, as well as a 20-year history of lightheadedness. The Veteran was noted to be concerned that his lightheadedness is caused by damage sustained during his time in the service, when he was driving tanks, exposed to artillery noises, was not given ear plugs. He was requesting a letter to be sent to VA that supports a causal relationship between his dizziness and his military service. There is a notation of “Discussed dizziness vs. vertigo with the patient, his symptoms are not consistent with vertigo. Informed the patient that I cannot write a letter about his vertigo at this time.” Reports from Opus Medicine PC, dated in 2017, include medical histories noting conditions that included an aortic valve disorder, hypertension, coronary arteriosclerosis, generalized ischemic myocardial dysfunction, congestive heart failure, systolic heart failure, history of coronary artery bypass grafting, unsteady gait (onset in January 2016) and dizziness and giddiness (onset in October 2013). Private treatment reports, dated in 2020, note complaints of dizziness and light headedness, and that a CT of the head showed moderate generalized brain atrophy. The Veteran was not treated for vertigo or dizziness during service, nor was he ever found to have a vertigo condition. Upon separation from service, a vertigo or dizziness condition was not found, and the Veteran denied a history of ear trouble, or dizziness. Accordingly, a chronic condition is not shown during service. See 38 C.F.R. § 3.303. There is no evidence of an organic disease of the nervous system that was manifested by vertigo or dizziness within one year of separation from service. See 38 C.F.R. §§ 3.307, 3.309(a). Following separation from service, the earliest medical evidence of vertigo or dizziness is dated in 2011. This is about 55 years after separation from service. The Veteran is shown to have a complex medical history that includes a brain tumor with surgery, and a heart condition with surgery. Imaging studies show circulatory abnormalities in the head and neck. The March 2011 and September 2016 VA opinions both weigh against the claim. In particular, the September 2016 opinion is supported by an adequate rationale. Neives-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The September 2016 VA opinion is also consistent with the January 2017 private vestibular evaluation, which noted that the Veteran’s complaints are likely explained by “multifactorial disequilibrium and dizziness.” The report listed a number of factors that can lead to significant disturbances of balance function and the list does not include hearing loss or tinnitus. Accordingly, the claim must be denied on a direct, presumptive, and secondary basis. The Board has considered Dr. H.R.’s August 2016 opinion, in which he states, “it is as likely as not that there is a causal relationship to his current vertigo disability and that his hearing loss and tinnitus are aggravated beyond the natural process of the disorder.” This statement appears to indicate both that the Veteran’s hearing loss and tinnitus both caused his vertigo (which is a basis for service connection), and contradictorily, that his service-connected hearing loss and tinnitus were aggravated by his vertigo (which is not be a basis for service connection). He notes that there is a “connection of the hearing and balance function,” but he did not explain what that connection is, nor did he otherwise explain how hearing loss or tinnitus can negatively affect balance functions. His opinion has been afforded reduced probative value due to the lack of clarity in the opinion. Neives-Rodriguez. The issue on appeal is based on the contention that service connection is warranted for vertigo. The Veteran’s service treatment reports and the post-service medical records have been discussed. There is no medical evidence of vertigo or dizziness during service or for many years following service. Although lay persons are competent to report the presence of neurological symptoms, the Veteran is not shown to have been treated for vertigo or dizziness during service, and he denied any relevant symptoms upon separation from service. He is not competent to provide a probative opinion on the issue of secondary service connection. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Given the medical evidence in this case, the lay testimony has been afforded reduced probative value, and the Board finds that the medical evidence outweighs the Veteran’s contentions to the effect that he has the claimed condition due to his service, or service-connected disability. Madden v. Gober, 125 F. 3d 1477, 1481 (Fed. Cir. 1997). MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T.S.E., 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.