Citation Nr: 21003734 Decision Date: 01/22/21 Archive Date: 01/22/21 DOCKET NO. 16-23 965 DATE: January 22, 2021 ORDER Entitlement to service connection for a left foot disability is denied. Entitlement to service connection for vertigo, to include as secondary to ear damage and/or hearing loss and tinnitus is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that the Veteran’s current left foot condition began during active service, or is otherwise related to an in-service injury or disease. 2. The Veteran’s vertigo condition is not secondary to service-connected bilateral hearing loss or tinnitus, and is not otherwise related to an in-service injury or disease, to include military noise exposure. CONCLUSIONS OF LAW 1. The criteria for service connection for a left foot disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2019). 2. The criteria for service connection for vertigo, to include as secondary to ear damage and/or hearing loss and tinnitus have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1963 to January 1966. This case is before the Board of Veterans’ Appeals (Board) on appeal from November 2013 and April 2015 rating decisions by a Department of Veterans Affairs (VA) Regional Office (RO). In May 2018, the Board remanded the matters for further development. Now the matters are returned to the Board. A veteran is entitled to VA disability compensation if there is disability resulting from personal injury suffered or disease contracted in line of duty in active service, or for aggravation of a preexisting injury suffered or disease contracted in line of duty in active service. 38 U.S.C. §§ 1110, 1131 (2012). To establish an entitlement to service connection for a disability, a veteran must show: (1) a present disability; (2) an 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). Service connection may also be granted for a disability that is proximately due to or the result of an established service-connected disability. 38 C.F.R. § 3.310 (2019). This includes disability made chronically worse by a service-connected disability. Allen v. Brown, 7 Vet. App. 439 (1995). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims stated that “a veteran need only demonstrate that there is an ‘approximate balance of positive and negative evidence’ in order to prevail.” When 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(b) (2012). For VA to deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App., at 54. 1. Left foot disability The Veteran contends that his current left foot condition is a result of dropping a heavy item on his left foot while in service. First, the record shows the Veteran’s current diagnoses of minimal degeneration of first MTP left foot and hallux valgus. See e.g., July 2013 Foot Disability Benefits Questionnaire (DBQ). Thus, the Board finds that the first Shedden element for service connection is met. As to the in-service left foot injury, the Veteran’s service treatment record shows that he was treated for swelling of the left great toe after dropping a wood on it. See May 1965 Service Treatment Record. In light of the Veteran’s competent statement regarding his in-service injury and service treatment record reflecting the injury, the Board finds that the second Shedden element for service connection is also met. In regard to the causal link between the Veteran’s current left foot condition and the in-service injury, a July 2013 VA examiner provided that the Veteran’s current radiographic findings of minimal degeneration of the first MTP joint is attributed to age and normal wear and tear on joints. The examiner noted that the Veteran was evaluated in May 1965 after dropping wood on his left great toe, but radiographic study for the left foot showed no fracture at that time and the injury healed without sequelae. The examiner also pointed out that the Veteran’s separation examination did not report chronicity for left great toe complaints or diagnosis. However, the examiner indicated that she was providing a positive nexus opinion on the examination report, so an additional clarifying opinion was obtained in April 2020. In April 2020, another VA examiner opined that the Veteran’s left foot condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The April 2020 examiner noted that the Veteran had a contusion of his left great toe in service with negative X-rays for fracture, and he denied foot pain during his November 1965 separation examination. The examiner provided that none of the Veteran’s current left foot conditions of calcific Achilles tendinopathy, hallux valgus with a developing medial bunion, minimal degeneration of the first MTP joint, and a questionable old fracture of the second metatarsal are likely to have been caused by the contusion in 1965. The Board finds the April 2020 VA examiner competent and credible and assigns high probative weight to the examiner’s opinion as he reviewed the Veteran’s records and the July 2013 VA examination report prior to rendering the opinion. The Board acknowledges that the Veteran is competent to provide that he had troubles with left foot ever since his in-service injury. See April 2013 Application for Disability Compensation and Related Compensation Benefits; see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). However, the evidence of record does not show any complaints or history of continuing treatment of the Veteran’s left foot since his separation in January 1966. Rather, the first diagnosis of the Veteran’s left foot of record was from the July 2013 VA examination. As the Veteran is not competent to provide a medical opinion that goes beyond the knowledge of a lay person regarding the etiology of his left foot disability, the Board assigns less probative weight to the Veteran’s lay assertions. Based on above, the Board finds that the preponderance of the evidence is against finding that the Veteran’s current left foot condition began during active service, or is otherwise related to an in-service injury or disease. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine does not apply here. Consequently, the Board finds that the Veteran’s entitlement to service connection for a left foot disability is not warranted. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2019). 2. Vertigo The Veteran contends that his vertigo condition is secondary to ear damages due to loud noise exposure in service and/or his service-connected hearing loss and tinnitus. Initially, the Board notes that the evidence of record does not show any in-service complaints, diagnosis, or treatments related to vertigo condition. The Veteran also denied any direct injury to ear or treatments for ear conditions while in service. See March 2015 Ear Conditions DBQ, at 1. The Veteran reported that he began having trouble with vertigo around the age of 60 right before he had an outbreak of shingles on his left side of head, forehead, and face. See id. The record shows the Veteran’s current diagnosis of benign paroxysmal positional vertigo (BPPV). See July 2020 Ear Conditions DBQ. The Veteran asserts that the he has developed vertigo as a result of living with tinnitus and hearing loss for a long period of time. See May 2016 VA Form 9. However, the Board finds that the Veteran is not competent to opine on the etiology of his vertigo condition due to the medical complexity of the matter. See Jandreau, at 1377, n.4. In that regard, the July 2020 VA examiner opined that the Veteran’s BPPV condition is less likely than not related to military noise exposure, bilateral hearing loss, or tinnitus. See also September 2020 Addendum opinion. The examiner reasoned that BPPV condition is usually caused by small calcium stones in the ear. See id. The Board finds the July 2020 VA examiner competent and credible and assigns high probative weight to his opinion as the examiner rendered the opinion after reviewing the Veteran’s records in conjunction with an in-person examination of the Veteran. Furthermore, there is no competing medical opinion of record. Thus, the Board finds that the July 2020 VA examiner’s opinion is dispositive of the issue at hand. Based on above, the Board finds that the Veteran’s vertigo condition is not secondary to service-connected bilateral hearing loss or tinnitus, and is not otherwise related to an in-service injury or disease, to include military noise exposure. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine does not apply here. Consequently, the Board finds that the Veteran’s entitlement to service connection for vertigo, to include as secondary to ear damage and/or hearing loss and tinnitus is denied. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2019). MICHAEL LANE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. E. Kim, Associate 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.