Citation Nr: 21004775 Decision Date: 01/28/21 Archive Date: 01/28/21 DOCKET NO. 13-08 444 DATE: January 28, 2021 ORDER Service connection for vertigo is denied. REMANDED Entitlement to service connection for hypothyroidism status post thyroidectomy, to include as secondary to service-connected idiopathic cardiomyopathy with coronary artery disease (CAD) and atrial fibrillation and/or as due to exposure to herbicide agents, is remanded. Entitlement to service connection for a cervical spine disorder, claimed secondary to a thyroid disorder, is remanded. Entitlement to service connection for hypertension, to include as secondary to service-connected idiopathic cardiomyopathy with CAD and atrial fibrillation and/or diabetes mellitus, type II, and/or as due to exposure to herbicide agents, is remanded. Entitlement to service connection for an umbilical hernia, also claimed as diastasis recti, to include as secondary to service-connected bilateral inguinal herniotomies, is remanded. Entitlement to service connection for erectile dysfunction, claimed as secondary to service-connected idiopathic cardiomyopathy with CAD and atrial fibrillation and/or diabetes mellitus, type II, is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities prior to January 28, 2014, and due to a single service-connected disability thereafter is remanded. FINDING OF FACT Vertigo, diagnosed as benign paroxysmal positional vertigo (BPPV) is not shown to be causally or etiologically related to any disease, injury, or incident during service, did not manifest to a compensable degree within one year of discharge from active duty, and is not caused or aggravated by service-connected hearing loss or tinnitus. CONCLUSION OF LAW The criteria for service connection for vertigo have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 1964 to April 1968, to include service in the Republic of Vietnam. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from rating decisions issued in April 2012 and October 2012 by a Department of Veterans Affairs (VA) Regional Office. In September 2015, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. In February 2016, July 2018, and May 2020, the Board remanded the case for additional development and it now returns for further appellate review. As pertinent to the characterization of the Veteran’s TDIU claim, the Board observes that he has been awarded a 100 percent schedular rating as of January 28, 2014. However, such claim stems from August 31, 2010, the date service connection was awarded for idiopathic cardiomyopathy with CAD as the Veteran previously appealed with respect to the propriety of the initially assigned rating for such disability. Rice v. Shinseki, 22 Vet. App. 447 (2009). Furthermore, VA has a “well-established” duty to maximize a claimant’s benefits. Buie v. Shinseki, 24 Vet. App. 242, 250 (2011); Bradley v. Peake, 22 Vet. App. 280 (2008). This duty to maximize benefits requires VA to assess all of a claimant’s disabilities to determine whether any combination of disabilities establishes entitlement to special monthly compensation (SMC) under 38 U.S.C. § 1114. See Bradley at 294 (finding that SMC “benefits are to be accorded when a veteran becomes eligible without need for a separate claim”). Subsection 1114(s) requires that a disabled veteran whose disability level is determined by the ratings schedule must have at least one disability that is rated at 100 percent in order to qualify for the special monthly compensation provided by that statute. Under the law, subsection 1114(s) benefits are not available to a veteran whose 100 percent disability rating is based on multiple disabilities, none of which is rated at 100 percent disabling. For SMC purposes, a TDIU based on a single service-connected disability satisfies the requirement of a “service-connected disability rated as total.” See Buie at 251; see also Bradley at 293. Therefore, the claim of entitlement to a TDIU based on all service-connected disabilities prior to January 28, 2014, and based on a single disability thereafter is properly before the Board. The Board observes that, subsequent to the issuance of the most recent supplemental statement of the case in August 2020, additional VA treatment records and unrelated VA examination reports have been associated with the record. However, as such are irrelevant to the Veteran’s claim for service connection for vertigo, there is no prejudice to him in proceeding with a decision on such issue at the present time. 38 C.F.R. § 20.1305(c). Furthermore, as the remaining claims are being remanded, the Agency of Original Jurisdiction (AOJ) will have the opportunity to consider such newly received evidence in the readjudication of such claims. 1. Entitlement to service connection vertigo, to include as secondary to service-connected bilateral hearing loss and/or tinnitus. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. Id.; see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff’d, 78 F.3d 604 (Fed. Cir. 1996) [(table)]. Where a veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests certain chronic diseases, such as organic diseases of the nervous system, to a degree of 10 percent within one year, from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Alternatively, when a disease at 38 C.F.R. § 3.309(a) is not shown to be chronic during service or the one-year presumptive period, service connection may also be established by showing continuity of symptomatology after service. 38 C.F.R. § 3.303(b). However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309(a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Further, service connection may not be awarded on the basis of aggravation without establishing a pre-aggravation baseline level of disability and comparing it to the current level of disability. 38 C.F.R. § 3.310(b). As an initial matter, the Board notes that the Veteran has a current diagnosis of BPPV. However, his service treatment records are negative for any complaints, treatment, or diagnosis of such disorder, and the remainder of the evidence, to include the Veteran’s own statements, does not show that such disorder manifested in service, or to a compensable degree within one year of separation from active duty. Indeed, the Veteran’s Report of Medical History completed at the time of his separation examination in January 1968 reflects that he denied currently or previously experiencing dizziness. Further, he testified at the September 2015 Board hearing that his vertigo symptoms began in the 1980’s, many years after service, and, during VA examinations conducted during the pendency of the claim, he reported the onset of his vertigo in 1997, which is consistent with the first diagnosis of record in July 1997, at which time he reported the spontaneous, recent onset of his symptoms. Furthermore, the Veteran has not reported a continuity of symptomatology since service. Nonetheless, the Veteran claims that he developed his BPPV as a result of his in-service exposure to unpressurized air cabins, which he alleges caused inner ear damage and ultimately led to his development of BPPV, or, in the alternative, such is caused or aggravated by his service-connected bilateral hearing loss and/or tinnitus. However, establishing such a correlation is a complex medical matter, requiring related expertise that the Veteran does not purport to possess. Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007) (holding that a lay person is not considered competent to testify regarding medically complex issues). Accordingly, the Veteran’s own lay assertions of causation cannot be accorded any probative weight, and competent medical evidence is required to decide the claim. However, the probative medical opinions of record, which have been rendered by VA clinicians, conclude that a correlation between the Veteran’s BPPV and his in-service flights in unpressurized air cabins, or his service-connected hearing loss and tinnitus, is not plausible. In this regard, while a May 2016 VA opinion concluded that BPPV was not due to extrinsic factors, such as hearing loss and tinnitus, he also stated that BPPV was caused by deterioration of the distributed portion of the inner ear, raising the question of whether such deterioration could result from exposure to unpressurized flight cabins. Nonetheless, a June 2020 VA examiner opined that the Veteran’s BPPV is less likely than not related to transport in unpressurized airplanes. Furthermore, a March 2019 VA examiner found that such disorder was not caused or aggravated by his bilateral hearing loss and/or tinnitus as the conditions are unrelated. In support of their opinions, the March 2019 and June 2020 VA examiners explained that BPPV occurs due to the displacement of calcium-carbonate crystals or otoconia within the fluid-filled semicircular canals of the inner ear, which the March 2019 opinion states is unrelated to any extrinsic factors, including hearing loss and tinnitus, and which the June 2020 opinion states is unrelated to transport in unpressurized airplanes. As these medical opinions, in their aggregate, unequivocally refute the Veteran’s theories that his BPPV could have resulted from in-service transport in unpressurized airplanes or his service-connected audiological disorders, and are consistent with the record and supported by detailed rationales, the Board affords such great probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (holding that to have probative value, the opinion provider must be fully informed of the pertinent factual premises, provide a fully articulated opinion, and provide a supportive reasoned analysis). Notably, there is no medical opinion to the contrary. Based on the foregoing, the Board finds that the Veteran’s vertigo, diagnosed as BPPV is not shown to be causally or etiologically related to any disease, injury, or incident during service, did not manifest to a compensable degree within one year of discharge from active duty, and is not caused or aggravated by service-connected hearing loss or tinnitus. Consequently, service connection for such disorder is not warranted. In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran’s claim of entitlement to service connection for vertigo. As such, that doctrine is not applicable in the instant appeal, and his claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). REASONS FOR REMAND 2. Entitlement to service connection for hypothyroidism status post thyroidectomy, to include as secondary to service-connected idiopathic cardiomyopathy with CAD and atrial fibrillation and/or as due to exposure to herbicide agents. 3. Entitlement to service connection for a cervical spine disorder, to include as secondary to a service-related thyroid disorder. The Veteran asserts that his current thyroid disorder, which is currently diagnosed as hypothyroidism after he underwent a thyroidectomy, is related to his service-connected cardiac disability or developed as a result of his presumed in-service exposure to herbicide agents. As an initial matter, the Board notes that, effective January 1, 2021, the National Defense Authorization Act (NDAA) authorized the addition of three diseases to the list of those presumed to be related to in-service exposure to herbicide agents, including hypothyroidism. See 38 U.S.C. § 1116(a)(2)(K). However, in the instant case, the record reflects that the Veteran’s hypothyroidism manifested as a result of the surgical excision of his thyroid to treat his hyperthyroidism. Thus, as there is affirmative evidence demonstrating that his hypothyroidism was due to an intercurrent cause, presumptive service connection for such disorder is not warranted. 38 C.F.R. § 3.307(d). Additionally, the Board most recently remanded such claim to obtain an adequate medical opinion addressing whether his thyroid disorder is caused or aggravated by his service-connected cardiac disability, as the medical opinions previously rendered were based on an inaccurate history. In this regard, the Board observes that April 2017 and March 2019 VA medical opinions erroneously noted that the Veteran’s thyroid disorder predated his cardiac disorder. Thus, in June 2020, another addendum opinion was obtained. At such time, the examiner essentially concludes that the chronology of the Veteran’s cardiac and thyroid diagnoses is moot, as thyroid disorders and cardiac disorders are such distinct processes that one would not have any physiological effects on the other, thereby negating any theory of proximate causation or aggravation. However, such opinion does not address the effect the Veteran’s treatment for his cardiac disability may have had on his thyroid disorder and, given that an April 2017 VA medical opinion indicating that his cardiac treatment of amiodarone can affect the thyroid, a medical opinion regarding the effect of such medication on his thyroid disorder must be obtained. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). In regard to the Veteran’s cervical spine disorder, the Board notes that such has been linked to his 2007 thyroid operation. Therefore, such service connection claim is inextricably intertwined with his claim for service connection for a thyroid disorder, and adjudication must be deferred pending resolution of the latter matter. See Tyrues v. Shinseki, 23 Vet. App. 166, 177 (2009) (en banc) (explaining that claims are inextricably intertwined where the adjudication of one claim could have a significant impact on the adjudication of another claim); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). 4. Entitlement to service connection erectile dysfunction, claimed as secondary to service-connected idiopathic cardiomyopathy with CAD and atrial fibrillation and/or diabetes mellitus, type II. While multiple VA medical opinions of record exploring a theory of secondary service connection are of record, the sole medical opinion addressing a theory of direct service connection, an April 2017 medical opinion, concludes that the Veteran’s erectile dysfunction is not directly related to service, as the onset of such disorder was in 1999, many years after service. However, in statements of record, the Veteran has reported experiencing erectile dysfunction since his discharge from service, and, notably, underwent an inguinal hernia repair during service, a complication of which can be erectile dysfunction. As the Veteran reports experiencing erectile dysfunction since service, an assertion consistent with the first reference to erectile dysfunction of record in 1997, at which time he reported that he continued to experience ongoing erectile dysfunction, and, as erectile dysfunction is a condition that he may not have sought treatment for prior to the advent of medication designed to treat it, the Board finds that a new medical opinion regarding a theory of direct service connection must be obtained. See id. 5. Entitlement to service connection for an umbilical hernia, also claimed as diastasis recti, to include as secondary to service-connected bilateral inguinal herniotomies. With regard to a theory as to whether the Veteran’s umbilical hernia, diagnosed in 2007, is directly related to service, the medical opinions of record fail to consider his in-service complaint of cramping and pain of his right rectus muscle (an abdominal muscle). Given that the medical opinions of record conclude that the Veteran’s post-service umbilical hernia resulted from post-service abdominal strain, consideration of this in-service complaint of abdominal muscular pain is required. See id. Thus, an addendum opinion is necessary to decide the claim. 6. Entitlement to service connection for hypertension, to include as secondary to service-connected idiopathic cardiomyopathy with CAD and atrial fibrillation and/or diabetes mellitus, type II, and/or as due to exposure to herbicide agents. Unfortunately, the April 2017 VA medical opinion that addresses a theory of direct service connection for hypertension is predicated on an inaccurate factual premise, concluding that the Veteran’s hypertension is less likely directly related to service as he was first diagnosed with hypertension in 1999. However, the treatment of record first reflects such a diagnosis in 1982, and the Veteran reports that he was initially diagnosed with hypertension in 1971 (although treatment records from this time period are unavailable, as they have been destroyed). Given that the only blood pressure reading recorded in the Veteran’s service treatment records is documented as 124/90 on a separation examination performed in January 1968, several months before the Veteran’s separation in April 1968, a new medical opinion addressing the probability that his hypertension manifested during or within one year of service is required. See id. 7. Entitlement to a TDIU due to service-connected disabilities prior to January 28, 2014, and due to a single service-connected disability thereafter. The Veteran’s claim for a TDIU is inextricably intertwined with the claims remanded herein and, therefore, adjudication must be deferred pending the development and readjudication of such claims. Tyrues, supra; Harris, supra. The matters are REMANDED for the following action: 1. Obtain a VA medical opinion from an appropriate clinician regarding whether the Veteran’s thyroid disorder is related to his treatment course for his service-connected cardiac disability. Specifically, the clinician is asked to review the April 2017 VA medical opinion indicating that the Veteran’s cardiac treatment of amiodarone can affect the thyroid, and then opine whether it is at least as likely as not (i.e., a 50 percent or greater probability) that treatment with amiodarone for the Veteran’s service-connected CAD (as noted in a December 2008 VA treatment record) caused or aggravated his thyroid disorder. A rationale for any opinion offered should be provided. 2. Obtain a VA medical opinion from an appropriate clinician regarding whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran’s current erectile dysfunction is directly related to service. When rendering this opinion, the clinician is asked to consider the Veteran’s reports of experiencing erectile dysfunction since service, an assertion consistent with the first reference to erectile dysfunction of record in 1997, at which time he reported that he “continued” to experience ongoing erectile dysfunction (and that the Veteran may not have sought treatment for erectile dysfunction prior to the advent of medication designed to treat this disorder). The clinician is also asked to state whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran’s current erectile dysfunction is a complication from his in-service inguinal hernia repair, noting the development of a post-operative cyst. A rationale for any opinion offered should be provided. 3. Obtain a medical opinion from an appropriate clinician regarding whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran’s post-service umbilical hernia is directly related to service, to include any physical strain experienced therein, given the documented October 1966 in-service complaint of cramping and pain of his right rectus muscle, coupled with post-service medical opinions stating the Veteran’s umbilical hernia resulted from abdominal strain. A rationale for any opinion offered should be provided. 4. Obtain a medical opinion from an appropriate clinician regarding whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran’s hypertension manifested during, or within one year of separation from, service. The clinician is asked to consider that the first hypertension diagnosis of record in 1982, and the Veteran reports that he was initially diagnosed with hypertension in 1971, but the related records are unavailable as they have been destroyed. The clinician is also asked to consider that the only blood pressure reading recorded in the Veteran’s service treatment records is documented as 124/90 on a separation examination performed in January 1968, several months before his separation in April 1968. A rationale for any opinion offered should be provided. A. JAEGER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. Northcutt, 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.