Citation Nr: 21004974 Decision Date: 01/28/21 Archive Date: 01/28/21 DOCKET NO. 19-05 476 DATE: January 28, 2021 ORDER Entitlement to service connection for vertigo, to include as secondary to service-connected bilateral hearing loss and/or service-connected tinnitus, is denied. FINDING OF FACT The Veteran’s vertigo is not related to his service or any incident therein, and is not related to, secondary to, due to or aggravated by service-connected bilateral hearing loss and/or service-connected tinnitus. CONCLUSION OF LAW The criteria for service connection for vertigo, to include as secondary to service-connected bilateral hearing loss and/or service-connected tinnitus, are not met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served with the U.S. Army National Guard with a period of active duty training (ADT) from August 1961 to February 1962. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2017 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In July 2019, the Veteran testified at a hearing before the undersigned Veterans Law Judge; a transcript is of record. In October 2019, the Board remanded the matter for further development. A remand by the Board confers on the claimant, as a matter of law, the right to compliance with the remand orders. Stegall v. West, 11 Vet. App. 268, 271 (1998). A December 2019 medical opinion was obtained and incorporated within the record. As such, the October 2019 directives have been substantially complied with. Id. This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.800(c). 38 U.S.C. § 7107(b). Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated during active service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). Generally, to establish service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Service connection may be established on a secondary basis for a disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence (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). 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). The proper standard in an aggravation inquiry in the context of secondary service connection is not whether there was permanent worsening, but rather whether there was any increase in disability beyond the natural progression of the disorder. See generally, Ward v. Wilkie, 31 Vet. App. 233, 237-38 (2019). When there is an approximate balance of positive and negative evidence as to any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Entitlement to service connection for vertigo, to include as secondary to service-connected bilateral hearing loss and/or tinnitus The Veteran contends that he has experienced vertigo since having a bad ear infection during service where he had fluid discharge and received antibiotic injections for many months. He adds that his right ear started to ooze again after service due to an in-service perforation. Alternatively, the Veteran contends that his vertigo is secondary to his service-connected bilateral hearing loss and/or tinnitus. In this case, the first element of service connection has been met. A diagnosis of vertigo is of record. However, the Board finds that the evidence does not establish a nexus between the Veteran’s vertigo and his service or any service-connected disability. The Veteran’s service treatment records (STRs) are void of complaints of or treatment for vertigo, or any of the symptoms the Veteran reported in connection with his vertigo, to include dizziness, headaches, lightheadedness and loss of balance. There is no mention of vertigo or symptomatology associated with vertigo until almost 52 years after service, when the record shows complaints of feeling dizzy through early February 2014 during the course of bilateral acute ear infections. The next complaints of vertigo are found in a March 2019 VA treatment note and in an ear conditions DBQ. On VA examination in March 2019 the examiner diagnosed the Veteran with benign paroxysmal positional vertigo. The March 2019 examiner opined that the Veteran’s vertigo is less likely due to service. Additionally, in December 2019 the same examiner noted that vertigo in the presence of otitis media is well documented; however, the examiner opined that while the Veteran’s STRs document right otitis media throughout August 1961, there are no contemporaneous records associated with complaints of vertigo; thus, it is less likely than not that his vertigo had its onset in or is otherwise related to active service, including in-service otitis media. At this time the Board acknowledges the Veteran’s contentions that his vertigo is related to his in-service otitis media, draining ears and/or eardrum perforation. However, as noted, a review of the records reveals that his STRs are silent as to any complaint, treatment or diagnosis of a perforated eardrum. Further, the record indicates that the Veteran’s right-ear otitis media and draining ears pre-existed service. See April 1961 Report of Medical Examination and September 1961 Report of Medical History. Importantly, on January 1962 separation from service examination, “[u]sual childhood diseases without complaints or sequelae. Balance of the medical history essentially negative or existing prior to, and not related to or aggravated by, military service,” was noted. The Board also considers the lack of complaints of or treatment for vertigo to be highly probative, especially considering that the record shows that the Veteran denied experiencing dizziness and headaches when routinely asked about in connection with his post-service treatment for recurrent ear infections. As such, when seeking treatment for his ear infections, it is reasonable to expect that if the Veteran experienced vertigo symptomatology on a continued, or even regular, basis, he would have reported such symptoms had they in fact been present. The Board also acknowledges that the Veteran is competent to report the nature and timing of his observable symptoms that are perceived through the senses, such as vertigo, dizziness, headaches, loss of balance and lightheadedness. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). Post service, in a January 2018 statement, the Veteran reported a bad in-service ear infection, after which he has experienced vertigo and headaches. In connection with the March 2019 ear DBQ, the Veteran reported onset of vertigo in the late 1980s. During the July 2019 hearing, the Veteran testified he noticed vertigo in approximately 1984 when he would lose his balance. However, the record shows that although he regularly received post-service private and VA medical treatment for recurrent ear infections, the Veteran did not report experiencing vertigo symptomatology until many years after he separated from service, and in fact, routinely denied having headaches and dizziness. The record also fails to show evidence indicating any complaints of loss of balance or falls prior to a January 2018 statement in support of his vertigo claim, wherein he attributed a recent fall to his tinnitus. Considering the above, the Board does not find the Veteran to be credible with respect to reporting the date of onset of his vertigo. Moreover, the probative and persuasive evidence does not show that the Veteran’s vertigo began in service or is in any way related to service or any event of service. As noted above, the Veteran alternatively contends that his vertigo is secondary to his service-connected bilateral hearing loss and/or tinnitus. Nonetheless, the probative and persuasive evidence does not show that the Veteran’s vertigo was caused by or aggravated by any service-connected disability. The Veteran underwent a VA fee-based ear conditions examination in March 2019. The Veteran reported insidious development of vertigo in the late 1980s and that the disability has remained the same with recurrent episodes of dizziness with loss of balance. He reported current symptoms as being lightheaded, unease with climbing stairs and heights due to dizziness and loss of balance. The examiner noted the Veteran used a cane for balance. The examiner reported that medical literature generally suggests that individuals with benign paroxysmal positional vertigo report the onset of tinnitus shortly before or in conjunction with the positional vertigo. The examiner further explained that tinnitus is a symptom that can be experienced with some types of vestibular disorders but is not the etiology of a vestibular disorder. In December 2019, the March 2019 examiner provided another medical opinion. In December 2019, the examiner opined that the Veteran’s vertigo is less likely than not the result of, or aggravated by, service-connected disability. The examiner noted that the Veteran’s vertigo is less likely than not caused by the service-connected hearing loss, which is the result of noise exposure, rather than an inner ear disorder causing both vertigo and bilateral hearing loss. The examiner added that he was not able to establish a baseline severity for the Veteran’s vertigo and opined that the Veteran’s vertigo is less likely than not aggravated beyond its natural progression by service-connected bilateral hearing loss and/or tinnitus. The examiner noted that increased manifestations beyond the natural progression for benign paroxysmal positional vertigo were not reflected in treatment records. The examiner found no basis in medical fact to support the claim for secondary service connection. The Board finds that the March 2019 and December 2019 negative nexus opinions are competent, credible and probative and there is no competent opinion to the contrary. The examiner’s opinions of record are probative, because taken together, they are based on an accurate medical history and considered the Veteran’s lay reports of symptoms. The December 2019 opinion also includes an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Although the Veteran sincerely believes his vertigo is either due to service or proximately due to or aggravated by his service-connected hearing loss and/or tinnitus, he is not competent to provide a nexus opinion in this case. The issue is medically complex, as it requires knowledge of the interaction between multiple organ systems in the body/interpretation of complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). With regard to the Veteran testimony that he believes his vertigo is due to his service-connected tinnitus because he has two friends who have tinnitus and also have vertigo, the Board stresses that it must base its decision on the facts of this specific case and that it is bound by applicable laws and regulations when applying the facts of this specific case to those laws and regulations. As such, no consideration in this regard is warranted. In this case, the most probative evidence of record does not show that the Veteran’s vertigo is either directly due to service or is secondary to his service-connected bilateral hearing loss and/or tinnitus. The preponderance of the evidence weighs against the claim and is not in equipoise. Thus, the benefit-of-the-doubt doctrine is not for application and the appeal is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53. C. CRAWFORD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Battaile 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.