Citation Nr: 21066537 Decision Date: 11/01/21 Archive Date: 11/01/21 DOCKET NO. 16-20 725 DATE: November 1, 2021 ORDER Entitlement to service connection for Meniere's disease is granted. FINDING OF FACT Resolving reasonable doubt in the Veteran's favor, his Meniere's disease had its onset during active service. CONCLUSION OF LAW The criteria for entitlement to service connection for Meniere's disease have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1958 to March 1964. The matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2012 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded the claim in March 2018 and October 2019 for further development by the RO. The case has been returned to the Board for further appellate action. The Board finds that there was substantial compliance with the Board's remand directives dated October 2019. See Stegall v. West, 11 Vet. App. 268 (1998). The October 2019 Board remand directed the agency of original jurisdiction (AOJ) to obtain an addendum medical opinion regarding the nature and etiology of the Veteran's Meniere's disease that included consideration of the Veteran's lay statements. The AOJ obtained a VA examination and medical opinion in August 2020 and August 2021. Therefore, the Board will proceed with adjudication of the claim. Entitlement to service connection for Meniere's disease The Board finds that the Veteran's Meniere's disease had its onset in service, thus warranting an award of service connection. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. § 3.303(a). Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). The record in this case is clear as to whether the Veteran has Meniere's disease. The post-service medical treatment records reflect a continued diagnosis of Meniere's disease. See also VA examinations dated May 2012, May 2019, December 2019, August 2020 and August 2021. Thus, the first element of service connection, the existence of a current disability, is satisfied. Concerning the in-service event, illness, or injury, the Veteran's service treatment records (STRs) do not contain any record of complaints, treatment, or diagnosis of dizziness or Meniere's disease during service. His DD-214 shows that his military occupational specialty (MOS) was AD Missile Crewman. The Veteran submitted multiple lay statements in support of his clam regarding in-service events. In his August 2011 application for compensation, the Veteran stated that his Meniere's disease began approximately in January 1964. During service, he was a guided missile technician on the Nike Missile System and was exposed to multiple chemicals, to include red fuming nitric acid, UDMH, M3 jet fuel, and other hazardous chemicals that he could not recall more specifically. He also handled nuclear warheads. He was also exposed to loud frequencies. In 2001, he was diagnosed with Meniere's disease after many years of experiencing symptoms to include imbalance, dizziness, limited body control, nausea, vomiting and hearing loss in both ears. See August 2011 VA Form 21-526 (application for compensation). In September 2011, the Veteran stated that shortly after separation, he had episodes of dizziness that lasted a few hours and have grown worse with time. In 2001, he experienced dizziness, falling and vomiting; he would be sick for hours up to all day, and this would occur up to 4 times per week. He was diagnosed with Meniere's disease at the time and underwent multiple surgeries, which were not completely effective. He believes that years of exposure to radiation, red fuming nitric acid, and UDMH caused his Meniere's disease. See September 2011 VA Form 21-4138 (statement in support of claim). In his September 2013 notice of disagreement (NOD), the Veteran stated that during service, approximately in 1959, he was fueling a Nike Ajax Missile while wearing a heavy plastic suit in 105 degrees. A problem with the fueling system caused a spill of red fuming nitric acid. He felt sick that evening and assumed he had overheated. He went to sick call the following morning and the medic agreed he likely overheated. He continued to feel light-headed and dizzy for the next two or three days. Following this episode, he had dizzy spells, but they were not severe until he reached approximately 40 years of age. See September 2013 NOD. In May 2016, the Veteran stated that the dizziness occurred ever since he was exposed to chemicals in service and the believes this is the cause of his present condition. See May 2016 VA Form 9. The Board finds that the Veteran has provided credible and competent statements regarding his symptoms both during and following service. The Board finds that the first and second elements of the service connection analysis are satisfied. Thus, the remaining question before the Board is whether there is a nexus with service. VA sought a competent medical opinion regarding whether there is a causal relationship between the current disability and service multiple times throughout the pendency of the claim. When the evidence of record contains conflicting medical opinions, it is the responsibility of the Board to assess the credibility and weight to be given to the evidence. Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993) (citing Wood v. Derwinski, 1 Vet. App. 190, 192-93 (1992)). The Board may favor the opinion of one competent medical expert over another if his or her statement of reasons and bases is adequate to support that decision. Owens v. Brown, 7 Vet. App. 429, 433 (1995). Having considered the evidence of record, and after affording the Veteran the benefit of the doubt, the Board finds that it is at least as likely as not that the Veteran's Meniere's disease was incurred in service. The May 2012 and May 2019 VA examiners' opinions are opposed to this conclusion, but the Board finds that the contrary VA examiners' opinions of August 2020 and August 2021 deserve greater probative value. The medical opinions dated August 2020 and August 2021 offered adequate statements of reasons and bases for their conclusions and considered the relevant favorable medical evidence of record. Specifically, the examiners addressed the Veteran's lay statements regarding his in-service chemical exposure and symptoms both during and following service. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Board finds that the medical opinions dated May 2012 and May 2019 are inadequate because they did not address the Veteran's lay statements and improperly relied on the absence of contemporaneous medical evidence. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case with all reasonable doubt to be resolved in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. In conclusion, the Board finds that the evidence is at least in equipoise as to whether the Veteran's Meniere's disease had its onset during active service. Accordingly, the Board must resolve reasonable doubt in the Veteran's favor and finds that service connection for Meniere's disease is warranted. 38 U.S.C. § 5107(b); 39 C.F.R § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). D. Martz Ames Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Minaya, 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.