Citation Nr: 21066877 Decision Date: 11/02/21 Archive Date: 11/02/21 DOCKET NO. 17-21 257 DATE: November 2, 2021 ORDER Entitlement to service connection for dizziness is granted. FINDING OF FACT The evidence is at least evenly balanced as to whether the Veteran's dizziness had its onset in service. CONCLUSION OF LAW With reasonable doubt resolved in favor of the Veteran, the criteria for service connection for dizziness are met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty service from February 1981 to September 1992, including service in the Persian Gulf during Operation Desert Storm. He also had additional service in the Reserves. In a 1996 rating decision, the Veteran was granted service connection for bilateral tinnitus. The Veteran subsequently filed claims for service connection for vertigo but his claims were denied in January 2000 and October 2004 rating decisions. The Veteran did not appeal or submit new and material evidence within one year and the decision became final. In January 2015, the Veteran filed a supplemental claim for service connection for vertigo as secondary to his service-connected tinnitus. The matter now comes to the Board of Veterans' Appeals (Board) on appeal from a June 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO), which reopened the Veteran's prior unappealed denial of his claim for service connection for vertigo, due to the receipt of new and material evidence, and continued the denial of service connection based on the merits of the claim. The Veteran filed a Notice of Disagreement in May 2016 and a Statement of the Case was issued in April 2017, confirming and continuing the RO's the denial of the claim. The Veteran perfected his appeal via VA Form 9 in April 2017. In December 2019, the Board also reopened the claim and remanded it for further development. As the benefit sought is being granted in full, discussion of remand compliance is unnecessary. In June 2020, a Supplemental Statement of the Case was issued, continuing and confirming the RO's denial of service connection for vertigo. The issue has been recharacterized consistent with the diagnoses of record as discussed below. Clemons v. Shinseki, 23 Vet. App. 1, 4-5 (2009) (a claim should not be limited to the disorder as characterized by the Veteran but must be characterized and addressed based on the reasonable expectations of the non-expert claimant and the evidence in processing the claim). Service connection Establishing service connection generally requires competent evidence of the following: (1) A current disability; (2) in-service incurrence of a disease or injury; and (3) nexus between the claimed in-service disease and the present disability. See Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Service connection is also warranted where a disability had its onset in service. Flynn v. Brown, 6 Vet. App. 500, 503 (1994) ("Congress has designed and fully intends to maintain a beneficial non-adversarial system of veterans benefits. This is particularly true of service-connected disability compensation where the element of cause and effect has been totally by-passed in favor of a simple temporal relationship between the incurrence of the disability and the period of active duty"); See also Dallas v. McDonough, No. 20-1215, 2021 U.S. App. Claims LEXIS 235, *4 (Feb. 18, 2021) (mem dec., Falvey, J.) (noting that the question for the Board in a direct service connection case is "not whether military service caused the Veteran's disability but 'whether the Veteran has a current disability that began during service'"); Bethea v. Derwinski, 2 Vet. App. 252, 254 (1992) (single judge decisions may be relied upon for any persuasiveness or reasoning they contain). Entitlement to service connection for dizziness is granted. The Veteran contends that his vertigo is related to his active duty service or, alternatively, is a result of his service-connected bilateral tinnitus. Although the adjudication of this claim has focused on the secondary theory of entitlement, the Board will grant service connection on a direct basis and therefore need not discuss the secondary theory. As discussed below, multiple VA treatment records and VA examination reports contain diagnoses of dizziness. The Veteran has therefore met the current disability requirement. In a July 2018 VA treatment record, a VA audiologist diagnosed the Veteran with a peripheral lesion involving the left labyrinth or vestibular nerve. Therefore, the current disability requirement has been met. In March 1990, service treatment records (STRs) indicate that the Veteran complained of and sought treatment for black out spells and lightheadedness. Thus, the in-service event or injury requirement has been met. For the following reasons, the evidence reflects that the Veteran's dizziness had its onset in service. Although the Veteran's September 1992 separation examination reflects that the Veteran's physical evaluation was clinically normal with no reference to the Veteran experiencing symptoms of vertigo, a February 1999 VA treatment record documented that the Veteran reported to the clinician that he worked around loud machinery while he was in service and had been experiencing episodes of severe dizziness, lightheadedness, and vertigo since that time. January 1998 VA treatment records reflect that the Veteran sought medical attention for dizziness. In May 1999, VA treatment records indicate that the Veteran reported to his physician that his dizziness symptoms had continued and that he also had problems balancing and experienced two blackouts the previous day. The Veteran stated that he had developed a "vertigo-type spinning feeling," where he felt like he was always in motion. The Veteran stated that his dizziness spells could last for a few seconds or they could last for a week. The Veteran's physician noted that the Veteran reported having been exposed to loud noises during service and suffering a head injury in a motorcycle accident in 1989. The Veteran reported to the VA physician that he had previously been diagnosed with Meniere's disease. In June 1999, the Veteran was also examined by a VA otolaryngologist. The physician noted that the Veteran recounted being exposed to loud noises and explosions during Operation Desert Storm. The Veteran reported that he had been seen by numerous doctors since leaving service, due to dizziness and lack of balance. An August 1999 VA treatment record indicates that the Veteran reported to the VA physician that he was experiencing frequent dizziness and his vertigo symptoms were getting progressively worse. In the treatment record, the VA physician noted that the Veteran had been referred to numerous specialists for his dizziness, however, a definitive diagnosis had not been rendered. The Veteran also underwent an examination by a VA otolaryngologist in August 1999, who diagnosed him with vertigo. The physician indicated that he was unclear of the etiology of the Veteran's vertigo and recommended additional testing. In conjunction with a periodic medical examination conducted in connection with Reserve service in August 1999, the Veteran completed a Report of Medical History. On this form, when asked if he had experienced "dizziness or fainting spells," the Veteran indicated "don't know." The form also included a notation by a VA medical examiner indicating the Veteran suffered from dizziness associated with tinnitus. In a December 2013 letter to his VA health care provider, the Veteran stated that his dizziness and vertigo had been going on "for years." In May 2014, the Veteran underwent a VA audiological re-evaluation. The Veteran reported to the audiologist that he had been experiencing balance issues and dizziness since 1992, and that the symptoms had escalated over the past year. In an April 2015 Disability Benefits Questionnaire (DBQ), a VA clinician indicated that the Veteran reported that he began experiencing symptoms of vertigo in service "years ago," after being regularly exposed to jet engines and explosions. The VA examiner opined that the Veteran's vertigo was less likely than not caused by or related to his service-connected tinnitus. The rationale provided by the examiner was that "tinnitus is not a cause of vertigo/dizziness." June 2018 VA treatment records indicate that the Veteran reported to his physician that he was in a motorcycle accident in 1989 and experienced a head injury. The Veteran stated that he refused medical treatment at the time. He indicated that, in the early 1990's, he began to develop "dizzy spells." In a July 2018 VA treatment record, a VA audiologist conducted an assessment of what he described as the Veteran's "longstanding episodic dizziness." The audiologist stated that the Veteran's Videonystagmography test (VNG) revealed that he had a peripheral lesion involving the left labyrinth or vestibular nerve. Based on the VNG results, the audiologist determined that the Veteran's dizziness may result from an inner ear or nerve dysfunction. Pursuant to a December 2019 Board remand, the Veteran underwent an additional VA examination in January 2020. In the January 2020 VA examination report, the examiner noted a diagnosis of benign neoplasm of the ear and subjective dizziness. The report also documented that the Veteran reported to the examiner that his vertigo began during his time in service. The VA examiner found that the Veteran had no current diagnosis of vertigo, but instead had a diagnosis of dizziness, concluding that the Veteran's symptoms of vertigo "currently diagnosed as subjective dizziness" and benign lesion to the left labyrinth or vestibular nerve were less likely than not caused by an in-service injury, event or illness. The examiner concluded that the Veteran's service-connected tinnitus does not cause vertigo. He explained that tinnitus is a symptom of an underlying condition, such as age-related hearing loss, ear injury or circulatory system disorder and not a condition itself, it. The examiner stated that there was no medical literature supporting the theory that tinnitus causes vertigo. In September 2020, the Veteran, through his representative, submitted two medical articles in support of his claim, "The Effect of Comorbidity Between Tinnitus and Dizziness on Perceived Handicap, Psychological Distress and Quality of Life," published in December 2017 by the National Institutes of Health and an article entitled, "The Relationship between Tinnitus and Vertigo," published by "House of Hearing," in November 2017. Both articles focus on the similarities between tinnitus and vertigo and how to evaluate the individual symptoms of each impairment in order to accurately evaluate the impact of each condition on the Veteran. For the following reasons, the evidence is at least evenly balanced as to whether the Veteran's dizziness had its onset in service. With regard to the medical opinions of record, as noted in the December 2019 Board remand, the 2015 VA medical opinion was inadequate as the rationale for the examiner's negative nexus opinion was based solely on the absence of STRs showing vertigo in service or documented medical evidence establishing a link between the Veteran's vertigo and his tinnitus. The Board also finds that that the January 2020 VA examination, performed pursuant to the Board's December 2019 remand, was flawed. Specifically, the VA examiner based his negative opinion predominately on the absence of documentary evidence of vertigo symptoms in service and disregarded the Veteran's lay statements as to experiencing vertigo symptomatology in and since service. Buchanan v. Nicholson, 451 F. 3d 1331, 1336, n. 1 (Fed. Cir. 2006) (noting that VA examiner's opinion, which relied on the absence of contemporaneous medical evidence, "failed to consider whether the lay statements presented sufficient evidence of the etiology of [the veteran's] disability such that his claim for service connection could be proven without contemporaneous medical evidence"). A medical opinion is inadequate if it is based solely on the absence of documentation in the record and does not take into account the Veteran's reports of symptoms and history. Dalton v. Peake, 21 Vet. App. 23 (2007). The Board has considered the Veteran's statements, as summarized above, indicating that he experienced vertigo symptoms in service, which have persisted since his discharge. The Veteran is competent to report continuous symptoms in the years since service. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (a Veteran is competent to testify regarding continuous pain since service, and lay evidence, when credible, is competent to establish the presence of continuous symptoms for a claimed disability during and since separation from military service); Buchanan v. Nicholson, 451 F. 3d at 1337 (holding lay evidence concerning continuity of symptoms after service, if credible, is ultimately competent, regardless of the lack of contemporaneous medical evidence). There is nothing to explicitly contradict the Veteran's testimony, and that testimony is consistent with the evidence of record. Moreover, the Veteran and some health care providers have used the terms dizziness and vertigo interchangeably. The Veteran is not expected to precisely characterize the disability for which he is claiming service connection. Clemons, 23 Vet. App. at 4-5 (a claimant without medical expertise cannot be expected to precisely delineate the diagnosis of his illness). Moreover, dizziness can constitute disability. Wait v. Wilkie, 33 Vet. App. 8 (2020) (to establish the presence of a disability pursuant to Saunders, there must be competent evidence specific to the claimant tending to show that his or her impairment rises to a level to affect earning capacity, which may include showing manifestations of a similar severity, frequency, and duration as those VA has determined by regulation would cause impaired earning capacity in an average person). There are thus two inadequate negative nexus opinions against the claim and competent and credible lay statements from the Veteran, noting the onset of his dizziness and their continuity since his separation from service, in support of the claim. The Board could remand for yet another medical opinion but that could be construed as obtaining additional evidence for the sole purpose of denying a claim, which is impermissible. 38 C.F.R. § 3.304 (c) ("The development of evidence in connection with claims for service connection will be accomplished when deemed necessary but it should not be undertaken when evidence present is sufficient for this determination"); Andrews v. McDonough, 34 Vet. App. 216 (2021) ("Remand is inappropriate where the predominant purpose is not to allow the Board to make a fully informed decision unencumbered by error but to allow VA to obtain more evidence so that it can properly deny the claim"); Gardner-Dickson v. Wilkie, 33 Vet. App. 50, 62 (2020) (Order) (denying petition for a writ of mandamus challenging a remand, but agreeing "with the petitioner that it 'would not be permissible for VA to undertake... additional development if a purpose was to obtain evidence against an appellant's case.'") (citing Mariano v. Principi, 17 Vet. App. 305, 312 (2003) and Hart v. Mansfield, 21 Vet. App. 505, 508 (2007)). Moreover, to the extent that the grant of service connection in this case is based primarily on lay evidence, "nothing in the regulatory or statutory provisions [relating to evidence to be considered] require both medical and competent lay evidence; rather, they make clear that competent lay evidence can be sufficient in and of itself." Buchanan v. Nicholson, 451 F. 3d 1331, 1335 (Fed. Cir. 2006). The evidence is, therefore, at least evenly balanced as to whether the Veteran's dizziness constitutes disability that had its onset in service. 38 C.F.R. § 3.303(a) ("service connection connotes many factors but basically it means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces"). As the reasonable doubt by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for vertigo on a causation basis is warranted. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Finally, although the Veteran claimed service connection for vertigo and the RO's denial was of a claim for service connection for vertigo, the grant of service connection for dizziness satisfies the appeal because peripheral vestibular disorders are rated based largely on dizziness. See 38 C.F.R. § 4.87, Diagnostic Code 6204. Jonathan Hager Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J.K. Donaldson, 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.