Citation Nr: 21069409 Decision Date: 11/18/21 Archive Date: 11/18/21 DOCKET NO. 10-07 721 DATE: November 18, 2021 ORDER Entitlement to service connection for a disability manifested by syncope, dizziness or vertigo, is denied. FINDINGS OF FACT 1. The Veteran has not had a vestibular condition, including vertigo, at any time during the course of the appeal. 2. The evidence clearly and unmistakably shows that the Veteran's disability manifested by syncope and/or dizziness pre-existed his entrance to service; and the evidence clearly and unmistakably shows that it did not permanently increase in severity beyond the natural progression of the disease during service; nor was any disability manifested by syncope and/or dizziness secondary to the Veteran's service-connected disabilities or treatment for such. CONCLUSION OF LAW The criteria for service connection for a disability manifested by syncope, dizziness or vertigo are not met. 38 U.S.C. §§ 1110, 1111, 1112, 1113, 1153, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. . REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from April 1973 to July 1974. This claim has a long procedural history. This matter was previously remanded for further development by the Board in June 2017, January 2018, August 2019, September 2020, February 2021 and August 2021. The Board finds that there has been substantial compliance with the prior Board remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Entitlement to service connection for a disability manifested by syncope, dizziness or vertigo The present appeal involves the issue of service connection for a disability manifested by syncope, dizziness or vertigo. The Veteran contends that his disability is related to in-service incidents, including acoustic trauma, a grenade simulator explosion and a head injury. Importantly, at the May 2021 VA examination, the Veteran explicitly reported that he was claiming service connection for dizziness, not syncope, and that he had never had syncope. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 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). Certain chronic diseases, including organic disease of the nervous system, will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). Additionally, service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury; or, for any increase in severity of a nonservice-connected disease or injury which is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of nonservice-connected condition. 38 C.F.R. § 3.310 (a)-(b). 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) For purposes of this analysis, the Board observes that every Veteran shall be taken to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities or disorders noted at the time of the examination, acceptance and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). To rebut the presumption of sound condition, VA must show by clear and unmistakable evidence (1) that the disease or injury existed prior to service, and (2) that the disease or injury was not aggravated by service. Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). To satisfy the second requirement for rebutting the presumption of soundness, the government must show, by clear and unmistakable evidence, either that (1) there was no increase in disability during service, or that (2) any increase in disability was "due to the natural progression" of the condition. Joyce v. Nicholson, 443 F.3d 845 (Fed. Cir. 2006). The claimant is not required to show that the disease or injury increased in severity during service before VA meets both of these burdens. See VAOPGCPREC 3-2003. A preexisting injury or disease will be considered to have been aggravated by active military, naval, or air service, where there is an increase in disability during such service, unless there is specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C. § 1153 ; 38 C.F.R. § 3.306. Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. Id. ; Falzone v. Brown, 8 Vet. App. 398, 402 (1995). Initially, the Board concludes that the Veteran does not have a current diagnosis of vertigo and has not had a diagnosis at any time during the pendency of the claim or recent to the filing of the claim. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). In this regard, after examining the Veteran and reviewing the claims file, both the August 2017 and May 2021 VA examiners clearly found that the Veteran did not suffer from any vestibular conditions, including vertigo. The Board finds the VA examinations to be probative as they are based on review of the claims file and examination of the Veteran. Although VA clinical records show reports of vertigo, there does not appear to be a diagnosis based on objective examination. Moreover, while the Veteran is competent to report symptoms of dizziness and loss of balance, he is not competent to diagnose vertigo. Thus, based on the VA examinations, the Board finds that the Veteran does not suffer from vertigo. Again, the Veteran has recently claimed that he was only seeking service connection for dizziness. However, as it appears that he has also been diagnosed with syncopal episodes during the course of the appeal, the Board will discuss that matter as well. As a disability manifested by syncope and/or dizziness was not specifically noted upon enlistment examination in February 1973, the Veteran is presumed to have been in sound condition with respect to that disability. The question then is whether VA has established by clear and unmistakable evidence that the disability manifested by syncope and/or dizziness preexisted service and was not aggravated during service. The entrance examination did document that the Veteran suffered a minor head trauma in a 1968 motorcycle accident prior to service. Service treatment records showed that in April 1974, the Veteran reported loss of consciousness and complaints of dizziness after hitting his head on the edge of a door. At that time, he reported several attacks of dizziness since the 1968 motorcycle accident, which occurred prior to service. Service treatment records during this period also show syncopal episodes. Subsequently, a May 1974 Physical Evaluation Board found syncopal episodes, etiology undetermined, existed prior to service, not aggravated. It was also determined that the Veteran was not fit for duty. Importantly, the November 2009 VA examiner found that the Veteran's dizziness/vertigo is not caused by or a result of service as the balance problems preexisted service and there was no change in balance problems during service. Importantly, the August 2017 VA examiner opined that the Veteran had syncope, not vertigo, which existed prior to service, was not aggravated by service, and was not a manifestation of a current service-connected disability. The examiner observed that it was determined by the Medical Board to not have been caused or aggravated by service. Further, it is not connected to acoustic trauma to the cochlear branch. In August 2018, the same examiner reiterated their opinion that the condition clearly and unmistakable existed prior to service and was not aggravated beyond its natural progression by an in-service event, injury or illness. The Board recognizes that the Veteran has asserted that his symptoms began in service. However, his statements made in conjunction with his current claim contradict his contemporaneous statements made during service, which indicated that he had experienced these symptoms since the 1968 motorcycle accident. In light of these inconsistencies, the Board finds that his current statements lack credibility. Further, the Veteran lacks the medical expertise to rule out the presence of such disabilities prior to service. Hence, his lay statements have little probative value and are outweighed by the probative medical evidence of record. In sum, the service treatment and personnel records as well as VA opinions provide clear and unmistakable evidence that the Veteran's disability manifested by syncope and/or dizziness preexisted service. The Board must now determine whether the disability clearly and unmistakably was not aggravated during service. In this regard, again, the service treatment records clearly show that the Medical Board found that the disability was not aggravated in service. Likewise, the November 2009 and August 2017 VA examiners also found that the disability was not aggravated beyond its natural progression due to an in-service event, injury or illness. Moreover, the most recent May 2021 examiner also found that the disability was not aggravated beyond its natural progression by an in-service injury, event or illness. Further, the Veteran is not competent to opine as to whether his disability was aggravated in service beyond its natural progression. In sum, the evidence of record shows that the Veteran's syncopal and/or dizziness disability clearly and unmistakably preexisted service and clearly and unmistakably was not aggravated by service. Moreover, the Board concludes that the preponderance of the evidence is against finding that the Veteran's disability manifested by syncope or dizziness is secondary to his service-connected disabilities. 38 U.S.C. § 1110; Allen v. Brown, 7 Vet. App. 439 (1995) (en banc); 38 C.F.R. § 3.310 (a). In this regard, in August 2018, December 2019, and October 2020 addendum opinions, the same VA examiner found that there was no established causal relationship between the Veteran's disability manifested by syncope and/or dizziness and service and his service-connected disabilities. In the October 2020 opinion, the examiner noted that syncope was not an otologic diagnosis. It is usually related to cardiovascular pathology. There is no medical relationship between symptoms of syncope and tinnitus, hearing loss, or depression, nor is there any such relationship between syncope and acoustic trauma. Further, the Veteran underwent another VA examination in May 2021 with a different examiner. The examiner opined that the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event or illness. The examiner noted that the Veteran does not have vertigo or syncope. The examiner observed that the Veteran was adamant that he never had syncope and that his claim is for dizziness. However, the examiner noted that his records show the contrary as he was medically discharged for syncopal episodes. He reports subjective dizziness with standing quickly or moving too fast and frequently falls. He relates this to a noise percussion injury on a simulated live fire course in service. He said he had bleeding from the ears and was told to "shake it off soldier". His wife states today that when she does laundry, she sees blood on his pillowcase because he still has bleeding from the ears. His ear exam today is normal and there are no chronic conditions due to one episode of noise trauma that causes bleeding from the ears, especially after 50 years. The episode he describes is not documented in his records. Noise percussion can cause tinnitus and hearing loss, but without direct head trauma, it is not likely to cause dizziness, vertigo or syncope. His records note dizziness with low blood pressure and ankle problems that cause imbalance, and these are more likely the cause of his dizziness though the etiology remains unclear. He had an EEG in 1974 that was mildly abnormal, but not likely significant. There is evidence he had a brain MRI ordered in 2016, but this was not available for review. There are no tests or exams that have objective evidence for a cause of his dizziness. The examiner also noted that the Veteran's disability was not aggravated beyond its natural course by tinnitus and depression or treatment for these. The examiner noted that the Veteran reported having balance problems and dizziness due to percussion injury in 1973, which is not documented in the records and isn't likely to cause dizziness. It is uncertain what the cause of his subjective dizziness is, but records show that it has been associated with low blood pressure and balance issues due to ankle problems. His examination and testing today were negative for vestibular balance and vertigo conditions. In a September 2021 addendum opinion, the same examiner noted that the Veteran's baseline of severity was dizziness almost daily, some hearing loss and tinnitus in the left ear, 2 episodes of syncope in 6 years. The examiner observed that the April 1974 records show that the Veteran had several attacks of dizziness almost daily, some deafness and ringing in left year and two syncopal episodes since his motorcycle accident in 1968. The examiner essentially found no aggravation as the current severity was no greater than the baseline. The examiner continued that the Veteran was adamant at his exam that he does not have syncope, only dizziness. Per his own report, there has been no aggravation of syncope. At the August 2017 examination, he reported "syncopal episodes when moving quickly. His records note dizziness with position changes and/or due to blood pressure on 04/30/2002, 06/18/2014, 10/20/2020 and 12/29/2020. There is no evidence that he has frequent syncopal episodes and he is adamant that he doesn't have syncope. His dizziness that was "almost daily" per record on April 7, 1974 seems to be less frequent as there is no evidence that it is still daily thus not aggravated. Tinnitus and hearing loss may have been aggravated by his percussion injury in service, but these do not contribute to dizziness or syncope nor does depression. Syncope is caused by not enough blood volume to the brain and can be due to a heart condition, dehydration, low blood pressure, etc. It is not caused by hearing loss, tinnitus or depression, which do not affect the body's fluid volume. Dizziness can be caused by vestibular problems, which were not found on the Veteran's exam. It can also be from blood volume shifts that are more mild than those that cause syncope. It can also be from brain injuries, medications, etc. There is no evidence that his dizziness is more than "almost daily" which is his baseline and there is no evidence of recurrent syncopal episodes in his records. The VA examiners' opinions discussed above are probative, because they are based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Veteran believes his disability manifested by syncope and dizziness is related to an in-service injury, event, or disease; or proximately due to or the result of/aggravated by his service-connected disabilities. The Board reiterates that there is clear and unmistakable evidence that the disability pre-existed service and was not aggravated during service. Moreover, the Veteran is not competent to provide a nexus opinion regarding this issue. The issue is medically complex, as it requires specialized medical knowledge. Therefore, it is outside the competence of the Veteran in this case because the record does not show that he has the medical training or credentials to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Consequently, the Board gives more probative weight to the medical evidence. In conclusion, the Board finds that the preponderance of the evidence weighs against the claim for service connection for a disability manifested by syncope, dizziness or vertigo. Thus, the benefit-of-the-doubt doctrine is not for application. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. L. M. BARNARD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J.N. Moats 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.