Citation Nr: 21070315 Decision Date: 11/23/21 Archive Date: 11/23/21 DOCKET NO. 13-30 838 DATE: November 23, 2021 ORDER Service connection for vertigo, to include as secondary to the removal of a mass from the neck, is granted. FINDING OF FACT Resolving reasonable doubt in his favor, the Veteran's vertigo was caused by the removal of a mass from the neck. CONCLUSION OF LAW The criteria for service connection for vertigo, to include as secondary to the removal of a mass from the neck, have been met. 38 U.S.C. §§ 1101, 1110, 5100, 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the United States Army with active duty from August 1969 to July 1971 with subsequent service with the National Guard for over 20 years. This matter comes before the Board of Veterans' Appeals (Board) on appeal from December 2012 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Salt Lake City, Utah. In March 2014, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge. A transcript of that hearing has been associated with the record. This claim was previously before the Board in May 2021, at which time it was remanded for additional development. Service Connection Service connection may be established for a disability resulting from personal injury that is suffered or disease contracted in the line of duty, in the active military, naval, or air service. 38 U.S.C. §§ 1110, 1131. Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Generally, to establish service connection for a disability resulting from a disease or injury incurred in service, there must be (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of incurrence of a disease or injury in active service; and (3) competent evidence of a nexus or connection between the current disability and the disease or injury incurred in service. Horn v. Shinseki, 25 Vet. App. 231, 236 (2010); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009); cf. Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). Entitlement to service connection for vertigo, to include as secondary to the removal of a mass from the neck The evidence reflects that the Veteran has a current diagnosis of peripheral vertigo from 2000. See August 2020 VA examination. The Veteran contends that it began after having surgery to remove a tumor on the right side of his head. Id. Pursuant to the May 2021 Board remand, a VA medical opinion was provided in June 2021 and the examiner opined that the Veteran's vertigo was less likely than not caused or aggravated by his service-connected condition. The most common causes of peripheral vertigo included benign paroxysmal positional vertigo, vestibular neuronitis, Meniere disease, and immune-mediated inner-ear disease. Benign paroxysmal positional vertigo occurs due to the displacement of calcium carbonate crystals or otoconia within the fluid-filled semicircular canals of the inner ear. The examiner found no evidence that the Veteran's hemangioma, hemangioma resection, or residual scar affected the calcium carbonate crystals or otoconia within the fluid-filled semicircular canals of the inner ear. Furthermore, the examiner did not find any objective evidence that demonstrated that the Veteran's hemangioma, hemangioma resection, or residual scar caused vertigo. The conditions were completely unrelated, and he concluded that correlation of them would be purely speculative and not grounded in any objective evidence. The Board has carefully examined the very limited rationale provided in support of the negative opinion and as opposed to remanding this matter once more for further clarification, it has determined that the information provided is sufficient to permit the Board to resolve reasonable doubt in the Veteran's favor and find that his vertigo is related to the removal of a mass from the neck. The examiner appears to hinge his negative opinion on the lack of objective evidence connecting the Veteran's hemangioma, hemangioma resection, or residual scar to his vertigo, but a medical opinion based solely on the absence of documentation in the record is inadequate and a medical opinion is inadequate if it does not take into account the Veteran's reports of symptoms and history (even if recorded in the course of the examination). Dalton v. Peake, 21 Vet. App. 23 (2007). While the examiner found no evidence that the Veteran's hemangioma, hemangioma resection, or residual scar affected the calcium carbonate crystals or otoconia within the fluid-filled semicircular canals of the inner ear, he did not rule out the possibility of this occurring. In fact, the examiner listed the most common causes of vertigo but did not explicitly indicate that it could not be caused removal of a mass from the neck. Therefore, reading the medical opinion in the light most favorable to the Veteran, combined with the credible statements from previous VA examinations that the symptoms began after surgery, the Board will conclude that, while not a common, removal of hemangioma was as likely as not linked to the Veteran's vertigo. As such, service connection for vertigo is warranted. In so reaching that conclusion, the Board has appropriately applied the benefit of the doubt doctrine in this case. See 38 U.S.C. § 5107(b) 38 C.F.R. § 3.102; Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). Michael J. Skaltsounis Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Daniels, 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.