Citation Nr: 21071118 Decision Date: 11/29/21 Archive Date: 11/29/21 DOCKET NO. 15-45 875 DATE: November 29, 2021 ORDER Service connection for Meniere's Disease, including as secondary to herbicide exposure and service-connected bilateral hearing loss and/or tinnitus is denied. FINDINGS OF FACT 1. The Veteran served in the Republic of Vietnam (RVN) during the regulatory time period, thus, his exposure to herbicide agents is presumed. 2. The Veteran's Meniere's Disease did not manifested to a compensable degree within a year of service discharge, was neither incurred in nor etiologically related to service, to include exposure to herbicide agents, and was not caused or aggravated by the service-connected hearing loss and/or tinnitus. CONCLUSION OF LAW The criteria for service connection for Meniere's Disease, including as due to exposure to herbicide agents and/or secondary to hearing loss and/or tinnitus have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1116, 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the United States Army from September 1966 to September 1968, which included service in the RVN. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2015 rating decision by a Department of Veteran Affairs (VA) Regional Office (RO). The Board remanded this matter to the Agency of Original Jurisdiction (AOJ) in August 2021. Specifically, to have a VA examiner provide an opinion as to the etiology of the Veteran's Meniere's Disease and its relationship to his presumed in-service Agent Orange exposure and whether it was caused or aggravated by the service-connected hearing loss and/or tinnitus. A VA clinician provided the requested opinion in September 2021. This matter has been returned to the Board for further appellate review. The Veteran seeks service connection for Meniere's Disease, to include as secondary to herbicide exposure and service-connected hearing loss and/or tinnitus. After a brief discussion of the laws and regulations governing service connection, the Board will analyze the theories of direct and secondary service connection separately in the analysis below. Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110. Generally, the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Under 38 C.F.R. § 3.303 (b), an alternative method of establishing the second and third Shedden element is through a demonstration of continuity of symptomatology if the disability claimed qualifies as a chronic disease, such as other organic diseases of the nervous system, listed in 38 C.F.R. § 3.309 (a). Regulations also provide that service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury which was incurred in or aggravated by service. Herbicide Exposure The Veteran contends, in part that his Meniere's Disease is secondary to his presumed herbicide exposure during his service in the RVN. Applicable regulations provide that a Veteran who served on active duty in Vietnam during the Vietnam era is presumed to have been exposed to Agent Orange or similar herbicide. 38 C.F.R. § 3.307 (a)(1)(6)(iii). The specific statute pertaining to claimed Agent Orange exposure is 38 U.S.C. § 1116. Regulations issued pursuant thereto stipulate the diseases for which service connection may be presumed due to an association with exposure to herbicide agents. The diseases that are entitled to presumptive service connection based on herbicide exposure are listed in 38 C.F.R. § 3.309(e). 38 C.F.R. § 3.309(e) provides that presumptive service connection based on Agent Orange exposure is available for the following diseases: AL amyloidosis; chloracne or other acneform disease consistent with chloracne; type 2 diabetes (also known as Type II diabetes mellitus or adult-onset diabetes); Hodgkin's disease; ischemic heart disease (including, but not limited to, acute, subacute, and old myocardial infarction; atherosclerotic cardiovascular disease including coronary artery disease (including coronary spasm) and coronary bypass surgery; and stable, unstable and Prinzmetal's angina); all chronic B-cell leukemias (including, but not limited to, hairy-cell leukemia and chronic lymphocytic leukemia); multiple myeloma; non-Hodgkin's lymphoma; Parkinson's disease; early onset peripheral neuropathy; porphyria cutanea tarda; prostate cancer; respiratory cancers (cancer of the lung, bronchus, larynx, or trachea); soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). Despite the Veteran's presumed exposure to herbicide agents, presumptive service connection under 38 C.F.R. § 3.307 (a)(6) is still not for application. Service connection is only warranted on this basis for a specific list of diseases set forth under 38 C.F.R. § 3.309 (e). As the Veteran's Meniere's Disease is not among those listed under 38 C.F.R. § 3.309 (e), an award of presumptive service connection based on herbicide exposure is not warranted. With respect to presumptive service connection under § 3.309(a), in light of the lack of medical evidence reflecting evidence of Meniere's Disease within one year of the Veteran's separation from service, service connection on a presumptive basis for this disability is also not available. 38 C.F.R. § 3.309. Next, where the evidence does not warrant presumptive service connection, the United States Court of Appeals for the Federal Circuit has determined that an appellant is not precluded from establishing service connection with proof of direct causation. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). However, the weight of the evidence does not show a causal relationship between the Veteran's Meniere's Disease and in-service herbicide exposure or any other incident of active service. Review of the record reflects that the Veteran's service treatment records (STRs) do not show treatment for Meniere's Disease. A September 1968 examination, at service separation, noted that the Veteran's ears were evaluated as "normal." On an accompanying Report of Medical History, the Veteran denied having had any ear trouble. Additionally, the Veteran has acknowledged that he did not have the condition in service. Next, and more importantly, post-service evidence does not reflect complaints or treatment associated with Meniere's Disease until the calendar year 2009. Such tends to negate a finding for service connection based on direct service incurrence or continuity of symptomatology. In addition, an October 2019 VA examiner provided an opinion that was against the direct service connection component of the claim. After a physical evaluation of the Veteran and review of his STRs, the October 2019 opined that it was less likely than not (less than 50 percent probability) that the Veteran's Meniere's Disease was related to his period of military service. The VA examiner reasoned that the Veteran's medical records did not show Meniere's disease while in service, nor was there any chronicity or "continuity of care" of a condition related to Meniere's disease between service and the Veteran's diagnosis in 2009. See October 2019 VA opinion. The Board finds the October 2019 VA examiner's opinion to be of high probative value in adjudicating the claim on a direct service connection theory because it is consistent with the evidence of record, namely an absence of Meniere's Disease during service or until 2009. Other evidence against the claim for service connection for Meniere's Disease on a direct basis includes an October 2020 VA examiner's opinion. After a physical evaluation of the Veteran, the VA examiner opined that it was less likely than not (less than 50 percent probability) that the Veteran's Meniere's Disease was incurred in or caused by service. The examiner reasoned that according to the Mayo Clinic, Meniere's Disease was caused by an abnormal amount of fluid in the inner ear due to improper fluid drainage from an anatomic abnormality, abnormal immune response, viral infection, or genetic predisposition. Thus, the VA examiner opined that a nexus could not be established. The Board finds the October 2020 VA examiner's opinion to be of high probative value in adjudicating the claim for service connection for Meniere's Disease because it is based on medical research and reasoning. Finally, in a September 2021 opinion, a VA examiner opined that it was less likely than not that the Veteran's Meniere's Disease was related to his in-service herbicide exposure. The examiner reasoned that after a review of all available medical records and remand documents, that there was no credible medical evidence to support a causal link between agent orange exposure/herbicide and Meniere's disease. Thus, a nexus is not established. The VA examiner referenced several medical treatises in support of his conclusion. The October 2019, October 2020 and September 2021 VA examiners' opinions are consistent with the evidence of record, well-reasoned and against the direct service connection theory of the claim. There is no other opinion that is supportive of this theory of the claim. Having determined that the Veteran's alleged clinical history regarding onset and continuity of Meniere's Disease is not consistent with the evidence, the Board next considers that service connection may be granted when the evidence establishes a medical nexus between active service and current complaints. Here, however, the service and post-service evidence provides particularly negative evidence against this claim on a direct service connection theory, to include as due to herbicide exposure. The Board now turns to service connection for Meniere's Disease on a secondary service connection theory but finds that the claim fails on this theory as well. The Veteran seeks service connection for Meniere's Disease as secondary to his service-connected bilateral hearing loss and/or tinnitus. Service connection may also be granted for a disability that is proximately due to or the result of an established service-connected disability. 38 C.F.R. § 3.310 (2019). This includes disability made chronically worse by a service-connected disability. Allen v. Brown, 7 Vet. App. 439 (1995). As noted by the Board in its August 2021 remand, previous VA examiners' opinions, dated in October 2019 and October 2020, were found to have been inadequate in adjudicating the claim on a secondary service connection theory of the claim. To this end, and as noted by the Board in its previous remand, the October 2019 opined that the Veteran's Meniere's disease was not proximately due to his hearing loss because "current medical literature does not state that hearing loss causes Meniere's Disease." Yet, the examiner failed to opine on whether the Veteran's bilateral hearing loss had aggravated his Meniere's disease or whether it was proximately due to or aggravated by his tinnitus, as instructed in the Board's previous September 2018 remand. In an October 2020 opinion, a VA examiner concluded that the Veteran's Meniere's disease was not aggravated by the service-connected tinnitus. There was no discussion, however, of why the available evidence was insufficient nor did the examiner cited to any medical literature or treatise evidence to support his opinion. In addition, and as noted by the Board in April 2021, the October 2020 VA examiner did not address whether the Veteran's Meniere's Disease was caused by his service-connected tinnitus. Thus, the Board remanded the claim to have another VA examiner provide an opinion on the secondary service connection theory of the claim and address the deficiencies of the previous VA opinions. Pursuant to the Board's April 2021 remand, a VA examiner provided an addendum opinion in May 2021. The May 2021 VA examiner opined that it was less likely than not that the Meniere's disease was proximately due to cause by or aggravated by the service connected tinnitus. The examiner concluded that the Veteran's tinnitus was due to his noise exposure hearing loss, and while Meniere's disease can cause hearing loss and tinnitus, Meniere's disease was not caused by noise exposure. See May 2021 VA opinion. In August 2021, the Board remanded the claim for another opinion finding that the May 2021 VA examiner's opinion was inadequate because it had failed to address the aggravation component of the secondary service connection theory of the claim. However, upon more careful review of the record, and as noted in the preceding paragraph, the May 2021 examiner had provided the requested aggravation opinion. Nonetheless, a VA examiner provided additional opinions in September 2021. The VA examiner opined in September 2021, after a review of the available medical records and remand documents, that the Veteran's Meniere's Disease was less likely than not (less than 50 percent probability ) proximately due to or the result of Veteran's service connected condition. The examiner also concluded that there was no credible medical evidence to support a mechanism for possible aggravation beyond the natural progression of the Veteran's Meniere Disease by hearing loss or tinnitus. The examiner reasoned that there is no credible medical evidence to support a causal link between hearing loss or tinnitus and Meniere's disease thus, a nexus is not established. The examiner also conclude that there is no credible medical evidence to support a mechanism for possible aggravation of the Veteran's meniere disease by hearing loss or tinnitus. The VA examiner cited to several medical treatises, article, and websites to support his conclusion. See September 2021 VA opinion. The Board finds the VA examiner's opinion to be of high probative value in evaluating the claim for service connection for Meniere's Disease on a secondary basis because it is supported with medical reasoning and consistent with the evidence of record. The Board finds that the evidence of record, lay and medical, weighs against a finding that the Veteran's Meniere's disease is related to his active service, to include his presumed herbicide exposure, or to the Veteran's service-connected bilateral hearing loss and/or tinnitus. To the extent that the Veteran and his representative assert that the Veteran's Meniere's disease is related to service or secondary to service-connected bilateral hearing loss or tinnitus, the Board acknowledges that lay witnesses may, in some circumstances, opine on questions of diagnosis and etiology. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). However, neither the Veteran nor his representative is considered competent (meaning qualified by medical training or expertise) to provide an opinion as to whether the Veteran currently meets the diagnostic criteria for Meniere's disease or whether such disability is related to his service, as this particular inquiry is within the province of trained medical professionals; it goes beyond a simple and immediately observable cause-and-effect relationship. Although lay persons are competent to provide opinions on some medical issues, Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), the specific issue in this case fall outside the realm of common knowledge of a layperson. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Additionally, the Board finds that the Veteran's lack of a report of symptoms of Meniere's disease prior to 2009 weighs against a finding of continuity of symptomatology since service. In light of the above discussion, the Board concludes that the weight of the evidence is against the claim for service connection for Meniere's Disease and there is no doubt to be otherwise resolved. As such, the appeal is denied. MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Carole Kammel, 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.