Citation Nr: 21072338 Decision Date: 12/02/21 Archive Date: 12/02/21 DOCKET NO. 16-48 784 DATE: December 2, 2021 ORDER Entitlement to service connection for vertigo is denied. FINDINGS OF FACT 1. Chronic symptoms of vertigo were not shown during service; did not manifest to a compensable degree within one year of service separation; and were not continuous since service separation. 2. The Veteran's vertigo is not related to his active service. CONCLUSION OF LAW The criteria to establish service connection for vertigo are not met. 38 U.S.C. §§ 1101, 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from May 1965 to February 1968. In April 2021, the Board remanded the issues of service connection for bilateral hearing loss, tinnitus, and vertigo for further development. Subsequently, in an April 2021 rating decision, the RO granted service connection for bilateral hearing loss and tinnitus, which is considered a full grant of the benefits sought on appeal, so those issues are no longer in appellate status. The RO continued the denial of service connection for vertigo, and this appeal has since returned to the Board for further appellate consideration. In September 2021 correspondence, the Veteran's former attorney, J. Michael Woods, declared his withdrawal from representation of the Veteran and satisfied the requirements of 38 C.F.R. § 20.608(b) (providing for withdrawal of representation after certification of an appeal). Specifically, the withdrawal letter includes the reason why withdrawal should be permitted, and a signed statement certifying that a copy of the motion was sent by first class mail, postage prepaid, to the Veteran, setting forth the address to which a copy was mailed. 38 C.F.R. § 20.608(b)(2). A Certification of Appeal (VA Form 8) dated May 9, 2017 establishes that the claim was certified to the Board. See 38 C.F.R. § 19.35 (certification is used for administrative purposes and does not serve to either confer or deprive the Board of Veterans' Appeals of jurisdiction over an issue). Because the Board has jurisdiction over this issue, and the representative's motion to withdraw satisfies the requirements of 38 C.F.R. § 20.608(b), the attorney's motion is granted. Service Connection Laws and Regulations Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009). Vertigo may in some cases be considered an organic disease of the nervous system, which is a "chronic" disease under 38 C.F.R. § 3.309(a). In this case, the Board will apply the presumptive service connection provisions under 38 C.F.R. § 3.303(b) for service connection based on "chronic" symptoms in service and "continuous" symptoms since service are applicable. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). For the showing of chronic diseases in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303(b). If not manifest during service, where a veteran served continuously for 90 days or more during a period of war, or during peacetime service after December 31, 1946, and the "chronic" disease became manifest to a degree of 10 percent within one year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 C.F.R. § 3.307. The Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds persuasive or unpersuasive and provide the reasons for its rejection of any material evidence favorable to the claimant. Kahana v. Shinseki, 24 Vet. App. 428, 433 (2011). This includes weighing the credibility and probative value of lay evidence against the remaining evidence of record. See King v. Shinseki, 700 F.3d 1339 (Fed. Cir. 2012); Kahana, 24 Vet. App. at 433-34. A claimant bears the evidentiary burden to establish all elements of a service connection claim, including the nexus requirement. Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009). In making its ultimate determination, the Board must give an appellant the benefit of the doubt on any issue material to the claim when there is an approximate balance of positive and negative evidence. Id. at 1287 (quoting 38 U.S.C. § 5107(b)). Service Connection for Vertigo is Denied The Veteran generally asserts that he has vertigo that is related to military service. He has not identified a specific in-service event that he believes caused his current vertigo. Turning to the evidence of record, the Veteran's service treatment records (STRs) reveal no vertigo complaints, treatment, or diagnosis. At the time of separation from service, the Veteran checked "no" to having had dizziness or fainting spells. He separated from service in February 1968. Post-service VA treatment records dated in June 2006 show that the Veteran complained of dizziness for three weeks. In October 2007, he reported four weeks of feeling "fuzzy," which ultimately led to a formal diagnosis of vertigo. Neither the Veteran nor the medical professional suggested that the vertigo was related to service. In April 2012, the Veteran filed a claim for service connection for an unrelated disability (gout) but did not mention vertigo. In July 2013, he filed a service connection claim for vertigo. According to April 2013 private treatment records, the Veteran presented with dizziness and reported that the onset was four months earlier. In September 2014, when undergoing a VA audiology compensation examination, the Veteran stated that, during service, he had episodes of dizziness that lasted a few minutes each time, when discussing the onset of his tinnitus. According to February 2016 private treatment records, the Veteran reported having dizziness for the past twenty years, which became worse since 2012. Subsequent to the Board's remand, the Veteran underwent an April 2021 VA examination for ear conditions, at which time the examiner, a medical doctor, confirmed a diagnosis of right temporal encephalocele causing benign paroxysmal positional vertigo. The Veteran reported that the onset of the disability was in 2012, at which time it became progressively worse. After review of the record and examination of the Veteran, the examiner opined that the diagnosed vertigo was less likely than not incurred in or caused by service. The examiner reasoned that the STRs were silent for vertigo and the onset of the disability occurred forty-four years after service. In September 2021 correspondence, the Veteran's attorney at the time provided an internet article describing Meniere's disease. After a review of all the evidence, the Board finds that the weight of the lay and medical evidence is against service connection for vertigo. While the competent evidence shows a diagnosis of right temporal encephalocele causing benign paroxysmal positional vertigo, the weight of the lay and medical evidence shows no chronic symptoms of vertigo in service, continuing symptoms of vertigo since separation, or vertigo having manifested to a compensable degree within one year of service separation to warrant presumptive service connection. The weight of the evidence shows no in-service injury, disease, or event relevant to vertigo. As indicated above, the STRs are show no complaints, symptoms, findings, or diagnosis of vertigo, and the Veteran denied having had dizziness at the time of the service separation examination. The first complaint of vertigo is not shown until 2006, decades after discharge from active duty, and the first diagnosis of vertigo was not rendered until 2007. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). This approximate 38-year gap between service separation and first symptoms is one factor that is against the claim. With regard to onset and continuance of symptoms, the Board finds that the Veteran's more recent histories of onset of vertigo during and since service in February 2016 (reporting a 20-year history) and September 2014 (reporting, for compensation purposes, that dizziness began in service) are inconsistent with, and outweighed by, other, more contemporaneous lay and medical evidence, including the Veteran's own histories provided in service and since service for treatment purposes, so are not credible. The Board assigns more probative weight to the Veteran's more contemporaneous statements to service and those histories reported for treatment purposes, where he specifically reported that vertigo did not begin until decades after service and did not relate any symptoms to service. The post-service histories the Veteran provided of only a few weeks or months of vertigo when being treated in June 2006 (three weeks), October 2007 (four weeks), April 2013 (four months), April 2021 (onset in 2012) are highly probative because they were made for treatment purposes, when one is expected to present an accurate medical history in order to receive efficacious treatment. Consistent with these findings, the Veteran filed claims for other disabilities without mentioning vertigo, which suggests that he was demonstrably aware of the claim process he would have filed a claim for service connection for vertigo at that time if such had been present. The Board also finds that the weight of the lay and medical evidence shows that the current vertigo is not related to service. As found above, there was no in-service injury, disease, or even symptom of vertigo during service, and at service separation the Veteran denied having or having ever experienced dizziness. As there is no in-service injury, disease, or event, there is nothing in service to which a medical opinion could relate the vertigo that began years after service. Direct service connection must be denied for this reason alone. To the extent a nexus opinion was rendered in April 2021 opinion, the VA examiner accurately assumed there was no vertigo during service and that the onset of vertigo was decades after separation from service. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning). The April 2021 opinion weighs against a nexus to service. The opinion is based on accurate factual assumptions, is case specific, and is supported by a rationale. The Board has also considered the internet article provided in support of this claim. The article just describes the nature of Meniere's disease, so is of no probative value in suggesting an association of Meniere's disease, or its associated vertigo, that began years after service to something that, in this case, did not happen in service, including no symptoms in service. As no medical professional at any point during the pendency of the appeal diagnosed Meniere's disease, the premise of the article does not pertain to the diagnosed disorder in this case. As reflected above, an ear conditions examination was conducted by a medical doctor, and only vertigo was diagnosed. For these reasons, the medical article is of no probative weight with regard to current disability or nexus in this case. The Board considered the Veteran's statement purporting to relate his currently diagnosed vertigo to active service. Although the Veteran is competent to report observable symptoms of vertigo, such as dizziness, under the facts of this case that show no credibly reported symptoms until years after service, he is not competent to offer an opinion as to etiology of vertigo, which may have multiple causes and may be due to several possible diagnosed disorders. Jandreau v. Nicholson, 492 F.3d 1372, 1376, n. 4 (Fed. Cir. 2007). Moreover, as there is no relevant in-service injury, disease, or event, there is nothing in service to which the post-service onset vertigo could be related. For these reasons, the Board finds that a preponderance of the evidence is against the claim for service connection for vertigo, under all theories of service connection, and the claim must be denied. S. B. MAYS Veterans Law Judge Board of Veterans' Appeals J. PARKER Veterans Law Judge Board of Veterans' Appeals N. RIPPEL Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Yaffe, 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.