Citation Nr: 21072902 Decision Date: 12/06/21 Archive Date: 12/06/21 DOCKET NO. 18-33 163 DATE: December 6, 2021 ORDER Service connection for vertigo is granted. Service connection for unspecified depressive disorder has been withdrawn. Service connection for posttraumatic stress disorder (PTSD) has been withdrawn. FINDINGS OF FACT 1. The Veteran submitted a notice of disagreement (NOD) in March 2017, within one year of the February 2017 rating decision denying, in pertinent part, service connection for vertigo. 2. The evidence is in equipoise as to whether the Veteran's current vertigo is caused by his active service. 3. In a July 2021 hearing, prior to the promulgation of a decision in the appeal, the Veteran and his attorney indicated that the Veteran wished to withdraw his appeal of the claim of service connection for unspecified depressive disorder. 4. In a July 2021 hearing, prior to the promulgation of a decision in the appeal, the Veteran and his attorney indicated that the Veteran wished to withdraw his appeal of the claim of service connection for posttraumatic stress disorder (PTSD). CONCLUSIONS OF LAW 1. The criteria for service connection for vertigo are met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2020). 2. The criteria for withdrawal of an appeal have been met with respect to the issue of service connection for unspecified depressive disorder. 38 U.S.C. § 7105(b)(2), (d)(5) (2012); 38 C.F.R. § 20.205 (2020). 3. The criteria for withdrawal of an appeal have been met with respect to the issue of service connection for posttraumatic stress disorder (PTSD). 38 U.S.C. § 7105(b)(2), (d)(5) (2012); 38 C.F.R. § 20.205 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty in the United States Marine Corps from November 2012 to November 2016. These matters come before the Board of Veterans' Appeals (Board) from an August 2017 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran submitted a Notice of Disagreement (NOD) in August 2017 and a Statement of the Case (SOC) was issued in May 2018. The Veteran perfected an appeal by submitting a timely VA Form 9 in June 2018. The Veteran and his attorney appeared in a July 2021 hearing. A transcript of that hearing has been associated with the record. At the hearing, the Veteran's attorney requested that the record be kept open for 90 days to allow the Veteran to submit additional medical evidence. That 90-day period has expired. 38 C.F.R. § 20.605. Under applicable criteria, the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. §§ 20.202, 20.205. Withdrawal may be made by a veteran or by his or her authorized representative. 38 C.F.R. § 20.205. In the present case, in July 2021, the Veteran indicated that he wanted to withdraw the appeals for the claims of service connection for PTSD and unspecified depressive disorder. The Board finds that the withdrawal is explicit and unambiguous, and, as it was submitted with the assistance of his attorney in front of the undersigned Veterans Law Judge, done with a full understanding of the consequences of such action. DeLisio v. Shinseki, 25 Vet. App. 45, 57 (2011). Service Connection Service connection may be granted for a disability resulting from personal injury suffered or disease contracted in the line of duty. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.304. Service connection may also be granted for a 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). Establishing service connection generally requires (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The standard of proof to be applied in decisions on claims for VA benefits is set forth in 38 U.S.C. § 5107(b). Under that provision, VA shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. Id.; see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). "It is in recognition of our debt to our veterans that society has [determined that,] [b]y tradition and by statute, the benefit of the doubt belongs to the veteran." Gilbert, 1 Vet. App. at 54. 1. Service connection for vertigo The Veteran contends that symptoms of vertigo began in active service and that he has had intermittent symptoms of vertigo since discharge. After weighing the evidence of record, the Board finds that the evidence is in equipoise as to whether there is a causal link between the Veteran's current vertigo and his service. Service treatment records show that the Veteran reported never having had dizziness or fainting spells in August 2012. In February 2015, he complained of dizziness but no vertigo. In March 2015, however, records show that a provisional diagnosis of vertigo and that the same provisional diagnosis was repeated in April 2015. The Veteran denied vomiting. In August 2015, during an audiological evaluation, the medical practitioner noted that the Veteran did not have vertigo. In a September 2016 report of medical history, the examiner noted that the Veteran was diagnosed as having vertigo and that he was treated with medication. VA Medical Center treatment records show that the Veteran was diagnosed as having vertigo on November 15, 2016, or about 10 days prior to his discharge from active duty on November 25, 2016. The medical practitioner noted that the Veteran had "reproducible vertigo with changes in position." In December 2016, the Veteran reported that he started having symptoms "since age 25." The Veteran was on active duty at age 25. On November 28, 2016, a VA examiner did not diagnose the Veteran as having an ear or peripheral vestibular condition. In her medical opinion she stated that the Veteran's dizziness is consistent with migraine-associated dizziness and visual-vestibular mismatch and recommended neurology and neuro-optometric evaluation for migraine and for probable vergence dysfunction. Then, however, she added that the Veteran's "vertigo is not otologic in nature and I cannot opine regarding service connection for same." In April 2017, a private medical practitioner opined that the Veteran's vertigo had its onset during service, medicated by military medical personnel, and that the disability is permanent and persists. In June 2017, the Veteran submitted private medical treatment records that diagnosed the Veteran as having vertigo. In July 2017, the Veteran submitted an RCS Client Information Record generated in July 2017 showing that the Veteran was prescribed medication for vertigo. In July 2021, the Veteran testified that he has had symptoms of vertigo since service and that he had intermittent symptoms since that time. In October 2021, he submitted private medical treatment records that he originally submitted in June 2017. As an initial matter, the Board finds that the November 2016 VA medical opinion is not contrary to the Veteran's claim. Although the examiner did not diagnose the Veteran as having vertigo, she also did not deny the possibility of the Veteran's symptoms being caused by service and that it was consistent with "migraine associated dizziness and visual-vestibular mismatch." She also stated that she could not offer an etiological opinion as vertigo was not "otologic in nature." The Board notes that the examiner did not specifically discuss contrary diagnoses of vertigo, such as the diagnosis made less than two weeks prior to the VA examination at the VA Medical Center noting that the Veteran had "reproducible vertigo with changes in position." Moreover, service connection for a disability is not limited to specific diagnoses but rather to the nature of the symptoms and the impairment of function. Thus, the Board assigns probative weight to the April 2017 private medical opinion even though it did not explicitly support its opinion with a rationale. Instead, the private practitioner implied that the date of onset, combined with its persisting symptoms to the present day, suggested that it is related to service. Although not specifically stated, the Board finds that the April 2017 private medical opinion is effectively supported by this rationale. The Board also finds that the April 2017 private medical opinion to be based on accurate factual basis as the Veteran denied history of dizziness prior to service and was diagnosed as having vertigo both during and after service. Thus, the evidence is at least in equipoise as to whether the Veteran's vertigo was caused by service. The benefit-of-the-doubt rule is therefore for application. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Reasonable doubt will be resolved in the Veteran's favor and thus service connection for vertigo is granted. See 38 U.S.C. § 5107. J.W. FRANCIS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board H.S. Yun, 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.