Citation Nr: 21073139 Decision Date: 12/07/21 Archive Date: 12/07/21 DOCKET NO. 15-45 115 DATE: December 7, 2021 ORDER Entitlement to service connection for vertigo is granted. FINDINGS OF FACT 1. The Veteran's vertigo was not noted during the Veteran's entrance examination. Clear and unmistakable evidence has not shown his vertigo was not aggravated during or by the Veteran's service 2. Resolving all reasonable doubt in favor of the Veteran, his vertigo began during service and has been chronic and continuous since service. CONCLUSION OF LAW The criteria for entitlement to service connection for vertigo are met. 38 U.S.C. §§ 1110, 1111, 1112, 1113, 1131, 1137, 5107, 38 C.F.R. §§ 3.102, 3.303(a)-(c), 3.307, 3.309(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the United States Army from July 1989 to May 1992; and in the United States Air Force Reserve from May 1992 to September 1996. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ) rating decision dated in July 2014. This issue was previously before the Board in April 2019 and May 2021, at which time, the issue was remanded to the AOJ for additional development. This case has now been returned to the Board for further appellate action. Entitlement to service connection for vertigo The Veteran seeks service connection for vertigo, which he asserts is related to service, or to his service-connected tinnitus. See August 2021 Correspondence. The Board has carefully reviewed the evidence of record and finds that the Veteran's symptoms of vertigo have been chronic and continuous since discharge and are not attributable to intercurrent causes. Thus, resolving all reasonable doubt in favor of the Veteran, the criteria for service connection for vertigo are met. Service Connection Service connection will be granted if the evidence demonstrates that current disability resulted from an injury or disease incurred in active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first 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). Service connection may be granted based on chronicity or continuity of symptomatology for a disability which is due to a disease enumerated on the list of chronic diseases in 38 U.S.C. § 1101(3) or 38 C.F.R. § 3.309(a), such as organic diseases of the nervous system, including vertigo. See 38 C.F.R. § 3.303(b). Service connection may be granted for a disability that is proximately due to, or aggravated by, a service-connected disease or injury. See 38 C.F.R. § 3.310. The Board notes that in January 2021 the Veteran has established service connection for tinnitus, based upon exposure to hazardous noises in service. At the outset, the Board notes that a current diagnosis of vertigo has been established. See December 2020 VA examination; but see May 2014 VA examination; Wise v. Shinseki, 26 Vet. App. 517, 531 (2014). Presumption of Soundness 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). Only such conditions as are recorded in examination reports are to be considered as noted. 38 C.F.R. § 3.304(b). If a condition is not noted upon entrance into service, then to rebut the presumption of soundness at service entrance VA must show by clear and unmistakable evidence both that there was a pre-existing condition and that it was not aggravated during or by the Veteran's service. Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004); VAOPGCPREC 3-2003 (July 16, 2003). The Board finds that the presumption of soundness has not been rebutted and the Veteran was in sound neurological condition prior to service. 38 U.S.C. §§ 1111, 1132; 38 C.F.R. § 3.304(b); See also Quirin v. Shinseki, 22 Vet. App. 390, 396-397 (2009). While the evidence demonstrates that the Veteran's vertigo was not noted during the Veteran's entrance examination, VA has not shown by clear and unmistakable evidence that his vertigo was not aggravated during or by the Veteran's service. See 38 U.S.C. § 1111; 38 C.F.R. § 3.304. Medical history and examination reports for enlistment reflect that the Veteran reported having had dizziness prior to service. The Veteran reported that he would experience dizziness if he didn't eat breakfast, and he had no trouble in the middle of the afternoon. Physical examination revealed a normal clinical evaluation of the Veteran's neurologic conditions. The Veteran also passed equilibrium and psychomotor testing in September 1988. See September 1988 service treatment records. The medical examiner noted that the Veteran had a rating of 1 for his physical capacity under the PULHES rating system, which was the highest rating and indicated that his physical capacity would not result in any limitations in military assignments. See McIntosh v. Brown, 4 Vet. App. 553, 555 (1993); Horn v. Shinseki, 25 Vet. App. 231 (2012). Preexisting Vertigo Prior to Service Based upon a review of the record, the Board finds that VA has shown by clear and unmistakable evidence that the Veteran had pre-existing vertigo prior to service. Service treatment records reflect that the Veteran repeatedly reported having symptoms of vertigo prior to service. See September 1990, January 1991, and February 1991 service treatment records; see also May 2014 VA examination. In May 2014, a VA examiner opined that the Veteran's symptoms existed prior to the Veteran entering the military in 1989, based upon the June 1991 service treatment record, which noted that the Veteran's symptoms existed 5 years prior to 1991. In December 2020, a VA examiner noted that there were reports of dizziness from the Veteran's enlistment examination. The examiner opined that from the description it appeared to note that if the Veteran did not have breakfast, he started to feel dizzy in the afternoon, which the examiner opined would imply more of a hypoglycemic type of dizziness at that time. In addition, the examiner noted that since it was part of his enlistment examination, it would have been pre-existing to his military service. In May 2021, a VA examiner noted that the Veteran reported issues with dizziness, which was listed on his entrance exam. Thus, the Board finds the Veteran clearly and unmistakably had vertigo prior to service. Aggravation of Vertigo During Service Rebutting the presumption of soundness is a two-part analysis. The Veteran's vertigo having been shown by clear and unmistakable evidence to preexist service, consideration must be given to whether clear and unmistakable evidence exists to show that the vertigo was not aggravated during service, to fully rebut the presumption of soundness. See O'Bryan, supra. That is, "VA may not rest on the notion that the record contains insufficient evidence of aggravation. Instead, in order to fully rebut the presumption of soundness, VA must rely on affirmative evidence to prove that there was no aggravation." Horn, 25 Vet. App. at 236. The burden is not met by finding "that the record contains insufficient evidence of aggravation." Id. The veteran need never produce any evidence of aggravation to prevail under the aggravation prong, even if clear and unmistakable evidence establishes that the disease preexisted service. In other words, in a situation, the burden is never shifted back to the veteran to show that his disability increased in severity during service. Id. Resolving all reasonable doubt in favor of the Veteran, based upon the objective medical records and the subjective lay evidence, the Board finds that VA has not shown by clear and unmistakable evidence that the Veteran's vertigo did not increase in severity during a period of qualifying service. A preexisting injury or disease will be considered to have been aggravated during service when there is an increase in disability during service, unless there is a specific finding that the increase in disability is due to the natural progression of the disease. 38 U.S.C. § 1153; 38 C.F.R. § 3.306(a). Aggravation may not be conceded where the disability underwent no increase in severity during service based on all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 U.S.C. § 1153; 38 C.F.R. § 3.306; Falzone v. Brown, 8 Vet. App. 398, 402 (1995). See also Davis v. Principi, 276 F.3d 1341, 1345 (Fed. Cir. 2002) (holding that evidence of a temporary flare-up, without more, does not satisfy the level of proof required of a non-combat Veteran to establish an increase in disability). Service treatment records indicate that the Veteran's vertigo worsened during service. See Service treatment records in September 1990 (Veteran reported that his dizzy spells with tinnitus had elevated in frequency and severity over the past 2 to 3 weeks); January 1991 (treatment provider noted that the Veteran's symptoms of dizziness, right sided headaches, weakness, spinning sensations, and intermittent tinnitus had been occurring more frequently; at least once a month, and would usually last a day); February 1991 (treatment provider noted that the Veteran's symptoms of dizziness, vertigo and tinnitus began at least every 6 months, in October 1990, the Veteran began experiencing the symptoms once a week). The Veteran was afforded a VA examination in May 2014. The VA examiner noted that the Veteran reported that he began experiencing a spinning sensation in 1991. The examiner noted that a June 1991 service treatment record indicated that the symptoms were present for more than 5 years. The examiner noted that evaluation in the military found no conclusion and led to no specific treatment. The May 2014 examiner opined that the Veteran's condition was not related to service based upon the June 1991 service treatment record which indicated that the Veteran's symptoms existed 5 years prior to 1991, prior to the Veteran entering the military in 1989. The examiner did not discuss the service treatment records which indicated that the Veteran's vertigo worsened during service. In December 2020, a VA examiner opined that based upon the available evidence, there was no evidence that the Veteran had issues with vertigo while in the military. Thus, the examiner opined that it was less likely than not that the Veteran's vertigo began while in the military. The examiner did not discuss the January 1991, February 1991, March 1991, and September 1991 service treatment records which reflects complaints of dizziness, and provisional diagnoses of vertigo and vestibular neuritis. The May 2021 VA examiner opined that the claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The examiner noted that the Veteran was seen several times for issues with what was reported as dizziness but per the notes was more consistent with weakness. The VA examiner's opinion was not supported by the service treatment records which show otherwise. Notably, the September 1990 service treatment provider noted that the Veteran reported dizzy spells with increased frequency and severity over the past 2 to 3 weeks. The treatment provider noted that the Veteran described true vertigo during the dizzy spells. However, the treatment provider did not indicate that the Veteran reported experiencing weakness. The May 2021 VA examiner also did not address the treatment provider's findings that the Veteran had described true vertigo during the dizzy spells. Further, the examiner did not discuss the March 1991 service treatment record which reflected that the Veteran had complained of vertigo for the last 6 months, and that his last bout of vertigo was five days prior. Once again, the treatment provider did not discuss any symptoms of weakness. Further, there was no indication that the Veteran had not complied with the February 1991 treatment provider's recommendations to eat three meals a day. See also September 1991 treatment record (no indication of noncompliance with February 1991 treatment recommendations). In addition, the May 2021 VA examiner did not address the service treatment records which reflected provisional diagnoses of Meniere's disease and vestibular neuritis; or the October 2014 VA treatment record, which also reflected a possible diagnosis of vestibular migraines. Finally, the May 2021 VA examiner opined that the Veteran's episodes of dizziness/weakness prior to service implied a pre-existing condition. The examiner also noted that the Veteran reported issues with dizziness prior to being diagnosed with tinnitus; and opined that it was less likely than not that the Veteran's vertigo was related to his tinnitus because he had vertigo prior to tinnitus. However, based on the same set of facts, although the Veteran reported dizziness during service, the examiner opined that there was no true diagnosis of dizziness or vertigo while in service. The examiner did not provide a convincing rationale as to why the Veteran's report of dizziness prior to service supports a finding of a pre-existing condition prior to service, and his symptoms of dizziness prior to his diagnosis of tinnitus, supports a finding that his vertigo existed prior to his tinnitus, but his symptoms of dizziness during service did not support a finding of a diagnosis of dizziness or vertigo during service. Based upon the evidence of record, the Board finds the onerous burden necessary to rebut the presumption of soundness has not been satisfied in this case as both prongs are not met. See Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004) (in cases where the presumption of soundness cannot be rebutted, the claim is one based on service incurrence). The evidence of a nexus between the in-service and current vertigo includes the findings in service and currently relating to the diagnosis of vertigo and the Veteran's competent reports of ongoing symptoms since service. Lay evidence can be sufficient to establish a nexus to service. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Lay Evidence The Board acknowledges the statements of the Veteran and his fellow service-member (Buddy) in support of his claim, and notes that lay statements may be competent to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. The Veteran is certainly capable of describing any symptoms of vertigo that he has experienced during and after service, and his reports in this regard are considered credible lay evidence of symptomatology. Further, the Board notes that vertigo claims may be supported by evidence of a continuity of symptomatology or on a presumptive basis. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336-1337 (2006); Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Veteran has stated that his vertigo began during service, and he would have significant issues with dizziness that would come and go. He stated that he was diagnosed with vertigo in 1991 after he returned from Korea. See October 2013 and September 2014 statements; December 2020 and August 2021 VA examinations. In addition, the Veteran's Buddy stated that during service, the Veteran would often complain of feelings of dizziness and nausea, and that he was unable to keep his balance or stop the room from spinning. See October 2013 statement. The Veteran asserts he has experienced symptoms of vertigo during his time in service. He is competent to report his symptoms of vertigo, such as dizziness. Layno, supra. See 38 C.F.R. § 3.159(a)(2). The Veteran essentially contends that his vertigo has been "chronic and continuous since discharge." These lay statements are considered competent evidence when describing the features or symptoms of an injury or illness within the realm of personal and observable knowledge. There are certain situations in which lay evidence may suffice to prove service connection on its own merits, even in the absence of evidence in the service treatment records. Buchanan, supra. In conclusion, resolving all reasonable doubt in favor of the Veteran, and with consideration of the objective medical evidence as well as the subjective lay evidence, the Board finds that there is a nexus between the Veteran's current vertigo and service. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996) (indicating an "absolutely accurate" determination of etiology is not a condition precedent to granting service connection, nor is "definite" or "obvious" etiology). "Congress has not mandated that a medical principal must have reached the level of scientific consensus to support a claim for veterans benefits." Wise v. Shinseki, 26 Vet. App. 517, 531 (2014). Instead, Congress adopted a "low standard of proof" for VA to employ to "resolve a scientific or medical question in the claimant's favor so long as the evidence for and against that question is in 'approximate balance.'" Id. The Board finds that the service treatment records which indicated possible diagnoses of vertigo, coupled with the Veteran's competent and credible statements that he had experienced vertigo since service, and the current diagnosis of vertigo, support a finding that service connection for vertigo is warranted. (Continued on next page) In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. Resolving all reasonable doubt in favor of the Veteran and based on the medical and lay evidence of record, the Board finds that the evidence of record supports a finding that service connection for vertigo is warranted. See 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). C. Casey Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G. Johnson 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.