Citation Nr: 21073831 Decision Date: 12/10/21 Archive Date: 12/10/21 DOCKET NO. 18-09 379 DATE: December 10, 2021 ORDER Entitlement to service connection for a vestibular disorder (claimed as Meniere's disease) is denied. FINDING OF FACT The Veteran's claimed vestibular disorder did not begin during service; and, the preponderance of the evidence fails to establish that it is etiologically related to military service or proximately due to or aggravated by a service-connected bilateral hearing loss or tinnitus disorder. CONCLUSION OF LAW The criteria for entitlement to service connection for a vestibular disorder have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from November 1968 to November 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a rating decision issued by the Department of Veterans Affairs (VA), and has been advanced on the Board's docket pursuant to 38 U.S.C. § 7107. The Board previously remanded this matter in May 2019. The agency of original jurisdiction (AOJ) was asked to obtain a VA examination and medical opinions as to the nature and etiology of the Veteran's claimed vestibular (inner ear) disorder. The AOJ obtained a VA examination and medical opinions in November 2019. After reviewing the documents, the Board finds that there is substantial compliance with the prior remand directives. This matter is ready for a decision on the merits. Legal Criteria Service Connection Service connection may be granted for a disability resulting from disease or injury incurred coincident with or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing direct service connection generally requires competent evidence of: (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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). Compensation may be established for any incremental increase in disability or any additional impairment of earning capacity in nonservice-connected disabilities resulting from service-connected disabilities, above the degree of disability existing before the increase regardless of its permanence. Ward v. Wilkie, 31 Vet. App. 233, 239 (2019). 1. Entitlement to service connection for a vestibular disorder The Veteran has complained of symptoms of queasiness and lightheadedness, also described as "dizziness and giddiness cause unknown." See C&P Exam, November 2019. The questions for the Board are whether (1) there exists an event, injury, or disease during military service relevant to the Veteran's current disorder and (2) whether there exists a nexus between a current disorder and the event, injury, or disease during service or (3) a nexus between the current disorder and a service-connected disability based on proximate cause or aggravation. Service treatment records show that the Veteran reported a history of ear, nose, and throat trouble at his pre-induction examination in June 1968. The clinician noted that the Veteran had a history of "periodic ear infections". However, the Veteran's ears and eardrums were found to be normal on examination. The separation exam in October 1969 also found normal ears and eardrums. The Veteran again reported a history of ear, nose, and throat trouble, but neither he nor the clinician provided additional specifics. The record does not show any reports, symptoms, treatment or diagnoses of a vestibular disorder or related symptoms during military service. The Veteran was evaluated by an audiologist, T.M., and by a medical doctor, Dr. K.W., in connection with his claim for service connection in November 2019. T.M. evaluated the Veteran's hearing thresholds, but explained that an audiologist is not a medical doctor and may not diagnose Meniere's disease. Therefore, the Board will not afford findings T.M. any probative weight. The Veteran told Dr. K.W. that he has spells of queasiness and light-headedness and has had these for years, about 20 to 25 years. He described them as slightly debilitating, annoying, and inconvenient. They most often occur when he first gets up. They usually resolve in about 5 minutes if he sits down or lies down. He has not had any falls associated with these and does not have nausea and vomiting. He denied ever having been told by a doctor that he had Meniere's. After considering the evidence and reviewing the claims file, Dr. K.W. found that the Veteran did not have a diagnosis of Meniere's or vertigo. He explained that the dizziness the Veteran describes is not true vertigo, based on the given descriptions and the medical records. He reasoned that most Meniere's cases have debilitating vertigo that lasts longer than the Veteran's spells, which were described as "annoying and inconvenient" and not causing falls. Dr. K.W. cited medical records in which the Veteran described symptoms including "feeling disoriented, wariness, vague light-headedness, lasting about 5 minutes, and relieved by lying down." He also observed that the Veteran's hearing loss is more in the high frequency range, and that Meniere's typically has greater low frequency hearing loss. Dr. K.W. further found that the Veteran's spells of light-headedness began to occur in (and not before) the past 20 to 25 years. Such would place the onset of light-headedness spells to be in the mid-1960s. He observed no evidence in the Veteran's medical history or medical records of this existing during or before service. He stated that the Veteran's symptoms are not considered vertigo, and there are multiple reasons why this Veteran may have light-headedness, including aging, circulation, past smoking, and past alcoholism. See CAPRI, March 2020. As to secondary service connection and aggravation, Dr. K.W. explained that the Veteran's symptoms had not occurred until the past 20 to 25 years, and do not appear to be physiologically connected in any way to an ear-related cause. The Board has reviewed the remainder of the Veteran's VA and private medical records. However, such records do not contain evidence of a nexus between the Veteran's current symptoms and military service or a service-connected disability to the extent that service connection is appropriate. See 38 C.F.R. §§ 3.303, 3.310. Further, to the extent that the dizziness complaints could be attributed to a neurological disorder, which the Board does not concede, there is no competent and credible evidence showing the onset within a year or service discharge and continuity of symptomatology since service. See 38 C.F.R. § 3.309(a). The Board concludes that the preponderance of the evidence is against the claim of service connection for a vestibular disorder. In reaching this determination, the Board has considered the medical evidence. Dr. K.W. found that the Veteran's symptoms are not related to service and do not appear to be physiologically connected in any way to an ear-related cause (including hearing loss and tinnitus). He reviewed the claims file and gave a persuasive opinion supported by medical evidence and his professional expertise. His findings are entitled to significant probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Veteran's lay statements were considered. Nevertheless, the ability to opine as to a nexus between vestibular symptoms and military service and/or a service-connected disability requires complex medical knowledge of human anatomy and the workings of the inner ear that is beyond lay capacity. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). The Board affords greater probative weight to the competent medical evidence. Also, the Board notes that the Veteran reported that his symptoms began about 20-25 years ago, which is inconsistent with a direct continuation of symptoms since military service. In sum, the preponderance of the evidence is against the claim of service connection for a vestibular disorder. The appeal must be denied. See 38 U.S.C. § 5107(a) ("[A] claimant has the responsibility to present and support a claim for benefits...."); Fagan v. Shinseki, 573 F.3d 1282, 1286 (Fed. Cir. 2009) (noting that the benefit of the doubt standard in section 5107(b) is not applicable based on pure speculation or remote possibility); Skoczen v. Shinseki, 564 F.3d 1319, 1323-29 (Fed. Cir. 2009) (recognizing that "[w]hether submitted by the claimant or VA... the evidence must rise to the requisite level set forth in section 5107(b)," requiring an approximate balance of positive and negative evidence regarding any issue material to the determination). MICHAEL A. HERMAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Reed, 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.