Citation Nr: 21074011 Decision Date: 12/14/21 Archive Date: 12/14/21 DOCKET NO. 14-41 123 DATE: December 14, 2021 ORDER Entitlement to service connection for a traumatic brain injury (TBI) (claimed as residuals of a head injury) is denied. Entitlement to service connection for a disorder manifested by dizziness, to include Meniere's disease, secondary to service-connected bilateral hearing loss, is granted. REMANDED Entitlement to service connection for a gastrointestinal disorder, to include as secondary to service-connected PTSD with depressive disorder, is remanded. FINDINGS OF FACT 1. A competent diagnosis of a TBI or associated residuals has not been rendered during the period on appeal or during the period proximate thereto. 2. Resolving all reasonable doubt in favor of the Veteran, his diagnosed Meniere's disease is due to his service-connected bilateral hearing loss. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a TBI have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for entitlement to service connection for a disorder manifested by dizziness, diagnosed as Meniere's disease, as secondary to service-connected bilateral hearing loss, have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1964 to March 1969. These matters come before the Board of Veterans' Appeals (the Board) on appeal from December 2012 and August 2013 rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). In November 2020, the Board remanded these matters for additional development. The Board is satisfied that there was substantial compliance with the prior remand as it pertains to the issues of entitlement to service connection for TBI and a disorder manifested by dizziness. See Stegall v. West,11 Vet. App. 268(1998); D'Aries v. Peake, 22 Vet. App. 97 (2008). Duties to Notify and Assist With respect to the Veteran's claims herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A; 38C.F.R. §3.159. Neither the Veteran nor his representative have advanced any procedural arguments in relation to VA's duties to notify and assist; therefore, the Board will proceed with appellate review. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015). Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Generally, service connection requires: (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. See Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection may also be granted for any disease diagnosed after discharge when the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In addition, service connection may be established on a secondary basis for a disability which is shown to be proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. Establishing service connection on a secondary basis requires evidence sufficient to show that a current disability exists and that the current disability was either caused by or aggravated by a service-connected disability. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995). Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). 1. Entitlement to service connection for a TBI (claimed as residuals of a head injury) is denied. The Veteran contends that he experiences residuals of a head injury related to his service. Specifically, the Veteran asserts that in or about July or August 1964, he fell out of his bunk, hitting his chin which caused a laceration to the chin that required sutures. The Veteran reports that he experiences dizziness that may be related to this fall as he believes he was "knocked out at the time." See October 2011 Statement in Support of Claim. The Veteran's available service treatment records are silent for any in-service injury or diagnosis of a TBI. Treatment records associated with the file do not reflect that the Veteran has at any point been diagnosed with symptoms or residuals of a TBI. The VA examiner who provided both the October 2019 and December 2020 VA examinations, noted that on examination the Veteran had no current diagnosis of a TBI, had never been diagnosed with a TBI, and had no residuals of a TBI. While the Veteran has asserted that he currently experiences dizziness and headaches which he attributes to his in-service fall, he is not competent to diagnose himself with a TBI or residuals thereof, as he does not have the medical training and expertise necessary to do so. Jandreau v. Nicholson, F.3d 1372 (Fed. Cir. 2007. As there is no competent evidence that the Veteran in fact suffers from a TBI or residuals thereof, service connection for a TBI is not warranted in this case. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also McClain v. Nicholson, 21 Vet. App. 319, 321 (2007); Romanowsky v. Shinseki, 26 Vet. App. 289, 293 (2013); Saunders v. Wilkie, 886 F.3d 1356, 1364-65 (Fed. Cir. 2018). Accordingly, without competent medical evidence of record that the Veteran has a TBI (claimed as residuals of a head injury) disability, the claim for service connection for a TBI must be denied. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Entitlement to service connection for dizziness as secondary to service-connected bilateral hearing loss, is granted. The Veteran seeks service connection for a disorder manifested by dizziness which he claims either the direct result of an in-service fall from his bunk, or caused or aggravated by his service-connected bilateral hearing loss. See September 2013 Notice of Disagreement (NOD). In April 2002 a VA provider diagnosed the Veteran with Meniere's disease, NOS. See April 30, 2002 VA Treatment Note. In October 2012, the Veteran underwent an ear conditions VA examination. The examiner opined that the Veteran's dizziness is at least as likely as not proximately due to or the result of his service-connected bilateral hearing loss. The examiner provided no further rationale and stated that "there is no ear pathology to render a diagnosis for the claim of dizziness." See October 3, 2012 VA Ear Conditions DBQ. A November 2015 VA treatment reflects the Veteran's diagnoses of dizziness and vertigo. See November 30, 2015 VA Emergency Room Clinician Note. In January 2021, the Veteran underwent another VA examination. The examiner noted the Veteran's March 2002 diagnosis of Meniere's disease and opined that the Veteran's Meniere's syndrome condition is at least as likely as not (50 percent or greater probability) proximately due to or the result of the Veteran's service-connected bilateral hearing loss and tinnitus. The examiner explained that Meniere's disease typically includes one-sided hearing loss, vertigo, tinnitus and sensations of fullness in the ear. See January 2021 VA Ear Conditions DBQ and Medical Opinion. Following a careful review of the subjective and clinical evidence, the Board finds that the preponderance of the evidence weighs in favor of finding that service connection is warranted for dizziness on a secondary basis. First, the Board acknowledges that the Veteran is competent to report his symptoms and to provide a history of when these symptoms began and whether the symptoms were intermittent, continuous, or progressive in nature or severity. Barr v. Nicholson, 21 Vet. App. 303 (2007) (lay testimony is competent to establish the presence of observable symptomatology); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Layno v. Brown, 6 Vet. App. 465 (1994). The Board finds no reason to doubt the sincerity of the Veteran's lay statements. Further, the Board finds that the October 2012 and January 2021 VA medical opinions carry significant probative weight as they were provided by medical professionals who possess the necessary education, training, and expertise to provide the requested opinions; they were based upon a personal examination of the Veteran and his subjective reports, as well as a review of the Veteran's claims file, including his service treatment records and his VA treatment records. See 38 C.F.R. § 3.159(a)(1); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302 (2008); see also Prejean v. West, 13 Vet. App. 444, 448-49 (2000); Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). Accordingly, the Board finds that the October 2021 and January 2021 VA opinions provide the most persuasive evidence concerning the etiology of the Veteran's disorder manifested by dizziness, diagnosed as Meniere's disease. The Board notes that there are unfavorable VA opinions of record, but these negative opinions focused on a lack of in-service treatment and therefore are minimally probative. There is no doubt that further medical inquiry could be undertaken with a view towards development of this claim, but such would not materially assist the Board in its determination. Under the "benefit-of-the-doubt" rule, where there exists "an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter," the veteran shall prevail upon the issue. Ashley v. Brown, 6 Vet. App. 52 (1993); see also Massey v. Brown, 7 Vet. App. 204 (1994). In summary, resolving all reasonable doubt in favor of the Veteran, the evidence is at least in equipoise that his currently diagnosed Meniere's disease is etiologically related to his service-connected bilateral hearing loss. Accordingly, the Veteran's service connection claim must be granted on a secondary basis. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND Unfortunately, the remaining claim on appeal must be remanded once again as the Board is not satisfied that there was substantial compliance with its November 2020 remand. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11V et. App.268, 271 (1998). 3. Entitlement to service connection for a gastrointestinal disorder, to include as secondary to service-connected PTSD with depressive disorder, is remanded. The Veteran seeks service connection for a GI disorder, diagnosed as GERD, which he claims is either the direct result of his active service, or caused or aggravated by his service-connected PTSD with depressive disorder. In January 2013, the Veteran submitted medical literature supportive of a relationship between GERD and PTSD. Pursuant to the Board's November 2020 remand, the RO obtained addendum opinions in February 2021 addressing service connection for the Veteran's GI disability, diagnosed as GERD, on both direct and secondary bases. Regarding direct service connection, the February 2021 VA examiner concluded that it is less likely than not that the Veteran's GERD onset in service or is otherwise related to his active service, including his reports of GERD related symptoms. In support of his conclusion, the examiner noted the lack of medical records showing a diagnosis or treatment for GERD or any GERD related condition while in-service. Addressing secondary service connection, the February 2021 VA examiner concluded that is less likely than not that the Veteran's GERD was aggravated beyond its natural progression by his service-connected PTSD, or any of his other service-connected disabilities. The examiner stated that "there are no direct pathophysiologic or clinical studies that showed GERD was aggravated by or worsen[ed] by having PTSD with depressive disorder," or any of the Veteran's other service-connected disabilities. The Board finds both opinions to be inadequate. The examiner's direct opinion relied on the absence of contemporaneous medical evidence. The secondary service connection opinion did not address the pertinent medical literature submitted by the Veteran. Therefore, remand is required to obtain supplemental VA opinions. See Stegall v. West, 11 Vet. App. 268 (1998); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Accordingly, the matter is REMANDED for the following action: Forward the Veteran's claims file to a VA physician of appropriate expertise, who has not previously provided an opinion in this case, to determine the nature and etiology of the Veteran's GERD. A full VA examination should not be scheduled unless deemed necessary by the examiner or otherwise required by the evidence. The examiner must review the Veteran's entire claims file, to include a copy of this REMAND, and note that review in the examination report. Thereafter, the examiner is asked to provide a fully-articulated medical opinion with respect to the following: (a) Is it at least as likely as not (50 percent or greater probability) that the Veteran's GERD onset in service or is otherwise directly related to service? (b) Is it at least as likely as not (50 percent or greater probability) that the Veteran's GERD is caused by his service-connected PTSD? (c) Is it at least as likely as not (50 percent or greater probability) that the Veteran's GERD is aggravated by (increased in severity beyond its natural progression) his service-connected PTSD? In providing the requested opinion, the examiner must specifically address, and attempt to reconcile the evidence of record, to include: PTSD and Physical Health, which notes in relevant part, "a study of civilian young men and women found that there is a relationship between gastrointestinal symptoms and PTSD." https://www.ptsd.va.gov/professional/treat/cooccurring/ptsd_physical_health.asp Post-Traumatic Stress Disorder Research at the National Institute of Mental Health, May 24, 2007 Committee on Oversight and Government Reform testimony before the U.S. House of Representatives testimony that, "Significant health problems are more likely to occur in individuals with PTSD than in those without the disorder, particularly hypertension, asthma, and gastrointestinal problems." Reliving Trauma Post-Traumatic Stress Disorder, October 2001 http://www.fcphp.usf.edu/courses/content/rfast/Resources/Reliving%20Trauma%20PTSD.pdf Psychological trauma and physical health: A psychoneuroimmunology approach to etiology of negative health effects and possible interventions, March 2009https://psycnet.apa.org/record/2009-03747-004 ("People who have experienced traumatic events have higher rates than the general population of a wide range of serious and life-threatening illnesses including cardiovascular disease, diabetes, gastrointestinal disorders, and cancer.") The examiner is advised that the term "at least as likely as not" does not mean "within the realm of possibility." Rather, it means that the weight of the medical evidence both for and against the claim is so evenly divided that it is as medically sound to find in favor of the claim as it is to find against it. The examiner is advised that the lack of documented treatment for the claimed disability during service cannot serve as the sole basis for a negative finding. The examiner must provide a complete rationale for any opinions offered, citing to the examiner's own expertise, medical principals, and/or evidence in the Veteran's record, when necessary, to support the conclusion reached. If an opinion cannot be reached without resorting to speculation, the examiner must fully explain why that is so. The Board reminds the examiner that failure to comply with the examination directives outlined herein will render the opinion inadequate and will result in further remand of the Veteran's claims. LESLEY A. REIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Gates 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.