Citation Nr: 21075084 Decision Date: 12/17/21 Archive Date: 12/17/21 DOCKET NO. 20-05 314 **DATE: December 17, 2021 ORDER Service connection for residuals of head injury is denied. Service connection for vertigo to include as secondary to service-connected bilateral hearing loss and tinnitus is denied. FINDINGS OF FACT 1. The preponderance of the evidence shows that the Veteran does not have a current diagnosis of residuals of a head injury or traumatic brain injury. 2. The preponderance of the evidence shows that the Veteran's current diagnosis of vertigo did not have its onset during active service, is not otherwise related to an event, injury, or disease incurred during active duty to include multiple falls where the Veteran hit his head, and is not caused by or aggravated by a service-connected disability. CONCLUSIONS OF LAW 1. The criteria for service connection for residuals of head injury are not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.303, 3.310. 2. The criteria for service connection for vertigo to include as secondary to service-connected bilateral hearing loss and tinnitus are not met. 38 U.S.C. §§ 1110, 1112, 5107; 38 C.F.R. §§ 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1966 to January 1968. This case is before the Board of Veterans' Appeals (Board) on appeal from an August 2018 Regional Office (RO) rating decision. In that rating decision, the RO denied entitlement to service connection for a head injury and vertigo. The Veteran's notice of disagreement (NOD) was received in October 2018. The RO issued a statement of the case (SOC) in January 2020. The Veteran's VA Form 9, substantive appeal to the Board, was received in February 2020. In December 2020, the Veteran testified at a virtual Board hearing before the undersigned Veterans Law Judge. A transcript of the testimony is associated with the claims file. In April 2021, the Board remanded the case to the RO for further development and adjudicative action. SERVICE CONNECTION Establishing service connection generally requires competent evidence of the following: (1) A current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) nexus between the claimed in-service disease and the present disability. 38 C.F.R. § 3.303; see Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Certain chronic diseases will be presumed related to service if they were shown as chronic (reliably diagnosed) in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service, with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013); Fountain v. McDonald, 27 Vet. App. 258 (2015); 38 C.F.R. §§ 3.303, 3.307, 3.309. Service connection for a claimed disability also may be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service-connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310(a). 1. Entitlement to service connection for residuals of head injury. The Veteran contends that he has residuals of a head injury due to falling multiple times during service after he suffered an ankle injury, which is now service connected. He testified that he was on crutches with a cast for some time due to his ankle injury and he believes that his multiple falls in service caused traumatic brain injury. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that the Veteran does not have a current diagnosis of residuals of a brain injury and has not had one at any time during the pendency of the claim or recent to the filing of the claim. See Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). The October 2021 VA examiner evaluated the Veteran and determined that the veteran did not have or ever had a traumatic brain injury (TBI) or any residuals of a TBI. The examiner documented that the Veteran did not have any complaints of memory, attention, concentration, or executive functions. His judgement was normal. Social interaction was routinely appropriate. The Veteran was always oriented to person, time, place, and situation. Motor activity was normal. Visual spatial orientation was normal. There were no subjective symptoms attributed to a traumatic brain injury. The examiner determined that the Veteran did not have any neurobehavioral effects. The Veteran was able to communicate by spoken word and written language and to comprehend spoken and written language. The Veteran's consciousness was normal. The examiner concluded that the Veteran did not have any subjective or any mental, physical, or neurological conditions or residuals attributed to a TBI. The examiner stated that a May 2019 MRI of the brain was normal. The examiner further explained that the Veteran's vertigo started approximately 44 years post multiple falls resultant from right ankle fracture. The Veteran reported the onset of his migraine headaches was approximately 10 years ago, which is also many years remote from multiple falls. The Veteran's headaches are not suspected to be related to a TBI. Further, despite consistent treatment from February 2015 to May 2021, VA treatment records do not contain a diagnosis of residuals of traumatic brain injury or head injury. In contrast, a May 2018 private treatment record indicates that the Veteran' may be experiencing residuals from multiple head injuries in service. In this regard, the private physician documented that he discussed with the Veteran that it is difficult to ascertain whether his multiple head injuries at the time he was in Vietnam war could be contributing to his dizziness and other symptoms. His brain MRI was normal, but it is possible that he may have vestibular injury from multiple concussions. This medical opinion is of low probative value as the physician prefaced the opinions with "may," which is equivocal and speculative as to whether the Veteran's dizziness and other symptoms is related to or caused by the in-service head injuries. The Court has held that medical opinions, which are speculative, general or inconclusive in nature, cannot support a claim. See Hood v. Shinseki, 23 Vet. App. 295, 298-99 (2009); Bloom v. West, 12 Vet. App. 185, 187 (1999) (term "could" without other rationale or supporting data was speculative); Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992) (medical evidence which merely indicates that the alleged disorder "may or may not" exist or "may or may not" be related, is too speculative to establish the presence of the claimed disorder or any such relationship). While the Veteran believes he has residuals of a traumatic brain injury, he is not competent to provide a diagnosis in this case. The issue is medically complex, as it requires specialized medical education/knowledge and the ability to interpret complicated diagnostic medical testing to include MRI's of the brain. See Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the competent medical evidence. 2. Entitlement to service connection for vertigo to include as secondary to service-connected bilateral hearing loss and tinnitus. The Veteran contends that his vertigo is related to falling multiple times during service after he suffered an ankle injury, which is now service connected. He testified that he was on crutches with a cast for some time due to his ankle injury and he believes that his multiple falls in service led to his vertigo. The Veteran explained during the December 2020 Board hearing that his vertigo began right after discharge and he has had bouts of vertigo ever since service. The Veteran testified that his vertigo increased in severity in the past four years and that is why he sought help from VA. The question for the Board is whether the Veteran has a current disability of central vertigo that is at least as likely as not related to an in-service injury event, or disease or at least as likely as not caused by or aggravated by a service-connected disability. The Board concludes that while, the Veteran has a current disability, diagnosed as central vertigo, the preponderance of the evidence shows that the Veteran's central vertigo was not chronic in service, was not noted in service with attributable continuity of symptomatology, and is not otherwise related to an in-service injury, event, or disease. Furthermore, the preponderance of the evidence weighs against finding that the Veteran's central vertigo is proximately due to or the result of or aggravated beyond its natural progression by service-connected disability. An April 2017 ENT VA treatment record reveals that the Veteran was diagnosed with vertigo. A May 2017 private treatment record that entered into the Veteran's VA treatment records shows that the Veteran underwent a vestibular assessment. The Veteran reported that he first noticed dizziness two years ago that has become progressively more frequent. The audiologist determined that the results from this evaluation were suggestive of central vestibular impairment. He takes meclizine one to three times daily to manage his dizziness. A review of the Veteran's service treatment records show that the Veteran did not complain of or receive treatment for vertigo. There is also no evidence in his service treatment records that he was diagnosed with vertigo or central vestibular disorder. The Veteran's service treatment records document that the Veteran had a chip fracture of the right ankle in March 1967. He was placed in a cast and given a pair of crutches. However, the service treatment records do not indicate that the experienced a traumatic brain injury during service due to falling while using crutches. A March 1969 Report of Medical History form as part of the Veteran's annual examination with the United States Army Reserves reveals that the Veteran denied experiencing dizziness or fainting spells. The March 1969 annual examination documents that the Veteran's neurological evaluation (which included equilibrium tests) was clinically normal. The first medical evidence of record that shows that the Veteran complained of dizziness was in May 2014, which is approximately 46 years after discharge from active duty service. A May 2016 VA treatment record was the first medical document that noted the Veteran had benign positional vertigo. The Veteran was first diagnosed with central vestibular disorder in May 2017. The passage of many years between discharge from active service and the medical documentation of a claimed disability, particularly when the veteran has sought treatment for other conditions during that time, is a factor that weighs against a claim for service connection. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). During the December 2020 Board hearing, the Veteran testified that he felt like ever since service he had problems with vertigo. He stated that the dizziness had been going on since he came home. It would happen maybe one a week or every ten days and started happening every day in the last four to five years. However, in an April 2017 VA treatment record the Veteran reported a two to three year history of vertigo and he reported in a December 2018 VA treatment record that he approximately a four year history of vertigo. The October 2021 VA examiner documented that the Veteran reported that he began experiencing vertigo six or seven years ago. The examiner noted in the October 2021 VA medical opinion that the Veteran was asked numerous times about the onset of dizziness and the Veteran was adamantly asserted that his dizziness/vertigo began about eight years ago, not in service, and has become progressively worse. In light of the foregoing, the Board finds that the Veteran's lay testimony is not credible regarding the statement that he had problems with vertigo from service to the present and the preponderance of the evidence shows that his dizziness and vertigo began in approximately 2013. With respect to the issue of whether the Veteran's vertigo and peripheral vestibular disorder is related to active military service, the claims file contains a negative medical opinion. Specifically, the October 2021 VA examiner provided the opinion that the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner explained that while it is reasonable to conclude that the Veteran sustained multiple minor concussive events related to falls, related to service-connected right ankle fracture, there are no apparent residuals from these events. Specifically, the Veteran's reported vertigo which onset was many years remote, approximately 40 years plus after in service concussive events making it unreasonable to make a sound temporal connection between concussive events and onset of vertiginous symptoms. The examiner also concluded that the Veteran's current vertiginous symptoms would not have occurred as a result of vertigo in service. The examiner stated that he asked the Veteran numerous times about the onset of dizziness and the Veteran was adamant that his dizziness/vertigo began about eight years ago, not in service, and has become progressively worse. Due to the remote onset, approximately 40 years plus, of Veteran's vertigo there is no reasonable connection between an inservice event such as head injury or other event that would warrant to reasonable degree of medical certainty and the Veteran's vertigo. Although Dr. J.P. and Dr. D.S. mention a discussion with the Veteran that head injuries at the time he was in Vietnam could be contributing to his dizziness and other symptoms, this not stated in the affirmative, but more speculative in nature. The VA examiner reviewed the claims file and provided clear explanations in support of their opinions based on the evidence of record and medical expertise. As such, the opinion is highly probative as to the issue of whether the Veteran's current vertigo is related to his active duty service. In an April 2018 letter, a private neurologist stated that the Veteran could be affected by his service. The neurologist noted that the vertigo could be from trauma he suffered by hitting his head. In a May 2018 private treatment record, a physician documented that he discussed with the Veteran that it is difficult to ascertain whether his multiple head injuries at the time he was in Vietnam war could be contributing to his dizziness and other symptoms. His brain MRI was normal, but it is possible that he may have vestibular injury from multiple concussions. The medical opinions provided by the private physicians in April 2018 and May 2018 are of low probative value as they prefaced the opinions with "possible" and "may," which are equivocal and speculative as to whether vertigo is related to the ins-serve head injuries during service. The Court has held that medical opinions, which are speculative, general or inconclusive in nature, cannot support a claim. See Hood v. Shinseki, 23 Vet. App. 295, 298-99 (2009); Bloom v. West, 12 Vet. App. 185, 187 (1999) (term "could" without other rationale or supporting data was speculative); Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992) (medical evidence which merely indicates that the alleged disorder "may or may not" exist or "may or may not" be related, is too speculative to establish the presence of the claimed disorder or any such relationship). With respect to whether the Veteran's service-connected bilateral hearing loss and/or tinnitus caused or aggravated the Veteran's current vertigo, the record contains a negative medical opinion. The October 2021 VA examiner provided the opinion that the claimed condition is less likely than not proximately due to or the result of the Veteran's service-connected condition. The examiner explained that it is less likely than not that the Veteran's tinnitus and hearing loss is a causal factor in the Veteran's dizziness as there is nothing found in the records reviewed to relate the Veteran's tinnitus and hearing loss to his dizziness. Vertigo is not associated with tinnitus or hearing loss as there is no direct causative link between vertigo and tinnitus and/or hearing loss. May individuals with vertigo do not have hearing loss and/or tinnitus that do not have vertigo. The examiner also provided the opinion that it is less likely than not that the Veteran's dizziness was aggravated beyond its natural progression by the Veteran's tinnitus or hearing loss. The examiner explained that there is no current evidence of record that demonstrates aggravation of the Veteran's vertigo, which started in approximately 2014-2015 per Veteran report. The opinion by the examiner is persuasive and probative as to the issue of whether the Veteran's dizziness was caused by or aggravated by his service-connected bilateral hearing loss and/or tinnitus as the examiner provided a clear explanation based on the evidence of record and medical knowledge. Although the Veteran believes his vertigo is related to an in-service injury, event, or disease, or is secondary to his service-connected hearing loss and/or tinnitus, he is not competent to provide a diagnosis of vertigo or a nexus opinion regarding this issue. The issue is medically complex, as it requires medical knowledge and interpretation of medical testing. Therefore, it is outside the competence of the Veteran, because the record does not show that he has the medical training or credentials to make such a determination. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Consequently, the Board gives more probative weight to the October 2021 negative VA medical opinions. (Continued on the next page) The record does not contain any probative medical evidence or opinion that would indicate the Veteran's current vertigo is related to military service or his service-connected hearing loss and tinnitus. As discussed above, the only probative medical evidence of record asserts that the Veteran's vertigo is not related to active military service and is not caused by or aggravated by his service-connected hearing loss and tinnitus. In conclusion, the evidence of record shows that the probative medical opinion provides evidence against the claim that the Veteran's vertigo is related to military service to include due to hitting his head multiple times in service as result of his in-service ankle injury or is caused by or aggravated by service-connected hearing loss and tinnitus. Thus, the preponderance of the evidence is against the Veteran's service connection claim for vertigo and the claim is not warranted. L. B. CRYAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Berry, 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.