Citation Nr: 21006426 Decision Date: 02/04/21 Archive Date: 02/04/21 DOCKET NO. 13-13 791 DATE: February 4, 2021 ORDER Entitlement to service connection for positional vertigo, to include as secondary to service-connected otitis externa, tinnitus, and/or bilateral hearing loss is denied. FINDING OF FACT The Veteran’s positional vertigo is not secondary to his service-connected otitis externa, tinnitus and/or bilateral hearing loss, and is not otherwise related to an in-service injury or disease. CONCLUSION OF LAW The criteria for service connection for positional vertigo, to include as secondary to service-connected otitis externa, tinnitus, and/or bilateral hearing loss have not been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1967 to January 1972. This matter is before the Board of Veterans’ Appeals (Board) on appeal from an October 2011 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a hearing before the undersigned Veterans Law Judge in September 2016. A transcript of the hearing is of record. The Board has issued prior remands on this claim in September 2017, April 2019, and July 2020. Service Connection Generally, to establish service connection a Veteran must show: “(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.” Davidson v. Shinseki, 581 F.3d 1313, 1315–16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d).     Service connection may be granted 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. The evidence must show: (1) that a current disability exists; and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated (worsened in severity beyond its natural progress) by a service-connected disability. Id.; Allen v. Brown, 7 Vet. App. 439, 448–49 (1995).     VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154(a). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007).     Lay evidence cannot be determined to be not credible merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1336–37 (Fed. Cir. 2006). However, the lack of contemporaneous medical evidence can be considered and weighed against a Veteran’s lay statements. Id. Further, a negative inference may be drawn from the absence of complaints or treatment for an extended period. Maxson v. West, 12 Vet. App. 453, 459 (1999), aff’d sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000).     1. Entitlement to service connection for positional vertigo, to include as secondary to service-connected otitis externa, tinnitus, and/or bilateral hearing loss. In a September 2010 statement in support of claim, the Veteran requested to be reevaluated for additional compensation for his ear condition/vertigo, among other things, indicating that these problems are related to his in-country service in Vietnam. The Veteran was given a VA examination for such in November 2010. Here, he was diagnosed with positional vertigo and it was opined that his vertigo was not caused by or the result of any illness during his active service. Specifically, the examiner wrote “This Veteran does have positional vertigo, but he has had these symptoms for only the past three years. He was not treated for vertigo while in the military, so this condition is not service connected.” In September 2011, an additional VA opinion was obtained with regard to secondary service connection. Here, the examiner opined that the Veteran’s positional vertigo was less likely than not cause by or the result of his service-connected ear disease. As rationale for his opinion, the examiner wrote “This Veteran is service connected for auditory canal disease, which is due to his history of ear abscesses and infections while in the military. He was not treated for vertigo while in the military, and has had symptoms only since 2007. He was treated for benign paroxysmal positional vertigo, a common condition that can occur in anyone, whether or not they have an ear condition. At the time of the exam 11/2/10, he did not report recent ear infections and his ear exam was normal (except for dry skin within the ear canals). His vertigo is an unrelated condition and is not service connected.” Based on these opinions, the RO issued an October 2011 rating decision denying service connection for positional vertigo. In October 2011, the Veteran filed a notice of disagreement writing “Ear condition is worse. My medical advise caused by in part from severe noise as well.” Nevertheless, in May 2013, the RO issued a statement of the cause continuing to deny service connection for positional vertigo, to include as secondary to service-connected otitis externa. The Veteran appealed this issue up to the Board arguing that it was more likely than not related to his active service. The Board notes private treatment records from May 2013, noting that the Veteran’s vertigo is of “unclear etiology.” Also, private treatment records from August 2013 listing “unspecified peripheral vertigo” under assessments. The Veteran was given another VA examination for his ear conditions in June 2013. Here, the examiner explained that the current examination was for hearing loss and tinnitus, but noted that the Veteran also suffered from vertigo. The Veteran’s physical ear examination was normal, and the examiner opined that it was as likely as not that the Veteran’s current hearing loss and tinnitus were related to service. With regard to his vertigo, the examiner opined in a separate July 2013 opinion that “The etiology of this condition is unknown. He is being evaluated for this condition by private physicians. At this time, it is not possible to state if this condition is service related.” In September 2017, the Board remanded the claim in order to update the Veteran’s treatment records, including to obtain a potentially positive nexus opinion from one of the Veteran’s private physicians. The Board also instructed the RO to provide the Veteran with an addendum opinion from an ENT specialist to the November 2010 VA examination and July 2013 opinion regarding the etiology of his positional vertigo. The record contains a letter dated September 2016 from the Veteran’s private physician, Dr. D., noting “[The Veteran] is a patient I follow at Tufts Medical Center. He has had a 40+ year history of recurrent ear infections, postnasal drip and allergies. More recently he has developed intermittent vertigo. He has followed closely with Ear, Nose and Throat, as well as Allergy specialist over the years. Over the past few years he has been admitted twice with chest pain. Thank you.” The Board notes that this is not a medical nexus opinion for purposes of service connection, it merely states the already established fact that the Veteran suffers from vertigo. The Veteran was given another VA examination for his vertigo in November 2018. The examiner provided a negative nexus opinion, however the Board notes that the opinion was rendered by an APRN, rather than an ENT specialist as ordered in the September 2017 remand directives. Accordingly, the Board issued an April 2019 remand again instructing the RO to provide the Veteran with an addendum opinion regarding the etiology of his vertigo, completed by an ENT specialist. In October 2019, an ENT specialist opined that he did not think he could render an opinion regarding the Veteran’s vertigo without first examining the Veteran. Thus, the Veteran was given another VA examination for his vertigo in January 2020. Here, the examiner wrote that the November 2018 opinion rendered by the APRN “was accurate and I agree with the conclusions”. He then provided those findings as part of his examination, opining that the Veteran’s vertigo was less likely than not casually or etiologically related to his active service, providing as rationale “did not have an onset during service or within a year of discharge from service. The STR is silent for any symptoms or treatment for vertigo. The Veteran’s vertigo did not occur until approximately 6 years ago.” With regard to secondary service connection, the examiner opined that it was less likely than not that the Veteran’s service-connected otitis externa, tinnitus, or bilateral hearing loss caused or aggravated his vertigo. In support of his opinion, the examiner wrote “Benign paroxysmal positional vertigo is an inner ear phenomenon separate and unrelated to the Veteran’s service-connected external ear canal condition. BPPV is caused by an abnormality of the semicircular canals. The etiology of vertigo is unrelated to the condition of the outer ear canal. Hearing loss and tinnitus are not risk factors for BPPV.” In July 2020, the Board issued a third remand on this claim, noting that the prior remand asked the ENT specialist to provide opinions regarding direct and secondary service connection, but that the January 2020 opinion failed to address the issue of aggravation. The Board instructed to RO to obtain another addendum opinion from the same ENT specialist that completed the January 2020 examination regarding whether the Veteran’s vertigo was aggravated by his service-connected otitis externa, tinnitus, or bilateral hearing loss. In August 2020, an addendum opinion was provided from the same ENT specialist that completed the January 2020 examination and opinions. He provided as clarification “The ear has three anatomic parts: an outer ear, a middle ear, and an inner ear. Although [the Veteran] may have had otitis externa during his time on active duty, there is no relationship between otitis externa and the kind of vertigo that [the Veteran] developed later in his life. [The Veteran] has been correctly diagnosed with benign paroxysmal positional vertigo, the most common cause of vertigo. While tinnitus and sensorineural hearing loss occur commonly in veterans who have been exposed to excessive noise, and it has been previously determined that [the Veteran] was awarded determination of service connection for tinnitus and sensorineural hearing loss that he has, tinnitus and sensorineural hearing loss do not cause benign paroxysmal positional vertigo. Benign paroxysmal positional vertigo is caused by malposition of tiny crystals located within one of the three semicircular canals within the inner ear labyrinth that is the sense organ for balance and equilibrium, not caused by damage to the inner ear micro-hair cells that are believed to be the cause of tinnitus and sensorineural hearing loss. It is true that there is a disorder known as meniere’s disorder that is characterized by a triad of symptoms: tinnitus, episodic vertigo, and fluctuating sensorineural hearing loss, but [the Veteran] has not been diagnosed with meniere’s disorder. Therefore, I conclude that it is less likely than not that [the Veteran’s] episodic vertigo has been caused by otitis externa, tinnitus, or sensorineural hearing loss that he has and are conditions that have been determined to be service connected. In my opinion, based on all of the information available to me, it is NOT at least as likely as not that [the Veteran’s] positional vertigo is caused by or aggravated by his service connected otitis externa, tinnitus, or bilateral hearing loss.” The Board finds this opinion to be thorough, well-reasoned, and supported by the record, entitling it to probative weight. The record does not contain any positive nexus opinions, instead it contains a number of negative nexus opinions regarding both direct and secondary service connection. Turning first to direct service connection, while the Veteran has a current disability, the record does not support a finding of any in-service event. The Veteran has reported that his vertigo did not being until 2007, more than 35 years after his separation from active service. Moreover, every VA examiner opined that it was less likely than not that his positional vertigo was related to his active service. Accordingly, entitlement to service connection for positional vertigo on a direct basis is denied. Turning to secondary service connection, the Veteran has contended that his positional vertigo is secondary to his service-connected otitis externa, tinnitus, and/or bilateral hearing loss. However, as noted above, the record does not contain any positive medical opinion linking his positional vertigo to any of his three service-connected ear conditions. While the Veteran is competent to report vertigo symptoms which he believes are related to his service-connected ear conditions, his lay statements are outweighed by competent and credible medical evidence. Although lay statements are competent evidence to provide opinions on some medical issues, the etiology of the Veteran’s claimed disorder falls outside the realm of common knowledge of a lay person due to the complexity of the nexus question presented. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). The Board has given probative weight to the 2020 ENT specialist’s opinion that the Veteran’s service-connected ear conditions were less likely than not to have caused or aggravated his positional vertigo. Accordingly, entitlement to service connection for positional vertigo, to include as secondary to service-connected otitis externa, tinnitus, and/or bilateral hearing loss, is also denied. (continued on next page) TANYA SMITH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Ruiz, 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.