Citation Nr: 21011015 Decision Date: 02/26/21 Archive Date: 02/26/21 DOCKET NO. 20-13 620 DATE: February 26, 2021 ORDER Service connection for benign paroxysmal positional vertigo is granted. FINDING OF FACT The weight of the competent and probative evidence is at least in equipoise as to whether benign paroxysmal positional vertigo manifested in or is otherwise related to the Veteran’s period of active service. CONCLUSION OF LAW The criteria for service connection for benign paroxysmal positional vertigo are met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1966 to January 1987. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2017 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). This matter was previously before the Board and remanded for additional development in August 2020. There has been substantial compliance with remand directives and additional remands are not warranted. See Stegall v. West, 11 Vet. App. 268 (1998). This case has been advanced on the docket pursuant to 38 C.F.R. § 20.902(c). SERVICE CONNECTION Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). As a general matter, establishing service connection requires competent evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); 38 C.F.R. § 3.303. Certain chronic diseases will be presumed related to service if they were shown as chronic 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; 38 C.F.R. §§ 3.303, 3.307, 3.309; Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was “noted” during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. See Savage v. Gober, 10 Vet. App. 488, 495-97 (1997). The Veteran is competent to report symptoms and experiences he can observe. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159(a). The VA must give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed Cir. 2009). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 57-58 (1990); 38 C.F.R. § 3.102. 1. Benign paroxysmal positional vertigo (BPPV) After review of the record, the criteria for service connection for BPPV are met. BPPV was diagnosed in September 2013. July 21,2015, Medical Treatment Record, Non-Government. This diagnosis was confirmed during the June 2017 and November 2020 VA examinations. The record contains competent evidence of the current disability of BPPV. Service treatment records demonstrate that the Veteran presented with complaints of vertigo, burning to right eye, occasional nausea and intermittent dizziness when changing from lying to sitting position in August 1983. The clinician thought the symptoms possibly related to a virus but advised the Veteran to return when symptoms recurred. One month later, the Veteran returned with similar symptoms and the clinician thought the symptoms possibly related to a tension headache. During an April 1985 eye examination, the doctor noted the Veteran wanted to rule out an ocular issue as a contributing factor to his dizziness problem. The Veteran contends that BPPV started during service, progressed to a more pronounced and debilitating experience throughout his service and has continued to date. See March 13, 2020, VA Form 9. The Veteran described a myriad of symptoms associated with BPPV, such as dizziness, feeling imbalanced, nausea and migraine headaches. The Veteran further explained that he experiences BPPV symptomology once or twice a month, with each episode lasting an hour or so. Id. The Veteran also contends he made more complaints of dizziness during service that were not documented. July 17, 2017, Notice of Disagreement (NOD). In compliance with the August 2020 remand directives, an addendum opinion was obtained in November 2020. The examiner opined that BPPV was less likely due to the subjective episode of vertigo reported by the Veteran in 1983. November 20, 2020, VA Examination. The examiner viewed the 1983 complaints of vertigo and dizziness as one episode attributable to an ongoing viral infection. The examiner’s opinion is given little probative value as he did not consider the Veteran’s description of the symptom of dizziness as intermittent in 1983 and did not consider the 1985 ophthalmology notation indicating the Veteran’s concern about his dizziness problem. See Reonal v. Brown, 5 Vet. App. 458, 460-61 (1993) (medical opinions based on an incomplete or inaccurate factual premise are not probative). In light of the foregoing, the competent and probative evidence is at least in equipoise as to whether BPPV was noted in service with post-service continuity of the same symptomatology and the claim is granted. As the disability in question, vertigo, an organic disease of the nervous system, is a chronic disease under 38 C.F.R. § 3.309(a), an award of service connection may be established based on continuity of symptomatology, and any doubt on the material issue of nexus is resolved in the Veteran’s favor. See Savage v. Gober, 10 Vet. App. 488, 495-97 (1997); Walker v. Shinseki, 708 F.3d 1331, 1338-39 (Fed. Cir. 2013) (stating that the primary difference between a chronic disease that qualifies for § 3.303(b) analysis, and one that must be tested under § 3.303(a), is that the latter must satisfy the “nexus” requirement of the three-element test, whereas the former benefits (Continued on next page) from presumptive service connection (absent intercurrent causes) or service connection via continuity of symptomatology). JAMES L. MARCH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Monica Ball Jackson, 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.