Citation Nr: 21013883 Decision Date: 03/10/21 Archive Date: 03/10/21 DOCKET NO. 15-16 053 DATE: March 10, 2021 ORDER Entitlement to service connection for dizziness, also claimed as Meniere's disease, is granted. Entitlement to service connection for hypertension, to include as secondary to service-connected disabilities, is granted. FINDINGS OF FACT 1. It is just as likely as not the Veteran’s dizziness began during his service. 2. It also is just as likely as not his hypertension is aggravated by already determined to be service-connected disabilities.   CONCLUSIONS OF LAW 1. Resolving all reasonable doubt in his favor, the criteria are met for entitlement to service connection for dizziness, also claimed as Meniere’s disease. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. Resolving all reasonable doubt in his favor, the criteria also are met for entitlement to service connection for hypertension secondary to service-connected major depressive disorder with anxious distress and chronic pain from a pilonidal cyst scar. 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 July 1973 to January 1975. This appeal to the Board of Veterans’ Appeals (Board) is from a June 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified in support of these claims during a hearing in June 2019 before the undersigned Veterans Law Judge (VLJ) of the Board. A transcript of the hearing is of record. The Board subsequently, in October 2019, remanded these claims back to the RO (Agency of Original Jurisdiction (AOJ)) for further development and consideration – particularly for further medical comment (an addendum opinion) concerning the etiology of the Veteran’s hypertension, especially in terms of whether secondary to a service-connected disability, and for a medical opinion concerning the origins of his additionally claimed dizziness, also especially in terms of whether related or attributable to his service. Those remand instructions since have been completed, as directed. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the remand instructions); but see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only “substantial” rather than strict or exact compliance with the Board's remand directives is required under Stegall); accord Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Service Connection 1. Entitlement to service connection for dizziness, also claimed as Meniere's disease The Veteran contends that his current dizziness is related to the dizziness that he initially experienced during his service. Service connection on a direct basis is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or a disease, and (3) a nexus, or link, between the current disability and the disease or injury in service. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The Veteran has received various diagnoses related to dizziness throughout the pendency of this appeal, including of idiopathic motion sickness, Meniere’s disease, and benign paroxysmal positional vertigo (BPPV). So, there is no disputing he experiences dizziness, i.e., this claimed condition – despite these several different diagnoses said to be the reason for it. Also, significantly, during his service, the Veteran received a diagnosis of chronic, severe motion sickness. Thus, the question becomes whether there is a correlation (“nexus”) between the motion sickness (i.e., dizziness) he experienced in service and the dizziness he now experiences, again, irrespective of the specific diagnosis it is attributed to. See Watson v. Brown, 4 Vet. App. 309, 314(1993) ("A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or a disease incurred in service."). As already alluded to, the primary reason the Board remanded this claim in October 2019 was to obtain needed medical comment on this determinative issue of causation. The December 2019 VA medical opinion since obtained, on remand, is ultimately against this claim. This examiner diagnosed “idiopathic” motion sickness but conceded it onset in 1974, so during the Veteran’s service. This examiner observed that the Veteran has symptoms attributable to Meniere’s disease – including tinnitus, vertigo, and hearing impairment. But, ultimately, this examiner concluded the Veteran’s dizziness is less likely than not related to his service, including to his diagnosis of chronic severe motion sickness while in service. The underlying rationale was that his condition during service was acute in nature, presumably meaning as opposed to chronic (i.e., permanent). Further, this examiner explained that seasickness typically subsides after 36 to 72 hours of continuous exposure, and that, during the Veteran’s military separation examination, there was no documented dizziness or chronicity of care related to motion sickness. The Board gives this medical opinion little probative weight, though, since the Veteran’s service treatment records (STRs) show that he was diagnosed with motion sickness, not just sea sickness, and the examiner did not address that the Veteran’s diagnosis during service was noted as chronic not acute. Moreover, the examiner’s reference to “chronicity of care” is not the correct legal standard. Continuity of symptoms, not instead continuous treatment for them ("chronicity of care"), is the essence of 38 C.F.R. § 3.303(b). See Savage v. Gober, 10Vet. App. 488, 496 (1997) (citing Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991)). The Veteran’s VA treatment records continue to show intermittent complaints of dizziness. A December 2017 VA treatment record shows he presented complaining of dizziness for the past 20 years, so since 1997 or thereabouts. His treating doctor’s impression was that he had BPPV.   Aside from that, the evidence in favor of the claim includes two supporting private medical opinions the Veteran submitted in November 2020. The first private opinion is from Dr. P.B., who diagnosed Meniere’s disease and indicated it “at least as likely as not began in military service.” While Dr. P.B. did not provide rationale for this opinion, it was formed after a review of the Veteran’s relevant medical history, including what had occurred during his military service, as well as the findings during an in-person examination of him. The second private opinion is from Dr. C.B., a neuro-radiologist. Dr. C.B. indicated that it is his opinion, “considering every possible sound medical etiology/principle, to at least the 90% level of probability that [the Veteran’s] current vertigo (Meniere’s disease) was caused and aggravated by his service…” Dr. C.B. then noted that his opinion was based on the Veteran’s onset of dizziness during his service, which occurred on land and not at sea and, as such, was diagnosed as chronic idiopathic motion sickness, which is not the same as seasickness. Further, Dr. C.B. observed the Veteran’s records do not support another alternative explanation or etiology for his worsening Meniere’s disease pathology, other than the vertigo-dizziness he experienced during service. The Board gives this supporting medical opinion a lot of probative value because it correctly addresses the Veteran’s medical history and lay statements and is most consistent with the other relevant evidence in the file. The Board, consequently, finds the evidence to at least be in relative equipoise (meaning as supportive of the claim as against it) insofar as whether the Veteran’s current dizziness, also claimed as Meniere’s disease, started during his service, even if then diagnosed, instead, as sea sickness and motion sickness. Accordingly, after resolving this reasonable doubt in his favor, the Board finds that he has established his entitlement to service connection for dizziness, also claimed as Meniere’s disease. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 2. Entitlement to service connection for hypertension, including as secondary to service-connected anxiety and chronic pain from a pilonidal cyst scar The Veteran contends that his hypertension, even if not caused, is aggravated by his service-connected disabilities, including especially his chronic pain from a pilonidal cyst scar and owing to his major depressive disorder with anxious distress (anxiety). So, this theory of entitlement is rooted in the notion of secondary service connection. He alternatively asserts, however, that his hypertension onset during his service or is related to high blood pressure readings during his service, so was directly incurred in service. Service connection may be granted on a secondary basis for disability that is proximately due to, the result of, or aggravated by a service-connected disability. 38 C.F.R. § 3.310(a) and (b); see also Allen v. Brown, 7 Vet. App. 439 (1995). In April 2014, the Veteran underwent a VA hypertension examination that confirmed this diagnosis but concluded it had onset in 2005, long after the end of his service in January 1975. The examiner opined that it was less likely than not the Veteran’s then current hypertension was related to his service. The rationale was that there was no evidence of elevated blood pressure in his STRs. Further, his blood pressure during surgery for his pilonidal cyst in 1974, i.e., during his service, was not higher than other blood pressure readings taken during his service. Moreover, VA treatment records from 1999 onward did not mention hypertension until his initial diagnosis in 2005. The examiner did not additionally comment on the notion of secondary service connection. During his June 2019 hearing before this Board, the Veteran testified that he had elevated blood pressure during his service and that he was started on blood pressure medication during the 1990s, thus, well before the 2005 onset date the VA compensation examiner had cited as time of inception of this disease. Because the Veteran did not claim that his hypertension was caused by a service-connected disability, only instead aggravated by one, the Board’s October 2019 remand directed an additional VA examiner to provide only an opinion as to aggravation of the Veteran’s hypertension by a service-connected disability. In December 2019, in response to this remand directive, the Veteran underwent another VA hypertension examination. This additional examiner opined that the Veteran’s hypertension is not secondary to his service-connected chronic pain. The rationale was that his hypertension history does not show any aggravation of the condition as measured by blood pressure readings and according to the reports of his VA medical examinations, which instead consistently note that his blood pressure is well controlled. This examiner also discussed medical literature the Veteran had submitted purporting to support a correlation between chronic pain and hypertension. Concerning this literature, the examiner discounted this notion and again opined that there is no medical evidence supporting aggravation of the Veteran’s hypertension by his chronic pain, conceding the literature looks at the relationship between high blood pressure and pain, but also pointing out the studies are based on rat models and have no applicability to human subjects. Further, according to this VA examiner, correlation studies merely establish that two conditions co-exist, and none of the studies provided by the Veteran establish that chronic pain has a direct etiological relationship for aggravation of hypertension. In November 2020, apparently to try and refute that VA examiner’s unfavorable opinion, the Veteran submitted a private opinion from Dr. C.B. Concerning this notion of secondary service connection, Dr. C.B. pointed out that the Veteran is service-connected for anxiety, chronic pain from pilonidal cyst scar, and tinnitus, and that “these are all known to cause and/or aggravate HTN [hypertension]…” Dr. C.B. indicated, “considering every possible sound medical etiology/principle, to at least the 90% level of probability that [the Veteran’s] current HTN was caused and aggravated by his service connected anxiety, chronic pain from pilonidal cyst scar, and chronic tinnitus…” The rationale was that he is service connected for anxiety, chronic pain, and tinnitus, all of which are known to cause or aggravate hypertension, and his lay statements do not support another alternative explanation for his worsening hypertension.   “Absolute” etiology is not a condition precedent to granting service connection, nor is “definite” or “obvious” etiology. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Rather, this need only be an “as likely as not” proposition, which in this instance it is since the evidence against the claim is no more probative (competent and credible) than the evidence conversely supporting the claim. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In this circumstance, this reasonable doubt is resolved in the Veteran’s favor and the claim granted rather than denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. KEITH W. ALLEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Pak 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.