Citation Nr: 21015018 Decision Date: 03/16/21 Archive Date: 03/16/21 DOCKET NO. 20-17 818 DATE: March 16, 2021 ORDER New and material evidence having been submitted, the claim of service connection for an acquired psychiatric disorder is reopened. New and material evidence having been submitted, the claim of service connection for Meniere’s Syndrome is reopened. Entitlement to service connection for an acquired psychiatric disorder is granted. Entitlement to service connection for Meniere’s Syndrome is denied. FINDINGS OF FACT 1. The September 2011 rating decision denying service connection for an acquired psychiatric disorder was not appealed and became final. 2. Evidence received since the September 2011 rating decision relates to unestablished facts necessary to substantiate the claim of entitlement to service connection for an acquired psychiatric disorder. 3. The September 2011 rating decision denying service connection for Meniere’s Syndrome was not appealed and became final. 4. Evidence received since the September 2011 rating decision relates to unestablished facts necessary to substantiate the claim of entitlement to service connection for Meniere’s Syndrome. 5. Resolving reasonable doubt in the Veteran’s favor, an acquired psychiatric disorder is at least as likely as not related to service. 6. The Veteran’s Meniere’s Syndrome was not noted on entrance to active service. 7. The Veteran’s Meniere’s Syndrome clearly and unmistakably pre-existed service. 8. Clear and unmistakable evidence establishes that the Veteran’s pre-existing Meniere’s Syndrome was not aggravated by his active military service. CONCLUSIONS OF LAW 1. Evidence received since the September 2011 rating decision is new and material, and the claim of entitlement to service connection for an acquired psychiatric disorder is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 2. Evidence received since the September 2011 rating decision is new and material, and the claim of entitlement to service connection for a right knee disability is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 3. The criteria for service connection for an acquired psychiatric disorder are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 4. The criteria for service connection for Meniere’s Syndrome are not met. 38 U.S.C. §§ 1110, 1111, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Navy from December 1966 to March 1968. The Veteran testified before the undersigned Veterans Law Judge in February 2021. A transcript of the hearing has been associated with the record. 1. Whether new and material evidence has been submitted to reopen a claim of service connection for an acquired psychiatric disorder 2. Whether new and material evidence has been submitted to reopen a claim of service connection for Meniere’s Syndrome The Board finds that the low threshold for reopening the claims for service connection has been met. Shade v. Shinseki, 24 Vet. App. 110 (2010). The new evidence is material, and the Veteran’s claims of service connection for an acquired psychiatric disorder and Meniere’s Syndrome are reopened. Service Connection Service connection 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). Service connection may be established for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that disease was incurred in service. 38 C.F.R. § 3.303(d). Generally, to prevail on a claim of service connection on the merits, there must be competent evidence of (1) current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence or other competent evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. See Hickson v. West, 12 Vet. App. 247 (1999); Jandreau v. Nicholson, 492 F.3d at 1372. For purposes of establishing service connection, every Veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C. § 1111. Only such conditions as are recorded in examination reports are to be considered as noted. 38 C.F.R. § 3.304(b). If a preexisting disorder is noted upon entry into service, a veteran cannot bring a claim for service connection for that disorder, but the veteran may bring a claim for service-connected aggravation of that disorder. 38 U.S.C. § 1153; 38 C.F.R. § 3.306; see Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). In that case, 38 U.S.C. § 1153 applies and the burden falls on the veteran to establish an increase in severity. See Jensen v. Brown, 19 F.3d 1413, 1417 (Fed. Cir. 1994). If the presumption of aggravation under § 1153 arises, the burden shifts to the government to show a lack of aggravation by establishing “that the increase in disability is due to the natural progress of the disease.” See 38 U.S.C. § 1153; see also 38 C.F.R. § 3.306; Jensen, 19 F.3d at 1417; Wagner, 370 F. 3d at 1096. Significantly, clear and unmistakable evidence is required to rebut the presumption of aggravation where the preservice disability underwent an increase in severity during service. 38 C.F.R. § 3.306(b). Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 C.F.R. § 3.306(b). Temporary or intermittent flare-ups of a pre-existing injury or disease are not sufficient to be considered “aggravation in service” unless the underlying condition as contrasted to symptoms is worsened. See Jensen v. Brown, 4 Vet. App. 304, 306-07 (1993). 3. Entitlement to service connection for an acquired psychiatric disorder The Veteran contends that he suffers from an acquired psychiatric disorder as a result of traumatic experiences while serving in the waters of Vietnam. The Veteran was provided with a VA psychological examination in January 2018. After a clinical examination, the examiner found that the Veteran’s mental health symptoms did not meet the criteria for a diagnosis of posttraumatic stress disorder (PTSD). The examiner did diagnose the Veteran with Unspecified Trauma- and Stressor-Related Disorder. The examiner concluded that this condition was as likely as not related to service. The examiner noted that the Veteran had no mental health issues prior to service, but the Veteran now has clear symptoms of Unspecified Trauma- and Stressor-Related Disorder, which are related to the claimed in-service stressors. The Board notes that entitlement to service connection for PTSD requires credible supporting evidence that an in-service stressor occurred. 38 C.F.R. § 3.304(f). However, as the Veteran has been diagnosed with a psychiatric disorder other than PTSD, the requirements of 38 C.F.R. § 3.304(f) are not for application in this matter. The Board finds that the Veteran’s reported stressors of shore bombardment and support with mortars for soldiers that needed help fighting the Vietcong are competent, credible, and consistent with the circumstances of his service. Based on the foregoing, the Board finds that the evidence is at least in equipoise that the Veteran suffers from an acquired psychiatric disorder related to stressful incidents that took place during service in the waters of Vietnam. Accordingly, affording the Veteran the benefit of the doubt, the Board finds that the evidence supports a grant of service connection for an acquired psychiatric disorder. See 38 C.F.R. §§ 3.102, 3.303, 3.304. 4. Entitlement to service connection for Meniere’s Syndrome The Veteran contends that he suffers from Meniere’s Syndrome, manifested by dizziness and loss of balance, which was caused by or aggravated by his service aboard ships during service. The Board first considers whether the Veteran’s condition was noted at entry, and whether this condition pre-existed his active duty service. An October 1965 pre-induction examination revealed normal clinical evaluation except for identifying body marks and scars. The Veteran reported a history of having “air sickness.” In a February 1968 Medical Board report, it was noted that the Veteran experienced seasickness in January 1968, and has experienced motion sickness at sea since that time. The Medical Board found that the Veteran’s diagnosis of “Chronic, Motion Sickness, Sea” existed prior to service. In January 2018, a VA examiner found that the Veteran’s Meniere’s Syndrome more likely than not preexisted service. In March 2020, a VA examiner concluded that the Veteran’s intermittent staggering and vertigo, now diagnosed as Meniere’s Syndrome, clearly and unmistakably preexisted service. The Board finds that the Veteran’s Meniere’s Syndrome was not “noted” at entry, and therefore the presumption of soundness attaches. In order to rebut the presumption of soundness, there must be a two-step analysis. 38 U.S.C. §§ 1111, 1153; 38 C.F.R. § 3.304 (b). The Board further finds that there is clear and unmistakable evidence that the Veteran’s Meniere’s symptoms existed prior to entry into active service. The Veteran’s report of air sickness prior to service, the findings of the February 1968 Medical Board, and the findings of the March 2020 VA examiner, constitute clear and unmistakable evidence that the disability pre-existed service. Determination of the existence of a pre-existing condition may be supported by contemporaneous evidence, or recorded history in the record, which provides a sufficient factual predicate to support a medical opinion, (see Miller v. West, 11 Vet. App. 345, 348 (1998)), or a later medical opinion based upon statements made by the Veteran about the pre-service history of his/her condition. Harris v. West, 203 F.3d 1347 (Fed. Cir. 2000)). The burden is on VA to rebut the presumption of soundness by clear and unmistakable evidence that the Veteran’s disability was both preexisting and not aggravated by service. See Kinnaman v. Principi, 4 Vet. App. 20, 27 (1993). The determination of whether there is clear and unmistakable evidence that a defect, infirmity, or disorder existed prior to service should be based on “thorough analysis of the evidentiary showing and careful correlation of all material facts, with due regard to accepted medical principles pertaining to the history, manifestations, clinical course, and character of the particular injury or disease or residuals thereof.” 38 C.F.R. § 3.304 (b) (1). In a March 1968 rating decision, which was written by a panel including a medical doctor, it was found that the Veteran became seasick while servicing aboard the USS Dennis J. Buckley. The panel found that the Veteran’s motion sickness existed prior to service. The panel further found that seasickness aboard a ship is the normal symptom of motion sickness, and this does not constitute aggravation. In January 2018, the Veteran was provided with a VA ear condition (including vestibular condition) examination. The examiner reviewed the Veteran’s medical history contained in the VA e-folder and conducted an in-person examination of the Veteran. The examiner diagnosed the Veteran with Meniere’s Syndrome, with symptoms including vertigo and staggering. The examiner noted a long documented history of what has been called sea sickness, labyrinthitis, and persistent motion sickness. The examiner considered the Veteran’s statements, and the Veteran’s medical history, and found that the Veteran’s condition of Meniere’s Syndrome or any of the motion sickness variant of chronic labyrinthitis are more likely than not inherent to his pre-determined condition and is consistent with this condition which more likely than not pre-existed service. The VA examiner could not find any evidence to contradict a finding that this was a pre-existing condition. In March 2020, an addendum VA medical opinion was obtained regarding this claim. The March 2020 VA examiner reviewed the Veteran’s medical history contained in his VA e-folder. The examiner concluded that the claimed condition, which clearly and unmistakably existed prior to service, was clearly and unmistakably not aggravated beyond its natural progression by an in-service injury, event, or illness. The March 2020 examiner noted that the January 2018 VA ear examination report described intermittent staggering, vertigo, and tinnitus which does not necessitate medications or cause functional impact. This level of severity would fall within the projected natural history of the condition and does not represent aggravation beyond the condition’s natural progression. The Board finds that the evidence clearly and unmistakably establishes that Meniere’s Syndrome pre-existed service. In addition, the evidence also establishes that the Veteran’s seasickness during service was determined to be part of the natural progress of the Veteran’s condition. The Board has considered the Veteran’s lay statements in support of his claim. At the February 2021 hearing, the Veteran, through his attorney, indicated that any dizziness or motion sickness he experienced prior to service was resolved, and that his current Meniere’s Syndrome was caused by or aggravated by his service aboard a ship in the open ocean. The Board notes that the Veteran is competent to report symptoms such as dizziness. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). However, without medical training, the Veteran has not demonstrated the competency to opine on a complex question such as aggravation of a pre-existing disability. See Id. Based on the foregoing, the Board finds that the most probative evidence of record establishes that the Veteran’s pre-existing Meniere’s Syndrome was clearly and unmistakably not aggravated beyond its natural progression by his active military service. The Board notes that medical opinions are regarded as more probative when they include clear conclusions and supporting data with a reasoned analysis connecting the data and the conclusions. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Moreover, the examiner should clearly and rationally consider all procurable and assembled evidence in arriving at a conclusion. Jones v. Shinseki, 23 Vet. App. 382, 390 (2010). The Board assigns great probative weight to the March 2020 VA opinion, as it included consideration of the Veteran’s claims file, including medical history and lay statements, cited the findings of the January 2018 VA examiner, and provided adequate rationale for the opinion that it was clear and unmistakable that the Veteran’s Meniere’s Syndrome was not aggravated by his active military service and that there was no natural progression of the Meniere’s Syndrome due to naval service. Accordingly, the Board finds that the Veteran’s Meniere’s Syndrome preexisted active duty service and was not aggravated by his active duty service, and thus service connection is not warranted. As the weight of the evidence is against this claim, the “benefit of the doubt” rule is not for application, and the Board must deny the claim. See 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). JENNIFER HWA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Casey 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.