Citation Nr: 21015454 Decision Date: 03/17/21 Archive Date: 03/17/21 DOCKET NO. 16-24 155 DATE: March 17, 2021 ORDER Service connection for a disability manifested by vertigo, diagnosed as a peripheral vestibular disorder, is granted. FINDING OF FACT A disability manifested by vertigo, diagnosed as a peripheral vestibular disorder, had its onset in service. CONCLUSION OF LAW The criteria for service connection for a disability manifested by vertigo, diagnosed as a peripheral vestibular disorder, have been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1154(a), 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the Army from June 1967 to January 1971. In February 2017, the Veteran appeared at a Board videoconference hearing before the undersigned Veterans Law Judge. In November 2018, the Board remanded this appeal for further development. Disability Manifested by Vertigo Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff’d per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table). Determinations as to service connection will be based on review of the entire evidence of record, to include all pertinent medical and lay evidence, with due consideration to VA’s policy to administer the law under a broad and liberal interpretation consistent with the facts in each individual case. 38 U.S.C. § 1154(a); 38 C.F.R. § 3.303(a). Secondary service connection may be granted for a disability that is proximately due to, the result of, or aggravated by an established service-connected disability. 38 C.F.R. § 3.310 (2015); see also Allen v. Brown, 7 Vet. App. 439 (1995). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrence of symptoms. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the 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. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran’s particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d at 1377 (Fed. Cir. 2007) (holding that “[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board”). The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C. § 7104(a) (West 2002). Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran’s demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff’d per curiam, 78 F.3d 604 (Fed. Cir. 1996). In determining the probative value to be assigned to a medical opinion, the Board must consider three factors. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The initial inquiry in determining probative value is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case. A review of the claims file is not required, since a medical professional can also become aware of the relevant medical history by having treated a Veteran for a long period of time or through a factually accurate medical history reported by a Veteran. See Id. at 303-04. The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion. See Id. A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The third and final factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis. The most probative value of a medical opinion comes from its reasoning. Therefore, a medical opinion containing only data and conclusions is not entitled to any weight. In fact, a review of the claims file does not substitute for a lack of a reasoned analysis. See Nieves-Rodriguez, 22 Vet. App. at 304; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (“[A] medical opinion... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions.”). The Veteran is service-connected bilateral hearing loss and for tinnitus. The Veteran contends that he has a disability manifested by vertigo that is related to service. He specifically maintains that he suffered a head injury when he fell from a radar tower during his period of service, which he believes may have caused his episodes of vertigo. The Veteran also reports that he had episodes of dizziness during service and since that time. The Veteran essentially asserts that he suffered from vertigo, and/or dizziness, during service and since service. The Veteran’s spouse (at a February 2017 Board hearing) has also indicated that the Veteran reported that he had dizziness after his discharge from service. In a November 2018 remand, the Board found that the Veteran’s reports of dizziness, during and since his period of service, are credible. The service treatment records do not specifically show treatment for vertigo and/or dizziness, and/or a head injury. Such records do show treatment for cervical spine complaints after an automobile accident, and for a headache on one occasion. A June 1968 treatment entry notes that the Veteran was seen following a car wreck. The examiner reported that the Veteran sprained his cervical area, and that he had difficulty rotating his head. The examiner stated that the Veteran also had difficulty with flexing and extending his head. The examiner related that the Veteran was neurologically intact and that x-rays were ordered. A diagnosis was not provided. A June 1968 consultation report, the next day, indicates that the Veteran was referred from the emergency room with a diagnosis of a cervical contusion sustained in an automobile accident. The examiner reported that that the Veteran had limitation of extension, rotation, and lateral flexion of the neck. It was noted that the Veteran also had painful elevation of the shoulders. The examiner indicated that the Veteran had complete relief of his symptoms after only one treatment, and that he was discharged from physical therapy. A diagnosis was not provided. A June 1968 radiological report, as to the Veteran’s cervical spine, notes that the Veteran was involved in a car wreck. The examiner indicated that there were no significant abnormalities. A May 1969 treatment entry reflects that the Veteran was seen for a headache. The examiner indicated that the Veteran was provided with Fiorinal. Post-service private and VA treatment records show treatment for disorders, including vertigo; a history of a concussion; and a peripheral vestibular disorder. The Board notes that there are opinions of record, as to the etiology of the Veteran’s claimed disability manifested by vertigo, pursuant to a May 2014 VA ear conditions examination report; a February 2017 report from M. Lionberger, D.O.; an October 2019 VA ear conditions examination report; and a May 2020 VA examiner statement. An October 2019 VA ear conditions examination report includes a notation that the Veteran’s claims file was reviewed. The Veteran reported that the date of onset of his vertigo was in 1968. He stated that he was climbing up a radar tower, and that he was attached to the tower by a safety belt. The Veteran indicated that he fell while climbing, and that he slammed against the tower on the left side of his head. He maintained that immediately afterwards, he had a headache, confusion, and dizziness. It was noted that the Veteran described the dizziness as the world spinning around him. The Veteran related that his vertigo had worsened since it was diagnosed. He stated that his symptoms of vertigo were presently more common, and that the symptoms would last for longer periods. The Veteran indicated that he had daily symptoms of vertigo that occurred with position changes, or with looking to his left. He reported that prolonged periods of vertigo were associated with nausea and bouts of vomiting, at times. The diagnosis was a peripheral vestibular disorder. The examiner reported that findings, signs, or symptoms attributable to the Veteran’s peripheral vestibular disorder, involved vertigo more than once weekly, with episodes lasting more than twenty-four hours. The examiner indicated that the Veteran did not currently have diagnosed Meniere’s disease. The examiner stated that the Veteran did have a disability secondary to the symptom of vertigo. The examiner maintained that the Veteran had a diagnosis of a peripheral vestibular disorder, which was not Meniere’s syndrome. The examiner reported that the acute onset of vertigo immediately following the traumatic incident during service essentially ruled out a diagnosis of Meniere’s syndrome. The examiner indicated that, instead, the diagnosis of vertigo appeared to be directly related to the traumatic incident of the Veteran hitting his head during a fall. The examiner stated that post-traumatic vertigo was a well-documented syndrome and, in the Veteran’s case, was most likely due to a peripheral vestibular nerve injury from a shear injury during the impact. The examiner indicated that it was as likely as not that the current diagnosis of a peripheral vestibular disorder, and its concurring disability, was related to the traumatic event that occurred during service. The examiner specifically maintained that the diagnosis of a peripheral vestibular disorder, of which vertigo was a symptom, was directly related to the traumatic incident of the Veteran hitting his head during a fall. The examiner reported that the acute onset of symptoms following the incident pointed to the incident being the cause. It was noted that post-traumatic vertigo was a well-documented syndrome, and, in the Veteran’s case, was most likely due to a peripheral vestibular nerve injury from a shear injury during the impact. The examiner stated that the nervous system did not heal well, if at all, and that, therefore, persistent symptoms after such a type of injury would be expected. The Board observes that the examiner, following a review of the claims file, specifically found that it was at least as likely as not, that the current diagnosis of a peripheral vestibular disorder, and its concurring disability, was related to the Veteran’s period of service. The examiner indicated that the diagnosis of a peripheral vestibular disorder, of which vertigo was a symptom, was directly related to the incident of the Veteran hitting his head during a fall in service. The Board notes that although the Veteran’s service treatment records do not specifically refer to treatment for a head injury, the Board has conceded that his reports of dizziness, during and since his period of service, are credible. Additionally, the VA examiner reviewed the claims file and specifically related the Veteran’s disability manifested by vertigo, diagnosed as a peripheral vestibular disorder, to his period of service. The Board finds that the opinion provided by the VA examiner, pursuant to the October 2019 VA ear conditions examination report, is the most probative opinion of record. The opinion provided by VA examiner supports the Veteran’s claim for service connection for disability manifested by vertigo, diagnosed as a peripheral vestibular disorder, on a direct basis. As such, service connection for a disability manifested by vertigo, diagnosed as a peripheral vestibular disorder, is warranted. As the Board has granted service connection for disability manifested by vertigo, diagnosed as a peripheral vestibular disorder, on a direct basis, it need not address any other theories of service connection, such as secondary service connection. STEVEN D. REISS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. D. Regan, 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.