Citation Nr: 21021940 Decision Date: 04/14/21 Archive Date: 04/14/21 DOCKET NO. 16-16 228 DATE: April 14, 2021 ORDER Entitlement to service connection for vertigo is denied. REMANDED Entitlement to service connection for residuals from an appendectomy is remanded. Entitlement to service connection for residuals of an inguinal hernia is remanded. Entitlement to service connection for non-specific ulcers is remanded. FINDING OF FACT The Veteran’s vertigo is not secondary to service-connected tinnitus and is not otherwise related to an in-service injury or disease. CONCLUSION OF LAW The criteria for service connection for vertigo due to service or tinnitus are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1957 to March 1961. In March 2019, the Veteran and his spouse testified before the undersigned Veterans Law Judge. The transcript is of record. The Board of Veterans’ Appeals (Board) most recently remanded the issue of service connection for vertigo in a November 2020 decision. It has now returned for adjudication. The November 2020 Board decision granted service connection for major depressive disorder (MDD) and remand the issue of service connection for an acquired psychiatric disorder other than MDD, to include posttraumatic stress disorder (PTSD). A November 2020 rating decision effectuated the Board decision and assigned a 30 percent rating for MDD. However, following additional development, a December 2020 rating decision awarded service connection for PTSD (formerly rated as MDD) and assigned a 70 percent rating. That matter is considered resolved. In June 2020, the Court of Appeals for Veterans Claims (Court) entered an order remanding the issues of service connection for residuals of an appendectomy, an inguinal hernia, and ulcers. There appears to have been an overlap and delay in the processing of these issues and when the Board entered its decision in November 2020. The Board apologizes for the delay it caused towards the resolution of these issues. 1. Entitlement to service connection for vertigo The Veteran contends that the onset of his vertigo corresponded with an increase in his service-connected tinnitus and is therefore related. He has also stated that his vertigo was the result of the same noise exposure that caused his tinnitus. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease or his service connected tinnitus. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Service connection may also be granted for a disability that is proximately due to, or aggravated by, service-connected disease or injury. 38 C.F.R. § 3.310. The Board concludes that, while the Veteran has a current disability of benign paroxysmal positional vertigo, the preponderance of the evidence is against finding that the Veteran’s vertigo had its onset in service, due to his active service, or is proximately due to or the result of, or aggravated beyond its natural progression by service-connected disability, including tinnitus. 38 U.S.C. §§ 1110, 1131; Allen v. Brown, 7 Vet. App. 439 (1995) (en banc); 38 C.F.R. § 3.310(a). A January 2020 VA examination determined there was no relationship between the Veteran’s vertigo and his active service. The examiner observed that the Veteran’s service treatment records (STRs) were negative for complaints, treatment, or diagnosis of vertigo. There was likewise no record of vertigo until many years thereafter. VA most recently examined the Veteran in December 2020. The examiner noted a diagnosis of benign paroxysmal positional vertigo. The examiner opined that there is no known cause for this type of vertigo, although it occurs most frequently with people over 50 years old. The examiner noted that the Veteran was over 50 and experienced the vertigo later in life and well after service. The examiner opined that the Veteran’s vertigo was not caused or incurred in service. The examiner also opined that the Veteran’s vertigo was not the result of tinnitus. The examiner explained that tinnitus is a perceived noise that is a symptom of an underlying condition such as ear injury, but the benign paroxysmal positional vertigo is not known to be caused by an underlying medical problem (such as ear injury). The examiner opined that the most likely contributing factor was the Veteran’s age. Finally, the examiner opined that the Veteran’s vertigo was not aggravated by his tinnitus. According to the examiner, because tinnitus is caused by a medical condition and there is no known link between the Veteran’s condition and another medical condition the tinnitus did not worsen his vertigo. The Veteran believes that there is a connection between his tinnitus and his vertigo. The issue is medically complex, however, as it requires knowledge of pathology of a complicated disease. The record does not show that the Veteran has medical training or experience and such an opinion is therefore outside the competence of Veteran. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Consequently, the Board gives more probative weight to the to the VA examiner. The Veteran has generally argued that his vertigo is related to the same in-service noise exposure that caused his tinnitus. However, unlike his tinnitus, which he states had its onset in service, he reports that his vertigo had its initial onset many years after service. He has also provided no competent evidence establishing a link between noise exposure and vertigo. Indeed, and discussed herein, the examiners have stated that his vertigo is most likely the result of his advanced age. The Board also acknowledges that the Veteran’s report that his vertigo occurred at the same time as his tinnitus worsened. But correlation is not causation and the examiner gave an alternative rationale of age-related onset that could also explain the incurrence. As the examiner is medically trained and provided an explanation involving the known pathology of the disease, the VA opinion is given more weight. The other medical evidence and prior examination do not otherwise support the Veteran’s claim. Accordingly, service connection for vertigo must be denied. REASONS FOR REMAND 1. Entitlement to service connection for residuals from an appendectomy is remanded. 2. Entitlement to service connection for residuals of an inguinal hernia is remanded. 3. Entitlement to service connection for non-specific ulcers is remanded. VA previously sought to obtain medical records to confirm the Veteran’s testimony that his appendix ruptured during basic training. VA obtained a response from the Department of the Air Force that the Veteran was not in their computer system. This response did not explain if a paper record existed. It also appears that the search was only for the Veteran as J.M. and not as A.F.M., Jr. as he is also known in medical records. An updated search is necessary. In addition, VA should examine the Veteran to determine what residuals, if any, that the Veteran has from the appendectomy including whether the surgery caused the later hernia and ulcers.   The matters are REMANDED for the following action: 1. Take reasonable steps to ascertain and obtain medical records from the Department of the Air Force, or other appropriate authority, of the Veteran’s appendectomy or ruptured appendix. The request should seek both electronic and digitized records for both names J.M. and A.F.M., Jr. 2. After completion of the above, schedule the Veteran for an examination by an appropriate medical provider. The examiner should examine the Veteran and review his medical records. The examiner should then provide answers to the following: a. Is it at least as likely as not (50 percent or greater) that the Veteran previously had an appendectomy or ruptured appendix? b. If the answer to (a) is no, does the Veteran have scars or residuals from some other surgery? c. If the answer to (a) is yes, can it be medically determined (at least as likely as not) when the Veteran’s surgery occurred without the contemporaneous medical records? If so when; if not, why not? d. If the answer to (a) is yes, what residuals at least as likely as not resulted from the ruptured appendix or surgery? e. Does the Veteran at least as likely as not have a hernia or residuals from a hernia? f. If the answer to (e) is yes, was the hernia or residuals at least as likely as not caused or made worse by residuals from an appendectomy or ruptured appendix? g. Does the Veteran at least as likely as not have, or has he had, ulcers? h. If the answer to (g) is yes, were the ulcers at least as likely as not caused or worsened by either (1) residuals of an appendectomy or ruptured appendix or (2) residuals of a hernia. A rationale for all requested opinions shall be provided. Reference to findings from identified studies is preferred over reference to medical literature in the abstract. If the examiner relies on his or her medical experience as a rationale, it is appropriate to identify specifics such as an estimate of the number of patients the examiner has seen with similar conditions, the time the examiner has been practicing in the field, or any relevant specialized education or training experiences that go beyond the examiner’s degree or accreditation. If the examiner determines that an opinion cannot be rendered without result to mere speculation, then it should be clear in the examiner’s remarks whether it cannot be determined from current medical authority or if an opinion could be rendered if additional facts were known. If additional facts are needed, the examiner shall state what facts, if known, would impact his or her ability to render an opinion and how. Simply stating that an opinion cannot be provided without resort to mere speculation is not acceptable without a detailed reason as to why this is so. MICHAEL A. HERMAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Paul Saindon, Special 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.