Citation Nr: 21021978 Decision Date: 04/14/21 Archive Date: 04/14/21 DOCKET NO. 13-13 652 DATE: April 14, 2021 ORDER The claim for service connection for Lyme disease is denied. The claim for service connection for dizziness, to include as due to Lyme disease, is denied. The claim for service connection for ataxia, to include as due to Lyme disease, is denied. The claim for service connection for cervical radiculopathy, to include as due to Lyme disease, is denied. FINDINGS OF FACT 1. Lyme disease first manifested in 2003, several decades after the Veteran’s military service and is unrelated to his military service. 2. Dizziness first manifested in 2003, several decades after the Veteran’s military service and is unrelated to his military service and is not caused or aggravated by a service-connected disorder. 3. Ataxia first manifested in 2003, several decades after the Veteran’s military service and is unrelated to his military service and is not caused or aggravated by a service-connected disorder. 4. Cervical radiculopathy first manifested in 2003, several decades after the Veteran’s military service and is unrelated to his military service and is not caused or aggravated by a service-connected disorder. CONCLUSIONS OF LAW 1. The criteria for service connection for Lyme disease have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107(b); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310. 2. The criteria for service connection for dizziness, to include as due to Lyme disease, have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107(b); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310. 3. The criteria for service connection for ataxia, to include as due to Lyme disease, have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107(b); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310. 4. The criteria for service connection for cervical radiculopathy, to include as due to Lyme disease, have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107(b); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from June 1977 to August 1979. This matter comes before the Board of Veterans’ Appeals (Board) from an August 2010 rating decision by a Department of Veterans Affairs (VA) Regional Office RO). In VA Form 9, Appeal to the Board of Veterans’ Appeals in May 10, 2013 the Veteran requested a Board hearing in Washington D.C. By letter of August 28, 2018, he was informed that he was scheduled for a Board hearing on October 31, 2018. An October 31, 2018 Report of General Information reflects that the Veteran requested that his October 31, 2018 hearing be rescheduled. An undated Board letter, entered into the Veteran’s Benefits Management System (VBMS) on December 14, 2018, reflects that as to his motion to reschedule his hearing was denied he had not shown good cause to reschedule the hearing. In April 2020, the Veteran was advised that records were added to the file following issuance of the April 2013 Statement of the Case (SOC), and that he could waive agency of original jurisdiction (AOJ) review of those records. The Veteran responded in April 2020 that he wanted his case remanded to the Agency AOJ for review of the newly added evidence. Accordingly, the Board remanded this case in June 2020 for that purpose. It now returns for further adjudication. Service Connection Generally, to establish service connection, a claimant must show: (1) a present disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service, the so-called “nexus” requirement. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303; see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). A disability that is proximately due to, the result of, or aggravated by a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310. VA has established certain rules and presumptions for chronic diseases, such as such as organic diseases of the nervous system. See 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a); Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). With chronic diseases shown as such in service so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless attributable to intercurrent causes. 38 C.F.R. § 3.303(b). If chronicity in service is not established, a showing of continuity of symptoms after discharge may support the claim. 38 C.F.R. § 3.303(b). In addition, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, chronic diseases are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 C.F.R. §§ 3.307(a)(3), 3.309(a). The Veteran asserts that he contracted and was treated for the symptoms Lyme’s disease during active service but it was not properly diagnosed at that time, and particularly in light of the long latency period during which it could remain dormant and despite a continuation of the symptoms of dizziness, ataxia, and cervical radiculopathy, until it was formally diagnosed in 2003. See Veteran’s statement in August 2003 and Post-Remand Brief of March 2021. Service treatment records (STRs) show that on April 2, 1979 the Veteran had vague complaints of nausea, dizziness, blurred vision, headaches, and general malaise. He also noted interpersonal problems which seemed to affect him. His gait was within normal limits. The assessment was that he probably had a viral syndrome. He was given Tylenol for his headaches and fever, and Mylanta for nausea and a nervous stomach. On April 10, 1979, he complained of a history of delirium and reported having had mental hygiene therapy. He seemed disoriented and nervous, and the assessment was that he had a mental problem. He was referred for a psychiatric evaluation which revealed that he complained of anxiety and tension. After a mental status evaluation, the assessment was occupational maladjustment with obsessive and depressive features. In June 1979 he complained of occipital headaches which started at the back of his neck. It was recommended that the Veteran be administratively separated from service due to occupational maladjustment with obsessive and depressive features. Records in May 1990 from Dr. B.M. show that since military service the Veteran had headaches, his muscle locking up, his circulation being cut off, and blurred vision. He developed jerky movements when under stress. A neurologic evaluation revealed no abnormality and he could walk on his heels and toes without difficulty. He had pain in the occipital region and the cervical paraspinal musculature. The Veteran was seen at the emergency room of the Columbus Hospital in 2002 for a traumatic contusion of the forehead, with subconjunctival hemorrhage. In November 2002 Western Tidewater Mental Health Center reported that no records pertaining to the Veteran were available. However, records of the Mental Health Association of Essex County in 2002 show that he related that his headaches were sometimes accompanied by episodes of what he described as stroke-like symptoms, as if a knife penetrated his head, causing him to be paralyzed for 15 to 30 seconds, but a CT scan and EEG had been unremarkable. He appeared to have longstanding difficulty with paranoid ideations. The diagnostic impressions included syncope. A February 2004 letter from a VA neurologist states that the Veteran had been seen in May 2003 for worsening headaches since head trauma from an assault. He was seen again in July 2003 with a diagnosis of posttraumatic headache and severe sensory ataxia and when seen later that month a CT of his head was normal. But a laboratory analysis was abnormal, but not related to head trauma, and he was admitted for a work-up. The cause of his ataxia and most of his recurrent headaches were likely unrelated to trauma. A May 13, 2003 VA outpatient treatment (VAOPT) record the Veteran reported that his headaches were getting worse, and since this January he had had a “wavy feeling/off balance.” He had a past history of head trauma due to a mugging. A July 1, 2003 VAOPT record shows that his main complaint was having had dizziness for the past several months. It was better characterized as dysequilibrium, and he felt that his symptoms were exacerbated by fear and anxiety. He had been assaulted in 2002 and had had headaches since then. On neurologic evaluation his station and gait were normal. The impressions were sensory ataxia, headaches, and cephalgia – cervical radiculopathy. Another VAOPT record also dated July 1, 2003, shows that he believed that his dizziness was secondary to medication and, while it began gradually, he now had constant dizziness which was increased by stress. The relevant assessment was “dizziness - ? sec to meds/htn.” A July 29, 2003, VAOPT record noted that on examination the Veteran’s station and gait were normal. Laboratory studies had been positive for syphilis, elevated protein, and B12 deficiency. Another VAOPT record of July 29, 2003 indicated impression of cephalgia – cervical radiculopathy, as well as sensory ataxia – B12 deficiency, and rule out central nervous system “Lues” and Lyme’s disease. The Veteran underwent VA hospitalization from August 4, 2003 to August 6, 2003. The reasons for hospitalization were abnormal blood tests for syphilis and Lyme’s disease. The discharge diagnoses were B12 deficiency, sensory ataxia, Lyme disease, syphilis, and tension headaches. An August 6, 2003 VAOPT record the Veteran was evaluated for headaches and dizziness. His dizziness was better characterized as dysequilibrium. He felt that the symptoms are exacerbated by fear and anxiety. The impressions included sensory ataxia – B12 deficiency. In September 2003 VA Form 21-4138, Statement in Support of Claim, the Veteran reported that he did not have a neck condition. Rather, he had chronic daily occipital headaches that caused stiffness of his neck, but he did not have a neck condition. He reported having Lyme’s disease which attacked his nervous system and had a vitamin B12 deficiency which caused his headaches. His dizziness was characterized by dysequilibrium and no one, not even doctors, knew when it started. However, he also stated that his dizziness started during military service with his headaches, and aggravated by an assault he sustained in 2002. On VA examination in September 2003 the Veteran complained on having neck pain which started during service. He reported testing positive for Lyme disease. He was being treated for a vitamin B12 deficiency. X-rays revealed no gross abnormality of the cervical spine, and the diagnosis was a cervical strain. In February 2004, September 2009, July and December 2013, and July 2017 the Veteran submitted articles concerning Lyme’s disease. A discharge summary of VA hospitalization in February 2004 reflects that the Veteran had gait instability secondary to central nervous system Lyme’s disease infection, having previously been found to be positive for infection of Lyme’s disease, syphilis, and B12 deficiency. A February 3, 2004 statement from a VA neurologist states that the Veteran had been seen in May 2003 for worsening headaches since a head injury from an assault. He had had a July 2003 CT scan of his head. It was stated that the cause of his ataxia and most of the recurrent headaches was unlikely related to trauma. On March 22, 2004, the Veteran’s VA Form 9, Appeal to the Board, was received, in which he stated that the symptoms for which he was now being treated, i.e., occipital headaches, dizziness, sensory ataxia, and blurred vision were also shown in his April and June 1979 STRs and were caused by Lyme’s disease which attacked his nervous system. On VA neurology examination of May 6, 2004, the Veteran reported having developed headaches during service. He also reported having had dizziness, blurred vision, “gaze disequilibrium” and gait ataxia since military service which had remained essentially unchanged. His history of Lyme’s disease, latent syphilis, and B12 deficiency were noted. After an examination the diagnoses were occipital headaches, mostly tension type; occipital neuralgia; benign positional vertigo; and possible sensory ataxia of unclear etiology. It was opined that his current headaches were related to his inservice headaches. His dizziness seemed to be secondary to benign positional vertigo, and the cause of the blurred vision and ataxia was unclear. His ataxia could be secondary to sensory ataxia. On VA psychiatric examination of July 2, 2004, it was opined that the Veteran’s psychiatric problems began during or were exacerbated during military service. August 10, 2005 and September 9, 2005, VAOPT records both show, in pertinent part, that the Veteran complained of having imbalance as a result of his past head injury. In May 2006 voluminous clinical records were received from the Social Security Administration (SSA). These records include a Psychological Report of January 2001 by A.G., Ph.D., which noted, in part, that the Veteran’s history and behavior indicated the possibility of a conversion disorder as well as possible anxiety. Records in November and December 2006 of Dr. S.S. show that the Veteran complained of pain down his right arm and that he had cervical disc disease with cervical radicular pain. A nerve conduction study had confirmed cervical radiculopathy at C6-7 and possible diabetic neuropathy, while an MRI had revealed a bulging disc and mild canal stenosis. In an August 2009 letter from a friend of the Veteran stated that the Veteran had service connected conditions for which he was being treated, and these included dizziness, ataxia, headaches, and psychiatric disability. In a March 2010 letter the Veteran reported that the symptoms he had during service are the same he now experienced from Lyme’s disease and that it was unlikely to be due having been bitten by a tick when he was a child because it was not found when he entered active service. Also, it was not until after service, in 1982, that he was diagnosed with syphilis. Thus, his symptoms of Lyme disease pre-date his syphilis and any head injury from a post-service assault. A May 12, 2020, VA Mental Health telephonic treatment record shows that the Veteran reported a history of having been hit on the back of his head with a pipe and waking up dizzy in a hospital. It was noted that he was fixated and obsessed with obtaining disability compensation, calling it an adaptation grant, and he had what was potentially a fixed non-bizarre delusion. On VA infectious diseases as well as central nervous system and neuromuscular diseases examinations on November 21, 2020 of the Veteran’s records were reviewed. The diagnosis was Lyme’s disease. The examiner reported that the onset of the Lyme’s disease was in 2003, when he had been admitted with a complaint of dizziness, a “feeling sensation of being in a boat,” and decreased sensation of the right side of his face and both upper extremities. Lyme’s disease had been confirmed in 2003 by laboratory results which were abnormal for Lyme disease, syphilis, B12 deficiency, and elevated protein. A symptom of the Lyme’s disease was dizziness. His current symptoms were dizziness and cervical radiculopathy. On physical examination the Veteran had ataxia. Although he had no muscle atrophy, he had diminished strength, at 4/5, due to mild muscle weakness in both upper and both lower extremities, although reflexes were normal throughout. The examiner reported that the Veteran’s weakness, dizziness, and headaches made it difficult for him to work. As to whether Lyme’s disease and any potentially associated signs of dizziness, ataxia, and cervical radiculopathy were incurred or due to military service, the examiner opined that there was no evidence of Lyme’s disease during military service. Lyme’s disease was first noted in August 2003 when the Veteran had an elevated Lyme titer and received medication. His other underlying conditions, such as B12 deficiency may have caused dizziness, blurred vision, headaches, general malaise, and muscle cramps. Because there was no evidence of Lyme’s disease during service it was less likely to have been incurred during service. The examiner further opined that it was less likely as not that the Lyme disease caused the symptoms of dizziness, ataxia, and cervical radiculopathy and these were less likely as not due to, a result of, or aggravated by the Veteran’s Lyme disease. In this case, the alternative contentions are asserted on appeal. It is asserted that Lyme’s disease was incurred during service, but its initial active manifestations during service it remained dormant until many years after service. Citation has been made to medical literature, submitted by the Veteran, as to this contention. However, other than the submission of medical literature which discusses Lyme’s disease in general terms, including any latency or dormancy period, nothing in the multiple articles submitted is specific to the facts in the Veteran’s case. Consequently, the medical article submitted are of little probative value as evidence supporting the claims for service connection. Alternatively, the Veteran has asserted that he now has continuously had the same symptoms of Lyme’s disease which he had during active service, i.e., dizziness, ataxia, and cervical pain or radiculopathy, which establishes that Lyme’s disease, and its claimed manifestations, are of service onset, even though Lyme’s disease was not formally diagnosed until appropriate laboratory testing was done in 2003. Underlying this particular theory of entitlement is the implicit assertion that the inservice diagnosis that the Veteran’s symptoms were diagnosed as an acute viral syndrome was in error. However, to refute this inservice diagnosis requires more than a mere assertion by a layperson, such as the Veteran, that a diagnosis by clinicians was erroneous. Rather competent medical evidence is required. While lay persons are competent to describe observable symptomology (e.g. pain, such as cervical pain, dizziness, and ataxia), a lay person is not competent to opine on the etiology of such symptoms given that the Veteran’s symptoms were given a different diagnosis by competent clinicians during service, and because layperson lack the requisite medical expertise to formulate a medical opinion on whether the conditions had their onset in service or are related to an in-service injury or disease. These are complex medical determinations beyond the range of experience or understanding of the lay person that cannot be answered based on observation or analysis of the lay person. Rather, the Veteran’s conditions are intricate and complex matters that require specialized medical education and knowledge, separate from the training, education, or knowledge of a lay person, regarding the unseen and complex processes of the development of an infectious disease, e.g., Lyme’s disease, and any residuals such as the claimed dizziness, ataxia, and cervical radiculopathy. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (although it is error to categorically reject a non-expert opinion as to etiology, or nexus, not all questions of nexus are subject to non-expert opinion; whether a layperson is competent to provide a nexus opinion depends on the facts of the particular case). Therefore, the Board finds that the appellant and any other lay persons’ opinions have no probative value in this matter. Nevertheless, even if the Board were to find the lay statements of record as acceptable competent evidence sufficient to establish service connection, the Board finds the lay statements less than credible as they are inconsistent with other evidence of record, to include the negative evidence of record. See Pond v. West, 12 Vet. App. 341 (1999) (although the Board must take into consideration a claimant’s statements, it may consider whether self-interest may be a factor in making such statements); see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff’d, 78 F.3d 604 (Fed Cir. 1996) (holding that, in weighing credibility of lay evidence VA may consider such elements as interest, bias, inconsistent statements, internal inconsistency, facial plausibility, self-interest, consistency with other evidence of record, desire for monetary gain). As to this, it is indisputable that Lyme’s disease was first diagnosed in 2003, after appropriate and positive laboratory testing. While the Veteran has more recently alleged that he has continuously had symptoms of dizziness, ataxia, and cervical radiculopathy since his military service, this is not corroborated by contemporaneous post-service clinical records. Although he had headaches, for which he is service-connected, and occipital pain in 1990, this is more than a decade after service. It is not until 2002, more than two decades after service, that the Veteran developed any dizziness, or dysequilibrium, ataxia or cervical radiculopathy. Even then the earliest and contemporaneous clinical histories recorded did not antedate these to his military service or even a time with several years after service. Moreover, his dizziness seemed to be impacted by either medication for nonservice-connected hypertension or by psychiatric symptoms, i.e., it was exacerbated by fear and anxiety. Moreover, other potential causes for his ataxia have been diagnostically entertained, and specifically a vitamin B12 deficiency which was also first diagnosed in 2003, and cervical radiculopathy has not been shown by competent clinical evidence to be associated with military service or anything of service origin. Thus, the Board finds the lay statements less than credible as they are inconsistent with other evidence of record, to include the negative evidence of record. See Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011) citing Fed. R. Evid. 803(7) for the proposition that the absence of an entry in a record may be evidence against the existence of a fact if it would ordinarily be recorded); Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011) (silence in the STRs may be evidence contradictory to a veteran’s assertions if the STRs appear complete and the injury, disease, or symptoms involved would ordinarily have been recorded had they occurred); see also Fed. R. Evid. 803(7) (indicating that the absence of an entry in a record may be evidence against the existence of a fact if such a fact would ordinarily be recorded). The Board assigns greater probative value to the Veteran’s STRs which do not reveal that the Veteran had Lyme’s disease of service onset with concomitant dizziness, ataxia, and cervical radiculopathy. See Curry v. Brown, 7 Vet. App. 59, 68 (1994) (contemporaneous evidence has greater probative value than history as reported by the claimant). Rather, he had only acute symptoms of a viral infection which resolved. The Board additionally gives greater probative value to the negative clinical evidence of record. Forshey v. Principi, 284 F.3d 1335, 1358 (Fed. Cir. 2002) (the definition of evidence encompasses “negative evidence” which tends to disprove the existence of an alleged fact). Specifically, the VA medical opinions obtain in November 2020 weigh against the claims for service connection. Those opinions were rendered after a personal interview and examination of the Veteran and after reviewing the evidence of record. In substance, those medical opinions were that the claimed Lyme’s disease was less likely of service origin and the claimed dizziness, ataxia and cervical radiculopathy were less likely than not cause by or aggravated by the claimed Lyme’s disease. Significantly, these unfavorable medical opinions are unrebutted by any competent medical evidence and because they address complex medical questions, they are of greater probative value than the Veteran’s lay observations and speculative medical hypotheses. In sum, nothing links the claimed disorders to the Veteran’s military service other than his own lay hypothesizing as to the etiology of the disorders being linked to an acute viral infection during service, which is otherwise unsubstantiated and, moreover, refuted by competent medical opinions. Thus, the Board finds that the preponderance of the evidence weighs against the claims for service connection and, as such, there is no doubt to be favorably resolved. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Accordingly, the claims are denied. Robert N. Scarduzio Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Fussell, 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.