Citation Nr: 21022276 Decision Date: 04/15/21 Archive Date: 04/15/21 DOCKET NO. 16-25 138 DATE: April 15, 2021 ORDER Entitlement to service connection for a vestibular disorder, to include vertigo, is denied. FINDING OF FACT A vestibular disorder, to include vertigo is not related to service. CONCLUSION OF LAW The criteria for entitlement to service connection for a vestibular disorder, to include vertigo, are not met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2021). REASONS AND BASES FOR FINDING AND CONCLUSION The appellant is a veteran (the Veteran) who had active duty service from January 1991 to November 1996. This appeal comes before the Board of Veterans’ Appeals (Board) from a March 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Albuquerque, New Mexico. In January 2019, the Board remanded this appeal for additional evidentiary development. The appeal has since been returned to the Board for further appellate action. Service Connection—Law and Regulations VA law provides that, for disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service, during a period of war, or other than a period of war, the United States will pay to any veteran thus disabled and who was discharged or released under conditions other than dishonorable from the period of service in which said injury or disease was incurred, or preexisting injury or disease was aggravated, compensation, except if the disability is a result of the veteran’s own willful misconduct or abuse of alcohol or drugs. 38 U.S.C. §§ 1110, 1131 (West 2014). Entitlement to service connection on a direct basis requires (1) evidence of current nonservice-connected disability; (2) evidence of in-service incurrence or aggravation of disease or injury; and (3) evidence of a nexus between the in-service disease or injury and the current nonservice-connected disability. 38 C.F.R. § 3.303(a); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Saunders v. Wilkie, 886 F.3d 1356 (2018). For specific enumerated diseases designated as “chronic” there is a presumption that such chronic disease was incurred in or aggravated by service even though there is no evidence of such chronic disease during the period of service. In order for the presumption to attach, the disease must have become manifest to a degree of 10 percent or more within one year of separation from active duty. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Presumptive service connection for the specified chronic diseases may alternatively be established by way of continuity of symptomatology under 38 C.F.R. § 3.303(b). However, the United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic in 38 C.F.R. § 3.309(a) Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Generally, lay evidence is competent with regard to identification of a disease with unique and readily identifiable features which are capable of lay observation. See Barr v. Shinseki, 21 Vet. App. 303, 311 (2007). A lay person may speak to etiology in some limited circumstances in which nexus is obvious merely through observation, such as sustaining a fall leading to a broken leg. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir 2007). Lay persons may also provide competent evidence regarding a contemporaneous medical diagnosis or a description of symptoms in service which supports a later diagnosis by a medical professional. However, a lay person is not competent to provide evidence as to more complex medical questions, i.e., those which are not capable of lay observation. Lay statements are not competent evidence regarding diagnosis or etiology in such cases. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (concerning rheumatic fever); Jandreau, at 1377, n. 4 (‘sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer’); 38 C.F.R. § 3.159(a)(2). After the evidence has been assembled, it is the Board’s responsibility to evaluate the entire record. 38 U.S.C. § 7104(a) (West 2014). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107 (West 2014); 38 C.F.R. §§ 3.102, 4.3. A VA claimant need only demonstrate that there is an approximate balance of positive and negative evidence in order to prevail. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), Gilbert at 54. Entitlement to service connection for a vestibular disorder, to include vertigo. Service treatment records reveal several treatments for complaints of dizziness in service. An April 20, 1994, Clinical Note reveals complaint of dizzy spells. The assessment was vertigo/labyrinthitis (Record 12/04/1996 at 35). On April 25, 1994, the Veteran noted that he had been dizzy and lightheaded for 5 days (Record 12/04/1996 at 35). An August 31, 1994, Clinical Note reveals complaint of dizziness, different from that associated with hypertension. The Veteran noted that he was unsteady, running into things, and missing putting his key into the lock. The assessment was dizziness of unknown etiology (Record 12/04/1996 at 12). The Veteran was diagnosed with eustachian tube dysfunction in August 1994 (Record 02/04/2015 at 22). On September 15, 1994, the Veteran reported an overwhelming feeling of dizziness. It was questioned whether this was due to blood pressure medicine (Record 12/04/1996 at 10). On September 16, 1994, the Veteran was seen for blood pressure. The examiner noted that he would hold blood pressure medicine and questioned whether it would lead to dizziness (Record 12/04/1996 at 5). On October 6, 1994, a CT scan of the head was conducted for complaints of dizziness and unsteadiness for the preceding month to rule out organic etiology. The results were normal (Record 12/04/1996 at 31). A report of medical examination performed on July 22, 1997 (service separation), reveals normal findings for the head and neurological system (Record 02/04/2015 at 27). A report of medical history completed by the Veteran on July 22, 1997, reveals the Veteran’s account that he had no history of, or current, dizziness or fainting spells (Record 02/04/2015 at 22). On December 13, 2006, the Veteran was seen at the Emergency Department for lightheadedness and shortness of breath that started that morning and lasted about 40 minutes. He stated he had “never experienced anything like this before” (Record 03/07/2015). An April 2011, private neurology report notes complaint of gait and balance problems for the past 10 to 15 years. His gait was mildly unsteady for tandem walking. The diagnosis was diabetic polyneuropathy with mild gait ataxia (Record 02/23/2015). A February 17, 2015, private audiology report notes complaint of unsteadiness and disorientation while moving and walking, which began around 1994. He denied any room-spinning vertigo (Record 02/23/2015). A September 2015 VA opinion states that it is less likely than not that the Veteran has chronic vertigo. The rationale was that symptoms in service and in the February 2015 VA Audio examination are not consistent with vertigo. The examiner also found it less likely than not that the Veteran’s currently claimed vertigo had its origin in the military service or in currently diagnosed hearing loss/tinnitus. The rationale was that the Veteran’s instability/dizziness symptoms are best attributed to side effects of blood pressure medication and increase in pre-ventricular contractions caused by taking Entex. He possibly had viral labyrinthitis also. There is no nexus connecting any current complaints with complaints 20 years ago in 1994/1995. The February 2015 Audio examination found no stigmata suggestive of middle ear pathology, and specifically noted that “dizziness” was not room-spinning vertigo (Record 09/28/2015). A December 31, 2015, Physical Therapy Note reveals a referring diagnosis of dizziness and giddiness. There was no cerebellar or central nervous system component. The assessment notes that the only positive results are dysfunction of vestibular nerve and possibly “SCM TPs” (Record 01/27/2016 at 15). A January 3, 2016, statement from the Veteran notes that dizziness first began shortly after a 3 year deployment in a tropical area and has continued since (Record 01/04/2016 at 7). A July 11, 2016, VA Cardiology Consult notes that the Veteran reported a sensation of being off balance rather than dizziness “which is chronic since active duty (onset 1994)” (Record 06/09/2020 at 141). A January 2019 VHA opinion states that the examiner reviewed the Veteran’s chart and examinations dated back to 1993 when he had presented with complaint of dizziness. There was no detailed history and examination done by an otolaryngologist since 1994. Even the examinations in 1994 were very minimal and none addressed the Veteran’s persistent complaint of dizziness. More recent examinations were done by a cardiologist in July 2016 who made a note of dizziness getting better with physical therapy. No ENT or otologic examination or vestibular examination has been documented. The examiner recommended a full history and physical done by a board-certified otolaryngologist. More specifically, no one has documented diagnosing his imbalance or even an MRI or ordering any vestibular testing. Therefore, the examiner could not make any comments or answer the questions asked (Record 01/08/2019). The Board remanded this claim in January 2019 to obtain the specified medical examination. A June 2020 VA Opinion provides a diagnosis of dysequilibrium of uncertain etiology. The examiner opined that this is less likely as not incurred in or caused by service. The examiner considered the Veteran’s report of symptoms beginning during service; documentation of complaints of being dizzy and lightheaded in April 1994 (thought secondary to elevated blood pressure); documentation in September 1994 of 2 months of constant dizziness involving difficulty with the coordination of upper extremities, such as putting a key in a lock, and an overwhelming feeling of dizziness; the denial of dizziness or fainting spells in 1997; and the lack of documentation of complaints, treatment, evaluation or diagnosis of a chronic dizziness condition during service and for more than 15 years after service. The examiner noted that the Veteran’s symptoms were evaluated in 2011 by a neurologist and determined to be due to bilateral lower extremity peripheral neuropathy. According to the examiner, his is a common cause or contributing factor in dysequilibrium. The examiner noted that the Veteran does not report symptoms of vertigo (a sensation of movement which is exacerbated by movement), which is the hallmark symptom of vestibular dysfunction. In fact, his symptoms are improved with movement (which would be very atypical for a vestibular disorder). For this reason, electronystagmography is not indicated. Also, since he has had negative MRI’s since symptoms began and since symptoms have not progressed for many years, it is very unlikely that he has an acoustic neuroma or similar condition which would require an MRI for clinical purposes. The evaluation of chronic dizziness is difficult and commonly results in an uncertain diagnosis or in the determination that multiple factors are contributing to the symptom complex, even after extensive evaluations at specialized dizziness clinics. According to the examiner, the primary cause of the Veteran’s sense of dysequilibrium when standing and the abnormal finding of a poorly-executed tandem gait on examination is his documented peripheral neuropathy. Anxiety disorders are also common contributors to dizziness symptoms, and based on the Veteran’s reports that symptoms are worse during stress, this is a likely contributor. The examiner concluded that there is not a 50 percent likelihood that the Veteran’s current dysequilibrium condition was incurred during or caused by active duty service. There is not sufficient evidence of the same symptoms or the same condition (including peripheral neuropathy) continuing from active duty service to the present. The examiner commented on the December 2015 physical therapist’s determination of a “vestibular nerve dysfunction,” finding that the basis for this description was not clear, but it appears to be related to “pain with the left vestibular nerve glide,” which was treated with manual release. This apparently involved traction on the ear lobe and massage of one of the neck muscles. The vestibular nerve travels from the brain to the inner ear and is intracranial. From an allopathic medicine perspective, diagnosis, and treatment of such a disorder would not be possible by manipulation of the external ear or neck (Record 06/22/2020). After a review of all of the evidence, the Board finds that the criteria for entitlement to service connection for a vestibular disorder are not met. The Board finds initially that there has been substantial compliance with its remand instructions. The Board instructed that the AOJ should obtain additional treatment records and schedule an examination. The examiner was instructed to identify all current disorders related to the Veteran’s complaints of lightheadedness and to comment on prior notation of vestibular nerve dysfunction. The examiner was asked to provide an opinion as to whether any disorder identified is related to service. These instructions were addressed in the June 2020 VA examination. The Veteran does not have a clearly diagnosed current vestibular disorder. The medical evidence is against a diagnosis of vertigo. The term “dysequilibrium” as used by the June 2020 examiner is simply a description of symptoms. Nevertheless, the Veteran has symptoms which can be presumed to result in functional impairment of earning capacity. The Veteran reported similar symptoms in service. There was also no clear diagnosis at that time either. There is no medical opinion that purports to relate his current symptoms to symptoms in service. The only opinion evidence is against the claim. The Board acknowledges that a February 2015 audiology report states that his symptoms began around 1994. The July 2016 cardiology consult also contains a similar report of chronic symptoms since service. There are other such references in the outpatient treatment records as well. However, these are not presented as opinions regarding the onset of symptoms, but are a recordation of the Veteran’s statements of his medical history. There is no indication from the full context of these reports the examiner was endorsing that particular date of onset, or that she had done any research that would enable her to comment on the date of onset. A recitation of medical history presented by a layperson does not take on probative medical weight simply because it is recorded in a medical record. While it may be competent evidence regarding observable symptoms, as will be discussed in more detail below, there is more to establishing a nexus between current symptoms and symptoms in service than simple observation. The Board finds persuasive the reasoning of the June 2020 examiner that the Veteran does not meet the diagnostic criteria for vertigo, as well as the reasoning of the June 2020 examiner that the Veteran’s symptoms are due to peripheral neuropathy, and that his symptoms are not typical of a vestibular disorder or a neuroma. As peripheral neuropathy is not a service-connected disability, service connection cannot be established on this basis. The Board has also considered a relationship to hypertension, which is a service-connected disability. The Veteran submitted a fact sheet on a particular blood pressure medicine which shows dizziness as a “Less common” side effect. This has certainly been investigated as a cause. However, the September 1994 treatment notes indicate that the medication was held to determine whether it was the cause of the Veteran’s symptoms. Such a relationship has not been confirmed in the years since those references, or since the September 2015 examination, which also refers to this possibility. Thus, the evidence in favor of this relationship appears inconclusive. The Board acknowledges the symptoms reported in service. However, the normal clinical examination at service separation is probative and persuasive evidence against incurrence of a chronic vestibular disorder in service. This is consistent with the Veteran’s denial of dizziness at that time. It is also consistent with his statement in December 2006 that he had never had symptoms like what he was experiencing then. It is consistent with denials of current dizziness in the outpatient treatment records. It is also supported by the opinion of the VA examiner in June 2020. This is not to suggest that the Veteran did not have symptoms in service, but that the determination as to the cause of these symptoms requires medical expertise. Here, the most well-reasoned and conclusively stated medical opinion on this question is that of the June 2020 VA examiner. While the Veteran is competent to describe his symptoms of feeling dizziness, the evidence shows that this symptom has not always been present, as it was denied at service separation. Therefore, his symptomatology was not constant, but occasional. Relating current dysequilibrium to temporally remote events in service is not the equivalent of relating a broken bone to a concurrent injury to the same body part (Jandreau, at 1377). The issue is medically complex, as it requires knowledge of interpretation of medical issues. Therefore, it is outside the competence of a layperson because the record does not show that he has the medical training or credentials to make such a determination. Accordingly, the Veteran’s lay statements are unpersuasive as to an etiologic relationship between the claimed vestibular disorder and service. See King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012). In sum, the Board finds that the claimed vestibular disorder is not related to service. In light of these findings of fact, the Board concludes that service connection for the claimed a vestibular disorder, to include vertigo, is not warranted. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53-56. J. TUNIS Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. Cramp 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.