Citation Nr: 21022630 Decision Date: 04/16/21 Archive Date: 04/16/21 DOCKET NO. 05-30 371 DATE: April 16, 2021 ORDER Entitlement to service connection for a disability manifested by chronic motion sickness is denied. FINDING OF FACT Chronic motion sickness was not manifest in service or within one year of separation, and is not otherwise attributable to service. CONCLUSION OF LAW The criteria for service connection for a disability manifested by chronic motion sickness have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the United States Navy from September 1959 to April 1980. This matter was originally on appeal from a February 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Manilla, Philippines (hereinafter Agency of Original Jurisdiction (AOJ)). This issue was most recently remanded by the Board in January 2021 for the AOJ to review recently added evidence to the record and readjudicate this case. There has been substantial compliance with the January 2021 Remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900 (c). 38 U.S.C. § 7107 (a)(2). Entitlement to service connection for a disability manifested by chronic motion sickness is denied. The Veteran contends service connection is warranted for his disability which is manifested by motion sickness. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303 (a). Service connection may be granted for any disease initially diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Service connection for a disability requires evidence of: (1) a current disability; (2) a disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Certain chronic diseases, including an organic disease of the nervous system, may be service connected on a presumptive basis if manifested to a compensable degree in a specified period of time post-service (one year for an organic disease of the nervous system). 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. 38 C.F.R. § 3.303(b). If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. Id. Medical records note the Veteran complained of dizziness and motion sickness. The Veteran’s service treatment records note the Veteran was seen for complaints of motion sickness in January 1961 and November 1970. Shedden elements (1) and (2) are met. Turning to Shedden element (3), the Veteran underwent a VA examination in March 2011. The examiner opined that the Veteran’s motion disability was less likely related to motion sickness in service. The examiner explained the Veteran had no current complaints of dizziness. The Veteran reported he only felt dizzy while he aboard his ship during active duty. The examiner noted that the Veteran’s motion sickness is only triggered when he is exposed to the motion of the sea and the he has not experienced motions sickness since being on land. The VA examiner explained that seasickness is a form of motion sickness characterized by a feeling of nausea, and in extreme cases, vertigo, experienced after spending time on a craft on water. It is typically brought on by the rocking motion of the craft. Some people are particularly vulnerable to the condition with minor stimulus, while others are relatively immune, or become immune through exposure. Seasickness often disappears within a few days, even without treatment. The examiner concluded his report by stating that the sufferer’s brain finally adjusts to his new environment and he gets his “sea legs.” There are no competent opinions to the contrary. The Board finds that service connection for motion sickness on a direct basis is not warranted. In reaching this conclusion, the Board gives significant weight to the March 2011 VA examination report. The examiner reviewed the Veteran’s record, considered his lay statements, and provided adequate rationale for his conclusions. The preponderance of the evidence fails to establish that the Veterans disability manifesting as motion sickness is not etiologically related to service. The Veteran’s disability may be granted service connection on a presumptive basis under 38 C.F.R. § 3.309 if manifested to a compensable degree within 1 year of separation from service. Consideration has been given to the Veteran’s report of experiencing dizziness or motion sickness since service. These reports are not credible due to inconsistency with the evidence of record. See Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (finding that, while the Board may not ignore a Veteran’s testimony simply because he or she is an interested party and stands to gain monetary benefits, personal interest may affect the credibility of the evidence); see also Caluza v. Brown, 7 Vet. App. 498, 510-511 (1995) (credibility can be generally evaluated by a showing of interest, bias, or inconsistent statements, and the demeanor of the witness, facial plausibility of the testimony, and the consistency of the testimony.) In this regard, the Board notes that the lapse of time between service separation and the earliest documentation of current disability is a factor for consideration in deciding a service-connection claim. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). Moreover, and importantly, when seeking treatment the Veteran did not initially report symptoms continuously since service. 38 C.F.R. § 3.303 (b). The Board finds that his statements to clinicians for purposes of treatment are the most probative. It was in his best medical interest to provide as accurate a history as possible to, in turn, receive the best and most appropriate course of care. See Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991) (finding that a pecuniary interest may affect the credibility of a claimant’s testimony); Fed. R. Evid. 803 (4) (recognizing that statements made for the purpose of medical treatment generally are reliable); Rucker v. Brown, 10 Vet. App. 67, 73 (1997) ([R]ecourse to the [Federal] Rules [of Evidence] is appropriate where they will assist in the articulation of the Board’s reasons.)). Courts have recognized how medical history recounted in the course of medical evaluation and treatment is especially probative (trustworthy) because the declarant has inherent incentive to give the most accurate history to, in turn, receive the best or most appropriate medical care. See Rucker, 10 Vet. App. at 73. While there is evidence a motion sickness during service, the Veteran denied dizziness in June 1993, May 2006, October 2006, February 2007, and June 2009, however. The Veteran’s VA medical and private treatment records show no treatment or complaints of motion sickness for approximately 26 years after service. It is acknowledged that lay persons are competent to provide opinions on some medical issues. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). The specific issue in this case, however, falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). The claimed disability at issue is not a condition that is readily amenable to lay diagnosis or probative comment regarding chronicity or etiology. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). (Continued on the next page)   There is no indication that the Veteran is competent to etiologically link any symptoms to a current diagnosis. He is not shown to possess the requisite medical training, expertise, or credentials needed to render a diagnosis or a competent opinion as to medical causation. Nothing in the record demonstrates that he received any special training or acquired any medical expertise as to these disorders. See King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012). Accordingly, the lay evidence does not constitute competent medical evidence and lacks probative value. When all the evidence is assembled VA is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a preponderance of the evidence is against the claim in which case the claim is denied. Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). The preponderance of the evidence in this case is against the Veteran’s claim. Jennifer White Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Mohammad Mahmoudi, Associate 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.