Citation Nr: 21024044 Decision Date: 04/21/21 Archive Date: 04/21/21 DOCKET NO. 17-07 559 DATE: April 21, 2021 ORDER Entitlement to service connection for Meniere’s disease is denied. FINDING OF FACT The Veteran's Meniere's disease did not onset during his service, or within a year of his discharge, or even for many ensuing years, and is not shown to be otherwise related or attributable to his service. CONCLUSION OF LAW The criteria are not met for entitlement to service connection for Meniere's disease. 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 on active duty from June 1961 to May 1965. This appeal to the Board of Veterans’ Appeals (Board) is from an April 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In March 2019, the Veteran testified in support of this claim during a hearing before the undersigned Veterans Law Judge of the Board. A transcript of the proceeding is of record. In July 2019 and December 2020, the Board remanded this claim for Meniere’s disease and a claim for bilateral hearing loss back to the RO (Agency of Original Jurisdiction (AOJ)) for further development and consideration. And, while on remand, service connection was granted for bilateral hearing loss in a February 2021 rating decision. An initial 0 percent (noncompensable) rating was assigned for the right ear hearing loss retroactively effective from May 2, 2013, and a noncompensable rating also was assigned for the left ear hearing loss, i.e., consequent bilateral (right and left ear) hearing loss, effective January 7, 2020. If the Veteran disagrees with the initial rating and/or effective dates assigned for the now service-connected “bilateral” hearing loss, he must separately appeal these “downstream” issues. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). Although, on remand, service connection continued to be denied for Meniere’s disease, there was compliance – certainly the acceptable substantial compliance, with the Board’s remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the remand instructions); but see also D’Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only “substantial” rather than strict or exact compliance with the Board’s remand directives is required under Stegall); accord Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Entitlement to service connection for Meniere’s disease The Veteran asserts that he has Meniere’s disease because of his service. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service in the line of duty. 38 U.S.C. §§ 1110, 1131; 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 an injury; and (3) a causal relationship (“nexus”) between the current disability and the disease or injury in service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Organic diseases of the nervous system, including Meniere's disease, will be presumed to have been incurred in service if the disease manifested to a compensable degree (generally meaning to at least 10-percent disabling) within one year of the Veteran’s separation from service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 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, as distinguished from merely isolated findings or a diagnosis including the word "chronic." If there is not sufficient evidence that the currently diagnosed chronic disease was chronic in service or within a presumptive period, a veteran may still be entitled to presumptive service connection if continuity of symptomatology is demonstrated. 38 C.F.R. § 3.303(b); See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic per 38 C.F.R. § 3.309(a)). Here, though, upon review of the record, the Board finds that the Veteran’s claimed Meniere’s disease is not related or attributable to his service.   The Veteran has a diagnosis of Meniere’s disease. See the report of the January 2020 VA examination. Thus, resolution of this appeal hinges on whether his Meniere’s disease incepted during his service, within a year of his discharge, or is otherwise related or attributable to his service. See Watson v. Brown, 4 Vet. App. 309, 314(1993) ("A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or a disease incurred in service."). Notably, the first mention of Meniere’s disease in the medical evidence of record is a May 2012 private treatment note after an examination revealed the Veteran’s right ear was suggestive of cochlear hydrops/Meniere’s disease. That initial indication of this disease was many years after conclusion of his service, even well beyond the permissible one-year presumptive period following his service. Moreover, while it is true that initial diagnosis of a claimed disease, post service, does not necessarily mean the disease is unrelated to the Veteran’s service (see 38 C.F.R. § 3.303(d)), the Veteran’s service treatment records (STRs) do not show any complaints, treatment, or diagnosis of Meniere’s disease, vertigo, or typically associated symptoms. The acoustic trauma he sustained in service only has been linked to his bilateral hearing loss and unilateral, left ear, tinnitus, thus, the reason they were determined to be service-connected disabilities. The same cannot be said of the Veteran’s Meniere’s disease. In the January 2020 VA examination report, the VA examiner opined that it is less likely than not the Veteran’s Meniere’s disease is related to his service. This VA examiner reasoned that the onset of the Veteran’s Meniere’s disease occurred more than 45 years after his separation from service, and literature does not support late onset of Meniere’s disease from exposure to hazardous noise. See Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). See also Mense v. Derwinski, 1 Vet. App. 354 (1991).   During a follow-up January 2021 VA examination, it again was concluded that it is less likely than not the Veteran’s Meniere’s disease is related to his service. The VA examiner considered the Veteran’s statements that his condition began years ago. The VA examiner noted the Veteran believes that his military occupational specialty (MOS) as a tank crewman and the loud screeching noises and firing lead to his Meniere’s disease. The Veteran stated that, when the condition began the symptoms were slight dizziness with headache and they worsened over the years. The VA examiner saw the Veteran was in service until 1965 and had conceded noise exposure, also that he had multiple audiograms and that the first to show hearing loss per VA criteria (see 38 C.F.R. § 3.385) was in January 2020. This January 2021 VA examiner indicated the diagnosis of Meniere's disease is suspect. He reasoned that the Veteran was noted to have headaches with dizziness with the last episode some 3 years prior to that examination. This VA examiner surmised this sounds more like migraines than Meniere's disease, which he explained presents with severe room spinning with aural fullness, tinnitus, and hearing loss at lower frequencies. This VA examiner reasoned that the Veteran has down sloping hearing loss pattern consistent with noise exposure but that, even assuming he actually has Meniere's disease, if attributable to his service it would have manifested in proximity to his service. This VA examiner concluded that the fact that this condition did not develop until decades after the Veteran’s service shows that, even if he did have Meniere's disease, it would not be related to his military service. Determining whether the Veteran has Meniere’s disease is beyond his lay competence. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting lay person’s general competence to testify as to symptoms but not to medical diagnosis). But, regardless, as that most recent VA examiner also clarified, he assuming the Veteran has it or has at some point in the not too distant past, it is not attributable to his military service. The VA examiner’s January 2020 and January 2021 medical opinions discounting this notion are more probative than the Veteran’s unsubstantiated lay assertions. See King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012) (indicating lay evidence must demonstrate some competence and affirming the Court's conclusion that the Board did not improperly discount the weight of a lay opinion in finding a medical expert's opinion more probative on the issue of medical causation). The determination of whether lay versus medical evidence is needed to support a claim is fact specific – meaning determined on a case-by-case basis and dependent on the specific type of condition being claimed in terms of whether simple or, instead, complex. See Kahana v. Shinseki, 24. Vet. App. 428 (2011). Here, in sum, the most probative evidence of record does not link the Veteran’s condition to his service, either directly, presumptively or secondarily by way of a service-connected disability – including especially his left ear tinnitus and/or bilateral hearing loss, whether predicated on causation or aggravation. 38 C.F.R. § 3.310(a) and (b). Also, because, for the reasons and bases discussed, the preponderance of the evidence is against the claim, there is no reasonable doubt to resolve in the Veteran’s favor. Accordingly, service connection for Meniere’s disease is denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). KEITH W. ALLEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Hamm, 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. Department of Veterans Affairs YOUR RIGHTS TO APPEAL OUR DECISION The attached decision by the Board of Veterans' Appeals (Board) is the final decision for all issues addressed in the "Order" section of the decision. The Board may also choose to remand an issue or issues to the local VA office for additional development. If the Board did this in your case, then a "Remand" section follows the "Order." However, you cannot appeal an issue remanded to the local VA office because a remand is not a final decision. The advice below on how to appeal a claim applies only to issues that were allowed, denied, or dismissed in the “Order.” If you are satisfied with the outcome of your appeal, you do not need to do anything. Your local VA office will implement the Board’s decision. However, if you are not satisfied with the Board's decision on any or all of the issues allowed, denied, or dismissed, you have the following options, which are listed in no particular order of importance: • Appeal to the United States Court of Appeals for Veterans Claims (Court) • File with the Board a motion for reconsideration of this decision • File with the Board a motion to vacate this decision • File with the Board a motion for revision of this decision based on clear and unmistakable error. Although it would not affect this BVA decision, you may choose to also: • Reopen your claim at the local VA office by submitting new and material evidence. There is no time limit for filing a motion for reconsideration, a motion to vacate, or a motion for revision based on clear and unmistakable error with the Board, or a claim to reopen at the local VA office. Please note that if you file a Notice of Appeal with the Court and a motion with the Board at the same time, this may delay your appeal at the Court because of jurisdictional conflicts. If you file a Notice of Appeal with the Court before you file a motion with the Board, the Board will not be able to consider your motion without the Court's permission or until your appeal at the Court is resolved. How long do I have to start my appeal to the court? You have 120 days from the date this decision was mailed to you (as shown on the first page of this decision) to file a Notice of Appeal with the Court. If you also want to file a motion for reconsideration or a motion to vacate, you will still have time to appeal to the court. As long as you file your motion(s) with the Board within 120 days of the date this decision was mailed to you, you will have another 120 days from the date the Board decides the motion for reconsideration or the motion to vacate to appeal to the Court. You should know that even if you have a representative, as discussed below, it is your responsibility to make sure that your appeal to the Court is filed on time. Please note that the 120-day time limit to file a Notice of Appeal with the Court does not include a period of active duty. If your active military service materially affects your ability to file a Notice of Appeal (e.g., due to a combat deployment), you may also be entitled to an additional 90 days after active duty service terminates before the 120-day appeal period (or remainder of the appeal period) begins to run. How do I appeal to the United States Court of Appeals for Veterans Claims? Send your Notice of Appeal to the Court at: Clerk, U.S. Court of Appeals for Veterans Claims 625 Indiana Avenue, NW, Suite 900 Washington, DC 20004-2950 You can get information about the Notice of Appeal, the procedure for filing a Notice of Appeal, the filing fee (or a motion to waive the filing fee if payment would cause financial hardship), and other matters covered by the Court's rules directly from the Court. You can also get this information from the Court's website on the Internet at: http://www.uscourts.cavc.gov, and you can download forms directly from that website. The Court's facsimile number is (202) 501-5848. To ensure full protection of your right of appeal to the Court, you must file your Notice of Appeal with the Court, not with the Board, or any other VA office. How do I file a motion for reconsideration? You can file a motion asking the Board to reconsider any part of this decision by writing a letter to the Board clearly explaining why you believe that the Board committed an obvious error of fact or law, or stating that new and material military service records have been discovered that apply to your appeal. It is important that your letter be as specific as possible. A general statement of dissatisfaction with the Board decision or some other aspect of the VA claims adjudication process will not suffice. If the Board has decided more than one issue, be sure to tell us which issue(s) you want reconsidered. Issues not clearly identified will not be considered. Send your letter to: Litigation Support Branch Board of Veterans' Appeals P.O. Box 27063 Washington, DC 20038 VA FORM DEC 2016 4597 Page 1 CONTINUED ON NEXT PAGE Remember, the Board places no time limit on filing a motion for reconsideration, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to vacate? You can file a motion asking the Board to vacate any part of this decision by writing a letter to the Board stating why you believe you were denied due process of law during your appeal. See 38 C.F.R. 20.904. For example, you were denied your right to representation through action or inaction by VA personnel, you were not provided a Statement of the Case or Supplemental Statement of the Case, or you did not get a personal hearing that you requested. You can also file a motion to vacate any part of this decision on the basis that the Board allowed benefits based on false or fraudulent evidence. Send this motion to the address on the previous page for the Litigation Support Branch, at the Board. Remember, the Board places no time limit on filing a motion to vacate, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to revise the Board's decision on the basis of clear and unmistakable error? You can file a motion asking that the Board revise this decision if you believe that the decision is based on "clear and unmistakable error" (CUE). Send this motion to the address on the previous page for the Litigation Support Branch, at the Board. You should be careful when preparing such a motion because it must meet specific requirements, and the Board will not review a final decision on this basis more than once. You should carefully review the Board's Rules of Practice on CUE, 38 C.F.R. 20.1400-20.1411, and seek help from a qualified representative before filing such a motion. See discussion on representation below. Remember, the Board places no time limit on filing a CUE review motion, and you can do this at any time. How do I reopen my claim? You can ask your local VA office to reopen your claim by simply sending them a statement indicating that you want to reopen your claim. However, to be successful in reopening your claim, you must submit new and material evidence to that office. See 38 C.F.R. 3.156(a). Can someone represent me in my appeal? Yes. You can always represent yourself in any claim before VA, including the Board, but you can also appoint someone to represent you. An accredited representative of a recognized service organization may represent you free of charge. VA approves these organizations to help veterans, service members, and dependents prepare their claims and present them to VA. An accredited representative works for the service organization and knows how to prepare and present claims. You can find a listing of these organizations on the Internet at: http://www.va.gov/vso/. You can also choose to be represented by a private attorney or by an "agent." (An agent is a person who is not a lawyer, but is specially accredited by VA.) If you want someone to represent you before the Court, rather than before the VA, you can get information on how to do so at the Court’s website at: http://www.uscourts.cavc.gov. The Court’s website provides a state-by-state listing of persons admitted to practice before the Court who have indicated their availability to the represent appellants. You may also request this information by writing directly to the Court. Information about free representation through the Veterans Consortium Pro Bono Program is also available at the Court’s website, or at: http://www.vetsprobono.org, mail@vetsprobono.org, or (855) 446-9678. Do I have to pay an attorney or agent to represent me? An attorney or agent may charge a fee to represent you after a notice of disagreement has been filed with respect to your case, provided that the notice of disagreement was filed on or after June 20, 2007. See 38 U.S.C. 5904; 38 C.F.R. 14.636. If the notice of disagreement was filed before June 20, 2007, an attorney or accredited agent may charge fees for services, but only after the Board first issues a final decision in the case, and only if the agent or attorney is hired within one year of the Board’s decision. See 38 C.F.R. 14.636(c)(2). The notice of disagreement limitation does not apply to fees charged, allowed, or paid for services provided with respect to proceedings before a court. VA cannot pay the fees of your attorney or agent, with the exception of payment of fees out of past-due benefits awarded to you on the basis of your claim when provided for in a fee agreement. Fee for VA home and small business loan cases: An attorney or agent may charge you a reasonable fee for services involving a VA home loan or small business loan. See 38 U.S.C. 5904; 38 C.F.R. 14.636(d). Filing of Fee Agreements: If you hire an attorney or agent to represent you, a copy of any fee agreement must be sent to VA. The fee agreement must clearly specify if VA is to pay the attorney or agent directly out of past-due benefits. See 38 C.F.R. 14.636(g)(2). If the fee agreement provides for the direct payment of fees out of past-due benefits, a copy of the direct-pay fee agreement must be filed with the agency of original jurisdiction within 30 days of its execution. A copy of any fee agreement that is not a direct-pay fee agreement must be filed with the Office of the General Counsel within 30 days of its execution by mailing the copy to the following address: Office of the General Counsel (022D), Department of Veterans Affairs, 810 Vermont Avenue, NW, Washington, DC 20420. See 38 C.F.R. 14.636(g)(3). The Office of the General Counsel may decide, on its own, to review a fee agreement or expenses charged by your agent or attorney for reasonableness. You can also file a motion requesting such review to the address above for the Office of the General Counsel. See 38 C.F.R. 14.636(i); 14.637(d). VA FORM DEC 2016 4597 Page 2 SUPERSEDES VA FORM 4597, APR 2015, WHICH WILL NOT BE USED