Citation Nr: 21025942 Decision Date: 04/29/21 Archive Date: 04/29/21 DOCKET NO. 15-27 744 DATE: April 29, 2021 ORDER Entitlement to service connection for Meniere’s disease (claimed as vertigo) is denied. REMANDED Service connection for ear infections is remanded. FINDING OF FACT The Veteran’s Meniere’s disease did not manifest in service, is not otherwise related to his period of active duty, and is not caused or aggravated by his service-connected left ear hearing loss. CONCLUSION OF LAW The criteria for service connection for Meniere’s disease have not been met. 38 U.S.C. §§ 1101,1110, 1112, 1113, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the Army from June 1974 to June 1977. This matter comes before the Board of Veterans’ Appeals (BVA) on appeal from an April 2013 rating decision of a Department of Veterans’ Affairs Regional Office (RO). The Veteran’s initial claim of service connection was one of ear infections with vertigo based on an April6, 2012, correspondence. The April 2013 rating decision denied service connection for ear infection and vertigo. The Veteran timely appealed. The May 2015 Statement of the Case (SOC) characterized the claim as service connection for otitis externa and vertigo. The Veteran perfected the appeal. In the March 2019 decision, the Board characterized the issue as one only of vertigo. The Veteran has submitted lay statements continuing to raise the issue of ear infections. As the issue has not yet been adjudicated by the Board, it is still pending, and the Board addresses it here as an issue separate from that of Meniere’s disease. VA’s Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), in part, describes VA’s duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; Honoring America’s Veterans and Caring for Camp Lejeune Families Act of 2012. 38 U.S.C. §§ 5102, 5103, 5103A; 38 C.F.R. §§ 3.102, 3.156(a), 3.159; Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). The Board finds that the September 2012 letter sent to the Veteran satisfies the duty to notify. Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). The VCAA requires the VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c), (d). This “duty to assist” contemplates that VA will help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). The Board finds that the duty to assist has been satisfied. In that regard, VA examination reports, Veteran’s service treatment records, VA and private treatment records, the hearing transcript and lay statements have all been associated with the record. The Veteran testified at the October 2018 Board hearing that treatment records prior to 2006 were destroyed in Hurricane Katrina, both at his home and at the medical provider’s office. He indicated that they would be unavailable for VA to obtain. The case was previously remanded in March 2019 and November 2020. Where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. Stegall v. West, 11 Vet. App. 268, 271 (1998). In this case, in March 2019, the Board remanded the case to obtain a VA opinion addressing whether the Veteran’s vertigo disability was secondary to his service-connected left ear hearing loss disability. A VA opinion was issued in November 2019, concluding that while the file clearly shows that the Veteran has left ear hearing loss and Meniere's disease, there is no medical literature that supports hearing loss as a cause of Meniere's disease. The examiner also stated that it is less likely than not that the Veteran's Meniere's disease was aggravated beyond its natural progression by his left ear hearing loss. The November 2019 opinion was adequate because the examiner rendering the opinion reviewed the evidence of record, including Veteran’s statements and provided a reasoned medical explanation and analysis of the case. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Accordingly, the Board finds that the RO has substantially complied with the Board's March 2019 remand instructions. Stegall, 11 Vet. App. at 268, 271. In November 2020, the Board recharacterized the claim of service connection for vertigo as one for Meniere's disease and again remanded the case and requested an opinion to address the question of whether the Veteran's Meniere's disease is related to acoustic trauma and multiple ear infections in service. A VA medical opinion was issued in December 2020. This opinion was adequate because the examiner rendering the opinion reviewed the evidence of record, including Veteran’s statements and provided a reasoned medical explanation and analysis of the case, including addressing the question of a nexus between the Veteran’s Meniere’s disease and acoustic trauma and multiple ear infections in service. Barr, 21 Vet. App. at 303. Accordingly, the RO has substantially complied with the Board’s November 2020 remand instruction. Stegall v. West, 11 Vet. App. 268, 271. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev’d on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). 1. Service connection for Meniere’s disease (vertigo), including as secondary to hearing loss. The Veteran seeks service connection for Meniere’s disease, originally claimed as vertigo. The Veteran and his representative assert that the Veteran is entitled to service-connection because his Meniere’s disease is caused or aggravated by hearing loss which is linked to loud noise exposure during service from airplanes and his work listening to high pitched code and radio frequency sounds as a Morse operator and teletype interceptor. In a September 2012 statement, the Veteran asserts that he has bouts of vertigo due to “ear problems I first experienced during my military service.” In his July 2015 VA Form 9, the Veteran stated that he did not report symptoms or seek treatment while on active duty because his goal at that time was to return to work as quickly as possible: “If I was aware of potential hearing loss and vertigo that I am currently experiencing, I would have been more proactive about what I reported to the military doctors that assisted me.” He testified at the October 2018 Board hearing that he noticed this symptom in 2006. The Board also analyzes service connection on a secondary theory as it was raised by the record. 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). The first question for the Board is whether the Veteran has a current disability (Meniere's disease) that began during service or is at least as likely as not related to an in-service injury, event, or disease. While the Veteran has a diagnosis of Meniere’s disease, and evidence shows that he has a history of hearing loss and ear infections, and was subjected to hazardous noise in his work in service, the preponderance of the evidence weighs against finding that Meniere’s disease manifested during service or that it was related to an in-service injury, event, or disease. There are no diagnoses or symptoms of Meniere’s disease or vertigo in any of the Veteran’s service treatment records. During service the Veteran was treated for ear infections in August 1974, September 1974, and September 1976. In April 1977, he was treated for a streptococcus throat infection. Hearing loss was not present on the May 1977 audiogram at separation, and the May 1977 separation examination also shows a normal clinical evaluation of the ears, head, ocular motility, and neurologic systems. The Veteran endorsed ear, nose, or throat trouble in the March 1977 Report of Medical History. Importantly, the Veteran denied dizziness on that report. The Veteran argues that that he did not report dizziness and ear ringing while in service because he wanted to return to work quickly. The Board finds, however, that the contemporaneous service medical records are more probative than this statement that was made more than 30 years after service and relies upon memory. Curry v. Brown, 7 Vet. App. 59, 68 (1994) (noting that contemporaneous evidence has greater probative value than history as reported by the Veteran). Post-service, the earliest treatment document in the file noting vertigo is dated June 2006. It is a hospital emergency room record, which shows a diagnosis of barometric-related labyrinthitis/mastoiditis. At that visit, the Veteran reported popping ears and dizziness during and after a previous night’s plane flight. The examination revealed otitis serous and noted high blood pressure medication non-compliance. The Veteran’s self-report at his November 2019 VA examination was that onset was in 2006 as well, as was his testimony at his Board hearing. The Board finds that the Veteran was reporting vertigo for the first time at the June 2006 treatment visit. This finding is supported by his hearing testimony and his self-report at his November 2019 VA examination. . At a December 2012 VA treatment visit to test for vertigo, the Veteran reported the onset of episodic vertigo symptoms in 2000 with pressure changes in altitude. He reported chronic ear infections since the military, but he did not report dizziness since the military. At a February 2013 VA ear disease examination, the Veteran reported having episodes of unsteadiness and vertigo for the past seven years. In August 2015 private treatment records, the Veteran reported episodes of dizziness since 2006. The Board finds the reports in treatment records, his hearing testimony, and his and VA examinations, and the denial of dizziness by the Veteran at separation from service to greatly outweigh the Veteran’s later claim that dizziness was present during service, but he did not want to delay his separation by reporting it. The credibility of this statement is diminished by the fact that the Veteran reported other medical problems such as ear, nose and throat trouble and hearing loss at separation from service. Additionally, the Veteran testified that he noticed vertigo in 2006. This, along with the numerous other medical records in which the Veteran reported the onset of dizziness to be no earlier than 2000, are more probative than the statements that dizziness began in service and continued since service. The December 2012 VA examiner noted that the Veteran started experiencing vertigo with extreme changes in altitude. He used to travel for his consulting occupation, though states he can no longer fly because of his vertigo dizziness. He also reported "a history of ear infections in-service and intermittent infections until recently." The December 2020 VA examiner opined that Meniere’s disease was not related to an in-service injury, event, or disease. The rationale was that ear infections do not affect the vestibular system, there is no evidence of residuals in service or continuity after service. He noted Meniere’s disease was first diagnosed in 2009 and stated that cerumen impaction (ear wax build-up) and otitis externa noted in the Veteran’s service treatment records do not affect the vestibular system, and that there is no evidence of otitis media or otitis interna during service. Additionally, the examiner stated that Meniere’s disease is unrelated to acoustic trauma or ear infections, and that it is unlikely that vertigo symptoms would go unreported while in service or for 30 years thereafter. The probative value of medical opinion evidence is based on the medical expert’s personal examination of the patient, the physician’s knowledge and skill in analyzing the data, and the medical conclusion that the physician reaches. Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). Other factors for assessing the probative value of a medical opinion are the physician’s access to the claims folder and the thoroughness and detail of the opinion. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000); Nieves-Rodriguez, 22 Vet. App. 295 (2008). Here, the December 2020 VA opinion is also shown to have been based on a review of the Veteran’s record and is accompanied by a sufficient explanation as to why the Veteran’s Meniere's disease symptoms are not related to service. The Board thus places more probative weight on the December 2020 VA opinion than on the 2015 ENT clinic letters. The medical treatment documents since discharge, VA examination reports, and the Veteran's statements made to his medical providers point to other more plausible factors in vertigo causation unrelated to acoustic trauma and ear infections, specifically a change in altitude and ear pressure while flying during consulting work trips and uncontrolled high blood pressure. Also, it is probative that the Veteran’s in-service ear infections were not the type that are a cause of Meniere’s disease. The Veteran is competent to report symptoms of dizziness, decreased hearing, and earaches, and he is competent to report when he first noticed these symptoms. The Veteran in this case is not competent to provide a nexus opinion regarding the issue of when his Meniere’s disease began and whether it is related to service. The issue is medically complex, as it requires knowledge of the sensorineural system and interpretation of complicated diagnostic medical testing. Therefore, it is outside the competence of the Veteran in this case because the record does not show that he has the medical training or credentials to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Therefore, the Veteran’s statement linking Meniere’s disease to service is not evidence the Board can consider. In a March 2021 appeal brief, the Veteran’s representative raises the issue that the Veteran had symptoms of vertigo in service and continuously since service. Presumption of service connection based on continuity of symptomatology is applicable only to those diseases listed as chronic in 38 C.F.R. §§ 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Neither Meniere’s disease nor vertigo alone are included in the list of chronic diseases outlined therein and the evidence shows that Meniere’s disease is a vestibular system disorder, not a nervous system disorder. Presumptive service connection is not warranted. Additionally, the most probative evidence, as discussed above, shows that onset of this condition was in 2006. The theory of secondary service connection was raised by the record. Service connection may also be granted for a disability that is proximately due to, or aggravated by, a service-connected disease or injury. 38 C.F.R. § 3.310. The Board concludes that, while the Veteran has a current disability of Meniere's disease, the preponderance of the evidence is against finding that the Veteran’s Meniere's disease is proximately due to or the result of, or aggravated beyond its natural progression by service-connected left ear hearing loss. 38 U.S.C. §§ 1110, 1131; Allen v. Brown, 7 Vet. App. 439 (1995) (en banc); 38 C.F.R. § 3.310(a). A November 2019 VA examiner stated that "there is no evidence in the veteran's records that suggests that his hearing loss has aggravated the condition of Meniere's disease (claimed as vertigo)." He concluded that "there is no medical evidence to suggest that hearing loss worsens Meniere's disease. Thus, it is less likely than not that the Veteran's Meniere's disease was aggravated beyond its natural progression by the left ear hearing loss. A nexus has not been established." Also, the December 2020 VA examiner offered a similar opinion, stating that he found no evidence supporting a link between the Veteran's Meniere's disease diagnosis after 2000 and earlier hearing loss. He stated: "While the Veteran clearly has hearing loss as well as Meniere's disease, there is no medical literature that supports hearing loss as a cause of Meniere's disease. Without medical literature to support the statement that hearing loss causes Meniere's disease, there can be no secondary connection made. " The Veteran believes his Meniere’s is proximately due to, or the result of or aggravated beyond its natural progression by his service-connected left ear hearing loss disability. The Veteran in this case is not competent to provide a nexus opinion regarding this issue. The issue is medically complex, as it requires knowledge of the sensorineural system and the ability to interpret complicated diagnostic medical testing. Therefore, it is outside the competence of the Veteran in this case because the record does not show that he has the skills or medical training to make such a determination. Jandreau, 492 F.3d at 1377 n.4; see also Kahana, 24. Vet. App. 428. Consequently, the Board gives more probative weight to the November and December 2020 examiners’ reports. The 2019 and 2020 VA opinions were provided by VA medical professionals who possesses the necessary education, training, and expertise to provide the requested opinions. Additionally, these opinions are also shown to have been based on a review of the Veteran’s claims file and are accompanied by a sufficient explanation as to why the Veteran’s Meniere's disease symptoms are not related to service, or caused or aggravated by his service-connected left ear hearing loss. The VA examiners' opinions are based upon a thorough review of all the treatment records and extensive medical training. Therefore, the Board gives more probative weight to these opinions than to the Veteran’s lay statements. For the reasons stated above, the Board finds the preponderance of the evidence is against the Veteran’s claim for service connection for Meniere’s disease (vertigo), including secondary to hearing loss. There is no reasonable doubt to be resolved, and the claim for service connection is denied. REASONS FOR REMAND 1. Service connection for ear infections is remanded. The Board cannot make a fully-informed decision on the issue of service connection related to otitis media (middle ear infections) because no VA examiner has opined whether the in-service ear infections are related to ear infections noted in his private treatment records. The Veteran asserts that he has had recurrent ear infections since service. Accordingly, the duty to provide a VA examination has been triggered. McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). Although a VA examination was rendered for ear infections in February 2013, no medical opinion was rendered. The matters are REMANDED for the following action: 1. Provide the Veteran’s claims file to an appropriate clinician to provide an opinion regarding whether the Veteran’s recurrent inner ear infections noted in his private treatment records since service are least likely as not related to ear infections in service. An examination is required only if deemed necessary by the clinician. The clinician must determine whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s recurrent ear infections began during active service or are related to service. The clinician must provide a complete rationale for his or her opinion(s) in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the clinician must state this and provide a rationale for such conclusion. (Continued on the next page)   2. If upon completion of the above action the benefit remains denied, the case should be returned to the Board after compliance with appellate procedure. D. Martz Ames Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Kathleen M. Fiorillo, 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.