Citation Nr: 21026196 Decision Date: 04/30/21 Archive Date: 04/30/21 DOCKET NO. 16-11 153 DATE: April 30, 2021 ORDER Entitlement to service connection for vertigo is denied. FINDING OF FACT The Veteran has not had a vertigo diagnosis or separate disability to account for his dizziness at any time during the pendency of the claim. Rather, it is a symptom of his already service-connected ear disabilities. CONCLUSION OF LAW The criteria for entitlement to service connection for vertigo have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1154, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served active duty in the United States Marine Corps from May 1989 to May 1993. He is a combat Veteran of the Persian Gulf War. This matter comes to the Board of Veterans’ Appeals (Board) on appeal of a September 2011 rating decision of the Department of Veteran Affairs (VA) Regional Office (RO) in Detroit, Michigan. In February 2019, the Veteran presented testimony in a videoconference hearing before a now-retired Veterans Law Judge. As law requires the judge conducting hearings on an appeal also participate in any disposition of that appeal, the Veteran was given the opportunity to request a new hearing in correspondence dated February 2021. 38 U.S.C. § 7102(d), 7104(d); 38 C.F.R. § 20.106(a), 20.604. The Veteran did not respond within the applicable time frame; therefore, the Board will proceed with adjudicating the appeal. A complete copy of the hearing transcript has been associated with the claims file and utilized in this decision. See, 38 U.S.C. § 20.712. In May 2019, the Board remanded the issue on appeal for additional development, and the case has since been returned for further appellate review. A remand by the Board confers on the claimant a legal right to substantial compliance with the remand order. Stegall v. West, 11 Vet. App. 268 (1998). The Board’s 2019 remand directed the RO to obtain outstanding treatment records, which have been associated with the claims file. The Board’s remand also instructed the RO to provide the Veteran with an in-person examination to determine the nature and etiology of any condition associated with his symptoms of dizziness. An exam was provided in November 2019 and an August 2020 addendum was submitted. As such, substantial compliance has been achieved. Id. at 271. Service Connection 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). Organic diseases of the nervous system are considered chronic diseases that will be presumed related to service if they were noted or diagnosed as chronic in service; or if they manifested to a compensable degree within one year after active duty discharge; or if chronicity or continuity of the same symptomatology has existed since service, with no intervening cause. 38 U.S.C. §§ 1101, 1112, 1113, 1137. Service connection may also be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310 (a). Establishing service connection on a secondary basis requires evidence sufficient to show: (1) that a current disability exists, and (2) that the current disability was either (a) caused by, or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310 (a); Allen v. Brown, 7 Vet. App. 439 (1995). When there is an approximate balance of positive and negative 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 (b); 38 C.F.R. § 3.102. 1. Entitlement to service connection for vertigo The Veteran contends he is entitled to service connection for vertigo, or more generally, his symptoms of dizziness. He asserts his symptoms are diagnosed separately as vertigo and are the result of his service-connected residuals of ruptured ear drum. Alternatively, the Veteran believes his symptoms are the result of medication related to his service-connected COPD. The Veteran is currently service-connected for multiple disabilities, including COPD and those related to the ear. Specifically, he is service-connected for bilateral hearing loss with chronic non-suppurative otitis media, residuals of ruptured right tympanic membrane, and tinnitus. The question for the Board is whether the Veteran has a current disability that is related to his military service, or whether one was caused or aggravated by a service-connected disability. Upon thorough review of the evidence, the Board concludes the Veteran does not have a separate disability subject to service-connection. Service treatment records are silent to complaints of dizziness or imbalance during active duty. The Veteran denied dizziness and fainting spells at his April and May 1989 entrance physical and dental examination, and again in a November 1992 medial report and 1992 and 1993 questionnaires. However, the evidence shows the Veteran has eustachian tube dysfunction, resulting in a ruptured ear drum during service. Post-service records indicate intermittent symptoms of dizziness from 2001 until present. In 2006, 2008, and December 2011 private treatment records, the Veteran denied vertigo symptoms. However, a December 2011 letter from his private clinician indicates he experiences “intermittent ringing in his ears and some intermittent dizziness.” Records from February 2016 indicate the Veteran reported feeling dizziness, described as imbalance. However, the clinician did not provide a diagnosis of vertigo. The Veteran later denied experiencing vertigo in March and September 2016 treatment records. The Veteran reported experiencing dizziness in May 2019, described as lightheadedness, when he stood up over a two day period. A July 2019 ear, nose, and throat specialist examined the Veteran for his symptoms of dizziness. The Veteran again reported he felt dizzy when he stands up too quickly. The clinician noted the Veteran’s symptoms did not appear otologic, but rather possibly related to cataract issues or blood pressure. The remainder of the Veteran’s VA treatment record is silent for diagnosis of vertigo or symptoms of dizziness and imbalance. The Veteran was provided VA examinations in December 2015 and November 2019. The December 2015 examination revealed the Veteran experienced off and on dizziness when he suddenly get up or looks up quickly. A Dix Hallpike testing revealed normal results with no vertigo or nystagmus. Limb coordination and Romberg testing produced normal results. The examiner opined the Veteran was experiencing subject vertigo without objective evidence in the record or clinical findings from the in-person examination. The Veteran’s November 2019 examiner opined the Veteran’s symptoms of dizziness are subjective in nature only. She reasons it did not occur until 2008 and was less likely than not related to his military service. She concludes his ear condition preexisted military service, relying on the Veteran’s ear tube procedure at age seven being noted on his entrance exam. The Veteran’s symptoms are described as dizziness, or equilibrium, when rising from laying down or looking up. The sensation is described as dizziness but no spinning. The examiner listed the Veteran’s diagnosis of chronic nonsuppurative otitis media but did not provide a separate diagnosis of vertigo. The examiner noted the Veteran experienced vertigo as a symptom of his diagnosis, with weekly occurrences lasting less than one hour. The examiner found an external examination of the ear to be normal, however, noting dry and scaly external ear canal. Scarring was noted at the tympanic membrane with both ears evidencing perforation. Results from a Dix Hallpike, limb coordination, and romberg test were normal. Epley maneuver and Dix Hallpike testing showed a subjective complaint of dizziness but no other clinical findings. The examiner stated, “Similar to the 2015 clinical findings no nystagmus and Dix-Hallpike maneuver produced a report of dizziness but observation did not demonstrate eyes rolling or nystagmus to diagnose with Benign paroxysmal positional vertigo (BPPV), a disorder arising from a problem in the inner ear.” She found the results inconsistent with a diagnosis of vertigo. The examiner noted vertigo is a symptom and not a disease process and can arise from medication, the central nervous system or tumors, neurovascular or ischemia, and alcohol consumption. In an August 2020 clarification, the examiner explained that the Veteran’s symptoms of dizziness are considered a symptom of his service-connected bilateral hearing loss with chronic non-suppurative otitis media. She stated that severe or chronic otitis media may permanently affect hearing and be associated with dizziness and explained that changes in ear pressure can cause dizziness or vertigo. The examiner noted a lack of objective results in order to confirm an inner-ear condition or BPPV. The examiner also concludes it was, therefore, not aggravated by service or any service-connected condition, relying on the lack of in-service records and a lack of current objective findings. The Board finds the cumulative evidence and conclusions in the VA examinations to be highly probative and consistent with the remainder of the evidence. The November 2019 and August 2020 examiner cites medical literature in support of her conclusions and indicates she thoroughly reviewed the Veteran’s claims file. The examiner provided a thorough rationale that is consistent with previous examinations and relies on her medical training. As the examiners concluded his symptoms are due to an already service-connected condition and declined to provide a separate finding of vertigo, an assessment under a secondary theory of entitlement is not warranted. Additionally, the Veteran’s treatment records from ear specialists indicates his symptoms may be caused by independent conditions that are not service-connected and are not reasonably related to his service. Lay evidence can be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). Furthermore, where the determinative issue is one of medical causation, only those with specialized medical knowledge, training, or experience are competent to provide evidence on the issue. See Jones v. West, 12 Vet. App. 460, 465 (1999). The Veteran is competent to report experiencing symptoms of dizziness or imbalance. However, the Board finds him not credible as to having any such symptoms on a chronic or frequently recurring basis continuously since service. There is no evidence of an onset during service. The lapse in time from separation to symptom onset is over a decade and any note of dizziness in post-service records is infrequent. Additionally, although the Veteran believes he has a vertigo disability, he is not shown to be competent to provide a diagnosis on the subject. He does not possess the training, education, or knowledge as this is a medically complex question that requires knowledge of the causes of balance problems and potentially involved neurologic or other systems in the body, as well as interpretation of the Veteran’s medical history and any required testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The existence of a current disability is the cornerstone of a claim for VA disability compensation. See Degmetich v. Brown, 104 F.3d 1328 (1997). While the Board gives significant consideration to the Veteran’s assertions, Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. In the absence of proof of a present disability there can be no valid claim. Brammer v. Brown, 3 Vet. App. 223 (1992). As the preponderance of the evidence is against this claim, the benefit-of-the-doubt doctrine does not apply, and the claim of service connection for vertigo must be denied. See Gilbert v. Derwinski, 1 Vet. App. 49. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Bethany L. Buck Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T.N. Chapman, 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.