Citation Nr: 21032296 Decision Date: 05/26/21 Archive Date: 05/26/21 DOCKET NO. 19-27 221 DATE: May 26, 2021 ORDER New and material evidence having been received, the Veteran's claim for entitlement to service connection for chronic vertigo is reopened. Entitlement to service connection for chronic vertigo is granted. FINDINGS OF FACT 1. A final September 2003 rating decision declined to reopen service connection claims for chronic vertigo on the basis that new and material evidence had not been received; newly received evidence provides a more complete picture of the circumstances surrounding the origin of the claimed disability. 2. Evidence added to the record since the September 2003 rating decision was not previously before agency adjudicators and tends to prove or disprove at matter at issue in the previously denied claim. 3. The weight of the evidence is at least in relative equipoise as to whether the Veteran has chronic vertigo that is related to his military service. CONCLUSIONS OF LAW 1. Evidence received to reopen the claim of entitlement to service connection for chronic vertigo is new and material and the claim is reopened. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103. 2. The criteria for service connection for chronic vertigo loss have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from September 1960 to September 1963. This matter is before the Board of Veterans' Appeal (Board) on appeal from a September 2016 rating decision issued by the Department of Veteran Affairs (VA) Regional Office (RO). The Veteran appeared at a hearing before the undersigned Acting Veterans Law Judge in November 2020. A transcript of the hearing is in the Veteran's file. NEW AND MATERIAL EVIDENCE Whether new and material evidence has been received to reopen a claim of entitlement to service connection for chronic vertigo. The Veteran is seeking to reopen his service connection claim for chronic vertigo. VA may reopen a claim for service connection which has been previously and finally disallowed when new and material evidence has been presented or secured since the last final disallowance of the claim. 38 U.S.C. § 5108; Evans v. Brown, 9 Vet. App. 273, 285 (1996). In this regard, "new evidence" means existing evidence not previously submitted to VA. "Material evidence" means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. Taken in combination, new and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). New evidence may be sufficient to reopen a claim if it can contribute to a more complete picture of the circumstances surrounding the origin of a claimant's injury or disability, even where it would not be enough to convince the Board to grant a claim. Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998); Justus v. Principi, 3 Vet. App. 510, 512-13 (1992). Thus, the Board must first determine whether new and material evidence has been submitted under 38 C.F.R. § 3.156(a) to have a claim reopened under 38 U.S.C. § 5108. Elkins v. West, 12 Vet. App. 209 (1999). Then the Board may proceed to evaluate the merits of the claim after ensuring that VA's duty to assist has been fulfilled. See Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999). The law should be interpreted to enable reopening of a claim, rather than to preclude it. See Shade v. Shinseki, 24 Vet. App. 110 (2010). To determine whether new and material evidence has been submitted, it is necessary to consider all evidence added to the record since the last time the claim was denied on any basis in conjunction with the evidence already of record. Historically, the Veteran has solicited service connection for chronic vertigo on multiple occasions. As it relates to this appeal, a September 2003 rating decision declined to reopen the claim on the basis that new and material evidence had not been received. The Veteran did not perfect a timely appeal as to the matter or submit documentation constituting new and material evidence within the appropriate appeal period, such that the September 2003 rating decision became final. The Veteran next requested to reopen the claims in June 2016. Upon review of the record, new and material evidence has been received since the final September 2003 rating decision. Importantly, the Veteran has private medical opinion linking his chronic vertigo to his active duty service. See May 2020 Private Opinions. Thus, evidence received since the final September 2003 rating decision provides a more complete picture of the circumstances surrounding the origin of the claimed disability. Upon a finding of new and material evidence, the application to reopen the service connection claim for chronic vertigo is hereby granted. SERVICE CONNECTION Entitlement to service connection for chronic vertigo. The Veteran is seeking service connection for chronic vertigo. 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). Here, the Veteran contends that he currently suffers from vertigo that is related to his active service. For the reasons that follow, his claim shall be granted. First, both VA and private treatment records clearly demonstrate that the Veteran has been diagnosed as suffering from vertigo. As to the second element for direct service connection, in-service incurrence or aggravation of a disease or injury, the Veteran contends that he experienced vertigo and motion sickness during an in-service flight, in which he was hospitalized for three days in Japan due to imbalance and dizziness. . The Board notes that the Veteran is competent to give evidence about what he experienced, and exposure to noise is subject to lay observation. See e.g., Layno v. Brown, 6 Vet. App. 465 (1994); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1337 (2006). Moreover, the Board notes that the Veteran's report is consistent with the Veteran's active duty service. Therefore, the Veteran experienced imbalance and dizziness during service, and the in-service incurrence criterion is met. The Veteran's claim has been denied on the basis that his vertigo is less likely than not related to his active service. There are competing opinions as to this issue. In support of his contention, the Veteran has submitted opinions from Dr. W.J. Azeredo, and Dr. M. Koziciki. See May 2020 Private Opinions. Both Dr. Azeredo and Dr. Koziciki found that the Veteran's current vertigo were the result of the Veteran's active service, to include experiencing imbalance and dizziness after an in-service flight. In weighing these opinions, the Board finds that the evidence is at least in relative equipoise. In such situations, benefit of the doubt must be afforded to the Veteran. Doing so here resolves the final element of service connection in his favor. J. NICHOLS Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Higgins, J.R. 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.