Citation Nr: 21032376 Decision Date: 05/26/21 Archive Date: 05/26/21 DOCKET NO. 15-35 869 DATE: May 26, 2021 ORDER Entitlement to service connection for Meniere's disease is granted. REMAND Entitlement to service connection for acquired psychiatric disorder, to include as secondary to Meniere's disease, is remanded. FINDING OF FACT The Veteran had chronic symptoms of Meniere's disease in service. CONCLUSION OF LAW Resolving this reasonable doubt in the Veteran's favor, the criteria are met for entitlement to service connection for Meniere's disease. 38 U.S.C. §§ 1101, 1112, 1113, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from November 1995 to May 1998. This matter comes before the Board of Veterans' Appeals (Board) on appeal of an August 2013 rating decision of the St. Petersburg, Florida, Regional Office (RO). The matter was remanded by the Board in March 2019 for further evidentiary development. The Board finds that there has been substantial compliance with its remand directives and the claims are appropriate for adjudicative action. Service Connection In order to establish service connection on a direct basis, the record must contain competent evidence of: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F. 3d 1163, 1167 (Fed. Cir. 2004). In the absence of proof of a present disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F. 3d 1039, 1043 (Fed. Cir. 1994). Certain chronic diseases, including arthritis will be presumed related to service if they were shown as chronic in service (or within a presumptive period) and there are subsequent manifestations of the same chronic diseases; or if they manifested to a compensable degree within a presumptive period following separation from service (in most cases, one year); or if they were noted in service, with continuity of symptomatology since service. See 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive and provide the reasons for its rejection of any material evidence favorable to the veteran. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994). Competent medical evidence is evidence provided by a person qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises, authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence is evidence provided by a person who has knowledge of facts or circumstances of matters that can be observed and described that do not require specialized medical or scientific education, training, or experience. 38 C.F.R. § 3.159(a)(2). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). After determining that the evidence is competent, the Board must then determine if the evidence is credible. Competency is distinguished from credibility as competency involves a determination whether evidence may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Layno v. Brown, 6 Vet. App. 465, 469 (1994). In this effort, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 511 (1995); Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). Board determinations with respect to the weight and credibility of evidence are factual determinations going to the probative value of the evidence. Layno, 6 Vet. App. at 465. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the Federal Circuit has held that the Board must review the entire record but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim on appeal. After determining the competency and credibility of evidence, the Board must then weigh its probative value. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Entitlement to service connection for Meniere's disease The Veteran contends that she has Meniere's disease that had its onset in, was aggravated by or is otherwise related to service. After review of the relevant evidence, the Board agrees. Review of the service treatment records reflects that in the Veteran's enlistment report and medical prescreening report, the Veteran specifically denied dizziness or fainting spells and ear trouble or loss of hearing. In an April 1996 visit, she complained of coughs and dizziness. In an April 1997 visit, she presented with shortness of breath and episodes of dizziness. She had a clinic visit in May 1997 for complaints of dyspnea and frequent dizziness. Private treatment records reflect the Veteran's visits between April and June 2008 to a hearing and balance center to address the Veteran's complaints of dizziness, hearing loss, ear pain and ringing in her ears. Testing revealed abnormal random saccades and 50 percent reduction in vestibular response in the right ear as compared to the left ear. In January and February 2011, an ENT group performed audiologic testing on the Veteran which revealed 100 percent speech discrimination and all thresholds below 26 in January 2011. In February 2011 the right ear demonstrated hearing thresholds above 26 at 2000, 3000 and 4000 HZ. In April 2012, the Veteran presented with a 5-year history of vertigo, blurred vision, and imbalance. She had recently developed ringing and pressure in her right ear with worsening symptoms over the past two months. The otolaryngologist noted a mild high-frequency hearing loss in the right ear with episodic vertigo consistent with Meniere's disease. Between May and June 2012, she had four visits in which she was treated with Decadron (steroid) injections for her persistent imbalance and episodes of vertigo. In August 2012, the Veteran was seen at the Mayo Clinic for audiological evaluation of her dizziness and dysequilibrium, fluctuating hearing loss and tinnitus bilaterally associated with aural pressure and intermittent right ear pain. She reported modest problems understanding speech on a daily basis. Audiologic testing was normal on that day. She had abnormal vestibular function testing. In October 2012, the Veteran's treating ENT physician provided an opinion statement regarding the Veteran's dizziness and vestibular dysfunction. He noted after review of her STRs that she had headaches and dizziness in September 1996. Accordingly, the board-certified otolaryngologist (ENT) found that it is as likely as not that her present problems with dizziness began when she was in service. VA records reflect a May 2012 visit in which the Veteran stated that she wished to transfer her care for her Meniere's disease from her private ENT to a VA ENT physician. In June and July 2012, the Veteran was seen by audiology and neurology for dizziness and nausea that persisted in spite of medication. The Veteran reported that her problems with dizziness worsened in 2008. There was a period of improvement allowing her to function at work on days when she was not dizzy. Recently the symptoms had increased, and she was afraid to leave the house as she did not know when she would get dizzy. She reported a constant feeling of imbalance, constant right-sided tinnitus, which is worse at night. Her symptoms were starting to occur in the left ear. She received a course of physical therapy in which she demonstrated difficulties walking with a straight cane and was issued a 4-wheel walker for increased stability with ambulation. The Veteran was afforded a VA examination for ear disorders in June 2013. A diagnosis of Meniere's syndrome was provided. It was noted that the Veteran's service treatment records showed complaints of dizziness associated with an upper respiratory infection (URI) while in service. The VA examiner also noted that the Veteran had been evaluated in 2012 for vertigo and balance problems. The VA examiner opined that the Veteran's condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The VA examiner stated that it would be mere speculation to state that the symptoms of dizziness during service are related to current findings; per medical records, the Veteran's present symptoms did not occur until early 2000s. The Veteran underwent a second examination for ear disorders in November 2019 in support of her claim for service connection for Meniere's disease. The Veteran provided a history to the examiner of the first episodes of dizziness in the military in 1996 or 1997 when she became short of breath, dizzy and nauseous while cutting grass. The Veteran indicates that she told her physicians about ringing in her ears that began prior to separation from service. She dealt with her symptoms for 10 years until she had a bad episode at her desk and couldn't stand up. At that time, she had symptoms in both ears and was always unsteady. The examiner concluded that the Meniere's disease was less likely than not incurred in or caused by service. As rationale he noted no significant indication of vestibular dysfunction in 2012 or 2016 in private provider notes. As rationale the examiner stated that her dizziness was related to heat and concern over bad job performance without further mention of dizziness. Her current symptoms resemble severe anxiety and not Meniere's disease although a treating physician diagnosed Meniere's disease after objective testing. There is a dispute based upon the VA examiner opinion as to each of the three elements of service connection -whether there is a current disability of Meniere's syndrome, an inservice incurrence, and a nexus between the Veteran's current symptoms to service. The Board finds that the first prong of service connection is satisfied based upon objective medical evidence of a current disability from a board-certified otolaryngologist; an inservice incurrence, the second prong of service connection, is satisfied with the Veteran's repeated reports to sick call with episodes of dizziness in service. Further, the Board observes that the opinions of the VA examiners regarding inservice onset are flawed given that neither accounted for the Veteran's repeated visits with complaints of frequent episodes of dizziness in service over a period of 30 months. In addition, the second examiner's attribution of her symptoms to anxiety does not account for the Veteran's objective testing, her dysequilibrium, tinnitus or ear pain. The primary care VA physician examiner dismissed the Veteran's symptoms as anxiety while noting that an otolaryngologist, a specialist in ear diseases, diagnosed Meniere's disease based upon objective testing. The Board accordingly assigns limited probative value to the nexus opinions of the VA examiners. See Gabrielson, 7 Vet. App. at 39-40. The Board finds it difficult to sever the Veteran's repeated description of episodes of dizziness in service through 1998 from her treatment for imbalance and dizziness from 2008 forward. More importantly, the Veteran's treating physician and board-certified otolaryngologist provided a positive nexus opinion based upon review of the Veteran's service records, abnormal test results and his treatment of the Veteran. The Board assigns a high degree of credibility to this opinion. The Board finds that the evidence is in relative equipoise (meaning about evenly balanced for versus against the claim) concerning whether the Veteran's Meniere's disease is related to or the result of his service. In this circumstance, this reasonable doubt is resolved in his favor and the claim granted rather than denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND Entitlement to service connection for acquired psychiatric disorder, to include as secondary to Meniere's disease The Veteran was afforded a VA examination in June 2013, and diagnoses of major depressive disorder and anxiety disorder were provided. The Veteran claims that her acquired psychiatric disorder is secondary to her claimed Meniere's disease disability. The theory of entitlement on a secondary basis presupposes that there is an underlying service-connected disability. See 38 C.F.R. § 3.310. As the issue was inextricably intertwined with the issue of entitlement to service connection for Meniere's disease, the Board deferred adjudication of the acquired psychiatric disorder claim pending resolution of the inextricably intertwined issue. See Harris v. Derwinski, 1 Vet. App. 180 (1991). As the Veteran has now been service-connected for Meniere's disease with the instant decision, further evidentiary development is required in order to adjudicate the claim. The matter is REMANDED for the following action: 1.Schedule the Veteran for a VA mental health examination conducted by a psychiatrist or psychologist to determine the nature and etiology of any acquired psychiatric disorder found to be present. The examiner should review the entire claims file. All necessary tests and studies should be conducted. The examiner is asked to address the following: a. Is it at least as likely as not (50 percent or greater probability) that any currently identified acquired psychiatric disorder is attributable to her military service? b. Is it at least as likely as not (50 percent or greater probability) that any currently identified acquired psychiatric disorder was caused by the Veteran's service-connected Meniere's disease? c. It is it at least as likely as not (50 percent or greater probability) that any currently identified acquired psychiatric disorder was aggravated (increased in severity beyond the natural progress of the condition) by the Veteran's service-connected Meniere's disease? If aggravation is found, the examiner should provide the baseline manifestations of the Veteran's acquired psychiatric disorder prior to aggravation by the service-connected Meniere's disease. A complete rationale must be provided for all opinions expressed and conclusions reached. The examiner's attention is directed to the Veteran's endorsement of nervous trouble of any sort and denial of depression on her enlistment examination. 2. If the benefit sought remains denied, a Supplemental Statement of the Case should be prepared and after allowing a period for response, the claim should be returned to the Board. KRISTI L. GUNN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Adams Hill, 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.