Citation Nr: 21039420 Decision Date: 06/30/21 Archive Date: 06/30/21 DOCKET NO. 18-25 562A DATE: June 30, 2021 ORDER Entitlement to service connection for benign paroxysmal positional nystagmus (BPPN), to include as secondary to service-connected bilateral hearing loss and tinnitus is granted. Entitlement to service connection for benign paroxysmal positional vertigo (BPPV) (claimed as vertigo), to include as secondary to service-connected bilateral hearing loss and tinnitus is granted. Entitlement to service connection for Meniere's disease, to include as secondary to service-connected bilateral hearing loss and tinnitus is granted. FINDINGS OF FACT 1. The most probative evidence of record indicates that the Veteran's BPPN was caused or aggravated by his service-connected bilateral hearing loss and tinnitus. 2. The most probative evidence of record indicates that the Veteran's BPPV was caused or aggravated by his service-connected bilateral hearing loss and tinnitus. 3. The most probative evidence of record indicates that the Veteran's Meniere's disease was caused or aggravated by his service-connected bilateral hearing loss and tinnitus. CONCLUSIONS OF LAW 1. BPPN is proximately due to or the result of a service-connected disability. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.102, 3.303, 3.310. 2. BPPV is proximately due to or the result of a service-connected disability. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.102, 3.303, 3.310. 3. Meniere's disease is proximately due to or the result of a service-connected disability. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Air Force from January 1968 to January 1972, with additional periods of service in the reserves. This matter comes to the Board of Veterans' Appeals (Board) from a September 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a virtual hearing in May 2021 before the undersigned Veterans Law Judge (VLJ). A transcript has been associated with the claims file. Law and Analysis Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C. §§ 1110, 1131. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection may also be granted on a secondary basis for disability which is proximately due to or the result of service-connected disease or injury or for additional disability resulting from the aggravation of a nonservice-connected disability by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc); 38 C.F.R. § 3.310. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the weight of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). In considering the evidence of record under the laws and regulations as set forth above, the Board finds that the Veteran is entitled to service connection for Meniere's disease and the associated conditions of BPPN and BPPV. The service treatment records are silent for complaints, treatment or diagnosis of Meniere's disease, vertigo, or nystagmus. The Veteran first complained of recurrent vertigo in October 2012. See October 2012, December 2012 VA treatment records. The Veteran testified that he had some occasional dizziness during reserve service but did not report it because he was afraid of losing his flight status. See May 2021 Board hearing transcript. However, it is clear from the record that he is proceeding primarily on a secondary theory of service connection, alleging that his vertigo, nystagmus, and Meniere's disease are caused or aggravated by his service-connected bilateral hearing loss and tinnitus. Accordingly, the Board will focus on secondary service connection. Dr. J.M., the Veteran's primary care doctor, opined in a July 2013 private medical opinion that the Veteran's Meniere's disease, vertigo, and nystagmus are most likely (greater than 50 percent probability) caused by or a result of his service-connected bilateral hearing loss and tinnitus. Dr. J.M. has cared for the Veteran since January 2004 and has documented his chronic symptoms including dizziness, vertigo, nausea, headaches, blurred vision, tinnitus, and prostration serious enough to interfere with employment and activities of daily living. The Veteran has reported episodic vertigo occurring approximately every 4-5 days. In support of his positive nexus opinion, Dr. J.M. explained that the Veteran has never had a concussion or any diseases that could cause vertigo or Meniere's disease. Dr. J.M. also reviewed all of his prescription medications and stated that none of them would contribute in any way to recurring vertigo. In Dr. J.M.'s opinion, the only possible explanation is that the Veteran's vertigo is caused by his service-connected tinnitus. With regard to Meniere's disease, Dr. J.M. stated that it is a devastating condition, not well understood, with aviators being at higher risk than the general population. The definition of Meniere's disease is "idiopathic syndrome of endolymphatic hydrops," and symptoms include pressure in one or both ears, tinnitus, hearing loss, and vertigo. See July 2013 medical opinion letter from Dr. J.M. A VA examiner opined that the medical literature does not support a causative link between vertigo, nystagmus and Meniere's disease, and hearing loss and tinnitus. See September 2013 rating decision. The Board notes that a copy of the examination report or the examiner's opinion is not contained in the claims file. The Board notes that the record indicates that an examination occurred, as the claims file contains statements from the Veteran indicating that the examiner was unprofessional and the examination was inadequate. The Board has considered remanding in order to obtain a copy of the report but finds that the record contains sufficient evidence to decide the Veteran's claim. The Veteran also submitted a July 2018 private medical opinion from Dr. D.B., who is board-certified in otolaryngology and sleep medicine. Dr. D.B. opined that it is at least as likely as not that the Veteran's Meniere's disease was caused or aggravated beyond its natural progression by acoustic trauma in service, including from WC-130 aircraft. In support of his opinion, Dr. D.B. discussed numerous medical research studies regarding the relationship between noise exposure and vestibular dysfunction characteristics of Meniere's disease, including balance disturbances and dizzy spells. Dr. D.B. also discussed post-traumatic Meniere's disease, generally defined as Meniere's syndrome that develops after physical or acoustic trauma. In post-traumatic Meniere's disease, symptoms do not usually develop for several years after the traumatic event. Dr. D.B. stated that acoustic trauma due to noise exposure is one of the major causes of inner ear damage due to the mechanical and metabolic changes that take place as a consequence of it. The medical literature establishes that this inner ear damage not only leads to hearing disorders, but can also lead to vestibular conditions, including Meniere's disease. Dr. D.B. stated that given the fact that the Veteran does not have other risk factors related to development of Meniere's disease, it is clear that his progression of symptoms parallels much of what the medical literature suggests regarding post-traumatic Meniere's disease due to acoustic trauma/noise exposure. See July 2018 medical opinion letter from Dr. D.B. The Board has the responsibility to assess the credibility and probative value of the evidence, account for the evidence that it finds persuasive or unpersuasive, and provide reasons for its rejection of any material favorable evidence. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (stating that the Board retains the discretion as fact finder to make credibility determinations and weigh the lay and medical evidence of record). When faced with conflicting medical opinions, the Board may favor one medical opinion over the other. See Evans v. West, 12 Vet. App. 22, 30 (1998), citing Owens v. Brown, 7 Vet. App. 429, 433 (1995). The probative value of medical evidence is based on the physician's knowledge and skill in analyzing the data, and the medical conclusion that the physician reaches; as is true of any evidence, the credibility and weight to be attached to medical opinions are within the province of the Board. Guerrieri v. Brown, 4 Vet. App. 467, 470-471 (1993). A claim need not be granted simply because there is conflicting evidence; rather, the benefit of the doubt applies where there is no compelling reason to favor the negative evidence over the positive and the issue is "too close to call." Ortiz v. Principi, 274 F.3d 1361, 1365 (Fed. Cir. 2001). Here, the RO found that Dr. J.M.'s opinion should be afforded less probative weight because he is a specialist in addiction/behavioral medicine and psychoanalytic psychotherapy. The VA examination was conducted by the Chief of Audiology and doctor of internal medicine. See September 2013 rating decision. The Board acknowledges that Dr. J.M.'s opinion is somewhat conclusory. He rules out other causes such as concussion for the Veteran's vertigo/Meniere's disease, but does not really delve into the causative relationship between hearing loss/tinnitus and vertigo. Nevertheless, it should be noted that Dr. J.M. is the Veteran's primary care provider and also stated that he was a former flight surgeon. See July 2013 medical opinion letter from Dr. J.M. As such, he was certainly qualified to opine on the cause of the Veteran's recurring vertigo even if his specialty is now psychiatric disorders. Furthermore, Dr. D.B. is board-certified in otolaryngology and sleep medicine and reviewed the complete record, including the Veteran's hazardous noise exposure as a weather reconnaissance officer flying WC-130 aircraft. Dr. D.B. supported his positive nexus opinion with a thorough discussion of the relevant medical literature. With citation to numerous medical research studies, Dr. D.B. explained the mechanism of noise-induced vestibular dysfunction and the connection between acoustic trauma due to prolonged noise exposure and post-traumatic Meniere's disease. As such, the Board finds that Dr. D.B.'s opinion is entitled to substantial weight. (Continued on the next page) Based on the foregoing, the Board finds that there is at least a reasonable doubt as to whether the Veteran's Meniere's disease, benign paroxysmal positional nystagmus, and benign paroxysmal positional vertigo are secondary to his service-connected bilateral hearing loss and tinnitus disabilities. Therefore, resolving any reasonable doubt in favor of the Veteran, service connection is warranted for those disabilities. M. Donohue Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D.S. Chilcote, 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.