Citation Nr: 21042723 Decision Date: 07/13/21 Archive Date: 07/13/21 DOCKET NO. 13-26 927 DATE: July 13, 2021 ORDER Entitlement to service connection for Meniere's disease is denied. FINDING OF FACT The most probative evidence of record indicates that the Veteran's Meniere's disease first manifested many years after service and does not demonstrate that this condition began during or is etiologically related to his honorable active duty service, to include as a result of in-service noise exposure. CONCLUSION OF LAW The criteria for service connection for Meniere's disease have not been met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309, 3.311. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had honorable active service from April 1965 to June 1968 with an additional period of non-qualifying service from June 1968 to January 1972. Unfortunately, the Veteran died in October 2015 while this claim was pending. The appellant is his surviving spouse and the RO has accepted her request to be substituted as the deceased Veteran for the purpose of processing this claim to completion. This matter is before the Board of Veterans' Appeals (Board) on appeal of a May 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado. The appellant presented testimony on this issue at a September 2019 video conference hearing held at her local RO before the undersigned Veterans Law Judge (VLJ). In December of 2019, the Board denied, in relevant part, entitlement to service connection for Meniere's disease. The Veteran appealed that denial to the United States Court of Appeals for Veterans Claims (Court). In response to an August 2020 Joint Motion for Partial Remand (JMPR), the Court vacated and remanded the Veteran's claim to the Board, which in turn remanded the case for further development in March of 2021. The case has now been returned to the Board for further appellate review. Entitlement to service connection for Meniere's disease is denied. The appellant contends that the Veteran was entitled to service connection for Meniere's disease. Specifically, it is contended that the Veteran began experiencing symptomology such as vertigo during service which were early manifestations of the Veteran's then-undiagnosed Meniere's disease. See e.g. September 2019 Board Hearing Transcript. It has also been contended that the Veteran's Meniere's disease onset as a result of in-service exposure to noise. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131. Generally, the evidence must show: (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, 1166 -67 (Fed. Cir. 2004). Service connection may also be presumed for certain chronic diseases, such as organic diseases of the nervous system, to include Meniere's disease, if the disease manifests to a compensable degree within one year of separation from service. 38 U.S.C. § 1101; 38 C.F.R. §§ 3.307, 3.309. Initially, the Board notes that the Veteran's post-service treatment records and examinations clearly indicate that he had been diagnosed with Meniere's disease. It is also acknowledged that the service records document that his occupation during service was an aircraft mechanic, and therefore, exposure to loud noise during service is conceded based on occupation. The question before the Board is therefore whether the Veteran's condition was etiologically related to an in-service incident or injury. In this case, the Board concludes that the competent, probative evidence of record is not indicative of a nexus between the Veteran's Meniere's Disease and his active duty service. Turning to the evidence of record, the Veteran's service treatment records do not show a diagnosis of or treatment for Meniere's syndrome. The records show he was treated in April 1966 for dizziness after sitting up from being reclined in a dental chair for an hour. The diagnosis was orthostatic hypotension. He was treated in October 1966 for "congestion, dizziness and vomiting x 2 days". A notation of "sinus" was made. He was also treated in April 1967 for laryngitis, headache, nausea, vomiting, and dizziness. The diagnosis was a viral infection. The Veteran's head and neurological systems were evaluated as "normal" on both the report of medical evaluation for re-enlistment prior to his period of dishonorable service and at his discharge evaluation. Post-service, there are no complaints of or treatment for Meniere's disease or related symptomology for several years. Private medical records indicate that in January 1986, that provider was, "asked to see [the Veteran] because of episodes of vertigo that have fluctuated since their first occurrence December 12, 1985". Later private treatment records from November 1999 note the Veteran had "a history of Meniere's disease 8 years ago". December 2005 records from that provider note Meniere's disease of which the "etiology is uncertain". The Board acknowledges that the Veteran received ongoing treatment for his claimed Meniere's disease. In regard to a nexus, several medical opinions are of record, all of which were provided by medical professionals who are presumed to have the training and expertise to opine on the etiology of Meniere's disease. When evaluating the evidence of record, the Board must assess the credibility and probative value of the evidence, and, provided that it offers an adequate statement of reasons or bases, the Board may favor one medical opinion over another. See Owens v. Brown, 7 Vet. App. 429, 433 (1995). While the Board is not free to ignore the opinion of a treating physician, it is free to discount the probative value of that physician's statement. See e.g. Guerrieri v. Brown, 4 Vet. App. 467, 471-73 (1993). The Veteran was afforded a Compensation and Pension examination in March of 2013 at which his diagnosis of Meniere's disease was affirmed which he self-reported as having "onset in the 1980s". After an in-person examination and a review of the Veteran's claims file, the examiner determined it was less likely than not that the Veteran's Meniere's disease was incurred in or caused by his active duty service. However, it was agreed upon in the JMPR that this examination was inadequate because this examiner did not address whether the Veteran's Meniere's disease was related to his in-service noise exposure. The Board observes that an additional July 2014 VA opinion similarly determined that the claimed disability is less likely than not incurred in or caused by service, and explicitly stated that this condition "was not incurred on active duty" and "is not due to, or the result of, [in-service] noise exposure". As rationale, the examiner noted that "[t]he medical literature is very clear that the etiology of Meniere's disease is idiopathic (unknown). Some experts postulate genetic, infection, or immune hypothetical causes but no literature opines that noise induced hearing loss (NIHL) causes Meniere's disease". This examiner also noted that "this condition is not due to, or the result of, or aggravated beyond its normal progression (NIHL and MD run separate unconnected courses) by his NIHL/Tinnitus conditions". However, the Board observes that this opinion was also deemed inadequate in the JMPR as it was determined that the VA examiner had failed to discuss the Veteran's particular circumstances and instead "focused on general medical literature". In that regard, this claim was remanded in March of 2021 in order to obtain an additional VA opinion. In April of 2021, a VA examiner determined after a review of the Veteran's claims file that this disability was less likely than not incurred in or caused by the Veteran's active duty service. As rationale, the examiner stated that, "[t]he veteran's Ménière's disease is not due to conceded noise exposure during service associated with his occupational specialty of aircraft mechanic. The veteran was diagnosed in January 1986 with an onset noted as December 1985. There is no evidence of Ménière's disease while in service or at separation. These exams are notably thorough and include history and physical and it is highly unlikely that a significant vertigo situation would have gone unnoted or unreported. The incident dated 7/6/67 noted dizziness associated with what appears to be dehydration due to a viral syndrome. "Vertigo" is noted 4/8/66, which was a result of arising from semi-supine at the dentist's office after a procedure. This was likely orthostasis and unrelated to the Ménière's which developed 20 years later." It was explicitly stated that "noise exposures and/or tinnitus do not cause Ménière's disease. Ménière's disease includes the triad of hearing loss, tinnitus and vertigo, and is most commonly unilateral. Chronic tinnitus does not cause Ménière's and Ménière's disease may be superimposed on chronic hearing loss and tinnitus. Therefore, it is less likely than not that the veteran's Ménière's had its nexus in service or is due to noise exposure during service." The examiner also considered the medical evidence present in this Veteran's individual case (as opposed to a general statement) in asserting that, "the episodes in service are not consistent with Ménière's disease and clearly had definable etiologies. (Confidence level unequivocal)." This VA opinion contains clear conclusions with reliance on the supporting data. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Notably, even the prior VA examinations that have been deemed inadequate are indicative of the same conclusion reached by the April 2021 VA examiner. However, the Board has again thoroughly reviewed the private medical opinion that was submitted to VA in June of 2013 in lieu of assertions made in the JMPR. That examiner stated that he, "[had been the Veteran's] physician for 3 years" and that "[the Veteran] suffers from chronic Meniere's disease and hearing loss". The examiner opined that the Veteran's "service with the military was associated with exposures to loud noises resulting in his hearing loss" because "[n]oise damage causes inner ear membrane damage" and "ototoxicity from hearing loss is a factor in the development of inner ear diseases such as Meniere's disease and my professional opinion is that his Meniere's disease was caused by this ototoxicity and should be considered service related". After weighing the evidence, the Board once again finds a significant difference in the depth and support for the opinion of the private medical examiner in comparison with that provided by the most recent VA examiner. The Board explicitly acknowledges and has considered the assertion in the JMPR that "The factual premise of the private examiner's opinion was that the [Veteran] was exposed to loud noises during service and that noise injuries cause inner ear damage and ototoxicity [which in turn caused Meniere's disease]". The Board also acknowledges that it may not "refut[e] the expert medical conclusions in the record with its own unsubstantiated medical conclusions." See Colvin v. Derwinski, 1 Vet. App. 171 (1991). Nonetheless, an evaluation of the probative value of a medical opinion or diagnosis is based on the medical expert's personal examination of the patient, the examiner's knowledge and skill in analyzing the data, and the medical conclusions reached. See Guerrieri, 4 Vet. App. 467, 470-71. In that regard, the Board is specifically referencing the medical conclusions reached by the private examiner in once again emphasizing that that the premise relied on by the private medical examiner was not as asserted in the JMPR. Instead, the private examiner stated as "ototoxicity from hearing loss is a factor in the development of inner ear diseases such as Meniere's disease and my professional opinion is that his Meniere's disease was caused by this ototoxicity". Again, the Board finds that the explicitly stated premise that the Veteran's "Meniere's disease was caused by this ototoxicity [from his hearing loss]", is clearly and directly refuted by the evidence of record. January 1986 private medical records indicate that the Veteran presented for a physical examination "because of episodes of vertigo that have fluctuated since their first occurrence December 12, 1985". That examiner noted that the Veteran's symptoms were "consistent with Meniere's disease" and also noted that there was "no past history of ear disease, hearing problems, or vertigo". Private treatment records from July 2002 contain a statement in which that examiner concluded that he "cannot fully state definitely whether the patient had Meniere's Disease or not 30 years ago or more. From my review of the records there are a couple of entries of dizziness, but we have had a discussion about the presentation clinically for Meniere's Disease and his symptoms do not classically follow this ... It is speculative but certainly possible that he may have had an atypical presentation of Meniere's disease". Medical opinions that are speculative, general, or inconclusive in nature do not provide a sufficient basis upon which to decide a claim. See Bostain v. West, 11 Vet. App. 124, 127-28 (1998), quoting Obert v. Brown, 5 Vet. App. 30, 33 (1993) (finding that a medical opinion expressed in terms of "may" also implies "may or may not"). Significantly, however, while this treatment note provides no probative value in terms of providing a nexus, that examiner also concluded after examining ENG test results that, "overall the ENG does not implicate an inner ear etiology of his dizziness issues". Notably, in August 2013, the Veteran himself asserted that he was not claiming his Meniere's was caused by hearing loss and explicitly stated, "that [his] Meniere's started before his hearing loss". Based on the foregoing, the Board finds that the private opinion is based on an inaccurate factual basis and is inconsistent with the totality of the evidence including the Veteran's own statements. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (Board may reject a medical opinion based on an inaccurate factual basis). The Board therefore attaches minimal probative value to this opinion. Moreover, the Board also reiterates that even if the June 2013 private examiner - who provided the only favorable opinion of record among the numerous medical notations made by both VA and private examiners had in fact intended to assert, as stated in the JMPR, that his condition was directly related to in-service noise exposure, this argument is unfortunately negated by the objective evidence. The most competent and probative evidence of record weighs against a finding that the Veteran's Meniere's disease, which the evidence affirmatively indicates onset in the mid-1980s, was a long-delayed symptom of in-service noise exposure. Again, multiple examiners, even when reaching conclusions deemed inadequate in the JMPR, have determined that it is less likely than not that the Veteran's Meniere's disease onset in this manner. The Board has also considered the assertion made in the JMPR that "The medical treatise evidence of record notes that noise trauma causes inner ear toxicity" which was asserted in regard to internet articles submitted in August 2014. Medical articles or treatises can provide important support when combined with an opinion of a medical professional if the medical article or treatise evidence discusses generic relationships with a degree of certainty such that, under the facts of a specific case, there is at least plausible causality based upon objective facts rather than on an unsubstantiated lay medical opinion. See Sacks v. West, 11 Vet. App. 314 (1998). The Board notes that the Court has held that medical treatise evidence need not be accompanied by a medical opinion to be material evidence. Cf. Hill v. McDonald, 28 Vet. App. 243, 255 (2016). However, the Board also notes that internet articles tend to be general in nature and do not relate to the specific facts in a given claim. To the extent that these articles address Meniere's disease, the Board observes these articles are not wholly conclusive in their assertions. For example, as opposed to offering any information that could be relied upon to link the Veteran's Meniere's disease with his honorable active duty service, one article directly states that "the cause of Meniere's disease is unknown." Most importantly, the internet articles associated with the record provide general information without a specific connection to the details of the cause of the Veteran's Meniere's disease. In contrast, the examiners who have reviewed and assessed the onset and nature of the Veteran's condition have done so in reliance on this particular Veteran's medical history. As such, any probative value carried by these medical articles with respect to the issue of service connection for the Veteran's Meniere's disease is outweighed by the objective evidence of record. Additionally, the weight of the probative evidence of record weighs against a finding that the Veteran's Meniere's disease was caused by a service-connected disability. The Board notes that the Veteran was service-connected for both bilateral hearing loss and tinnitus and that symptoms of tinnitus may indeed have overlapped with his claimed Meniere's disease. However, the Veteran himself did not allege that this condition resulted from another, and in fact stated "that [his] Meniere's started before his hearing loss". The July 2014 VA examiner also stated that there is no evidence that "noise induced hearing loss causes Meniere's disease". That examiner further noted that "this condition is not due to, or the result of, or aggravated beyond its normal progression (NIHL and MD run separate unconnected courses) by his NIHL/Tinnitus conditions". There is no evidence, other than the private medical opinion that lacks probative value for the reasons outlined above, that links the Veteran's Meniere's disease with a service-connected condition. The Board also notes that certain chronic disabilities, such as organic diseases of the nervous system, to include Meniere's disease, are presumed to have been incurred in or aggravated by service if they manifest to a compensable degree within one year of discharge from service. 38 U.S.C. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309 (a). In this case, there is no evidence that this condition developed to a compensable level (at least 10 percent) within one year of discharge to be considered under presumptive service connection. In contrast, there is affirmative evidence that the Veteran's Meniere's disease did not manifest in symptomology until the mid-1980s, almost two decades after his departure from the honorable period of active duty service. For similar reasons, continuity of symptomology is not established. See Savage v. Gober, 10 Vet. App. 488, 496 (1997) (overruled on other grounds) (stating that the evidence must show that a condition was "noted" in service, continuous post-service symptomatology, and competent evidence of a nexus between the present disability and that post-service symptomatology). Further, the Board acknowledges that the Veteran served in Vietnam in 1971 and is presumed to have been exposed to herbicide agents, such as Agent Orange, during that time. 38 C.F.R. § 3.307 (a)(6)(iii). However, this deployment occurred during his non-qualifying period of service and is therefore a bar to VA benefits. Additionally, the Board notes that this condition is not included on the list of diseases specific to herbicide agent-exposed veterans. VA has determined that the presumption of service connection based on exposure to herbicide agents used in Vietnam is not warranted for any conditions other than those for which VA has found a positive association between the condition and such exposure. Therefore, entitlement to service connection under the provisions of 38 C.F.R. § 3.309 (e) would not be warranted in this case regardless of the status of that period of service. Further, no other basis for possible herbicide agent or chemical exposure outside of this period is demonstrated by the record. Notwithstanding the foregoing, the Board has considered the fact that a claimant is not precluded from establishing service connection for a disease claimed to be related to herbicide exposure, as long as there is proof of such direct causation. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). However, in this case the record does not show that service connection is warranted on a direct basis. The evidence does not reflect that the Veteran's Meniere's disease onset in service or within the first year following the Veteran's separation from active service. To the contrary, by the Veteran's own assertions, his Meniere's disease was not diagnosed until the 1980s. As noted above, private treatment records indicate that this condition onset in 1985, a fact substantiated by the appellant at her hearing before the Board. Collectively, this indicates that the Veteran's condition onset, at the earliest, almost two decades after his departure from the honorable period of active duty service, a factor that weighs heavily against the claim. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). The Board has also considered the records furnished by SSA. However, SSA uses a different standard in determining claims than the VA. Further, the "treating physician" rule (in SSA requiring SSA to give more evidentiary weight to the treating physician and accept the opinion unless contradicted) is not applicable to VA claims. See White v. Principi, 243 F.3d 1378 (Fed. Cir. 2001). Additionally, those records indicate the Veteran was granted SSA benefits for reasons unrelated to his Meniere's disease. The Board also acknowledges that the argument that the Veteran's Meniere's disease was actually present in service and misdiagnosed at the time because Meniere's disease had not yet been defined as a medical condition. Although the appellant contends that the Veteran's Meniere's disease was related to his active duty service, she has not, as a layperson, been shown as competent to render such an opinion. While she is competent to report observable symptomatology, such as the Veteran experiencing dizziness or vertigo, the appellant has not been shown to possess the medical training and/or expertise necessary to provide a probative competent opinion as to the etiology of the Veteran's Meniere's disease. Such an opinion is a medically complex issue requiring the appropriate training and expertise. See Layno v. Brown, 6 Vet. App. 465 (1994), Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Therefore, these statements lack probative value in deciding this claim. For similar reasons, while the Board acknowledges the lay statements made by the Veteran himself prior to his death, and the other lay statements of record, they are also not probative to the matter at hand. The Board is genuinely sympathetic to the reported account of the Veteran's Meniere's disease symptomology, as well as to the appellant's loss of her husband. But unfortunately, the most probative evidence of record does not show an etiological relationship between this post-service symptomology and an in-service injury, event or illness. (Continued on the next page) In summary, the preponderance of the evidence is against all theories of entitlement alleged by the Veteran or raised by the record. Entitlement to service connection for Meniere's disease is not warranted on a direct basis, under the provisions of 38 C.F.R. §§ 3.303 (d) and 3.311, or on a presumptive basis under the provisions of 38 C.F.R. §§ 3.307 and 3.309 (e). Based on the foregoing, the preponderance of the evidence is against the claim of service connection for Meniere's disease, and the benefit of the doubt rule does not apply. See 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). MICHAEL MARTIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Smith, 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.