Citation Nr: 22015498 Decision Date: 03/17/22 Archive Date: 03/17/22 DOCKET NO. 16-04 153 DATE: March 17, 2022 ORDER Service connection for a vestibular disorder, to include dizziness and fainting is denied. FINDINGS OF FACT 1. The Veteran does not have a diagnosis of a vestibular disorder. 2. The Veteran's current dizziness and/or fainting is not a manifestation of and/or caused by his in-service dizziness. CONCLUSION OF LAW The criteria to establish service connection for a vestibular disorder have not been met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(d). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the U.S. Air Force from May 1954 to July 1963. Effective August 1998, the Veteran is rated as individually unemployable due to service-connected disabilities. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2014 rating decision of the Fort Harrison, Montana Regional Office (RO). In October 2018, the Veteran was afforded a hearing before the undersigned Veterans Law Judge (VLJ) sitting at the Houston, Texas RO. During the hearing, the VLJ engaged in a colloquy with the Veteran toward substantiation of the claim. Bryant v. Shinseki, 23 Vet. App. 488, 496-97 (2010). A hearing transcript is in the record. In December 2021, the Board remanded the appeal to the RO for additional action. The RO complied with the Board's remand directives. Stegall v. West, 11 Vet. App. 268 (1998). Service Connection Vestibular Disorder Service connection may be granted for a current disability arising from a disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131. Service connection may 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 generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of an in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Veteran asserts that his vestibular disorder was caused by service. The claim will be denied. A September 1954 service treatment record (STR) reflects the Veteran's report of dizziness, temporary weakness, and instability. The service medical examiner indicated that no medications were prescribed and a physical examination did not reveal dizziness, temporary weakness, or instability. In a May 1957 service department medical history questionnaire, the Veteran endorsed having at some point "dizziness or fainting spells." The service medical examiner noted "no reason given" from the Veteran and found no neurological abnormalities. The examiner also noted the Veteran's previous report of dizziness and fainting spells but indicated that the Veteran did not then have any complications or sequelae. A December 1959 STR reflects the Veteran's report of dizziness. In the Veteran's May 1963 pre-separation medical examination report, the service medical examiner found no neurological abnormalities and the Veteran did not report having dizziness or fainting spells. The STRs are highly probative both as to the Veteran's subjective reports and their resulting objective findings. They were generated with a view towards ascertaining the Veteran's then self-reported and clinically reported state of physical fitness and are akin to statements of diagnosis or treatment. Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (observing that although formal rules of evidence do not apply before the Board, recourse to the Federal Rules of Evidence may be appropriate if it assists in the articulation of the reasons for the Board's decision); see also LILLY'S: AN INTRODUCTION TO THE LAW OF EVIDENCE, 2nd Ed. (1987), pp. 245-46 (many state jurisdictions, including the federal judiciary and Federal Rule 803(4), expand the hearsay exception for physical conditions to include statements of past physical condition on the rationale that statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy since the declarant has a strong motive to tell the truth in order to receive proper care); see also AZ v. Shinseki, 731 F. 3d 1303, 1315 (Fed. Cir. 2013) (finding that the absence of an entry in a record may be considered evidence that a fact did not occur if the fact would have been recorded if present); Kahana v. Shinseki, 24 Vet. App. 428, 440 (2011) (Lance, J., concurring) (holding that silence in the STRs can constitute "contradictory" evidence weighing against the credibility of a claimant's testimony if the STRs are complete "in relevant part," and there is competent evidence that the claimed "injury, disease, or related symptoms would ordinarily have been recorded had they occurred"). A December 1998 VA treatment record reflects the Veteran's report of dizziness after being prescribed Maxzide. An October 1999 VA treatment record reflects the Veteran's report of dizziness once every two weeks. In an April 2000 VA treatment record, the Veteran reported dizziness after being prescribed Terazosin. A June 2000 VA treatment record reflects the Veteran's report of dizziness and an assessment of orthostatic pulse change. In an August 2000 VA treatment record, the Veteran reported dizziness due to wearing eyeglasses. A July 2002 VA treatment record reflects the Veteran's report of dizziness since 2000. In a February 2003 VA treatment record, the Veteran reported dizziness, giddiness, blurred vision, and trouble with balance since 2002. The Veteran's VA treatment records concerning the onset of his symptoms of dizziness and fainting, to include trouble with balance between approximately December 1998 and 2002 are highly probative. Fed. R. Evid. 803(4) (statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy since the declarant has a strong motive to tell the truth in order to receive proper care); Rucker, 10 Vet. App. at 73. In his May 1963 pre-separation medical examination report, the service medical examiner found no neurological abnormalities and the Veteran did not report having dizziness or fainting spells. Additionally, as noted, the Veteran's post-service VA treatment records reflect the Veteran's statements as to the onset of his symptoms of dizziness and fainting occurring between December 1998 and 2002 approximately 45 years post-service. Further, in the December 2021 Board remand, the Board noted "[i]n a July 2013 statement, the Veteran alleged he had dizziness and fainting since June 1957." Such language does not imply a positive credibility finding or suggest that a final opinion was offered as to the credibility of lay evidence. Smith v. Wilkie, 32 Vet. App. 332 (2020) (holding that when remanding a claim, the Board should carefully consider whether to use language that could imply a positive credibility finding or suggest that a final opinion is being offered as to the credibility of lay evidence, as this may be binding on future adjudications, or require notice if the Board reverses the findings. Similar care should be exercised in making any positive findings in a remand as the Court may likewise find those findings binding on the Board absent notice and an opportunity to respond). In the April 2014 VA central nervous examination, the Veteran reported dizziness. In a July 2016 VA treatment record, the Veteran reported dizziness lasting several seconds occurring every three months since 1954 and the VA treating physician noted that the Veteran's dizziness was consistent with a non-service connected disorder. The Veteran has been denied service connection for a vascular disorder hypertension in three separate rating decisions under the Appeals Modernization Act (AMA). A February 2018 VA treatment record reflects the Veteran's report of lightheadedness and an assessment of vertigo with post-tussive syncope. The VA treating physician noted that the Veteran did not have a diagnosis of benign paroxysmal positional vertigo (BPPV) and that the Veteran's dizziness was possibly related to high blood pressure, changes in medication, or high blood sugar. In his October 2018 Board hearing, the Veteran testified to having dizziness since September 1954. The Veteran's STRs show his reports of dizziness beginning in 1954; however, to the extent the Veteran asserts that his dizziness was continuous since September 1954, as discussed above, his assertion is not credible. The January 2020 VA examiner indicated that the Veteran did not have a diagnosis of a vestibular disorder; however, in December 2020, the U.S. Court of Appeals for Veterans' Claims (Court) found the January 2020 VA examination inadequate. The January 2020 VA examination is therefore of low probative value. An April 2021 VA treatment record noted that the Veteran's dizziness "can be due to suboptimal titration of antihypertensive medication vs. syncope vs. posterior circulation dysfunction." In a subsequent April 2021 VA treatment record, the Veteran reported dizziness, lightheadedness, and at least one syncopal episode. The VA staff neurologist noted that the Veteran's dizziness was "unclear etiology multifactorial" and that the "central cause unlikely given positional triggers." During the September 2021 VA ear conditions (including Vestibular and Infectious Conditions) examination, the examiner opined that the Veteran did not have a diagnosis of a vestibular disorder and there was no vestibular cause for his dizziness for several reasons. As to the Veteran's lack of a vestibular disorder diagnosis, the examiner indicated that the Veteran has not been definitively diagnosed with a vestibular disorder for his dizziness and the Veteran worked approximately 40 years as a welder without any significant injuries pertaining to dizziness. As to the Veteran's lack of a vestibular cause for his dizziness, the examiner indicated that the Veteran's in-service dizziness resulted from dehydration and his post-service dizziness was not a manifestation of and/or caused by the in-service dizziness because the Veteran's in-service dehydration was self-limiting and resolved during service. Additionally, the examiner noted the Veteran's post-service treatment for dizziness resulted from medication side effects, blood pressure, anemia, and/or eyeglasses. In an October 2021 addendum, the VA examiner reviewed the Veteran's medical records and clarified that the Veteran did not have a vestibular disorder diagnosis and: The October 1999 VA treatment record noting the Veteran's dizziness was not a diagnosis of dizziness but a restatement of the Veteran's subjective complaint. The June 2000 VA treatment record reflecting dizziness with orthostatic pulse was not a diagnosis but a notation of orthostatic pulse change as a normal physiological response. The July 2002 VA treatment record noting the Veteran's dizziness was not a diagnosis of dizziness but a restatement of the Veteran's subjective complaint. The April 2014 VA examiner's notation of fainting and dizziness was not a diagnosis but a restatement of the Veteran's complaints. The February 2018 VA treatment record reflecting an assessment of vertigo with post-tussive syncope was not a diagnosis because the VA treating physician noted that the Veteran did not have a diagnosis of BPPV and that the Veteran's symptoms resulted from medication. In December 2021, the Board remanded the claim for a VA addendum opinion to clarify (a) how the Veteran's in-service dizziness was caused by dehydration despite the lack of documented in-service reports of dehydration and (b) how the Veteran's in-service dizziness was a self-limiting condition that resolved. In a December 2021 addendum, the VA examiner explained that due to the nature of rigorous exercise required of service-members, an assumption of dehydration as the cause of the Veteran's in-service dizziness was "highly probable." Additionally, the examiner noted that at service separation, the Veteran did not report dizziness or fainting and the service medical examiner found no neurological abnormalities. The examiner also opined that the Veteran's claimed vestibular disorder was not a manifestation of and/or caused by the Veteran's in-service reports of dizziness because dehydration was a self-limiting and acute condition that does not cause chronic symptoms. The VA medical opinions dated September 2021, October 2021, and December 2021 as to the Veteran's lack of a vestibular disorder diagnosis and lack of a vestibular cause for his dizziness and fainting are highly probative because the examiner considered the Veteran's prior medical history as evidenced by referring to the Veteran's in-service dizziness due to dehydration as self-limiting and resolving at separation and clarifying the Veteran's post-service VA medical treatment records as not reflecting any diagnosis of a vestibular disorder; the examiner described the Veteran's dizziness in sufficient detail as evidenced by explaining that the Veteran's post-service dizziness was not a manifestation of and/or caused by his in-service dizziness and that his post-service treatment for dizziness resulted from medication side effects, blood pressure, anemia, or eyeglasses; and provided a negative etiology opinion based on an accurate and complete understanding of the Veteran's medical history with sufficient rationale. Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007); Ardison v. Brown, 6 Vet. App. 405, 407 (1994); Monzingo v. Shinseki, 26 Vet. App. 97, 105 (2012). The evidence is not in approximate balance between that favoring the claim and against the claim. In the Veteran's May 1963 pre-separation medical examination report, the service medical examiner found no neurological abnormalities and the Veteran did not report having dizziness or fainting spells. The Veteran's post-service VA treatment records reflect the Veteran's reports as to the onset of his symptoms of dizziness and fainting as occurring between December 1998 and 2002 approximately 45 years post-service. In VA medical opinions dated September 2021, October 2021, and December 2021, the VA examiner opined that the Veteran did not have a diagnosis of a vestibular disorder and that the Veteran's current dizziness and/or fainting was not a manifestation of and/or caused by his in-service dizziness. Significantly, no competent medical provider has opined otherwise. There is no reasonable doubt, and the claim is denied. Vito A. Clementi Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Cohen, Counsel The Board's action is binding only in this case. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.