Citation Nr: 22019744 Decision Date: 04/02/22 Archive Date: 04/02/22 DOCKET NO. 18-28 383 DATE: April 2, 2022 ORDER Service connection for Meniere's disease, to include as secondary to service-connected bilateral hearing loss and/or tinnitus, is denied. FINDING OF FACT The Veteran's Meniere's disease was not incurred in or caused by his service and was not caused or aggravated by service-connected bilateral hearing loss and/or tinnitus. CONCLUSION OF LAW The criteria to establish service connection for Meniere's disease, to include as secondary to service-connected bilateral hearing loss and/or tinnitus, have not been met. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303(b), (d), 3.307(a)(3) 3.309(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from September 1986 to August 1990. This matter was before the Board of Veterans' Appeals (Board) in November 2021 and remanded for a VA addendum opinion. The Veteran was provided a VA ear conditions examination in December 2021. After review of the evidence, the Board will deny service connection for Meniere's disease, to include as secondary to service-connected bilateral hearing loss and/or tinnitus. The evidence shows that the condition was not incurred in or caused by his service and was not caused or aggravated by service-connected bilateral hearing loss and/or tinnitus. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). "To establish a right to compensation for a present disability, a veteran 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' - the so-called 'nexus' requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). 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 Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Service connection may also be granted for a disability that is proximately due to, or the result of, a service-connected disability. See 38 C.F.R. § 3.310(a). To prevail on the issue of secondary service connection, the record must show (1) evidence of a current disability, (2) evidence of a service-connected disability, and (3) medical nexus evidence establishing a connection between the current disability and the service-connected disability. Wallin v. West, 11 Vet. App. 509, 512 (1998); Reiber v. Brown, 7 Vet. App. 513, 516-17 (1995). In deciding an 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 favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony 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. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). When considering whether lay evidence is competent, the Board must determine, on a case-by-case basis, whether a veteran's disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses. See Layno, 6 Vet. App. 465, 469. Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. Barr, 21 Vet. App. 303. Lay evidence may establish a diagnosis of a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. Jandreau, 492 F.3d 1372, 1377. In deciding claims, it is the Board's responsibility to evaluate the entire record on appeal. See 38 U.S.C. § 7104(a). When all the evidence is assembled, the Board is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether the preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 49. Service connection for Meniere's disease, to include as secondary to service-connected bilateral hearing loss and/or tinnitus, is denied. The Veteran served as a power generation equipment repairman. As such, he is presumed to have been exposed to acoustic trauma in-service. The Veteran has a current diagnosis of Meniere's disease, and his bilateral hearing loss and tinnitus are service connected. The Veteran's service treatment records (STRs) do not show complaints of symptoms related to Meniere's disease, and there is no documentation of any treatment or diagnosis of Meniere's disease in-service. During the July 2010 VA examination, the Veteran reported that his tinnitus began in-service in 1988/1989. In August 2010, the Veteran reported that along with hearing impairment, he had vertigo, nausea, and loss of balance. He reported a recent incident at a grocery store when he lost his balance "from a sudden rush of vertigo." He reported that these episodes last five to ten minutes in duration and occur "quite often." In February 2013, the Veteran stated that as his bilateral tinnitus worsened, so did his vertigo. An April 2013 VA examination shows a diagnosis of Meniere's disease; the date of onset is noted as unknown. An April 2017 VA examiner stated that the type of exposure to hazardous noise levels that the Veteran had in-service creates cochlear damage, resulting in cochlear hearing loss and tinnitus. Various lay statements, submitted in September 2017, show the Veteran's reports of symptoms of dizziness, loss of balance, and falling. In August 2021, the Veteran submitted information from the National Institutes of Health (NIH), indicating that Meniere's disease is thought to be related to abnormalities of the inner ear, which contains structures that are needed for normal hearing and balance, and that episodes of vertigo, tinnitus, and hearing loss likely result from fluctuating amounts of fluid in the inner ear. During the August 2021 Board hearing, the Veteran testified that he first experienced dizzy spells, along with tinnitus, in-service in 1988. Pursuant to the November 2021 Board remand, the Veteran was provided a VA ear conditions examination in December 2021. The examiner was advised that the Veteran is presumed to have been exposed to acoustic trauma in-service while working as a power generation equipment repairman. The examiner was asked whether the Veteran's Meniere's disease was caused or aggravated by or is otherwise related to service-connected bilateral hearing loss and/or tinnitus, to include his presumed exposure to acoustic trauma in-service. The examiner was asked to address the submitted information from the NIH and the Veteran's reports of first experiencing symptoms of vertigo, nausea, tinnitus, and loss of balance in-service. The examiner found that the Veteran's Meniere's disease is less likely than not proximately due to or the result of service-connected bilateral hearing loss and/or tinnitus. The examiner stated that bilateral hearing loss and tinnitus are symptoms of Meniere's Disease or are caused by Meniere's disease but neither hearing loss nor tinnitus would cause the Meniere's Disease. The examiner stated that because the Veteran's hearing loss and tinnitus preceded his Meniere's Disease and are related to exposure to noise, there could not be a causal link between the conditions. The examiner also stated that the Veteran's hearing loss is not temporarily experienced during episodes of Meniere's disease with recovery, but permanent and progressively worsening, which suggests that there is no causal relationship between the conditions. The examiner also found that the Veteran's Meniere's disease was less likely than not incurred in or caused by the claimed in-service injury, event, or illness, to include his presumed exposure to acoustic trauma in-service. The examiner stated that the Veteran's symptoms of dizziness, dizzy spells, and vertigo did not start until approximately 2010 according to numerous lay statements, approximately 20 years after service separation. The examiner stated that this suggests that the Veteran's Meniere's disease was triggered well after his service. The examiner also stated that noise exposure or acoustic trauma has been disproved as a cause of Meniere's Disease, even though small, poorly designed, studies suggest a possible link. Regarding the submitted NIH information, the examiner cited to other medical literature regarding risk factors for Meniere's Disease, including trauma to the inner ear and noise pollution, and stated that the Veteran's Meniere's Disease would not have been caused by the acoustic trauma or noise exposure that caused his bilateral hearing loss and tinnitus. The question for the Board is whether the Veteran has a current disability that is proximately due to or the result of or was aggravated by a service-connected disability. While the Veteran has a current disability, the evidence does not show that the Veteran's Meniere's disease is proximately due to or the result of or aggravated by service-connected bilateral hearing loss and/or tinnitus. 38 U.S.C. §§ 1110, 1131; Allen v. Brown, 7 Vet. App. 439 (1995) (en banc); 38 C.F.R. § 3.310(a). As discussed above, the December 2021 VA examiner opined that the Veteran's Meniere's disease is less likely than not proximately due to or the result of service-connected bilateral hearing loss and/or tinnitus. The examiner's opinion is probative because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). While the Veteran believes his Meniere's disease is proximately due to or the result of/aggravated by a service-connected disability, he is not competent to provide a nexus opinion regarding this issue. The issue is medically complex, as it requires specialized medical education. Therefore, it is outside the competence of the Veteran in this case because the record does not show that he has the skills or medical training to make such a determination. Jandreau, 492 F.3d at 1377 n.4; see also Kahana, 24. Vet. App. at 428. Consequently, the Board gives more probative weight to the December 2021 VA examiner's opinion. Service connection for Meniere's disease can still be granted on a direct basis; however, the evidence does not show a medical nexus between the Veteran's Meniere's disease and an in-service injury, event, or disease. 38 U.S.C. §§ 1110, 1131; See Holton, 557 F.3d at 1363; 38 C.F.R. § 3.303. As discussed above, the December 2021 VA examiner opined that the Veteran's Meniere's disease was less likely than not incurred in or caused by the claimed in-service injury, event, or illness, to include his presumed exposure to acoustic trauma in-service. As above, the examiner's opinion is probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. See Nieves-Rodriguez, 22 Vet. App. at 304. As noted above, the Veteran's STRs do not show complaints of symptoms related to Meniere's disease, and there is no documentation of any treatment or diagnosis of Meniere's disease in-service. The July 2010 VA examination shows that the Veteran reported that his tinnitus began in-service in 1988/1989, and, in August 2010, the Veteran reported his belief that his vertigo is related to his tinnitus, which onset in-service. However, the April 2013 VA examination is the first post-service medical record showing a diagnosis of Meniere's disease. The Board has considered the Veteran's lay statements indicating his belief that his condition is related to his tinnitus, which onset in-service. However, while the Veteran believes that his condition is related to his service, he is not competent to provide a nexus opinion in this case. This issue is also medically complex, as it requires specialized medical education. See Jandreau, 492 F.3d at 1377 n.4. Consequently, the Board gives more probative weight to the competent medical evidence. Service connection for Meniere's disease on a direct basis is not warranted. (CONTINUED ON THE NEXT PAGE) Although the Veteran has established a current disability, the evidence does not show that his Meniere's disease is causally related to his service or is proximately due to or aggravated by service-connected bilateral hearing loss and/or tinnitus. Since the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule is not applicable. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; See Gilbert, 1 Vet. App. at 53-56. For these reasons, the claim is denied. Vito A. Clementi Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Timothy T. Emmart 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.