Citation Nr: A25011908 Decision Date: 02/10/25 Archive Date: 02/10/25 DOCKET NO. 231128-395766 DATE: February 10, 2025 ORDER Entitlement to service connection for Meniere's disease (vertigo) is granted. FINDING OF FACT The Veteran's Meniere's disease is directly related to his service. CONCLUSION OF LAW The criteria for service connection for Meniere's disease are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from June 1985 to September 1985. The Board of Veterans' Appeals (Board) sincerely thanks the Veteran for his honorable service to our country. This case comes before the Board on appeal from an August 2023 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In the November 2023 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Direct Review docket. Therefore, the Board may only consider the evidence of record at the time of the August 2023 agency of original jurisdiction (AOJ) decision on appeal. 38 C.F.R. § 20.301. Any evidence submitted after the AOJ decision on appeal cannot be considered by the Board. 38 C.F.R. §§ 20.300, 20.301, 20.801. If the Veteran would like VA to consider any evidence that was submitted that the Board could not consider, the Veteran may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claim, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. The Veteran seeks service connection for Meniere's disease, to include as secondary to his service connected tinnitus. 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; 38 C.F.R. § 3.303. Establishing service connection generally requires evidence of: (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship (nexus) between the claimed in-service disease or injury and the present disability. See, e.g., Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Secondary service connection may be granted for a disability that is proximately due to, or the result of, a service-connected disease or injury. 38 C.F.R. § 3.310(a). The evidence must show that a current disability exists and that the current disability was either caused by or aggravated by a service-connected disability. 38 C.F.R. § 3.310(a); see also Allen v. Brown, 7 Vet. App. 439 (1995). The determination as to whether the requirements for service connection are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. 38 U.S.C. § 7104(a); Baldwin v. West, 13 Vet. App. 1 (1999). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of the matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (en banc). Pursuant to the AMA, the Board is bound by previous findings of fact that are favorable to the Veteran. 38 C.F.R. §§ 3.104(c), 20.801. Here, the AOJ has found and conceded that the Veteran is currently diagnosed with Meniere's disease and that he is already service connected for tinnitus. See August 2023 Rating Decision Therefore, the questions before the Board are whether the Veteran experienced an in-service incurrence or aggravation or Meniere's disease and if so whether there is a nexus between that and his current diagnosis, or alternately whether the Veteran's tinnitus caused or aggravated his Meniere's disease. The Veteran has been given several VA examinations for Meniere's disease over the course of this claim's procedural history. Most recently, the Veteran received a VA examination in February 2023. In reaching a negative nexus opinion the examiner concluded that the Veteran's Meniere's disease is "most likely from chronic white matter microvascular ischemic changes, small chronic infarcts of the right frontal deep white matter, and mucosal thickening of the right maxillary sinus. [The Veteran] had significant trauma exposure as a combat engineer. Multiple explosions and heavy equipment. Hearing loss, ringing in the ears(tinnitus), dizzy spells, fullness in ear are symptoms of Meniere's. Of note, there has been no single cause has [which] been determined. Most likely from combination of causes (which includes trauma)." February 2023 VA Examination (emphasis added). The Board highlights that the Veteran's hazardous noise exposure/acoustic trauma in service has already been conceded by the AOJ. See e.g. March 2019 Rating Decision. The examiner appears to have rendered a negative opinion based on the fact that they were unable to identify with certainty the sole or primary cause of the Veteran's Meniere's disease. However, this is not the correct legal standard. The Board highlights that the Federal Circuit has held that there is a difference between the "as likely as not" adjudication standard and a determination that something is medically or scientifically certain. See Hodges v. Sec'y of Dep't of Health and Human Servs., 9 F. 3d 958, 965 (Fed. Cir. 1993) (Newman, J. dissenting); Jones v. Shinseki, 23 Vet. App. 382, 388 n.1 (2016). The Board notes that the February 2023 medical examiner relied on an incorrect legal standard and there is no medical opinion of record which provides a positive nexus between the Veteran's service and his current disability. However, the Board finds that the evidence of record does show that a VA medical professional has opined that the Veteran's in-service acoustic trauma is at minimum a contributing factor to his Meniere's disease and there is no evidence of record that disproves that the Veteran's Meniere's disease is causally or etiologically due to service. Again, when the evidence is at least approximately balanced regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. Therefore, resolving all doubt in favor of the Veteran, the Board finds that his Meniere's disease is due to his hazardous noise exposure in service. Resolving all doubt in the Veteran's favor, the Board therefore finds that the evidence both for and against his claim is at least approximately balanced; therefore, the claim for entitlement to service connection for Meniere's disease is hereby GRANTED. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Lynch v. McDonough, 21 F.4th 776 (2021). (This space intentionally left blank. VLJ signature on next page.) J.P. Norman Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Jimenez, Christina 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.