13-21 881
13-21 881
| Board of Vet. App. | Nov 30, 2017Background
- Veteran served on active duty July 1954–October 1957 as an Air Police Helper and reported a head injury in 1955 with perforation of the left ear and subsequent dizziness, nausea.
- VA previously granted service connection for bilateral hearing loss (Dec 2006) and tinnitus (Jan 2009).
- Veteran filed for service connection for vertigo with nausea and vomiting (claimed as due to service or secondary to hearing loss) and for TDIU prior to May 29, 2013; RO initially denied vertigo (Sept 2010) and TDIU (Jan 2015).
- Board remanded for development (July 2016); after further exams and supplemental SSOC (Dec 2016), Board obtained a September 2017 VHA otolaryngology opinion finding at least as likely as not that the vertigo is causally related to the in‑service head injury (possible superior semicircular canal dehiscence / Tullio phenomenon triggered by hearing aid amplification).
- Prior VA opinions were given reduced probative value where they relied on an incorrect 1995 date for the head injury; the 2017 opinion was found most probative and adequately reasoned.
- Board granted service connection for vertigo with nausea and vomiting and remanded the TDIU issue for readjudication after assignment of an initial rating for vertigo.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Service connection for vertigo with nausea/vomiting (primary or secondary to hearing loss) | Veteran: vertigo began after wearing hearing aids and is connected to in‑service head injury; never had vertigo before aids | VA: earlier examiners said positional vertigo common with age or medication, and could not link vertigo to hearing aids or service; some opinions relied on incorrect injury date | Granted — preponderance favors service connection; Sept 2017 VHA otolaryngologist opinion persuasive and adequate to establish nexus to 1955 head injury |
| TDIU prior to May 29, 2013 | Veteran sought TDIU for period before May 29, 2013 | RO previously denied; Board directed further development after new service connection | REMANDED — AOJ to assign initial rating for vertigo, complete development, then readjudicate TDIU and issue SSOC if necessary |
Key Cases Cited
- Holton v. Shinseki, 557 F.3d 1362 (discusses elements required to establish service connection)
- Shedden v. Principi, 381 F.3d 1163 (nexus requirement for service connection)
- Allen v. Brown, 7 Vet. App. 439 (service connection may be granted on a secondary basis when a service‑connected disorder aggravates a nonservice‑connected disability)
- Harder v. Brown, 5 Vet. App. 183 (application of 38 C.F.R. § 3.310 for secondary service connection)
- Jandreau v. Nicholson, 492 F.3d 1372 (lay evidence competency and when laypersons can identify medical conditions)
- Davidson v. Shinseki, 581 F.3d 1313 (lay nexus evidence limitations)
- Washington v. Nicholson, 19 Vet. App. 362 (competency of lay reports of first‑hand symptoms)
- Kutscherousky v. West, 12 Vet. App. 369 (claimant’s right to submit additional evidence after remand)