13-36 239
13-36 239
| Board of Vet. App. | Oct 23, 2017Background
- Veteran served active duty Oct 1961–Aug 1962 and in the Army National Guard (1957–1963) with ACDUTRA/INACDUTRA periods.
- Claim: service connection for middle ear dysfunction with vertigo (also asserted as secondary to service‑connected tinnitus); originally denied and reopened; hearings and remands occurred (Board remands in 2015 and 2017).
- Relevant medical record: no in‑service complaints, findings, or diagnoses of vertigo; separation exams in 1962 and 1966 denied history of dizziness and found ears normal.
- First documented diagnosis of middle ear dysfunction/vertigo (vestibular neuritis) appears in private records from March 1999; subsequent ENT workup, vestibular therapy, and ongoing symptoms documented thereafter.
- VA obtained a December 2016 examination and an August 2017 supplemental/addendum opinion; both concluded it is less likely than not that the vertigo is related to service or proximately caused/aggravated by service‑connected tinnitus.
- Board found VA satisfied notice and duty‑to‑assist and concluded the preponderance of competent evidence is against service connection (direct or secondary); claim denied.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether veteran's middle ear dysfunction with vertigo is service‑connected (direct) | Veteran: vertigo began in service or results from service exposure/noise; lay reports of ear problems since service | VA: no in‑service or immediate post‑service evidence; first diagnosis decades after discharge; VA medical opinion finds no nexus | Denied — preponderance of evidence against service connection |
| Whether continuity of symptomatology establishes service connection | Veteran: reports ongoing ear symptoms since service (lay testimony) | VA: lay testimony cannot prove medical etiology; records do not show continuous vestibular symptoms since service | Denied — continuity not shown; medical nexus lacking |
| Whether vertigo is secondary to service‑connected tinnitus (proximately caused or aggravated) | Veteran: loud noise increases tinnitus which triggers vertigo episodes | VA: medical addendum: tinnitus does not permanently aggravate vertigo; loud noise causes tinnitus but not vertigo | Denied — evidence weighs against secondary service connection |
| Whether VA satisfied duty to notify and assist and complied with remands | Veteran: (implicitly) entitlement requires full development | VA/Board: provided VCAA notice, obtained records, exams, and supplemental opinions; remand directives complied with | Held — VA satisfied duties; development adequate |
Key Cases Cited
- Dickens v. McDonald, 814 F.3d 1359 (Fed. Cir. 2016) (VA hearing adequacy standard)
- Stegall v. West, 11 Vet. App. 268 (1998) (Board must ensure compliance with remand directives)
- Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (continuity of symptomatology for chronic disease claims)
- Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004) (elements required to establish service connection)
- Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001) (benefit‑of‑the‑doubt rule and equipoise)
- Gilbert v. Derwinski, 1 Vet. App. 49 (1990) (benefit‑of‑the‑doubt/claim evaluation standard)