Citation Nr: 1738667 Decision Date: 09/13/17 Archive Date: 09/22/17 DOCKET NO. 14-06 394 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUES 1. Entitlement to service connection for a peripheral vestibular disorder, to include vertigo and dizziness. 2. Entitlement to service connection for headaches. 3. Entitlement to service connection for gastroesophageal reflux disease (GERD), to include hiatal hernia. REPRESENTATION Veteran represented by: Jon M. Brown, Agent WITNESSES AT HEARING ON APPEAL The Veteran and C.N.B, M.D. ATTORNEY FOR THE BOARD J.A. Gelber, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1963 to November 1966. These matters come before the Board of Veterans' Appeals (Board) on appeal from August 2012 and November 2012 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota. In May 2017, the Veteran and C.N.B., M.D., testified before the undersigned at a videoconference hearing in St. Paul, Minnesota. A transcript of that hearing has been associated with the claims file and reviewed. In May 2012, the Veteran filed claims of service connection for vertigo and Meniere's disease. The Agency of Original Jurisdiction (AOJ) combined the two claims and denied service connection on the grounds that there was no current diagnosis of Meniere's disease. As the record reflects a diagnosis of a peripheral vestibular disorder, which encompasses vertigo and dizziness, the Board has broadened and recharacterized the claim on appeal. See Clemons v. Shinseki, 23 Vet. App. 1, 4-5 (2009) (finding that what constitutes a claim is not limited by a lay veteran's assertion of his condition in the application, but must be construed based on the reasonable expectations of the non-expert claimant and the evidence developed in processing the claim). The Board acknowledges that the Veteran perfected his appeal of the original denial of service connection for bilateral hearing loss in January 2014. However, the AOJ subsequently granted service connection for bilateral hearing loss in a May 2014 rating decision. As the award of service connection for bilateral hearing loss constitutes a full grant of the benefit sought on appeal, that issue is no longer in appellate status and is thus not currently before the Board. A motion to advance this appeal on the Board's docket has been raised by the Board's Acting Vice Chairman. The undersigned is granting the motion and advancing the appeal on the docket based upon advanced age. 38 C.F.R. § 20.900(c) (2016) ("advanced age" is defined as 75 years or more of age). FINDINGS OF FACT 1. The competent and probative evidence is at least in equipoise as to whether the Veteran's peripheral vestibular disorder, to include vertigo and dizziness, had its onset in or is otherwise related to his period of active service. 2. The competent and probative evidence is at least in equipoise as to whether the Veteran's headaches had their onset in or are otherwise related to his period of active service. 3. The competent and probative evidence is at least in equipoise as to whether the Veteran's GERD, to include hiatal hernia, had its onset in or is otherwise related to his period of active service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for peripheral vestibular disorder, to include vertigo and dizziness, have been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2014); 38 C.F.R. § 3.303 (2016). 2. The criteria for entitlement to service connection for headaches have been met. 38 U.S.C.A. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309 (2016). 3. The criteria for entitlement to service connection for GERD, to include hiatal hernia, have been met. 38 U.S.C.A. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist As the issues decided herein are being granted in full, any deficiency as to VA's duties to notify and assist would be harmless error and will not be discussed. II. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). As a general matter, establishing service connection requires competent evidence of (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); 38 C.F.R. § 3.303. A veteran is presumed in sound condition except for defects, infirmities, or disorders noted at the time, or where evidence or medical judgment establishes that an injury or disease preexisted service. 38 U.S.C.A. §§ 1111, 1132 (West 2014); 38 C.F.R. § 3.304(b) (2016). VA may rebut this presumption only if there is clear and unmistakable evidence that the disease or injury at issue existed prior to service and was not aggravated by service. Id. The Veteran is competent to report symptoms and experiences observable by his senses. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159(a). In relevant part, 38 U.S.C.A. § 1154(a) (West 2014) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability benefits. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 57-58 (1990). A. Peripheral vestibular disorder After review of the record, the Board finds that the criteria for service connection for peripheral vestibular disorder, to include vertigo and dizziness, have been met. The record contains a diagnosis of peripheral vestibular disorder, which encompasses other diagnoses of chronic subjective dizziness and blast associated vertigo. 05/25/2017 VBMS, TPC, p. 12. Thus, the Board finds evidence of a current disorder. In May 2017, the Veteran testified that he experienced acoustic trauma after being in close proximity to a grenade explosion in service. The Veteran also testified to noise exposure from working in close proximity to generators for 15 hours per day while stationed in Germany. 05/12/2017 VBMS, Hearing Transcript, pp. 9, 12. The Board notes that the Veteran is service connected for bilateral hearing loss and tinnitus based on in-service acoustic trauma. Thus, the Board finds evidence of an in-service event. In May 2017, VA received a statement from Dr. C.N.B. in which he opined that it is at least as likely as not that the Veteran's peripheral vestibular disorder was caused by in-service noise exposure and/or blast injuries. In support of his opinion, Dr. C.N.B. noted the following: there is no indication the Veteran suffered from dizziness prior to service; the medical literature supports an association between acoustic trauma noise induced hearing loss and vestibular dysfunction; time lag between acoustic and blast trauma injuries in service and current pathology is consistent with known medical principles and the natural history of this disease; and the opinion is consistent with the Veteran's lay statements and objective findings. 05/25/2017 VBMS, TPC, pp. 14-16. The Board acknowledges the September 2014 VA examiner's opinion that there is clear and unmistakable evidence that the Veteran's Meniere's disease existed prior to service, and that it was not aggravated beyond its natural progression by an in-service event, injury or illness. In support, the examiner stated that the Veteran does not have a diagnosis of Meniere's disease, but rather chronic subjective dizziness with visual sensitivity. 09/18/2014 VBMS, C&P Exam, pp. 3-4. The Board assigns little probative weight to the examiner's opinion, as the notion that the Veteran had Meniere's disease preservice is contradicted by both the record and seemingly by the examiner's own rationale. The Board notes the examiner's admission that it is possible the Veteran's chronic subjective dizziness stemmed from the post-blast injury right labyrinthitis he suffered in 1963 that lead to benign positional vertigo, providing further support for Dr. C.N.B.'s opinion. Accordingly, the Board finds that the competent and probative evidence is at least in equipoise as to whether the Veteran's peripheral vestibular disorder had its onset in or is otherwise related to his period of active service. B. Headaches Certain chronic diseases, including some types of headaches (as organic disease of the nervous system), will be considered incurred in service if manifest to a degree of ten percent within one year of service. 38 C.F.R. §§ 3.307, 3.309(a); see also VBA Adj. Manual M21-1, III.iv.4.G.1.d (classifying migraine headaches as an organic disease of the nervous system under 38 C.F.R. § 3.309(a)). Under 38 C.F.R. § 3.303(b), an alternative method of establishing service connection for the chronic diseases listed in Section 3.309(a) is through a demonstration of continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage v. Gober, 10 Vet. App. 488, 495-97 (1997), overruled on other grounds by Walker, 708 F.3d 1331. After review of the record, the Board finds that the criteria for service connection for headaches have been met. The record reflects diagnoses of migraine headaches and tension headaches. 09/18/2014 VBMS, C&P Exam, p. 2. The Veteran's headache disorder has also been described as vestibular variant migraine. 05/25/2017 VBMS, TPC, pp. 13-14. Thus, the Board finds evidence of a current headache disorder. In May 2017, the Veteran testified that began experiencing headaches immediately after being in close proximity to a grenade explosion in service. He further testified that he first sought treatment for headaches with his family doctor around 1971. 05/12/2017 VBMS, Hearing Transcript, pp. 7, 13. The Veteran has reported continuing to experience headaches since service, with increasing frequency and severity since around 2002. 01/22/2014 VBMS, Medical-Non-Government, p. 5. In a statement written by the Veteran's spouse received by VA in May 2017, she indicates that she met the Veteran in 1968, and that in 1969 she noticed that he was taking Excedrin more frequently. At that time, the Veteran told his spouse that he experienced headaches since service and that Excedrin was the only thing that helped. 05/25/2017 VBMS, TPC, p. 12. In May 2017, VA received a statement from Dr. C.N.B. in which he opined that it is at least as likely as not that the Veteran's headache disorder was caused by in-service noise exposure and/or blast injuries. Dr. C.N.B. noted that the record demonstrates a chronicity of headache symptoms. 05/25/2017 VBMS, TPC, pp. 14-16. Accordingly, the Board finds that the competent and probative evidence is at least in equipoise as to whether headaches were noted during service and whether there is post-service continuity of the same symptomatology. See Savage, 10 Vet. App. at 495-97. The Board acknowledges the September 2014 VA examiner's opinion that the Veteran's headaches were not aggravated by his service-connected hearing loss or tinnitus. 09/18/2014 VBMS, C&P Exam. However, the Board notes that the examiner did not offer an opinion as to whether the Veteran's headaches had their onset in or are otherwise related to his period of service, or whether his headaches were caused by hearing loss, tinnitus, or vestibular dysfunction. Accordingly, the opinion does not conflict with Dr. C.N.B.'s opinion or the Board's findings. Furthermore, as the disability in question is a chronic disease under 38 C.F.R. § 3.309(a), an award of service connection may be established solely on the basis of continuity of symptomatology. Walker, 1331, 1338. Hence, any doubt on this material issue is resolved in the Veteran's favor and the claim is granted. C. GERD After review of the record, the Board finds that the criteria for service connection for GERD, to include hiatal hernia, have been met. The record contains diagnoses of GERD and hiatal hernia. 09/07/2012 VBMS, VA Exam, p. 2. Thus, the Board finds evidence of a current disorder. The Veteran's military service entrance examination noted the Veteran's report of a history of stomach spasms, but no diagnosis was noted at the time. 09/14/2016 VBMS, STR-Medical, pp. 7, 9, 22-23. Shortly before discharge, the Veteran reported experiencing stomach bloating and spasm during service, particularly during long periods between meals. Id. at 2-3. In May 2017, the Veteran testified that he experienced stomach issues in grade school that were treated by his mother, but that his stomach problems were not diagnosed and that they were never treated by a medical professional. The Veteran also testified to experiencing stomach pain, stomach spasms, problems swallowing, and regurgitation on a continuous basis since discharge until he was diagnosed with and began taking medication for GERD in 2002. 05/12/2017 VBMS, Hearing Transcript, pp. 18-25. The Veteran's spouse submitted a statement in which she recalls noticing that the Veteran was experiencing very bad stomachaches after they were first married in 1971. 06/25/2017 VBMS, TPC, p. 12. At the May 2017 hearing, Dr. C.N.B. opined that the Veteran's in-service symptoms of stomach spasm and bloating were his first symptoms of GERD and that the symptoms have been continuous since discharge. Dr. C.N.B. further opined that the Veteran's preservice stomach issues were likely normal childhood stomachaches, constipation, and other similar conditions. 05/12/2017 VBMS, Hearing Transcript, pp. 18-25. Accordingly, the Board finds that the file lacks clear and unmistakable evidence that GERD or hiatal hernia existed prior to service, and the Veteran will be presumed sound at entry. See 38 U.S.C.A. §§ 1111, 1132; 38 C.F.R. § 3.304(b). In May 2017, VA received a statement from Dr. C.N.B. in which he reiterated his opinion that it is at least as likely as not that the Veteran's GERD manifested during his period of active service, citing to his in-service symptoms of stomach spasm and bloating. In support, Dr. C.N.B. noted that the Veteran was sound upon entry, bloating and stomach spasms are consistent with GERD, and that the Veteran's lay statements show a chronicity of symptoms. 05/25/2017 VBMS, TPC, pp. 16-18. The Board acknowledges the September 2012 VA examiner's opinion that the Veteran's hiatal hernia and GERD are "at least as likely as not unrelated" to any injury or exposure during service. In support of that finding, the examiner stated that the Veteran was treated for stomach spasms before service, and that he was not diagnosed with GERD or hiatal hernia until 45 years after discharge. 09/07/2012 VBMS, VA Exam, p. 12. Initially, the Board notes that the examiner mischaracterized the standard of proof in stating his opinion. Moreover, as explained above, the Veteran here is presumed sound, thus his preservice stomach spasms are not relevant. Finally, the examiner failed to properly consider lay evidence describing a continuity of post-service symptomatology. Accordingly, the Board assigns the September 2012 VA examiner's opinion very little probative weight. Accordingly, the Board finds that the competent and probative evidence is at least in equipoise as to whether the Veteran's GERD, to include hiatal hernia, had its onset in or is otherwise related to his period of active service. ORDER Service connection for peripheral vestibular disorder, to include vertigo and dizziness, is granted. Service connection for headaches is granted. Service connection for GERD, to include hiatal hernia, is granted. ____________________________________________ ERIC S. LEBOFF Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs