Citation Nr: 23026249
Decision Date: 05/05/23 Archive Date: 05/05/23

DOCKET NO. 17-16 962
DATE: May 5, 2023

ORDER

Entitlement to service connection for benign paroxysmal positional vertigo, claimed as dizziness, is granted.

REMANDED

Entitlement to a total disability rating based on individual unemployability (TDIU) prior to July 12, 2019, is remanded.

Entitlement to special monthly compensation based on housebound status prior to July 12, 2019, is remanded.

FINDING OF FACT

Giving every reasonable doubt to the Veteran, his benign paroxysmal positional vertigo, claimed as dizziness, is related to service.

CONCLUSION OF LAW

The criteria for service connection for benign paroxysmal positional vertigo, claimed as dizziness, have been met. 38 U.S.C. §§ 1131, 1154(a), 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran had active service from June 1976 to February 1986.

In May 2021 the Veteran testified before the undersigned Veterans Law Judge at a videoconference hearing. A transcript is of record.

This claim was previously before the Board in December 2021, July 2022, and November 2022, at which time the Board remanded it for additional development. The requested development has been completed for the issue of entitlement to service connection for benign paroxysmal positional vertigo, and the claim is properly before the Board for appellate consideration.

Entitlement to service connection for benign paroxysmal positional vertigo, claimed as dizziness

Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting service, was aggravated therein. 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d).

To establish service connection for a disability, there must be competent evidence of the following: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship or nexus between the present disability and the disease or injury incurred or aggravated during service. Horn v. Shinseki, 25 Vet. App. 231, 236 (2010); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). In many cases, medical evidence is required to meet the requirement that the evidence be "competent." However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007).

In addition to the elements of direct service connection and presumptive service connection, service connection may also be granted on a secondary basis for a disability if it is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc).

The service treatment records show that in March 1979 the Veteran complained of vertigo, nausea, and loss of appetite for two days. In July 1979 the Veteran requested a profile after passing out in the field. The Veteran was diagnosed with heat exhaustion in September 1979. In June 1981 the Veteran received a deep electrical shock in the left hand and lost consciousness for several minutes. The service treatment records show that the Veteran had several syncopal episodes due to heat, reactive hypoglycemia, and vasovagal reactions. The Veteran was diagnosed with a left earache in May 1982.

At September 2015 VA treatment the Veteran reported having dizziness/vertigo, a severe headache, and blurred vision. The assessment was hypertension emergency, hyperglycemia, and right upper quadrant pain. At May 2016 VA cardiology treatment the Veteran reported mild vertigo symptoms. The Veteran reported dizziness and syncope at February 2017 VA treatment, and he was diagnosed with syncope secondary to orthostatic hypotension. In December 2017 a VA treating physician opined that lightheadedness and vertigo were only positional and are likely secondary to orthostatic hypotension, and less likely was benign positional vertigo. The Veteran complained of dizziness at April 2018 VA treatment. It was also noted at April 2018 VA treatment that the Veteran had vertigo on a monthly basis since a cerebrovascular accident in 2016. At March 2019 VA occupational therapy the Veteran complained of dizziness while upright. He had fallen and lost consciousness twice. At an otolaryngology consultation it was noted that the Veteran had possible benign paroxysmal positional vertigo. The treating physician opined that dizziness was likely related to orthostatic hypotension and an otologic origin was not obvious. It was noted that he most likely had benign paroxysmal positional vertigo at March 2019 VA treatment. At March 2019 VA internal medicine treatment the Veteran was diagnosed with vertigo, and his blood pressure medicine was adjusted. The Veteran had a VA neurology consultation in December 2019 at which it was noted that vertigo started around 2016 and was associated with a sensation of ear fullness.

At February 2020 VA treatment the Veteran reported a history of vertigo on and off for four years. It was noted that despite extensive testing no etiology could be found except for "an inner ear problem." The Veteran said that dizzy spells occurred at least once a month. The Veteran testified at the May 2021 hearing that his dizziness began during service and had continued since then. He experienced dizziness every three or four days.

The Veteran had an examination arranged through VA in April 2022 at which he was diagnosed with benign paroxysmal positional vertigo. He had vertigo that lasted for less than an hour and occurred more than once weekly. It was noted that due to dizziness, the Veteran had difficulty travelling, shopping, getting in and out of bed, socializing with friends and family, and doing household chores.

The examiner opined that the benign paroxysmal positional vertigo was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The rationale was that the Veteran reported that his dizziness started in 2018, and treatment records from February 2020 clearly state that dizziness and vertigo had been going on for four years. This would put the onset at 30 years after service. Therefore, the vertigo diagnosed as benign paroxysmal positional vertigo was less likely than not related to service based on temporal dissociation and common medical knowledge.

The examiner also opined that it was less likely than not that the benign paroxysmal positional vertigo was proximately due to or the result of a service-connected condition. It was noted that benign paroxysmal positional vertigo occurs due to the displacement of calcium-carbonate crystals or otoconia within the fluid filled semicircular canals of the inner ear. Approximately 50 to 70 percent cases of benign paroxysmal positional vertigo occur with no known cause and are referred to primary or idiopathic. The remaining cases are called secondary benign paroxysmal positional vertigo and are associated with an underlying pathology, such as head trauma, vestibular neuronitis, labyrinthitis, Meniere disease, migraines, ischemia, and iatrogenic causes. Benign paroxysmal positional vertigo is not known to be caused by posttraumatic stress disorder, hearing loss, or tinnitus. Therefore, the examiner felt that service connection cannot be established on a secondary basis. The examiner also felt that the medical evidence was not sufficient to support a determination of a baseline level of severity. Furthermore, there was no medical evidence to support aggravation of benign paroxysmal positional vertigo due to PTSD, hearing loss, or tinnitus.

Probative value cannot be given to the April 2022 examiner's opinion because it is not clear that the examiner considered the in-service heat exhaustion, head injury, electric shock, notations of a left earache, and provisional diagnosis of vertigo, as instructed in the Board's December 2021 remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (Compliance by the Board or the RO with remand instructions is neither optional nor discretionary.). Regarding secondary service connection, the December 2021 Board remand instructed that the service-connected disabilities were to be considered. The service-connected left shoulder disabilities, the left upper extremity peripheral neuropathy, vasovagal syncope, and left ankle strain were not considered by the examiner. See id.

In August 2022 a VA examiner reviewed the record and opined that the Veteran's benign paroxysmal positional vertigo was less likely than not incurred in or caused by service. The service treatment records show that at a March 1979 examination it was noted that the Veteran had had fainting spells every time he went into the field and had been found to be dehydrated. The examiner felt this did not correlate to the chronic fainting spells seen in the record from after separation from service. Instead, the examiner felt that the post-service fainting spells were connected to diabetes mellitus type II, coronary artery disease, and hypertension. Dehydration was an acute episode and not a chronic condition.

The August 2022 VA examiner also opined that benign paroxysmal positional vertigo was not at least as likely as not proximately due to or the result of the Veteran's service-connected disabilities. Instead, it was more likely than not the result of the diabetes mellitus type II, seizures, hypertension, or history of coronary artery disease. The Veteran had been seen in the emergency department for dizziness and syncope related to elevated glucose levels. He was also on a significant amount of medication, many of which can cause dizziness as a side effect. It would be mere speculation to assume that one of the service-connected conditions caused the benign paroxysmal positional vertigo when considering the other listed diagnoses. Regarding aggravation of benign paroxysmal positional vertigo, it was nearly impossible to establish a baseline for the vertigo to provide an accurate opinion stating that a service-connected disability caused a progression of vertigo. Therefore, benign paroxysmal positional vertigo was not aggravated beyond its natural progression by the Veteran's service-connected disabilities.

Probative value cannot be given to the August 2022 opinion on service-connection on a direct basis because the examiner did not discuss all of the incidents from service noted in the July 2022 remand instructions. See Stegall, 11 Vet. App. at 271. While heat exhaustion episodes from 1979 were considered, there was no discussion of the head injury from June 1981, electric shock from June 1981, notations of a left earache from May 1982, and provisional diagnosis of vertigo in March 1979.

In December 2022 an examiner reviewed the record and opined that benign positional vertigo/dizziness was at least as likely incurred in service or was caused by the claimed in-service injury, event, or illness. It was noted that benign positional vertigo is known to occur due to prior head injuries and that the Veteran had an in-service head injury in June 1981. In a January 2023 addendum to the December 2022 opinion, the examiner wrote that a head injury is the most common cause of benign positional vertigo, accounting for 7 to 17 percent of cases. Trauma to the head may lead to the release of many otoconia into the endolymph, which is why most patients have bilateral benign paroxysmal positional vertigo. The examiner cited a National Institute of Health website.

The Veteran is competent to report that he has experienced dizziness since service. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). While the has not always been consistent regarding the history of his symptomatology, the record shows that he has had complaints of dizziness over a long period of time. The Board finds the Veteran's reports of having dizzy spells since service to be credible. Probative value is given to the December 2022 and January 2023 examiner's nexus opinions regarding service connection on a direct basis because the Veteran's medical history including in-service events and treatment, diagnosis of benign paroxysmal positional vertigo, and medical literature on causes of benign paroxysmal positional vertigo were considered. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) ("...[M]ost of the probative value of a medical opinion comes from its reasoning" and the Board "must be able to conclude that a medical expert has applied valid medical analysis to the significant facts of the particular case in order to reach the conclusion submitted in the medical opinion.").

When there is an approximate balance of positive and negative evidence regarding a material issue, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); Ortiz, 274 F.3d at 1364; 38 C.F.R. § 3.102. As the evidence is at least in equipoise, the Board finds that service connection for benign paroxysmal positional vertigo, claimed as dizziness, is warranted.

REASONS FOR REMAND

1. Entitlement to a TDIU prior to July 12, 2019, is remanded.

2. Entitlement to special monthly compensation based on housebound status prior to July 12, 2019, is remanded.

The assignment of the initial rating for the service-connected benign paroxysmal positional vertigo may impact whether the Veteran satisfies the criteria for special monthly compensation based on the need for housebound status prior to July 12, 2019. Furthermore, the assignment of a rating for benign paroxysmal positional vertigo will impact the adjudication of the claim for a TDIU prior to July 12, 2019. As such, the claims for a TDIU prior to July 12, 2019, and special monthly compensation based on housebound status prior to July 12, 2019, are inextricably intertwined with the assignment of an initial rating for benign paroxysmal positional vertigo, and they must be considered together. A decision by the Board on the Veteran's TDIU and special monthly compensation claims would, at this point in time, be premature. See Henderson v. West, 12 Vet. App. 11, 20 (1998).

The matters are REMANDED for the following action:

After the initial rating for the service connection for benign paroxysmal positional vertigo is assigned, readjudicate the claims for a TDIU prior to July 12, 2019, and special monthly compensation based on housebound status prior to July 12, 2019. If the benefits sought are not granted, the Veteran and his representative should be furnished an appropriate SSOC, provided an opportunity to respond, and the matter should thereafter be returned to the Board for further appellate review.

Michael J. Skaltsounis

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board Scott Shoreman, Counsel

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.