Citation Nr: 1237112 Decision Date: 10/25/12 Archive Date: 11/09/12 DOCKET NO. 09-03 392A ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Hartford, Connecticut THE ISSUE Entitlement to service connection for a disability manifested by nausea, claimed as secondary to service-connected right ear hearing loss associated with perforated right ear drum. REPRESENTATION Appellant represented by: Connecticut Department of Veterans Affairs ATTORNEY FOR THE BOARD G. Jackson, Counsel INTRODUCTION The Veteran served on active duty for training from August 1992 to December 1992, and on active duty from September 1998 to January 2000 and from September 2004 to December 2005. This case comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision issued by the RO. In June 2011 and May 2012, the Board remanded the claim for additional development. The case has been returned to the Board for further appellate action. The Board notes that, in addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claim. A review of the documents in the electronic file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issues on appeal. FINDINGS OF FACT 1. The Veteran is service-connected for right ear hearing loss, tinnitus, and peripheral vestibular disorder associated with perforated right ear drum. His demonstrated nausea is not shown to be a manifestation of another separate and distinct disability that is causally related to any period of active military service or otherwise caused or made worse by his service-connected disabilities. 2. The nausea is a symptom of the service connected peripheral vestibular disorder. CONCLUSION OF LAW With reasonable doubt resolved in the Veteran's favor, his nausea is shown to be a manifestation of the service connected ear pathology and peripheral vestibular disorder that was incurred in service. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.310 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 The Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2011) redefined VA's duty to assist a claimant in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2011). In view of the essential allowance as to this issue on the merits. Further development or notice is not indicated. I. Laws and Regulations 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). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir.1996) (table); see also Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007); see Savage v. Gober, 10 Vet. App. 488, 495-97 (1997); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999). 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, 10 Vet. App. at 495-96; see Hickson, 12 Vet. App. at 253 (lay evidence of in-service incurrence sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303(b). 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. Presumptive periods are not intended to limit service connection to diseases so diagnosed when the evidence warrants direct service connection. The presumptive provisions of the statute and VA regulations implementing them are intended as liberalizations applicable when the evidence would not warrant service connection without their aid. 38 C.F.R. § 3.303(d). A disorder may be service connected if the evidence of record, regardless of its date, shows that the veteran had a chronic disorder in service or during an applicable presumptive period, and that the veteran still has such a disorder. 38 C.F.R. § 3.303(b); Savage, 10 Vet. App. at 494-95. Under 38 C.F.R. § 3.310(a) (2011), service connection may also be granted for disability that is proximately due to or the result of a service-connected disease or injury. That regulation permits service connection not only for disability caused by service-connected disability, but for the degree of disability resulting from aggravation of a nonservice-connected disability by a service-connected disability. See also Allen v. Brown, 7 Vet. App. 439, 448 (1995). The Board notes that, effective October 10, 2006, VA amended 38 C.F.R. § 3.310 with regard to the requirements for establishing secondary service connection on an aggravation basis. See 71 Fed. Reg. 52,744-47 (Sept. 7, 2006). However, given the basis of the denial, as noted below, any further discussion of the amendment is unnecessary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b). II. Analysis The Veteran contends that he has a separate and distinct disability, manifested by nausea, that is related to his service-connected hearing loss stemming from an in-service perforation of the right tympanic membrane. His service treatment records reflect that he was treated for a right tympanic membrane perforation in 2003 after he developed right ear pain in flight. It was noted that the Veteran was a helicopter pilot. He underwent surgical repair, but then re-ruptured his right eardrum as a result of barotrauma during a steep descent into Iraq in January 2005. He again underwent additional surgery to repair the tympanic membrane. A June 2007 statement from ear, nose and throat physician Dr. K. indicates that the Veteran has severe right hearing loss and associated tinnitus due to right chronic ear disease. It was noted that he Veteran presented in 2003 with right aural pressure related to landing his helicopter. A small perforation of the right tympanic membrane was observed. Dr. K. noted that the Veteran's subsequent ear problems included hearing loss and nausea associated with loud noises, and that these were the result of continued difficulty in managing the perforation. On VA audiological evaluation in March 2008, the Veteran reported that he continued to experience occasional dizziness when he turned to quickly, as well as constant tinnitus. He also indicated that he experienced right otalgia with pressure differences, such as going up a steep hill. In addition, the Veteran reported that he had been experiencing nausea since mid-2006. He claimed that the nausea occurred when he heard certain tones or when he was in a crowded room. The examiner indicated that as she was an audiologist, and that she could not determine the etiology of the Veteran's nausea. She recommended that the Veteran be scheduled for examination by an ENT physician. A May 2008 polytrauma consult reflects that the Veteran blew his right ear drum during a steep descent into an airport in Iraq. He indicated that this caused a mastoid tumor requiring two surgeries. He endorsed neurobehavioral symptoms including mild dizziness, loss of balance, headaches, and nausea, and moderate to severe symptoms of fatigue and sensitivity to light and noise. An October 2009 VA physical therapy report noted that the Veteran performed balance exercises for his vertigo, status post mastoidectomy. An assessment of status post mastoidectomy with dizziness with head-turning and changes of position was indicated. It was noted that the Veteran did not tolerate the exercises well, and the Veteran indicated that he felt that he might vomit. Pursuant to the May 2012 Board remand, the Veteran received another VA examination in June 2012. The examiner noted the history of the Veteran's right ear disabilities associated with the perforated right ear drum. While the examiner indicated that "the claimed condition was at least as likely as not (50 percent or greater probability) incurred in or caused by the claimed in service injury, event or illness," he explained that based on the review of the Veteran's claims file (and electronic medical records), examination of the Veteran and the natural history of his ear disorder and its resulting complications, it was as likely as not that his symptoms of nausea was a manifestation of the service-connected peripheral vestibular disorder. To that end, the examiner noted that the Veteran did not have any other significant medical conditions that would account for symptoms of nausea. As such, service connection is essentially granted for the nausea is a symptom of the already service connected right ear pathology to include the peripheral vestibular disorder, with dizziness. The nausea is associated with the service connected pathology and should be considered part and parcel of that disorder. There is no other disorder causing the nausea. As such, the correct question to be asked in this case is whether the nausea presents such significant impairment as to warrant a higher rating for the already service connected disorder. That issue is not before the Board and should be raised in the first instance at the RO for initial consideration if appellant and his representative so desire. ORDER Service connection for nausea as a symptom of the already service connected ear pathology, to include peripheral vestibular disorder with dizziness is granted. The appeal is allowed to this extent. ____________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs