Citation Nr: 1754878 Decision Date: 11/30/17 Archive Date: 12/07/17 DOCKET NO. 17-43 582 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Entitlement to an initial rating in excess of 30 percent for heart block, implanted cardiac pacemaker, cardiogenic syncope, and cardiac arrest. 2. Entitlement to service connection for vertigo. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD D. Van Wambeke, Counsel INTRODUCTION The Veteran had honorable active duty service from June 1958 to July 1963 and from February 1989 to July 1999. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a December 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO), which granted service connection for "heart block, implanted cardiac pacemaker, cardiogenic syncope, and cardiac arrest (also claimed as vertigo)" and assigned an initial rating of 30 percent effective November 18, 2013. The Veteran, who is a physician, had claimed service connection for vertigo secondary to anti malaria medication rather than as a symptom of his heart condition. See November 2013 VA Form 21-526. In the December 2014 rating decision that is the subject of this appeal, the RO essentially concluded that the claimed vertigo was a symptom of the heart condition without adjudicating a claim for service connection for vertigo as a distinct disorder. The Veteran's appeal of that rating decision was limited to the RO's failure to grant vertigo separate from the service-connected heart disability. As such, the Board has recharacterized the issues as reflected on the title page. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). FINDINGS OF FACT 1. The Veteran's notice of disagreement (NOD) did not challenge the evaluation assigned for his heart disability, and neither the NOD nor the substantive appeal alleged specific error of fact or law in support of a higher initial rating for the service-connected heart condition; the Veteran's appeal was limited to establishing a separate service-connected disability for vertigo. 2. The Veteran has been diagnosed with benign paroxysmal positional vertigo and a VA examiner has provided an opinion that it is at least as likely as not related to service. CONCLUSIONS OF LAW 1. The criteria for dismissal of the appeal of the initial 30 percent rating assigned for the service-connected heart block, implanted cardiac pacemaker, cardiogenic syncope, and cardiac arrest, have been met. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.200, 20.202 (2017). 2. The requirements for establishing service connection for benign paroxysmal positional vertigo have been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran filed a claim for service connection in November 2013, asserting he was entitled to service connection for cardiac arrhythmia and cardiac arrest and for vertigo secondary to anti malaria medication. See VA Form 21-526. The RO adjudicated the heart claim, granting service connection for heart block, implanted cardiac pacemaker, cardiogenic syncope, and cardiac arrest, but suggested the claimed vertigo was a symptom of his heart disability by noted his heart claim was "also claimed as vertigo". The RO did not specifically address entitlement to vertigo as a distinct condition. The Veteran, who is a physician, has clearly articulated his disagreement with the December 2014 rating decision stems only from the fact that the RO did not assign a rating for vertigo separate from the service-connected heart disability. See November 2015 VA Form 21-0958; August 2017 VA Form 21-4138. The RO addressed this assertion in the June 2017 statement of the case, determining that dizziness was one of the criteria used to evaluate the heart condition such that the symptom of vertigo could not be evaluated separately from the heart condition. Review of all statements submitted in this case reveal that neither the Veteran, nor his representative, has provided any argument in support of an initial rating in excess of 30 percent for the service-connected heart block, implanted cardiac pacemaker, cardiogenic syncope, and cardiac arrest. See e.g., November 2015 VA Form 21-0958; August 2017 VA Form 21-4138; November 2017 Informal Hearing Presentation. The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105 (2012). Given the fact that the Veteran is a physician and therefore understands the distinction between his heart disease symptoms and his claimed vertigo, and given the absence of any argument in support of entitlement to an initial rating in excess of 30 percent for the service-connected heart block, implanted cardiac pacemaker, cardiogenic syncope, and cardiac arrest, the Board finds that dismissal of the claim for an initial rating in excess of 30 percent for the service-connected heart condition is warranted. However, in addressing his actual argument in this case, the Board finds that service connection for benign paroxysmal positional vertigo, as a distinct condition, is warranted. Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Following a December 2014 VA examination, the examiner diagnosed the Veteran with benign paroxysmal positional vertigo and provided an opinion that the condition was at least as likely as not incurred in or caused by the claimed in-service injury, event or illness. The examiner specifically explained that the Veteran had vertigo as a result of an adverse reaction to the anti-malarial Mefloquine during service (in March 1995) and that his vertigo had continued from his time in service. Given the foregoing, and in light of the fact that VA provides separate ratings for peripheral vestibular disorders pursuant to 38 C.F.R. § 4.87, service connection for benign paroxysmal positional vertigo is granted on a direct basis pursuant to 38 C.F.R. § 3.303. ORDER The appeal of the initial 30 percent rating assigned for the service-connected heart block, implanted cardiac pacemaker, cardiogenic syncope, and cardiac arrest, is dismissed. Service connection for benign paroxysmal positional vertigo is granted. ____________________________________________ K. A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs