Citation Nr: 21022562 Decision Date: 04/16/21 Archive Date: 04/16/21 DOCKET NO. 18-15 550 DATE: April 16, 2021 ORDER The petition to reopen the claim for service connection for a disability manifested by dizziness is reopened, and the appeal is allowed to this extent. Service connection for a disability manifested by dizziness is denied. A compensable rating for otitis media of the left ear is denied. A compensable rating for residuals of a perforated tympanic membrane of the left ear is denied. FINDINGS OF FACT 1. An unappealed May 2014 rating decision declined to reopen a claim for service connection for a disability manifested by dizziness. 2. The evidence received since the May 2014 rating decision is neither cumulative nor redundant, relates to unestablished facts necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim for service connection for a disability manifested by dizziness. 3. The weight of the evidence is against a finding that the Veteran has a chronic disability manifested by dizziness or other such symptoms that result in a functional impairment of the Veteran’s earning capacity. 4. The Veteran’s otitis media of the left ear has not resulted in suppuration or aural polyps. 5. The Veteran’s residuals of a perforated tympanic membrane of the left ear have been assigned a noncompensable rating, which is the maximum rating authorized under Diagnostic Code 6211, applicable to perforation of the tympanic membrane. CONCLUSIONS OF LAW 1. The May 2014 rating decision declining to reopen the claim for service connection for a disability manifested by dizziness is final.  38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. 2. New and material evidence has been received sufficient to reopen the claim for service connection a disability manifested by dizziness. 38 U.S.C. § 5108; 38 C.F.R. §§ 3.102, 3.156(a), 3.159. 3. The criteria for service connection for a disability manifested by dizziness are not met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.307, 3.309. 4. The criteria for a compensable rating for otitis media of the left ear are not met. 38 U.S.C. § 1155; 38 C.F.R. § 4.87, Diagnostic Code 6200. 5. The criteria for a compensable rating for residuals of a perforated tympanic membrane of the left ear are not met. 38 U.S.C. § 1155; 38 C.F.R. § 4.87, Diagnostic Code 6211.   REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1997 to August 1997 and from January 2003 to February 2005. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2016 rating decision that declined to reopen the Veteran’s claim for service connection for a disability manifested by dizziness, and continued existing noncompensable ratings for otitis media of the left ear and residuals of a perforated tympanic membrane of the left ear. The Veteran participated in a February 2021 hearing before the undersigned, and a transcript of this hearing has been associated with the record. NEW AND MATERIAL EVIDENCE Decisions of the RO and the Board that are not appealed in the prescribed time are final. 38 U.S.C. §§ 7104, 7105; 38 C.F.R. §§ 3.104, 20.1100, 20.1103.  A finally disallowed claim may be reopened when new and material evidence is presented or secured with respect to that claim.    New evidence means existing evidence not previously submitted to agency decision makers.  Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim.  New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and it must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156; Smith v. West, 12 Vet. App. 312 (1999). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is low. Shade v. Shinseki, 24 Vet. App. 110 (2010).   A December 2008 rating decision last denied the Veteran’s claim for service connection for a disability manifested by dizziness on the merits. The AOJ determined, in essence, that the Veteran did not have a dizziness disability. A May 2014 rating decision found that the Veteran had not submitted new and material evidence sufficient to reopen the claim.  The Veteran was notified of the decision and of his appellate rights, but he did not appeal the May 2014 rating decision, and no pertinent evidence was received within one year of May 2014 rating decision.  Therefore, the May 2014 rating decision is final. Since the May 2014 rating decision, evidence has been added to the record relating to the presence of a current disability manifested by dizziness. For example, in April 2017, a clinician stated that the Veteran experienced moderate dizziness. This evidence relates to an unestablished fact necessary to substantiate the claim, namely, the presence of a current disability.  Acknowledging the “low” evidentiary threshold for determining whether new and material evidence has been received, the claim for service connection for a disability manifested by dizziness is reopened. SERVICE CONNECTION Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service.  38 U.S.C. § 1131; 38 C.F.R. § 3.303.  The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury.  Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). As the above three-part test demonstrates, a valid claim for service connection requires proof of a present disability. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The term “disability” refers to a functional impairment of earning capacity, and subjective symptoms alone, even absent a formal diagnosis, may result in such a functional impairment. See Saunders v. Wilkie, 887 F.3d 1356, 1364-68 (Fed. Cir. 2018). VA considers a disability to be “present” if a chronic disability exists at any time during the pendency of the claim for benefits, even if such disability resolves before VA’s adjudication of the claim. McClain v. Nicholson, 21 Vet. App. 319 (2007). Turning to the facts in this case, the Veteran underwent ear surgeries during service. For example, in December 2004, the Veteran underwent a surgical exploration and ossiculoplasty of the left middle ear. The surgical notes associated with this procedure indicated that the Veteran had previously undergone a tympanomastoidectomy of the left ear followed by an ossiculoplasty six months later. Following his separation from service, in December 2007, the Veteran underwent testing to evaluate his complaints of increasing dizziness, at which time all vestibular testing was normal. In September 2014, the Veteran complained of dizziness after his blood sugar measured over 400 mg/dl. In July 2016, which was contemporaneous with his claim, an examiner noted the Veteran’s subjective complaints of disequilibrium as the result of his in-service surgeries. The examiner further noted the Veteran’s self-report that balance issues limited his ability to safely drive an 18-wheeler. With that said, the examiner found that the Veteran had no clinical findings, signs, or vestibular symptoms attributable to such surgeries, including symptoms such as vertigo or staggering. In February 2017, the Veteran complained of progressively worsening symptoms of dizziness that he attributed to his history of ear surgeries. A Dizziness Handicap Inventory completed by the Veteran suggested the presence of a moderate self-perceived balance handicap. Objective testing of the Veteran’s symptoms, however, showed no evidence of benign paroxysmal positional vertigo. The clinician recommended that the Veteran undergo additional vestibular testing. While the Veteran was scheduled to undergo additional vestibular testing, he requested that such testing be postponed, and the record contains no indication that the Veteran rescheduled the recommended vestibular testing.   In April 2017, a private clinician noted that the Veteran complained of a 14-year history of feeling a moderate degree of dizziness. The clinician recommended that the Veteran undergo videonystagmography (VNG) testing to evaluate his complaints of dizziness. To date, the Veteran has not submitted records relating to this VNG testing. In March 2018, the Veteran stated that the April 2017 clinician “refused to do a test to help show the fact that [he had] dizziness and loss of balance due to this hole being in [his] ear”. During his February 2021 personal hearing, the Veteran explained that he could not participate in vestibular testing because of his perforated tympanic membrane. Turning to an analysis of this evidence, the weight of the evidence is against a finding that the Veteran has a chronic disability resulting in dizziness for which service connection may be granted.  The Board places great weight in the finding of the July 2016 examiner that despite the Veteran’s subjective complaints of disequilibrium and issues with balance, the Veteran did not, in fact, have a vestibular disability as the result of his in-service surgeries. With that said, the Board is cognizant that the Veteran’s subjective complaints alone may indeed constitute a disability, even absent a current diagnosis. See Saunders. The facts in this case are, however, distinguishable from those in Saunders because the July 2016 examiner, upon consideration of the Veteran’s subjective report of symptoms, found the Veteran’s subjective account of symptoms of disequilibrium not to constitute a vestibular disability. Consistent with the examiner’s finding, objective vestibular testing of the Veteran, including tests conducted in December 2007 and February 2017, showed normal results. While an April 2017 clinician stated that the Veteran’s self-reported symptoms of dizziness resulted in a moderate functional impairment, the clinician further stated that VNG testing was required in order to “evaluate [the Veteran’s] dizziness”. The Veteran has not introduced the results of such VNG testing into the record, and, in fact, has indicated that such testing did not occur because the clinician “refused” to conduct VNG testing. Without the results of such testing, the Board places little probative weight on the statement of the April 2017 clinician that the Veteran experienced a moderate functional impairment, because the clinician’s report itself indicates that further testing was required to properly evaluate the Veteran’s dizziness. During the February 2021 personal hearing the Veteran indicated that his care providers had identified him as having a dizziness disability that was due to service events. The record was held open after the February 2021 hearing to permit the Veteran the opportunity to obtain and submit a medical opinion addressing the nature and etiology of any dizziness disorder. To date, no such opinion has been submitted. To the extent that the Veteran believes that he has a disability resulting in dizziness, the Board notes that the Veteran is competent to testify as to readily observable symptoms. Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); Barr v. Nicholson, 21 Vet. App. 303 (2007).  The Veteran, as a layperson, is not competent, however, to report that any symptoms that he experiences rise to the level of a “disability” for VA purposes.  Thus, while the Veteran may experience certain symptoms, his statements are not sufficient to establish the presence of a disability resulting in dizziness, or even a functional loss associated with such symptoms. In sum, the weight of the evidence is against a finding that the Veteran’s subjective complaints of dizziness have resulted in a functional impairment for which service connection may be granted. The claim for service connection is denied. INCREASED RATINGS The Veteran seeks greater ratings for otitis media of the left ear, which is currently rated noncompensable under Diagnostic Code 6200, and for residuals of a perforated tympanic membrane of the left ear, which is currently rated noncompensable under Diagnostic Code 6211. See 38 C.F.R. § 4.87. Turning to the facts in this case, the Veteran filed his claim for increased ratings in June 2016. The Veteran underwent a VA examination in July 2016, at which time the examiner noted that the Veteran had serous discharge of the left external ear canal. The Veteran’s left ear disability did not result in swelling of the external ear canal, dryness or scaliness of the external ear canal, itching of the external ear canal, effusion, active suppuration, aural polyps, facial nerve paralysis, or bone loss of skull. The Veteran’s left ear disability did not require frequent and prolonged treatment, nor did the Veteran have a benign neoplasm of the ear causing any impairment of function. Upon examination, the Veteran’s external ear was normal. The Veteran’s left ear canal was swollen and allowed for limited visualization of the tympanic membrane, but the examiner noted a deformity of the left tympanic membrane. The examiner observed a slightly cloudy discharge in the left ear canal. In April 2017, a private clinician noted the Veteran’s complaints of pain and fullness in the left ear, and brown drainage from the left ear. Otoscopic examination of the Veteran’s left ear showed a normal external auditory canal and a 70 percent perforation of the central tympanic membrane. The mastoid cavity was clean and dry. In March 2018, the Veteran stated that his chronic left otitis media warranted a greater rating because he experienced regular ear infections, and he sought treatment for such infections from private clinicians. The Veteran stated that his residuals of a perforated tympanic membrane warranted a greater rating because such residuals resulted in a hearing impairment. During the Veteran’s February 2021 hearing before the undersigned, the Veteran stated that he experienced six to eight ear infections each year. Turning to an analysis of these facts, diseases of the ear are rated under Diagnostic Codes 6200 to 6260. 38 C.F.R. § 4.87. Diagnostic Code 6200 provides for a maximum 10 percent rating during suppuration or with aural polyps. Id. Associated symptoms such as hearing impairment, labyrinthitis, tinnitus, facial nerve paralysis, or bone loss, are to be evaluated separately. Id. With that said, as was discussed during the Veteran’s February 2021 hearing, the Board will not   consider the Veteran’s claimed symptoms of hearing loss or tinnitus because the Veteran did not appeal the RO’s December 2016 adjudication of these issues to the Board. A compensable rating for the Veteran’s otitis media of the left ear is unwarranted because the evidence of record does not show active suppuration or the presence of aural polyps. Diagnostic Code 6201 (chronic nonsuppurative otitis media with effusion (serous otitis media)) is rated on the basis of hearing impairment, which, as noted above, has been separately adjudicated as unrelated to the Veteran’s service. 38 C.F.R. § 4.87. A greater rating under this Diagnostic Code is therefore unavailable. Diagnostic Codes 6202 (otosclerosis), 6204 (peripheral vestibular disorders), 6205 (Meniere’s syndrome), 6207 (loss of auricle), 6208 (malignant neoplasm of the ear), and 6209 (benign neoplasm of the ear) are inapplicable because the Veteran has not been diagnosed with such disabilities. See id. Diagnostic Code 6210, applicable to chronic otitis externa, provides for a maximum 10 percent rating with swelling, dry and scaly or serous discharge, and itching requiring frequent and prolonged treatment. See id. While the July 2016 examiner noted that the Veteran’s left ear had serous discharge, the Veteran did not experience swelling, dryness, scaliness, or itching of the left ear. The examiner further found that the Veteran’s left ear disability did not require frequent or prolonged treatment. The Board otherwise finds that the Veteran’s treatment records do not show symptoms approximating those described under this Diagnostic Code, and a greater rating is thus unavailable. It is noted that the record was held open after the Veteran’s personal hearing to permit him the opportunity to submit additional private treatment records and that no such records were provided. The Veteran is in receipt of a maximum noncompensable evaluation under Diagnostic Code 6211, applicable to perforation of the tympanic membrane, and a greater evaluation is thus unavailable to the Veteran under this Diagnostic Code.   In sum, ratings in excess of the currently-assigned noncompensable evaluations of the Veteran’s left ear disability under Diagnostic Codes 6200 and 6211 are unavailable, and the Veteran’s claims for increased ratings are denied. MICHAEL A. HERMAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J.A. Flynn, 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.