Citation Nr: 21024413 Decision Date: 04/22/21 Archive Date: 04/22/21 DOCKET NO. 17-55 914 DATE: April 22, 2021 ORDER Entitlement to service connection for an inner ear disability, to include Meniere’s syndrome, positional lightheadedness, or vertigo is granted. FINDING OF FACT Resolving all doubt in favor of the Veteran, his inner ear disability is etiologically related to his in-service noise exposure and service-connected bilateral hearing loss disability. CONCLUSION OF LAW The criteria for entitlement to service connection for an inner ear disability, to include as secondary to a service-connected bilateral hearing loss disability, have been met. 38 U.S.C. §§ 1112, 1113,1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Air Force from May 1954 to February 1959 and from February 1965 to June 1974. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In September 2019, the Veteran testified before the undersigned Veterans Law Judge during a Board video conference hearing. This matter was previously before the Board in July 2020. The Board notes that his claims for service connection for a bilateral hearing disability and tinnitus disability were also on appeal but were granted in a July 2020 Board decision. As such those claims are no longer before the Board. In the Board decision, his service connection claim for an inner ear disability was remanded to afford him with a VA examination. The AOJ denied his service connection claim for an inner ear disability in a November 2020 supplemental statement of the case (SSOC). The Board notes that additional VA examinations were associated with his claims file after the November 2020 SSOC. While 38 U.S.C. § 7105 (e) provides an automatic waiver of initial AOJ review if a veteran submits evidence to the AOJ or the Board with, or after submission of, a Substantive Appeal, it does not apply to VA-generated evidence, such as VA treatment records. 38 U.S.C. § 7105 (e). A specific waiver of AOJ review must be obtained from the Veteran unless the matter is being granted in full or remanded. Here, the Board attempted to obtain a waiver of AOJ review from the Veteran in February 2021 but have not received any response indicating his intention to waive AOJ review of these additional VA examinations. However, as the Board is granting his claim in full, it would not be prejudicial to the Veteran if the Board takes jurisdiction of the claim at this time. As an initial matter, after being contacted by VA to provide additional information to obtain private or VA treatment records relevant to his inner ear condition, the Veteran notified the Board that he would like to withdrawal the appeal for his inner ear condition in an August 2020 Statement in Support of Claim. He was subsequently scheduled for a VA examination for his inner ear condition on September 2020 and attended that VA examination. However, in a November 2020 Report of General Information, a VES representative contacted VA indicating that the Veteran’s VA examination for his inner condition was to be conducted in two parts. The VES representative noted that he completed the first part but wanted to cancel the second part of the examination because he wanted to withdraw his appeal as to any separate inner ear disability. Based on these statements, the Veteran was notified by VA of the decision to discontinue his appeal on November 20, 2020. The VA notification further instructed the Veteran that if he did not wish to discontinue his claim, he must submit the required evidence within 30 days from the date of the November 2020 notification letter. In a December 14, 2020 correspondence, the Veteran responded stating that he wanted to continue the appeal for his inner ear condition and that he was scheduled to see a VA doctor in October 2020 and December 2020. In this regard, the Board finds that the Veteran timely responded within the 30-day period to continue his service connection claim for an inner ear condition. This matter is again before the Board for adjudication. 1. Inner ear condition The Veteran seeks a service connection for an inner ear disability, Specifically, he contends that his inner ear disability, described as dizziness and loss of balance, is related to his in-service noise exposure. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1131. Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303 (a). VA will also grant service connection on a secondary basis. Service connection on a secondary basis is merited if there is (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical evidence establishing a nexus (i.e., link) between the service-connected disability and the current disability. Wallin v. West, 11 Vet. App. 509, 512 (1998). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Upon review of the evidence, the Board concludes that the Veteran has a current disability that is related to his in-service noise exposure and service-connected bilateral hearing loss. The medical evidence reflects that the Veteran complained of dizziness and imbalance and was diagnosed with positional lightheadedness in August 2014. In a more recent December 2020 VA examination, he was diagnosed with benign paroxysmal positional vertigo. As such, the Veteran has a current diagnosis of an inner ear disability. Although the Veteran’s service treatment records (STRs) does not include any reports of any ear troubles during active military service, the evidence supports a showing of exposure to acoustic trauma. The Veteran’s discharge record indicate that he worked as a personnel equipment specialist and an aircrew life support specialist. At his September 2019 Board hearing, he testified that he was exposed to loud noise from jet engines and other aircraft at various points during service as his job duties required him to work near the flight line or with airmen who were in loud aircrafts. Further, VA has previously conceded that his military occupational specialty carried a moderate risk of exposure to acoustic trauma. Notably, his audiometric examinations throughout service often reflected puretone threshold shifts between 15 decibels or higher. These changes are indicative of some degree of hearing loss in service. In this regard, the Board finds that an in-service incurrence of an injury and event has been met. Pertaining to the question of whether his inner ear condition is directly related to service, a December 2020 VA examiner opined that his inner ear condition is at least as likely as not incurred in or caused by the claimed in-service injury, event, or illness. The VA examiner explained that the Veteran’s positional vertigo is related to his hearing loss and that hearing loss is a component of vertigo. The VA examiner further stated that the Veteran’s vertigo is at least as likely as not caused by his service, to include in-service noise exposure. Here, the Board finds the VA medical opinion to be probative as it is based on the Veteran’s medical treatment records, an in-person examination, and supported by an adequate rationale. The Board further finds that while the Veteran is not competent to relate his inner ear disability to any event or injury in service, the Veteran has provided credible lay statements regarding his exposure to in-service noise exposure based on his MOS. The Board finds no reason to doubt the Veteran’s credibility. As there is no evidence to the contrary, the Board finds that the evidence is at least evenly balance as to whether the Veteran’s inner ear disability is etiologically related to his in-service noise exposure or service-connected bilateral hearing loss disability. With resolution of any reasonable doubt in the Veteran’s favor, entitlement to service connection for an inner ear disability is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. The Board notes that entitlement to secondary service-connection was raised during the period on appeal. However, as the Veteran’s claim is being granted on a direct basis, a greater benefit, there is no need to discuss the merits of secondary service connection. M. Tenner Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Xiong, Associate 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.