Citation Nr: 21028836 Decision Date: 05/12/21 Archive Date: 05/12/21 DOCKET NO. 17-62 585 DATE: May 12, 2021 ORDER Service connection for vertigo (also claimed as dizziness) is granted. An initial rating greater than 10 percent for Eustachian tube dysfunction is denied. FINDINGS OF FACT 1. Vertigo is caused or aggravated by service-connected Eustachian tube dysfunction. 2. Throughout the rating period on appeal, the Veteran was in receipt of the maximum schedular rating for Eustachian tube dysfunction; this disability was not productive of an exceptional or unusual disability picture, marked interference with employment, or frequent periods of hospitalization. CONCLUSIONS OF LAW 1. The criteria for service connection for vertigo (also claimed as dizziness) are met. 38 U.S.C. §§ 1110, 5103(a), 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310. 2. The criteria for a rating greater than 10 percent for Eustachian tube dysfunction on an extraschedular basis have not been met. 38 U.S.C. § 1155, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.3, 4.21, 4.87, Diagnostic Code (DC) 6210. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Air Force from October 1993 to January 2001, including foreign service. For his meritorious service, the Veteran was awarded (among other decorations) the Air Force Achievement Medal. He testified during a September 2017 Decision Review Officer (DRO) hearing and a January 2020 Board videoconference hearing. Transcripts of these proceedings have been associated with the record. Briefly, the Veteran has properly appealed a May 2020 rating decision which held that new and relevant evidence had not been received so as to reopen a service connection claim for sinusitis/rhinitis. See also October 2020 Notice of Disagreement (NOD). Given the date of the rating decision on appeal, this matter is governed by the modernized review system (known by the Board as AMA). 38 C.F.R. § 19.2. As such, the two appeals cannot be merged; rather, the new and relevant evidence claim will be adjudicated in a separate Board decision, should such action be required. Service Connection First, the Veteran is pursuing service connection for vertigo. The Board will limit its analysis to that theory of entitlement upon which the benefit sought is granted herein. Accordingly, service connection may be warranted on a secondary basis for a disability which is aggravated by, proximately due to, or the result of a service-connected disease or injury under 38 C.F.R. § 3.310. Allen v. Brown, 7 Vet. App. 439 (1995). In order to prevail on the issue of entitlement to secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and, (3) nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). Here, the Veteran is currently service-connected for Eustachian tube dysfunction. During June 2016 VA examination, he was also diagnosed with vertigo as a "finding, sign, or symptom" of his ear disability. This assessment, as offered by a trained medical expert upon her contemporaneous evaluation of the Veteran and review of his relevant medical records, is probative evidence in support of this appeal. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000); see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008). In contrast, a separate June 2016 VA examiner concluded that the Veteran did not have an established diagnosis of vertigo. However, this opinion is flawed for several reasons. First, the examiner did not undertake contemporaneous evaluation of the Veteran or review his private treatment records in offering this opinion. Further, the examiner clearly disregards the findings of the prior medical expert, who directly attributed a diagnosis of vertigo to the Veteran's Eustachian tube dysfunction. Additionally, the examiner fails to account for the repeated notations of vertigo throughout the Veteran's treatment records, as documented by various Ear, Nose, and Throat (ENT) specialists. Thus, the June 2016 addendum opinion is of little probative value in assessing the existence of a current disability or the etiology thereof. Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that a medical opinion based upon an incomplete or inaccurate factual premise is not probative); McClain v. Nicholson, 21 Vet. App. 319 (2007) (a claim for service connection may be granted if a diagnosis of a chronic disability was made during the pendency of the appeal, even if the most recent medical evidence suggests that the disability resolved). The Board has also considered the Regional Office's (RO's) previous conclusion that the Veteran's dizziness "presents as a symptom of [his] ear infections" such that a separate award of service connection for this disorder is not warranted. See October 2017 Statement of the Case (SOC). While it is true that his reported vertigo is often assessed in conjunction with his ear disability, the record simply does not establish that his dizziness is solely a symptom of active ear infections. Rather, the Veteran frequently reports vertigo absent an accompanying ear infection, and there is no competent medical evidence which directly supports the RO's conclusion, to include from a VA or private examiner. Instead, the Veteran has offered competent and credible testimony that his vertigo is a concurrent condition with his Eustachian tube dysfunction. He is competent to testify as to his observable symptoms and their perceived relationships, and his testimony is consistent and well-documented throughout the record. Layno v. Brown, 6 Vet. App. 465, 469 (1994); Miller v. Wilkie, 32 Vet. App. 249 (2020); see, e.g., April 2002 VA examination (evaluating the Veteran for current ear disease and documenting his reports of severe vertigo during a recent head cold). Thus, the most probative evidence establishes that the Veteran has a current vertigo disability which is causally related to his service-connected Eustachian tube dysfunction. Although the more probative June 2016 VA examination designates the Veteran's vertigo as a finding, sign, or symptom of his ear disability, the Board concludes that his vertigo warrants a separate award of service connection, as vertigo constitutes an explicit medical diagnosis. Moreover, those symptoms attributable to the Veteran's vertigo are not contemplated in the rating criteria for his Eustachian tube dysfunction, such that he is not currently being compensated for this disorder and its related symptoms. 38 C.F.R. § 4.14 (prohibiting the pyramiding of symptoms). Instead, the Veteran's vertigo stands as a secondary condition of his service-connected ear disability, and the appeal is granted on this basis. Increased Rating The Veteran is also pursuing an initial rating greater than 10 percent for his Eustachian tube dysfunction. His disability has been properly rated against DC 6210 as chronic otitis externa, which establishes a maximum 10 percent rating. Accordingly, this appeal may only be granted if a higher rating is warranted on an extraschedular basis. The record does not support such a finding in this case. In this respect, the Board notes that the Veteran is currently service-connected for tinnitus and has been awarded service connection for vertigo herein; as such, any manifestations attributable to those conditions may not also be considered in conjunction with the Veteran's increased rating appeal. 38 C.F.R. § 4.14. The Veteran has also reported bilateral hearing impairment throughout the period on appeal. However, his distinct claims seeking service connection for bilateral hearing loss have repeatedly been denied, and the Veteran has not elected to pursue these appeals with the Board at any time. See June 2002 and July 2016 rating decisions. Moreover, the Veteran's hearing impairment is typically attributed to a distinct disability rather than reported as a manifestation of his Eustachian tube dysfunction. Accordingly, this symptom is also not for contemplation herein. Rather, the medical evidence, including VA and private treatment records and the adequate June 2016 VA examination, indicate that the Veteran's remaining symptomsnamely, serious discharge, effusion, and intermittent pain which requires frequent treatmentare fully and adequately compensated in the rating as assigned. Critically, the evidence does not show that the Veteran's Eustachian tube dysfunction has caused marked interference with his employability or necessitated periodic hospitalizations at any time. See, e.g., VA and private treatment records (documenting an April 2016 myringotomy with tubes, but showing no other hospitalizations for the service-connected condition). Importantly, neither the Veteran nor his representative have presented any specific argument as to why an increased initial rating is warranted on an extraschedular basis in this case, to include during the January 2020 hearing. Thus, the evidence does not reflect that the Veteran's service-connected Eustachian tube dysfunction is so exceptional in nature as to not be fully contemplated by the rating schedule. Rather, there are no unusual clinical pictures presented, nor is there any other factor which takes the disability outside the usual rating criteria. Thus, even with the favorable resolution of doubt, the Veteran has not carried the burden of demonstrating that his ear disability is of such a nature that referral for extraschedular evaluation is warranted. 38 C.F.R. § 3.321(b)(1); Thun v. Peake, 22 Vet. App. 111. For the preceding reasons, this appeal is denied. Of final note, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, for the Board's consideration. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). Evan M. Deichert Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Kovarovic, 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.