Citation Nr: A24029769 Decision Date: 06/06/24 Archive Date: 06/06/24 DOCKET NO. 210129-132455 DATE: June 6, 2024 ORDER Entitlement to a 30 percent rating for eustachian tube dysfunction, right ear, is granted. FINDING OF FACT The evidence is in equipoise as to whether the Veteran's right ear eustachian tube dysfunction results in staggering. CONCLUSION OF LAW The criteria for a 30 percent rating for right ear eustachian tube dysfunction have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.87, Diagnostic Code (DC) 6204. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from February 2003 to September 2007. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2020 rating decision issued by the Department of Veteran Affairs (VA) Regional Office (RO), which denied a rating in excess of 10 percent for right ear eustachian tube dysfunction. Thereafter, in June 2020, the Veteran filed a VA Form 20-0996, Decision Review Request, seeking Higher-Level Review of the March 2020 decision. Pursuant to this Decision Review Request, a Higher-Level Review rating decision was issued in November 2020. In January 2021, the Veteran disagreed with the November 2020 rating decision and filed a VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement) and selected Direct Review by a Veterans Law Judge (VLJ). Based upon the Veteran's choices of Higher-Level Review and Direct Review, the Board may only consider the evidence before the AOJ at the time of the March 2020 rating decision. Entitlement to a 30 percent rating for eustachian tube dysfunction, right ear, is granted. Disability ratings are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two ratings are potentially applicable, the higher rating will be assigned if the disability more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. Separate ratings can be assigned for separate periods based on the facts found - a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Staged ratings are appropriate whenever the factual findings show distinct periods where the service-connected disability exhibits symptoms that would warrant different ratings. Id. The Veteran is seeking a rating in excess of 10 percent for his right ear eustachian tube dysfunction, rated under DC 6204. In accordance with DC 6204, a 10 percent rating is warranted for symptoms of occasional dizziness and a 30 percent rating is warranted for symptoms of dizziness and occasional staggering. Objective findings supporting the diagnosis of vestibular disequilibrium are required before a compensable evaluation can be assigned under this code. Hearing impairment or suppuration shall be separately rated and combined. 38 C.F.R. § 4.87. Disabilities of the ear may also be rated under DC 6200 (chronic suppurative otitis media, mastoiditis, or cholesteatoma); 6201 (serous otitis media); 6202 (otosclerosis); 6205 (Meniere's syndrome); 6207 (loss of auricle); 6208 (malignant neoplasm); 6209 (benign neoplasm); 6211 (perforation of tympanic membrane); and 6260 (tinnitus). 38 C.F.R. § 4.87. The appeal period before the Board begins on January 6, 2020, the date VA received the Veteran's claim for an increased rating, plus the one-year look-back period. Gaston v. Shinseki, 605 F.3d 979, 982 (Fed. Cir. 2010). In this regard, the Board notes that the Veteran previously filed an increased rating claim for right ear eustachian tube dysfunction in August 2018, and RO issued a September 2019 rating decision denying the appeal. The Veteran subsequently filed a VA Form 21-526EZ for an increased rating for his right ear eustachian tube dysfunction within one year, in January 2020. Continuous pursuit of a claim or an issue can be achieved by timely and properly filing an appropriate review option, generally within one year of an Appeals Modernization Act (AMA) decision. 38 C.F.R. § 3.2500(c). If a claim is continuously pursued, it will be considered filed as of the date of the first claim in the continuously pursued chain, not the date the most recent request for review was received. 38 C.F.R. §§ 3.400, 3.2500(c). A supplemental claim must be filed within one year after a final decision or the date entitlement arose. 38 C.F.R. § 3.2500(h). The AMA categorizes claims as either "supplemental" or "initial." 38 C.F.R. § 3.1(p). An "initial" claim cannot establish continuous pursuit, regardless of whether it was received within one year of the issuance of the prior VA decision. The submission of a VA Form 21-526EZ constitutes an "initial" claim in an increased rating case. The Veteran's January 2020 filing constituted an "initial" claim for an increased rating for right ear eustachian tube dysfunction, thereby breaking the possibility of a chain of continuous pursuit as contemplated by 38 C.F.R. § 3.2500(h)(1). Accordingly, for the purposes of determining the appeal period, the January 2020 filing is accepted as the date of receipt of the claim for the increased rating. 38 C.F.R. §§ 3.155(b); 3.400(o)(2). Turning to the evidence of record, the Veteran submitted private treatment records documenting that he reported a history of right-sided vertigo, usually lasting 30 minutes but "with some unbalance up to a day." Chronic balance issues were noted along with staggering. The Veteran reported that he avoids certain head movements to avoid bringing on symptoms of dizziness, and that his episodes had worsened. He is also prescribed medication to alleviate his symptoms of vertigo. Other ear findings were not indicated, including hearing loss and Meniere's disease. In February 2020, the Veteran was afforded a VA ear examination. The examiner noted that the Veteran had right ear eustachian tube dysfunction and did not indicate any other ear or peripheral vestibular conditions. The examiner found that such was manifested by lightheadedness and that it was quiescent. He also noted that the Veteran reported working full-time and working out. Based on the evidence of record, the Board finds that the evidence is at least in equipoise as to whether a 30 percent disability rating is warranted, based on the conflicting findings as to whether the Veteran experiences staggering as a result of his right ear eustachian tube dysfunction. Moreover, the Veteran is competent to report observable symptoms. Layno v. Brown, 6 Vet. App. 465 (1994). Therefore, the Board finds that a 30 percent rating--the maximum rating that is allowed under DC 6204-is warranted. The Board has also considered whether a higher rating is warranted under any additional DC for rating ear disabilities, but finds that it is not. The Board has considered whether an increased rating may be effective during the one-year look back period prior to the date of his claim for increase, but the Board has determined that it is not factually ascertainable that an increase in severity specifically took place during that time period. The Veteran does not specifically assert the worsening of his symptoms occurred during the one-year period prior to filing his claim, and the evidence does not indicate such an increase occurred during that time period. The Board finds as a fact in this case that the record does not show any competent findings in the one-year period preceding his claim for an increased rating. The Board has also considered whether additional staged ratings under Fenderson, supra, and Hart, supra, are appropriate for the Veteran's service-connected right ear eustachian tube dysfunction disability; however, the Board finds that his symptomatology has been stable throughout the appeal period Thus, assigning additional staged ratings for such disability is not warranted. Furthermore, neither the Veteran nor his representative have raised any other issues, nor have any other issues been reasonably raised by the record, with regard to the increased rating claim adjudicated herein. Doucette v. Shulkin, 28 Vet. App. 366 (2017). Accordingly, resolving reasonable doubt in favor of the Veteran, a 30 percent rating for right ear eustachian tube dysfunction is warranted. Mike Sobiecki Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A.Z., 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.