Citation Nr: 0612837	
Decision Date: 05/03/06    Archive Date: 05/15/06

DOCKET NO.  04-33 852	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Newark, New 
Jersey


THE ISSUES

Entitlement to an initial rating in excess of 10 percent for 
tinnitus.

Entitlement to an initial rating in excess of 10 percent for 
vertigo.  


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

Nancy McElwain, Associate Counsel
INTRODUCTION

The veteran had active service from November 1966 to May 
1969.  

This matter came before the Board of Veterans' Appeals 
(Board) on appeal from December 2003 and March 2004 decisions 
by the Department of Veterans Affairs (VA) Regional Office 
(RO) in Newark, New Jersey.  The veteran withdrew his appeal 
for service connection for bilateral hearing loss at his 
January 2006 hearing.  

The issue of an initial rating higher than 10 percent for 
tinnitus is subject to a stay.  In Smith v. Nicholson, 19 
Vet. App. 63 (2005), the United States Court of Appeals for 
Veterans Claims (Court) reversed a Board decision which had 
concluded that no more than a single 10 percent disability 
evaluation could be provided for tinnitus, whether perceived 
as bilateral or unilateral, under prior regulations.  VA is 
appealing this decision.  To avoid burdens on the 
adjudication system, delays in the adjudication of other 
claims, and unnecessary expenditure of resources through 
remand or final adjudication of claims based on court 
precedent that may ultimately be overturned on appeal, the 
Secretary of Veterans Affairs has imposed a stay at the Board 
on the adjudication of tinnitus claims affected by Smith.  
The specific claims affected by the stay include all claims 
in which a claim for compensation for tinnitus was filed 
prior to June 13, 2003, and a disability rating for tinnitus 
of greater than 10 percent is sought.  


FINDING OF FACT

Vertigo is manifested by dizziness and occasional staggering.

 
CONCLUSION OF LAW

The criteria for an increased rating of 30 percent, but no 
higher, are met for vertigo.  38 U.S.C.A. §§ 1155, 5107 (West 
2002); 38 C.F.R. §§ 4.1, 4.7, 4.87, Diagnostic Code 6299-6204 
(2005).
REASONS AND BASES FOR FINDING AND CONCLUSION

Duty to notify and assist

In October 2002, the agency of original jurisdiction (AOJ) 
sent a letter to the veteran providing the notice required 
for a service connection claim.  Subsequent rating decisions 
granted service connection and rated the vertigo at 10 
percent.  The rating decisions also informed the veteran of 
what the evidence must show in order to obtain an increased 
rating.  The AOJ also sent a letter in August 2005, which 
provided the notice required by 38 U.S.C.A. § 5103(a) and 38 
C.F.R. § 3.159(b) for increased rating claims.  Although the 
claim was not subsequently readjudicated, the veteran had an 
adequate amount of time in which to submit any additional 
evidence prior to the appeal's certification.  The veteran 
did submit additional evidence, and he waived his right to 
have the evidence first reviewed by the AOJ.  Based on the 
foregoing, the veteran has not been prejudiced by the timing 
of the notice for the increased initial rating claims.  

The VA has fulfilled its duties to assist the veteran with 
respect to his claim, such as obtaining medical records, 
providing VA examinations and providing a hearing.  

Vertigo rating

The veteran is rated at 10 percent under DC 6299-6204 for 
vertigo.  A 30 percent rating under DC 6204 requires evidence 
of dizziness and occasional staggering.  

The evidence of record, to include the veteran's testimony 
and a 2006 statement from a treating private physician, 
indicates that the veteran has episodes of dizziness and 
occasional staggering.  A 30 percent rating is warranted 
under DC 6299-6204.  A 30 percent rating is the maximum 
rating available under DC 6204.  

Evidence of record also indicates that the veteran has been 
diagnosed with Ménière's syndrome.  Ménière's syndrome can be 
rated under DC 6205, or the underlying symptoms (vertigo, 
hearing impairment, cerebellar gait and tinnitus) can be 
rated separately and combined, whichever method results in a 
higher evaluation.  A 40 percent rating under DC 6205 
requires hearing impairment with attacks of vertigo and 
cerebellar gait occurring from one to four times a month, 
with or without tinnitus.  A 40 percent rating is not 
warranted under DC 6205.

A 2003 VA audiological examination found the veteran had 
essentially normal bilateral hearing, except for mild 
bilateral hearing loss at the higher frequencies.  The 
veteran does not have a hearing impairment, as defined by 
38 C.F.R. § 3.385.  

The evidence does not show that the veteran has episodes of 
vertigo and cerebellar gait one to four times a month.  At 
his hearing, the veteran testified that he is on medication 
that makes his symptoms better, though "sometimes" he still 
has episodes.  A 2006 statement from the veteran's treating 
physician states that the veteran has recurrent episodes of 
dizziness and staggering, but did not specify how often these 
episodes occur, other than to say the last "severe bout" 
was five months earlier.  A 2004 letter from another treating 
physician stated that the veteran's vertigo was "under 
control with medication and office visits."  


ORDER

An increased rating of 30 percent, but no higher, is granted 
for vertigo.






____________________________________________
RONALD W. SCHOLZ
Acting Veterans Law Judge, Board of Veterans' Appeals


 Department of Veterans Affairs