Citation Nr: 1541623 Decision Date: 09/25/15 Archive Date: 10/02/15 DOCKET NO. 13-24 925A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to an initial compensable evaluation prior to April 2, 2012, an evaluation in excess of 10 percent from April 2, 2012 to October 6, 2014, and an evaluation in excess of 30 percent from October 7, 2014, for chronic vestibular disequilibrium claimed as chronic motion sickness to include whether a separate compensable evaluation for hearing impairment is warranted from October 7, 2014. 2. Entitlement to an extraschedular evaluation from June 11, 2012, for chronic vestibular disequilibrium claimed as chronic motion sickness. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD P. Olson, Counsel INTRODUCTION The Veteran had active military service from July 1973 to April 1975. This matter is before the Board of Veterans' Appeals (Board) following a Board Remand in August 2014. This matter was originally on appeal from an April 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The claims file is now entirely in VA's secure electronic processing systems, Virtual VA and Veterans Benefits Management System (VBMS). The issues of entitlement to a separate compensable evaluation for hearing impairment due to chronic vestibular disequilibrium and entitlement to an extraschedular evaluation from June 11, 2012, for chronic vestibular disequilibrium are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The objective medical evidence prior to June 11, 2012, indicates that the Veteran's vestibular disequilibrium was manifested by dizziness but not by occasional staggering. 2. The objective medical evidence from June 11, 2012 to October 6, 2014, indicates that the Veteran's vestibular disequilibrium was manifested by dizziness, tinnitus, nausea, and vomiting; the Veteran's reports of staggering when becoming violently ill are credible. CONCLUSIONS OF LAW 1. Prior to April 2, 2012, the criteria for a 10 percent evaluation, but no higher, have been met. 38 U.S.C.A. §§ 1155, 5103(a), 5103A (West 2014); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.7, 4.87, Diagnostic Code 6204 (2014). 2. From June 11, 2012 to October 6, 2014, the schedular criteria for a 30 percent (maximum) evaluation have been met. 38 U.S.C.A. §§ 1155, 5103(a), 5103A; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.7, 4.87, Diagnostic Code 6204. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Pursuant to the Board's August 2014 Remand, the AMC obtained VA treatment records from August 2010, requested that the Veteran provide authorization for VA to obtain treatment records from Southeast Texas Medical Associates from August 2010 and from Texas ENT from October 2013, scheduled the Veteran for a VA examination to assess the current level of severity of his chronic motion sickness, and issued a Supplemental Statement of the Case. Based on the foregoing actions, the Board finds that there has been compliance with the Board's August 2014 Remand. Stegall v. West, 11 Vet. App. 268 (1998). As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2014). As service connection, an initial rating, and an effective date have been assigned, the notice requirements of 38 U.S.C.A. § 5103(a) have been met. VA has fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate a claim, and as warranted by law, affording VA examinations. The Veteran was provided, but declined, the opportunity to present pertinent evidence and testimony. In sum, there is no evidence of any VA error in notifying or assisting him that reasonably affects the fairness of this adjudication. 38 C.F.R. § 3.159(c). Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Veteran is appealing the original assignment of a disability evaluation following an award of service connection for chronic motion sickness. As such, it is not the present level of disability which is of primary importance, but rather the entire period is to be considered to ensure that consideration is given to the possibility of staged ratings; that is, separate ratings for separate periods of time based on the facts found. Fenderson v. West, 12 Vet. App. 119 (1999). The Veteran's chronic vestibular disequilibrium claimed as motion sickness has been rated as noncompensably disabling from August 24, 2010 to April 1, 2012, as 10 percent disabling from April 2, 2012 to October 6, 2014, and as 30 percent disabling from October 7, 2014, under Diagnostic Code 6204. Under Diagnostic Code 6204, a 10 percent rating is warranted for occasional dizziness. A 30 percent rating is warranted for dizziness and occasional staggering. A note in this code further explains that 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. The Veteran underwent VA examination in March 2011 at which time he reported becoming nauseated and queasy when any type of motion occurs. Physical examination revealed both external auditory canals and tympanic membranes to be normal in appearance. There was no evidence of nystagmus present, and there was no gait disturbance. Private Ear, Nose, and Throat treatment records indicate that on April 2, 2012, the Veteran reported for nasal provocation test and Eustachian tube dysfunction. The Veteran had complaints of pressure sensation in both ears which he had been experiencing for six months. The Veteran also wanted to discuss motion sickness at another office visit. At that time, the Veteran was experiencing bruxism, dizziness, hearing loss, nasal congestion, otalgia, recurrent ear infection, and tinnitus. The Veteran denied nausea and vomiting. Physical examination demonstrated that the left ear external canal had dry cerumen nearly completely blocking the canal. After physical examination, the Veteran was diagnosed with severe and persistent Eustachian tube dysfunction; the physician noted that it was possible that the chronic motion sickness may be in part due to the chronic Eustachian tube dysfunction. On June 11, 2012, the Veteran reported chronic motion sickness and that he got dizzy and had nausea, vomiting, and tinnitus during any movement. Associated manifestations included nausea, vomiting, and tinnitus. The Veteran denied falls with injury caused by dizziness, hearing loss, loss of consciousness during dizzy attack, nausea without vomiting, nervous shaky sensation, otalgia, and otorrhea. Neurologic examination showed normal mental status, cranial nerves, motor system sensory system and reflexes. The Veteran's external ear canals and tympanic membranes were normal. His hearing was normal to conversational and whispered speech and to tuning fork tests. The Veteran was diagnosed as having bilateral hyperactive labyrinth. Comments included vestibular sensitivity/excessive motional sickness. The Veteran was prescribed Valium 5mg for dizziness and Phenergan suppositories for nausea and vomiting. In September 2012, the Veteran reported episodes of dizziness and motion sickness approximately three times per week. The Veteran reported taking one Valium at each of his episodes but reported taking the Phenergan less frequently for severe nausea and vomiting. The Veteran's external ear canals and tympanic membranes were normal. His hearing was normal to conversational and whispered speech and to tuning fork tests. There was no change in his symptoms, including his hearing, on his ENT visits in April 2013, July 2013, and October 2013. In April 2014, the Veteran's treating physician noted that he carried a diagnosis of vestibular disequilibrium and was being treated with medications. The Veteran underwent VA examination in June 2013 at which time he reported that he thought his problem with motion sickness had worsened. External ears, ear canals, and tympanic membranes were normal. The Veteran's gait was normal, and Romberg test, Dix-Hallpike test for vertigo, and limb coordination test were all normal. The examiner noted that the neurologic examination was negative and that the Veteran was noted to have a completely normal ENG (VNG) study. The examiner stated that he was unable to find any objective evidence of the presence of a specific labyrinth, vestibular, or Eustachian tube condition. It is the Board's finding that a 10 percent evaluation should be assigned prior to April 2, 2012, and a 30 percent evaluation should be assigned from June 11, 2012 to October 6, 2014. The Veteran documented in September 2013 that he has continuously sought medical care and medicine for his condition and that even though vestibular tests have come back to show no dysfunction, he has always had dizziness when subjected to motion and noted that staggering comes with the fast onset of being violently ill. It is apparent to the Board that the Veteran's chronic motion sickness has been ongoing since before he filed his claim in August 2010; however, there is no objective medical evidence prior to June 11, 2012 that there were symptoms other than dizziness. There are no medical records in the file between 2002 and 2012. At the March 2011 VA examination, the Veteran noted that he became nauseated and queasy when any type of motion occurred. He, however, did not report becoming violently ill. As noted above, hearing impairment or suppuration shall be separately rated and combined. 38 C.F.R. § 4.87. In this case, however, there is no objective evidence of either hearing loss or suppuration prior to October 7, 2014. The Board has considered whether a higher evaluation may be available under an alternate Code, but finds that none are applicable. Specifically, the Veteran has not been diagnosed as having Meniere's disease (Diagnostic Code 6205), loss of either auricle (Diagnostic Code 6207), or a malignant neoplasm of the ear (Diagnostic Code 6208). The Board acknowledges the judicial holding in Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). In that decision, the United States Court of Appeals for Veterans Claims held that a request for a total rating based on individual unemployability (TDIU), whether expressly raised by the Veteran or reasonably raised by the record, is not a separate "claim" for benefits, but rather, can be part of a claim for increased compensation. In other words, if the claimant or the evidence of record reasonably raises the question of whether the Veteran is unemployable due to a disability for which an increased rating is sought, then part and parcel with the increased rating claim is the issue whether a TDIU is warranted as a result of that disability. In the present case, although the Veteran's vestibular disequilibrium interferes with his employment, he is currently gainfully employed. Thus, there is no indication in the record that reasonably raised a claim of entitlement to a TDIU. ORDER Entitlement to an initial evaluation of 10 percent, but no higher, for chronic vestibular disequilibrium prior to April 2, 2012, is granted, subject to the law and regulations governing the payment of monetary benefits. Entitlement to an evaluation of 30 percent, but no higher, for chronic vestibular disequilibrium from June 11, 2012 to October 6, 2014, is granted, subject to the law and regulations governing the payment of monetary benefits. REMAND The Veteran underwent VA examination on October 7, 2014, at which time he reported tinnitus, vertigo, and staggering. Disability Benefits Questionnaire for Ear Conditions form indicates that if there is hearing impairment and/or tinnitus, a Hearing Loss and Tinnitus Questionnaire must ALSO be completed. As noted above, hearing impairment or suppuration shall be separately rated and combined. As such, in order to determine if additional disability compensation may be granted due to hearing impairment, the Veteran should be afforded an additional VA audiology examination. Further, in exceptional cases where the rating is inadequate, it may be appropriate to assign an extraschedular rating. 38 C.F.R. § 3.321(b)(1). The Veteran is receiving the highest schedular evaluation allowed by law under the diagnostic code for peripheral vestibular disorders. The criteria, however, do not reasonably describe all of the Veteran's claimed symptoms and are, therefore, inadequate. Specifically, the Veteran has endorsed symptoms of nausea and vomiting associated with his vestibular dysfunction. The Board finds that these symptoms are not contemplated by the relevant rating criteria which limits the symptoms to dizziness and occasional staggering. In addition, throughout the appeal, the Veteran has indicated that his chronic motion sickness interferes with activities with his job and family as every potential motion activity requires lengthy preparation to try and minimize or avoid the inevitable violent sickness episodes, including nausea and vomiting. The Veteran reported that in 2009, he lost his job of 27 years largely due to his condition and that even though his performance objectives with his previous employer were always met or exceeded, when compared side-by-side with other employees, his travel costs were noticeably more. The Veteran reported that due to his chronic motion sickness, it took him extra time and expense to meet his job's increasing demand for travel. The Veteran explained that he would have to plan travel such that his arrival would be at least two days early so that he would have time to recover before performing work or visiting customers. As such, referral of the issue of entitlement to an extraschedular evaluation from June 11, 2012, for chronic vestibular disequilibrium is warranted in light of the foregoing symptoms. Accordingly, the case is REMANDED for the following action: 1. The Veteran should be requested to indicate if he has received any VA or non-VA medical treatment for his chronic vestibular disequilibrium since October 7, 2014, that is not evidenced by the current record. If so, the Veteran should be provided with the necessary authorizations for the release of any treatment records not currently on file. These records should then be obtained and associated with the claims folder. The Veteran should be advised that he may also submit any evidence or further argument relative to the claim at issue. 2. The Veteran should be afforded a VA examination to ascertain the current severity of the Veteran's chronic vestibular disequilibrium. The examiner is to be provided access to Virtual VA and VBMS. The examiner must specify in the report that Virtual VA and VBMS records have been reviewed. All pertinent symptomatology and findings should be reported in detail. Any indicated diagnostic tests and studies should be accomplished. The examiner should also identify all current hearing impairments and provide an opinion as to whether it is at least as likely as not that any such disorder is related in any way to the Veteran's service-connected chronic vestibular disequilibrium. It would be helpful if the examiner would use the following language, as may be appropriate: "more likely than not" (meaning likelihood greater than 50%), "at least as likely as not" (meaning likelihood of at least 50%), or "less likely than not" or "unlikely" (meaning that there is a less than 50% likelihood). The term "at least as likely as not" does not mean "within the realm of medical possibility." Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. The examiner should provide a complete rationale for any opinion provided. 3. The Veteran is to be notified that it is his responsibility to report for the examination and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. In the event that the Veteran does not report for the aforementioned examination, documentation should be obtained which shows that notice scheduling the examinations was sent to the last known address. It should also be indicated whether any notice that was sent was returned as undeliverable. After the development requested has been completed, the examination reports should be reviewed to ensure that they are in complete compliance with the directives of this REMAND. If any report is deficient in any manner, the corrective procedures should be implemented at once. 4. The case should be referred to the Director of Compensation Service for consideration of an extraschedular rating for chronic vestibular disequilibrium pursuant to 38 C.F.R. § 3.321(b)(1) (2014). The response must be associated with the Veteran's file. 5. The case should be reviewed on the basis of the additional evidence. If the benefit sought is not granted in full, the Veteran and his representative should be furnished a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ CHRISTOPHER MURRAY Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs