Citation Nr: 0810042 Decision Date: 03/26/08 Archive Date: 04/09/08 DOCKET NO. 04-20 010 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUES 1. Entitlement to an initial rating higher than 10 percent for imbalance and dizziness secondary to the service- connected postoperative residuals of a left tympanoplasty and perforated eardrum with otitis media. 2. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Chris Yegen, Associate Counsel INTRODUCTION The veteran served on active duty from November 1969 to November 1971. This case comes before the Board of Veterans' Appeals (Board) from an April 2003 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts. The RO granted service connection and assigned an initial 10 percent rating for the veteran's imbalance and dizziness, etc., retroactively effective from August 22, 2001. He wants a higher initial rating for this disability. So, among other things, the Board must determine whether he can receive incremental adjustments (in other words, have his rating "staged") to compensate him for times since the effective date of the grant of service connection when his disability may have been more severe than at others. See Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). The Board remanded this case in June 2006 for additional development and consideration. FINDINGS OF FACT 1. The veteran has recurrent vertigo (imbalance and dizziness) with resulting stumbling and staggering. He fell at least twice at work due to this condition, and his wife has personally observed him disoriented, bumping into objects. 2. Aside from his imbalance and dizziness - the rating for which the Board is increasing to 30 percent in this decision, the veteran's service-connected disabilities are postoperative residuals of a left tympanoplasty and perforated eardrum with otitis media - rated as 10 percent disabling; tinnitus - also rated as 10 percent disabling; conductive hearing loss in the left ear - rated as 0 percent disabling; and a post-operative scar as a residual of a left wrist ganglioectomy - also rated as 0 percent disabling. 3. The evidence of record, however, indicates his service- connected disabilities do not preclude him from obtaining and maintaining substantially gainful employment. He is a state- licensed campus police officer with a masters degree in sociology and a law degree (although no license), which qualify him for various types of employment that do not require him to be a campus police officer. 4. The veteran is currently employed as a state-licensed campus police office at Mount Holyoke Community College. He has held this position since 2005. Although this job pays less ($200 per week) than his previous job at Smith College, it is not marginal employment. CONCLUSIONS OF LAW 1. The criteria are met for a higher 30 percent rating, but no greater, for the veteran's imbalance and dizziness. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. Part 4, including §§ 3.102, 4.7, 4.87 and Diagnostic Code 6204 (2007). 2. The criteria are not met for a TDIU, including on an extra-schedular basis. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 3.321(b)(1), 3.340, 3.341, 4.15, 4.16, 4.25 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Duties to Notify and Assist Post remand, VA has complied with the duty-to-notify provisions of the Veterans Claims Assistance Act (VCAA). 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 197 (2002). In particular, letters from the RO in October 2002 and July 2006 (1) informed the veteran of the information and evidence not of record that is necessary to substantiate his claims; (2) informed him of the information and evidence that VA would obtain and assist him in obtaining; (3) informed him of the information and evidence he was expected to provide; and (4) requested that he provide any evidence in his possession pertaining to his claims, or something to the effect that he should "give us everything you've got pertaining to your claim[s]." Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II). VA also has complied with the Court's holding in Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007), which states that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service-connection claim: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. The RO (actually, the Appeals Management Center (AMC)) complied with the requirements in Dingess, post remand, when it sent the VCAA notice letter in July 2006 discussing the disability rating and effective date elements of the claims. And of equal or even greater significance, the AMC subsequently went back and readjudicated the claims in the September 2007 supplemental statement of the case (SSOC). This is important to point out because the Federal Circuit Court recently held that a statement of the case (SOC) or supplemental SOC (SSOC) can constitute a "readjudication decision" that complies with all applicable due process and notification requirements if adequate VCAA notice is provided prior to the SOC or SSOC. See Mayfield v. Nicholson, 07-7130 (Fed. Cir. September 17, 2007) (Mayfield IV). As a matter of law, the provision of adequate VCAA notice prior to a readjudication "cures" any timing problem associated with inadequate notice or the lack of notice prior to an initial adjudication. See also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). Even if arguably there is any deficiency in the notice to the veteran or the timing of the notice it is harmless error. See Overton v. Nicholson, 20 Vet. App. 427, 435 (2006) (finding that the Board had erred by relying on various post- decisional documents for concluding that adequate 38 U.S.C.A. § 5103(a) notice had been provided to the appellant, but determining nonetheless that the evidence established the veteran was afforded a meaningful opportunity to participate effectively in the adjudication of his claims, so found the error was harmless). If there was any deficiency in the notice to the veteran, the Board finds that the presumption of prejudice on VA's part has been rebutted: (1) based on the communications sent to him over the course of this appeal, and his responses, he clearly has actual knowledge of the evidence he is required to submit and needed to substantiate his claims; and (2) based on his contentions he is reasonably expected to understand from the notices what was needed. See Sanders v. Nicholson, 487 F.3d 881 (2007). VA also fulfilled its duty to assist by obtaining all relevant evidence concerning the claims under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159. The RO and AMC obtained all pertinent medical records identified by the veteran and his representative. In addition, VA furnished the veteran compensation examinations, including as a result of the Board's June 2006 remand, to determine the severity of his disabilities and their impact on his employability. See Caffrey v. Brown, 6 Vet. App. 377 (1994). Accordingly, the Board finds that no further assistance is needed to meet the requirements of the VCAA or Court. Whether the Veteran is Entitled to a Rating Higher than 10 Percent for the Imbalance and Dizziness Historically, in an April 2003 decision, the RO granted service connection for imbalance and dizziness and assigned a 10 percent rating retroactively effective from August 21, 2001, the date of receipt of the veteran's claim. He wants a higher initial rating. See Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). Governing Statutes and Regulations VA determines ratings for service-connected disabilities by comparing the symptoms the veteran is presently experiencing with criteria set forth in VA's Schedule for Rating Disabilities based on average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (2007). Separate diagnostic codes identify the various disabilities. When a question arises as to which of two ratings apply under a particular diagnostic code, VA assigns the higher evaluation if the disability more closely approximates the criteria for the higher rating; otherwise, VA assigns the lower rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, VA resolves any reasonable doubt in favor of the veteran. 38 C.F.R. § 4.3. Also, VA must take into account the veteran's entire medical history and circumstances when determining the appropriate rating. See 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1995). The RO rated the veteran's disability, by analogy, to a peripheral vestibular disorder under 38 C.F.R. § 4.87, Diagnostic Code (DC) 6299-6204. Under DC 6204, VA assigns a 30 percent rating - the highest possible rating under this code, for dizziness and occasional staggering. VA assigns a 10 percent rating for just occasional dizziness. The note in this DC indicates 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, Diagnostic Code 6204. Under Diagnostic Code 6205, for Meniere's syndrome (endolymphatic hydrops), a 30 percent rating is assigned when there is hearing impairment with vertigo less than once a month, with or without tinnitus. A 60 percent rating requires hearing impairment with attacks of vertigo and cerebellar gait occurring from one to four times a month, with or without tinnitus. A 100 percent rating requires hearing impairment with attacks of vertigo and cerebellar gait occurring more than once weekly, with or without tinnitus. A note in this code indicates Meniere's syndrome may be rated either under these criteria or by separately evaluating vertigo (as a peripheral vestibular disorder), hearing impairment, and tinnitus, whichever method results in a higher overall evaluation. An evaluation for hearing impairment, tinnitus, or vertigo may not be combined with an evaluation under Diagnostic Code 6205. 38 C.F.R. § 4.87, Diagnostic Code 6205. . Analysis The veteran had a VA compensation examination in June 2007, on remand, to determine the severity of his imbalance and dizziness and to determine whether his vertigo, left ear hearing loss, and tinnitus are, in actuality, symptoms that are part and parcel of Meniere's syndrome. During his examination, he reported experiencing recurrent left ear infection, left ear hearing loss, and left ear tinnitus. He described the tinnitus as intermittent, occurring every two or three days. He also described two kinds of dizziness. The first is an off-balance sensation when he looks up or moves quickly but only lasts for a few seconds. The second is a spinning vertigo which happens two or three times per month and lasts for a few seconds. In this regard, he explained that during one of these vertigo episodes, he slipped and fell while on duty as a campus police officer and injured his right ankle. Objective findings noted that his left auricle and ear canal were normal. However, his left ear had a very dry left tympanic membrane perforation without visible granulation tissue or cholesteatoma. He also had a Weber lateralized to the left, a normal Romberg, a steady gait, no spontaneous nystagmus and no mastoid tenderness or swelling. The examiner diagnosed left chronic otitis media, left mixed hearing loss, left tinnitus and recurrent vertigo and dizziness. The examiner explained that the veteran's recurrent left chronic otitis media causes his mixed hearing loss. Further, the otitis media began when he perforated the eardrum in service. The hearing loss and otitis media also cause his left ear tinnitus. With respect to the imbalance and dizziness, the examiner indicated this is more likely than not caused by the chronic otitis media. However, the examiner concluded the imbalance and dizziness are not suggestive of Meniere's disease due to the short-lasting duration of these spells and their infrequency. Therefore, to establish his entitlement to the next higher evaluation of 30 percent under Diagnostic Code 6204, the evidence must show the veteran has dizziness and occasional staggering. In his August 2001 claim for service connection for imbalance and dizziness, the veteran noted that his dizziness and "resultant stumbling have become additional symptoms accompanying [his] ear infections." He also indicated that he had already fallen "twice at work due to the dizziness and stumbling." An August 2001 letter from his wife provides supporting evidence, corroborating his contention that he has experienced frequent and pronounced incidents of vertigo with resulting disorientation, loss of balance, and stumbling or bumping into objects. The veteran and his wife are competent to state that he has stumbled and staggered as a result of his imbalance and dizziness because this is a readily observable event, even to a lay person. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Barr v. Nicholson, 21 Vet. App. 303, 310 (2007); and Layno v. Brown, 6 Vet. App. 465, 469 (1994). See also 38 C.F.R. § 3.159(a)(2). And their statements are credible, especially since there is no evidence to the contrary. So resolving all reasonable doubt in the veteran's favor, the Board finds that he has provided competent and credible evidence that his imbalance and dizziness cause occasional stumbling or staggering. Thus, he is entitled to a higher 30 percent rating under DC 6204, although this is the highest possible rating under this code. So to receive an even higher rating, he must meet the requirements of some other potentially applicable code or qualify for extra- schedular consideration under the special provisions of 38 C.F.R. § 3.321(b)(1). See Bagwell v. Brown, 9 Vet. App. 337 (1996). The record, as pointed out in the report of his June 2007 VA compensation examination, does not show the veteran has Meniere's syndrome to warrant an even higher 60 or 100 percent rating under DC 6205. Also keep in mind that he already has separate ratings for his left tympanoplasty and perforated eardrum with otitis media (10 percent), tinnitus (also 10 percent), and conductive hearing loss in his left ear (0 percent). So he already is receiving additional compensation for these additional disabilities. And he does not have complete loss of both auricles or a malignant neoplasm of the ear to warrant applying DCs 6207 and 6208, respectively. For these reasons and bases, the evidence supports - at most, a higher 30 percent rating for the veteran's imbalance and dizziness. Whether the Veteran is Entitled to a TDIU The veteran may be awarded a TDIU upon a showing that he is unable to secure or follow a substantially gainful occupation due solely to impairment resulting from his service-connected disabilities. See 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.26. Consideration may be given to his level of education, special training, and previous work experience in making this determination, but not to his age or the impairment caused by any nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. See also Ferraro v. Derwinski, 1 Vet. App. 326, 331-332 (1991). A TDIU may be assigned where the schedular rating is less than total when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). Disabilities resulting from a common etiology or from a single accident are considered one disability. Id. In addition, disabilities of one or both upper extremities, or one or both lower extremities, including the bilateral factor, are considered one disability under this section. Id. While the regulations do not provide a definition of "substantially gainful employment," VA Adjudication Procedure Manual, M21-1, Part VI, paragraph 7.09(a)(7), defines the term as "that which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the veteran resides." Also, in Faust v. West, 13 Vet. App. 342 (2000), the court defined "substantially gainful employment" as an occupation that provides an annual income that exceeds the poverty threshold for one person, irrespective of the number of hours or days that the veteran actually works and without regard to the veteran's earned annual income...." A veteran may be considered as unemployable upon termination of employment that was provided on account of disability or in which special consideration was given on account of the same, when it is satisfactorily shown that he or she is unable to secure further employment. 38 C.F.R. § 4.18. "Marginal employment," for example, as a self-employed worker or at odd jobs or while employed at less than half of the usual remuneration, shall not be considered "substantially gainful employment." See Moore (Robert) v. Derwinski, 1 Vet. App. 356, 358 (1991). It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16(b). So even if the veteran does not meet the threshold minimum percentage standards set forth above [in § 4.16(a)], extra-schedular consideration is to be given. Id. See also 38 C.F.R. § 3.321(b)(1). Analysis The veteran's service-connected disabilities are postoperative residuals of a left tympanoplasty and perforated eardrum with otitis media, rated as 10 percent disabling; imbalance and dizziness, now rated as 30 percent disabling; tinnitus, rated as 10 percent disabling; conductive hearing loss in the left ear, rated as 0 percent disabling; and a post-operative scar as a residual of a left wrist ganglioectomy, rated as 0 percent disabling. Consequently, he has a 50 percent combined rating. 38 C.F.R. § 4.25. Hence, even with the increased rating for his imbalance and dizziness to 30 percent, he does not satisfy the threshold minimum percentage criteria in 38 C.F.R. § 4.16(a) for consideration of a TDIU. Consequently, the only possible way he may obtain this benefit is on an extra-schedular basis - under the provisions of 38 C.F.R. § 4.16(b). The evidence of record, however, indicates the veteran's service-connected disabilities do not preclude him from obtaining and maintaining substantially gainful employment. As noted in the report of his June 2007 VA compensation examination, since his dizzy spells are relatively infrequent and short-lasting and he has the ability to drive, the examiner concluded the veteran is likely employable. As noted in his September 2007 statement, the veteran is currently employed as a state-licensed campus police officer at Mount Holyoke Community College. He has held this job since 2005. Although this job pays less ($200 per week) than his previous job at Smith College and does not include employer contributions to his pension, it is not marginal employment. Indeed, the veteran has obtained a significant amount of education and vocational training. He is a state-licensed police officer with a masters degree in sociology and a law degree (although no license), which qualify him for numerous sedentary jobs that do not require him to be physically active and exposed to the elements. In this regard, the Board granted entitlement to a program of vocational rehabilitation training under the terms and conditions of Chapter 31 since the evidence indicated a "serious employment handicap" that hinders his ability to retain work. Even in view of the impairment in ability to participate in this vocation, it must be emphasized that a TDIU contemplates the incapacity to hold other types of substantially gainful employment, and includes more sedentary forms of work. The determination as to whether a total disability is appropriate should not be based solely upon demonstrated difficulty in obtaining employment in one particular field, which could also potentially be due to external bases such as economic factors, but rather to all reasonably available sources of employment under the circumstances. See Ferraro v. Derwinski, 1 Vet. App. 326, 331-332 (1991). See also, generally, VA Adjudication Procedure Manual, M21-1 MR, Part IV, Subpart ii, Chapter 2 (December 13, 2005) (previously cited at M21-1, Part IV, paragraph 7.09) (defining "substantially gainful employment" as that "at which non-disabled individuals earn their livelihood with earnings comparable to the particular occupation in the community where the veteran resides"). While the Board acknowledges the veteran's difficulty retaining employment as a campus police officer due to his service-connected disabilities, his training offers a wide range of opportunities for sedentary employment outside and even within the law enforcement profession. Indeed, his inability to pass the bar examination or find other suitable employment is not due to his service-connected disabilities. The Board sees the June 2007 VA examiner recommended a neurology evaluation to determine the impact of the veteran's vertigo spells on his ability to perform as a campus police officer. Since, however, the Board is granting a higher 30 percent rating for his imbalance and dizziness in this decision, the maximum possible rating under DC 6204, a remand for a neurology examination is unnecessary. While the veteran clearly has some physical limitations due to his service-connected disabilities, generally, the degrees of disability specified in the Rating Schedule (keeping in mind he has a 50 percent combined rating for his disabilities) are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. See 38 C.F.R. § 4.1. For these reasons and bases, the Board must deny the claim for a TDIU because the preponderance of the evidence is unfavorable - in turn meaning there is no reasonable doubt to resolve in the veteran's favor. See 38 C.F.R. § 4.3. ORDER A higher 30 percent rating is granted for imbalance and dizziness. However, the claim for a TDIU, including on an extra- schedular basis, is denied. ____________________________________________ KEITH W. ALLEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs