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