Citation Nr: 1004083 Decision Date: 01/27/10 Archive Date: 02/16/10 DOCKET NO. 06-34 477A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an initial rating in excess of 30 percent for Meniere's syndrome, previously claimed as vertigo and motion sickness. 2. Entitlement to an effective date prior to July 20, 2005, for the grant of service connection for Meniere's syndrome. 3. Entitlement to a total disability rating based upon individual unemployability (TDIU). REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Mainelli, Counsel INTRODUCTION The Veteran had active military service from October 1986 to February 1988. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a January 2006 rating action by the Department of Veterans Affairs (VA) Regional Office (RO) located in St. Petersburg, Florida. In August 2008, the Veteran testified before the undersigned Veterans Law Judge at a hearing at the RO. A transcript of that hearing has been associated with the Veteran's claims folder. The Board remanded the case in January 2009 for further development. The issue of entitlement to a TDIU is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. An April 2005 RO rating decision denied the Veteran's application to reopen a claim of service connection for vertigo; the Veteran did not submit a written document expressing disagreement and a desire for appellate review of this decision within one year of the April 19, 2005 notice of decision. 2. The Veteran submitted an application to reopen a claim of service connection for chronic vertigo on July 20, 2005, which forms the basis of the award of service connection for Meniere's syndrome and the effective date of award assigned. 3. The Veteran's disability characterized as Meniere's syndrome is manifested by dizziness and tinnitus, but absent hearing impairment or cerebellar gait. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 30 percent for Meniere's syndrome, previously claimed as vertigo and motion sickness, are not met at any time during the appellate period. 38 U.S.C.A. §§ 1155, 5103, 5103A (West 2002 & Supp. 2008); 38 C.F.R. §§ 3.159, 4.1-4.14, 4.21, 4.87, Diagnostic Codes (DC) 6204, 6205, 6260 (2009). 2. The criteria for entitlement to an effective date earlier than July 20, 2005, for the grant of service connection for Meniere's syndrome have not been met. 38 U.S.C.A. §§ 5108, 5110 (West 2002); 38 C.F.R. § 3.400 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Jurisdiction Under 38 U.S.C.A. § 7105(a), an appeal to the Board must be initiated by a notice of disagreement (NOD) and completed by a substantive appeal after a statement of the case (SOC) is furnished to the claimant. The following sequence is required: There must be a decision by the RO, the claimant must express timely disagreement with the decision (NOD), VA must respond by explaining the basis for the decision to the claimant (SOC), and finally the claimant, after receiving adequate notice of the basis of the decision, must complete the process by stating his argument in a timely-filed substantive appeal. See 38 C.F.R. §§ 20.200, 20.201, 20.202, and 20.203. In this case, the record is clear that the Veteran has properly appealed to the Board the issues of entitlement to a higher initial rating for Meniere's syndrome and entitlement to an earlier effective date for the award of service connection for that service-connected disorder. In January 2009, the Board remanded the issue of whether CUE exists in a January 1998 rating decision that denied the Veteran's initial claim for service connection for motion sickness with vertigo. In this respect, the RO denied this CUE claim in a January 2006 rating decision, and the Veteran submitted a timely NOD in April 2006. The RO, however, did not issue an SOC to allow the Veteran the opportunity to perfect his appeal. The Board remanded this issue in January 2009 for issuance of an SOC in order to provide the Veteran the opportunity to perfect his appeal, if he so desired. See Manlincon v. West, 12 Vet. App. 119 (1998). In July 2009, the RO issued an SOC on the issue of whether CUE exists in a January 1998 rating decision that denied the Veteran's initial claim for service connection for motion sickness with vertigo. The July 31, 2009 cover letter informed the Veteran that he must file an appeal within 60 days from the date of this letter or within the remainder, if any, of the one-year period from the date of the letter notifying you of the action that you have appealed. Additionally, he was told that if the RO did not hear from him within this period, that portion of his case would be closed. The VA Form 9 or other document in lieu of this form was not submitted. The failure to timely file a substantive appeal does not automatically deprive the Board of jurisdiction over a claim. Rowell v. Principi, 4 Vet. App. 9, 17 (1993). Here, significantly, the RO did not waive the time requirements for filing a substantive appeal. See Gonzalez- Morales, 16 Vet. App. 556, 557 (2003); Percy v. Shinseki, 23 Vet. App. 37 (2009). The RO has not certified the CUE issue for appeal or otherwise waived timely filing of a substantive appeal by adjudicating the claim after the issuance of the July 2009 SOC. Therefore, the RO has not waived the time requirements for filing a substantive appeal. In short, the CUE claim has not been appealed to the Board. In this case, the RO issued the Veteran an SOC on the CUE issue on July 31, 2009. By letter dated July 31, 2009, the RO notified the Veteran that his claims folder was being forwarded to his representative for review of his appeal. Thereafter, the Veteran was notified that his claims folder would be returned to the Board. In August 2009, the Veteran's representative submitted a VA Form 646 (Statement of Accredited Representative in Appealed Case) which did not address a CUE claim. The RO transferred the case to the Board in August 2009. In September 2009, the Veteran's representative submitted a Written Brief to the Board identifying the issues on appeal as follows: 1. Entitlement to an initial rating in excess of 30 percent for Meniere's syndrome. 2. Entitlement to an effective date prior to July 20, 2005, for the grant of service connection for Meniere's syndrome. 3. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for motion sickness with vertigo. Again, no argument or evidence was presented with respect to the CUE claim. The Board acknowledges that the Veteran's representative listed an issue of whether new and material evidence has been submitted to reopen a claim of service connection for motion sickness with vertigo. This issue was previously granted, is thus not on appeal, and the criteria for reopening a prior final decision is completely separate from a CUE claim. See 38 C.F.R. § 20.202 (the substantive appeal must either specify the issue being appealed or set out arguments relating to errors of fact or law made by the agency of original jurisdiction in the appealed determination). In the Board's January 2009 remand, the Board directed that the CUE claim should be returned to the Board only if a timely substantive appeal was submitted. Thus, the RO properly complied with the Board's remand instructions and this issue is not before the Board. Stegall v. West, 11 Vet. App. 268 (1998). The Board next notes that, in January 2009, the Board referred to the RO the Veteran's raised claim of entitlement to TDIU for development and adjudication. To date, this has not been accomplished. In May 2009, the United States Court of Appeals for Veterans Claims (Court) held that a request for TDIU, whether expressly raised by a Veteran or reasonably raised by the record, is not a separate claim for benefits, but rather involves an attempt to obtain an appropriate rating for a disability or disabilities which is part of a pending claim for increased compensation benefits. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). See also Comer v. Peake, 552 F.3d 1362, 1366 (Fed. Cir. 2009) (the issue of entitlement to TDIU is not a free-standing claim which must be pled with specificity). The Board, therefore, finds that a TDIU claim is properly before the Board at this time. This issue will be further addressed in the remand following this decision. Initial Rating Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. If there is disagreement with the initial rating assigned following a grant of service connection, separate ratings can be assigned for separate periods of time, based on the facts found. Fenderson v. West, 12 Vet. App. 119, 126 (1999). See AB v. Brown, 6 Vet. App. 35 (1993) (a claim for an original or an increased rating remains in controversy when less than the maximum available benefit is awarded). Reasonable doubt as to the degree of disability will be resolved in the veteran's favor. 38 C.F.R. § 4.3. The assignment of a particular DC is "completely dependent on the facts of a particular case." Butts v Brown, 5 Vet. App. 532, 538 (1993). One DC provision may be more appropriate than another based on such factors as an individual's relevant medical history, the current diagnosis and demonstrated symptomatology. Any change in a DC by a VA adjudicator must be specifically explained. See Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). The Veteran's service-connected disorder, characterized as Meniere's syndrome, previously claimed as vertigo and motion sickness, has been evaluated by the RO under DCs 6204-6205. DC 6204 provides the rating criteria for peripheral vestibular disorders. The maximum available rating, 30 percent, is warranted if the disorder is manifested by dizziness and occasional staggering. 38 C.F.R. § 4.87, 6204. Under this DC, hearing impairment or suppuration shall be separately rated and combined. DC 6205 provides the criteria for rating Meniere's disease. Meniere's disease manifested by hearing impairment with attacks of vertigo less than once a month, with or without tinnitus, is rated 30 percent disabling. Meniere's disease manifested by hearing impairment with attacks of vertigo and cerebellar gait occurring from one to four times a month, with or without tinnitus is rated 60 percent disabling. Meniere's disease manifested by hearing impairment with attacks of vertigo and cerebellar gait occurring more than once weekly, with or without tinnitus, is rated 100 percent disabling. 38 C.F.R. § 4.87, DC 6205. The Note under this DC indicates that Meniere's syndrome is evaluated either under the aforementioned criteria or by separately evaluating vertigo (as peripheral vestibular disorder), hearing impairment, and tinnitus, whichever method results in a higher overall evaluation. The Note goes on to state "But do not combine an evaluation for hearing impairment, tinnitus, or vertigo with an evaluation under diagnostic code 6205." Meniere's disease is defined as "hearing loss, tinnitus, and vertigo resulting from nonsuppurative disease of the labyrinth with the histopathologic feature of endolymphatic hydrops (distention of the membranous labyrinth)." DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 489 (27th ed. 1988). Cerebellar gait is defined as a "staggering gait indicative of cerebellar disease." DORLAND'S at 670. For purposes of DC 6205, the criteria of hearing impairment is met with any level of hearing impairment. 64 Fed. Reg. 25200-01 (May 11, 1999). For VA purposes, impaired hearing is considered to be a disability when the auditory threshold in any of the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. The words "slight," "moderate" and "severe" as used in the various DC's are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence for "equitable and just decisions." 38 C.F.R. § 4.6. Separate disability ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not "duplicative of or overlapping with the symptomatology" of the other condition. Esteban v. Brown, 6 Vet. App. 259, 262 (1994). A layperson is generally not capable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183, 186 (1997). Where the determinative issue involves medical causation or a medical diagnosis, there must be competent medical evidence to the effect that the claim is plausible; lay assertions of medical status generally do not constitute competent medical evidence. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993); Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). However, lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (e.g., a broken leg), (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In essence, lay testimony is competent when it regards the readily observable features or symptoms of injury or illness. Layno v. Brown, 6 Vet. App. 465, 469 (1994). See also 38 C.F.R. § 3.159(a)(2). If the evidence for and against a claim is in equipoise, the claim will be granted. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C.A. § 5107; 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). At the outset, the Board notes that the RO has characterized the service-connected symptom complex at issue as Meniere's disease (previously claimed as vertigo and motion sickness). Historically, the Veteran's service treatment records (STRs) reflect his treatment for "motion/sea sickness" with vomiting, dizziness and nausea in 1987. He first reported tinnitus and hearing loss symptoms after service. In service, the Veteran underwent extensive evaluations to investigate the nature and etiology of his vertigo complaints. An October 1987 electronystagmogram and electro- oculugram (ENG/EOG) evaluation was interpreted as showing a significant central vestibular abnormality, to include hypoactive vestibular caloric response and poor fixation suppression. A subsequent computed tomography (CT) scan of the posterior fossa and temporal bone showed no evidence of an acoustic neuroma. The Veteran's February 1988 separation examination reflected an assessment of chronic motion sickness which was not considered disabling (NCD). Post-service, the Veteran continued to report vertigo symptoms as well as new complaints of tinnitus and hearing loss. Evaluations were conducted by Cordova Medical Center and the Naval Hospital in Pensacola, FL in 1998 and 1999, by Dr. R.K.M., M.D., in 2004, Dr. A.C.D., in 2005, Dr. C.R. of MacDill Air Force Base in 2005, Dr. Dr. C.N.B in October 2007 and VA. Briefly summarized, the Veteran underwent extensive testing which included an infra-red oculography (IRO) that was interpreted as showing possible (poss) central pathology (path) for the Veteran's vertigo complaints. Otherwise, a magnetic resonance imaging (MRI) scan of the brain, audiometric testing, brain stem auditory evoked response test (ABR), caloric testing, Vestibular Evoke Myogenic Potential test and electrocochleagraphy were all interpreted as negative. The examiner impressions of the Veteran's vertigo, tinnitus and hearing loss complaints have varied significantly and include chronic paroxysmal vertigo (December 2004 Dr. R.K.M. report); potential Meniere's disease (October 2005 Dr. A.C.D. report); dizzy spells (August 2006 VA consultation report); vertigo of peripheral origin, likely Meniere's given recurrence of episodes (May 2007 VA neurology consultation report); possible migraine variant as the Veteran's symptoms, timing, physical examination and audiological testing were not consistent with a Meniere's syndrome diagnosis (August 2007 VA ENT surgical consultation report); chronic positional vertigo with a separate diagnosis of tinnitus due to acoustic trauma (October 2007 Dr. C.N.B. report); migraine headache with prior Meniere's diagnosis being in error (October 2008 VA staff physician report); and Meniere's disease with frequent attacks of vertigo and ataxia (October 2008 Dr. A.C.D. report). In a January 2006 rating decision, the RO granted service connection for Meniere's syndrome (previously claimed as vertigo and motion sickness), and assigned an initial 30 rating under DC "6204-6205." This service connection grant was based upon the opinion of a December 2005 VA Compensation and Pension (C&P) examiner which stated as follows: 38-year old male with chronic vertigo and tinnitus. Available history and results of testing are suggestive of variant of bilateral Meniere's based on the available information, it is apparent that his current condition more likely than not had its onset during military service and his current symptoms represent a continuation of the disorder that was initially diagnosed in military service. (emphasis). The Veteran is currently receiving the maximum disability rating, 30 percent, under DC 6204. Additionally, service connection is separately in effect for tinnitus, rated the maximum 10 percent disabling from July 20, 2005. While the Notes under DCs 6204-6205 can provide for a higher rating when such related symptoms as suppuration and hearing impairment are also rated separately, the medical evidence lacks documentation regarding suppuration. Additionally, as further discussed below, the evidence also fails to document hearing impairment. 38 C.F.R. §§ 3.385, 4.85, 4.86. Accordingly, the Notes do not justify a higher rating. The Veteran primarily alleges entitlement to a higher initial rating of 60 percent or more under DC 6205, Meniere's syndrome (endolymphatic hydrops). For the following reasons, the Board finds that a higher initial rating is not warranted under this diagnostic code as the Veteran does not manifest hearing impairment with attacks of vertigo and cerebellar gait occurring from one to four times a month. The Board first notes that the structure of DC 6205 premises any rating under this diagnostic code as requiring hearing impairment. The various grades of disability ratings are then based upon the presence or absence of additional symptomatology. The 30 percent rating is based upon the frequency of vertigo attacks. The 60 percent rating is based upon the frequency of vertigo attacks and cerebellar gait. Thus, for a higher rating, in addition to hearing impairment, the Veteran must also manifest cerebellar gait for entitlement to a higher 60 percent rating under DC 6205. See Melson v. Derwinski, 1 Vet. App. 334 (June 1991) (use of the conjunctive "and" in a statutory provision meant that all of the conditions listed in the provision must be met). Cf. Johnson v. Brown, 7 Vet. App. 95 (1994) (only one disjunctive "or" requirement must be met in order for an increased rating to be assigned). The record does not reflect a single audiometric test which reflects that the Veteran has ever manifested hearing loss per VA standards since the initial onset of vertigo symptoms in 1987. In August 2007, a VA ENT surgical consultant provided opinion that a diagnosis of Meniere's syndrome required hearing loss, which the Veteran did not demonstrate by audiometric examination. Pursuant to a Board remand and in order to ensure that the Veteran's contentions of hearing loss were adequately addressed, the Veteran underwent additional VA audiometric examination in May 2009. This testing measured right ear puretone thresholds of 20 decibels or less in all frequencies, and left ear puretone thresholds of 15 decibels or less in all frequencies. Pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 10 5 10 20 LEFT 15 15 10 10 15 Speech recognition scores were 100 percent in both ears. The examiner specifically stated that there was no hearing loss present. To evaluate the degree of disability from hearing loss, the rating schedule establishes eleven auditory acuity levels ranging from numeric level I for essentially normal acuity, through numeric level XI for profound deafness. 38 C.F.R. §§ 4.85- 4.87, Diagnostic Codes 6100 to 6110, Tables VI, VIa, VII (2009). Applying the criteria found in 38 C.F.R. §§ 4.85-4.87, the Veteran's May 2009 audiological examination report yields level I hearing in each ear. Entering each of the category designations from the above audiological examination report for each ear into Table VII results in a 0 percent disability rating. As such, the VA audiological examination confirms no hearing impairment. Although the Veteran's contentions and reports regarding hearing impairment are considered as part of the evidence of record, the Board concludes that the pertinent VA examination which failed to confirm hearing impairment and the other objective medical evidence outweighs the Veteran's testimony and statements. This examination utilizes the methods prescribed in the regulations. 38 C.F.R. § 4.85 (an examination for hearing impairment for VA purposes must be conducted by a state- licensed audiologist and must include a controlled speech discrimination test (Maryland CNC) and a pure tone audiometry test). The examination held under these circumstances, as here, is of highest probative value. In any event, the Board also finds that a 60 percent rating under DC 6205 is not warranted based upon the frequency and duration of the Veteran's vertigo symptoms. The Veteran essentially describes incapacitating vertigo attacks with hearing loss and tinnitus which results in a gait disturbance. He has alleged a "staggering" gait during his vertigo attacks. However, the credible lay and medical evidence establishes that the Veteran does not manifest attacks of vertigo and cerebellar gait occurring from one to four times a month. The Board first notes that the medical evidence, which spans more than two decades, does not reflect a single observation of the Veteran manifesting a staggered gait. The Veteran's wife provided a statement in August 2008 in which she commented that she escorted the Veteran to the bathroom when he could not walk during a dizziness event. This statement, while corroborating a symptom of the service-connected disability, does not prove the presence of cerebellar gait including the occurrence of such from one to four times a month. The Board next notes that the only evidence in this case supporting a finding of cerebellar gait consists of the lay descriptions provided by the Veteran. Unfortunately, based on all the evidence, the Board must find that the Veteran's description of the frequency, duration and type of vertigo symptoms is not reliable so as to conclude that cerebellar gait occurs from one to four times a month. Historically, the Veteran first described symptoms of vomiting, dizziness and nausea in 1987. Thereafter, the record reflects a significant inconsistency regarding the Veteran's report of frequency of vertigo attacks, ranging from "intermittent unsteadiness and light-headedness prompted by rapid movement" (January 1998 Cordova Medical Center report); symptoms of lightheadedness, nausea, and vomiting associated with vertigo with frequency varying from being asymptomatic for a whole month to sometimes having spells every day with no significant change of symptoms in 10 years other than a worsening of severity (March 1999 Naval Hospital report); episodes of ringing and dizziness which could come on at any time, and lasting for a few minutes to a few hours (December 2004 Dr. R.K.M. report); progressive worsening of vertigo symptoms which were sporadic but occurred 6 to 8 times per month (December 2005 VA C&P examination report); 2-3 spells of dizziness per month with no spells in some months (May 2007 VA clinical record); dizziness symptoms occurring every two months to 6 times per day (May 2007 VA clinical record); 6-10 episodes of room spinning, nausea and vomiting per month lasting 5 minutes to days in duration (August 2007 VA clinical record); and 6-8 episodes per week of vomiting, room spinning, and becoming dizzy lasting one hour to days in duration (February 2009 SSA phone interview). The record also contains a significant inconsistency regarding the Veteran's report of severity of symptoms. The Veteran has variously described a vertigo sensation which did not affect his ability to function (October 2005 Dr. A.C.D. report), as causing him to miss several days of work per month (VA clinical records dated May 2007, July 2008, and October 2008), as having a 19 year history of episodic balance problems with ear ringing, hearing loss and spinning which caused him to miss 60-70 days per year in bed because "balance and dizziness will not let him safely out of bed (VA clinical record dated August 2006), and complete incapacity with an inability to perform functions such as household chores and using the restroom without supervision (SSA interview dated February 2009). As a result of the extreme descriptions, it is difficult to reconcile his October 2005 report to his private doctor that his vertigo sensation did not affect his ability to function with his August 2006 assertion to a VA examiner that he had a 19-year history of being bedridden 60-70 days per year due to vertigo. Both of these contradictory statements for the same time period cannot be true. As such, no probative weight can be given to them. The Board further notes that the Veteran's SSA application includes the Veteran's report of working 40 hour weeks from December 1995 to April 2008. He worked as a driver, laborer, automobile painter/installer, mobile equipment servicer, salesman and sign painter. This application reflects that the Veteran worked several years with his primary work duties as a driver, which is not consistent with a cerebellar disorder rendering him incapacitated. The Board further notes that the Veteran's medical examiners have also called into question the severity and type of the Veteran's alleged symptoms. In January 1998, the Veteran's treating physician reflected that the Veteran described "minimal" symptoms of a true spinning sensation. In March 1999, the Veteran's treating physician noted that the Veteran's spells were "quite ill defined" and that the Veteran chose vertigo symptoms over presyncope symptoms. In October 2005, Dr. A.C.D. noted that the Veteran remained functional through each of his vertigo episodes. In October 2008, a VA clinician noted that the Veteran was having difficulty trying to differentiate between Meniere's and migraine symptoms. (Service connection for migraine was separately denied in an April 2008 rating decision, which was not appealed and is not before the Board at this time. Additionally, SSA records show that disability benefits were denied on the primary basis of migraine). The medical evidence of record fails to show that the Veteran's service-connected disorder results in cerebral gait. The Board acknowledges that the Veteran had an instance of bed rest in December 2005 due to an exacerbation of vertigo and tinnitus. Notably, this physician did not mention cerebral gait abnormality. The Board further acknowledges that an October 2008 statement from Dr. A.C.D. described the Veteran as manifesting Meniere's disease with frequent attacks of vertigo and "ataxia." However, Dr. A.C.D. did not indicate witnessing cerebral gait and his progress notes do not reflect any witnessing of cerebellar dysfunction. As noted above, Dr. A.C.D. commented in December 2005 that the Veteran could function throughout the vertigo attacks. As such, the October 2008 statement from Dr. A.C.D. is merely a reiteration of what the Veteran is telling him which the Board finds as unreliable and not credible. The evidentiary value of this statement, therefore, is greatly outweighed by the entire evidentiary record. See Reonal v. Brown, 5 Vet. App. 458, 460-61 (1993) (physician's opinion based upon an inaccurate factual premise has no probative value). The multiple medical reports that span a large amount of time do not document the manifestation of a gait disorder and as such, outweigh the lay remarks concerning this matter for the reasons described above. In summation, the Veteran's does not meet the criteria for a higher initial rating under DC 6205 due to the absence of hearing impairment and cerebral gait abnormality. Finally, the Board has considered whether the Veteran's symptom complex warrants referral to the Chief Benefits Director of VA's Compensation and Pension Service under 38 C.F.R. § 3.321. The Veteran alleges that his service- connected symptoms have rendered him unemployable and/or markedly interfered with his employability. Important for this decision, the Board has specifically considered the assignment of separate ratings for the symptoms of the disorder at issue and all of these symptoms are reflected in his current schedular rating. As the assigned schedular evaluations are adequate, there is no basis for extraschedular referral in this case. See Thun v. Peake, 22 Vet. App. 111, 114-15 (2008). Therefore, referral by the RO to the Chief Benefits Director of VA's Compensation and Pension Service, under 38 C.F.R. § 3.321, is not warranted. See Bagwell v. Brown, 9 Vet. App. 337 (1996). Earlier effective date of award Section 5110(a), title 38, United States Code, provides that "[u]nless specifically provided otherwise in this chapter, the effective date of an award based on an original claim, a claim reopened after final adjudication . . . of compensation . . . shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor." 38 U.S.C.A. § 5110(a). The implementing regulation, 38 C.F.R. § 3.400, similarly states that the effective date "will be the date of receipt of the claim or the date entitlement arose, whichever is the later." In pertinent part, the effective date for reopened claims is the date of receipt of claim or date entitlement arose, whichever is later. 38 C.F.R. § 3.400(r). The VA administrative claims process recognizes formal and informal claims. A formal claim is one that has been filed in the form prescribed by VA. See 38 U.S.C.A. § 5101(a); 38 C.F.R. § 3.151(a). An informal claim may be any communication or action, indicating an intent to apply for one or more benefits under VA law. Thomas v. Principi, 16 Vet. App. 197 (2002). See 38 C.F.R. §§ 3.1(p), 3.155(a). An informal claim must be written, see Rodriguez v. West, 189 F. 3d. 1351 (Fed. Cir. 1999), and it must identify the benefit being sought. Brannon v. West, 12 Vet. App. 32, 34-5 (1998). Although a claimant need not identify the benefit sought "with specificity," see Servello v. Derwinski, 3 Vet. App. 196, 199-200 (1992), some intent on the part of the veteran to seek benefits must be demonstrated. See Brannon v. West, 12 Vet. App. 32, 34-35 (1998). See also Talbert v. Brown, 7 Vet. App. 352, 356-7 (1995) (noting that while VA must interpret a claimant's submissions broadly, VA is not required to conjure up issues not raised by claimant). The United States Court of Appeals for the Federal Circuit has emphasized VA has a duty to fully and sympathetically develop a veteran's claim to its optimum. Hodge v. West, 155 F.3d 1356, 1362 (Fed. Cir. 1998). This duty requires VA to "determine all potential claims raised by the evidence, applying all relevant laws and regulations," Roberson v. West, 251 F.3d 1378, 1384 (Fed. Cir. 2001), and extends to giving a sympathetic reading to all pro se pleadings of record. Szemraj v. Principi, 357 F.3d 1370, 1373 (Fed. Cir. 2004). Appellate review is initiated by the filing of an NOD and completed by the filing of a substantive appeal after a statement of the case (SOC) has been furnished. 38 U.S.C.A. § 7105; 38 C.F.R. §§ 20.200, 20.201. There are six elements for a valid NOD: it must (1) express disagreement with a specific determination of the agency of original jurisdiction; (2) be filed in writing; (3) be filed with the RO; (4) be filed within one year after the date of mailing of notice of the RO decision; (5) be filed by the claimant or the claimant's authorized representative; and (6) express a desire for Board review. 38 U.S.C.A. § 7105(b); 38 C.F.R. § 20.201; Gallegos v. Principi, 283 F.3d 1309 (Fed. Cir. 2002). The date of mailing of the notification is presumed to be the same as the date of the letter. 38 C.F.R. § 20.302(a). The law grants a period of one year from the date of the notice of the result of the initial determination for initiating an appeal by filing a notice of disagreement; otherwise, that determination becomes final and is not subject to the revision on the same factual basis in the absence of CUE. 38 U.S.C.A. § 7105; 38 C.F.R. § 3.105(a). Historically, the Veteran filed an original service connection claim for vertigo in June 1997. An RO rating decision in January 1998 denied a claim of service connection for motion sickness with vertigo on the basis that the case was not well grounded. The Veteran was provided notice of this decision, and his appellate rights, by letter dated January 9, 1998. The Veteran timely filed an NOD in November 1998, and the RO issued an SOC in September 1999. The record does not reflect any document submitted by the Veteran appealing this decision within the applicable appeal period. 38 U.S.C.A. § 7105; 38 C.F.R. § 20.302(b). That decision, therefore, is final. The Veteran filed an application to reopen a claim of service connection for vertigo in September 2001. An RO rating decision in November 2002 readjudicated this issue and denied a claim of service connection for an ear condition with vertigo on the merits. The Veteran was provided notice of this decision, and his appellate rights, by letter dated November 18, 2002. The record does not reflect that the Veteran filed a written document within one year from the date of notice indicating an intent to appeal the RO's decision. That decision, therefore, became final. See 38 U.S.C.A. § 7105(c); 38 C.F.R. § 20.1103. The Veteran filed another application to reopen a claim of service connection for vertigo in December 2004. An RO rating decision in April 2005 denied the Veteran's application to reopen the claim. The Veteran was provided notice of this decision, and his appellate rights, by letter dated April 19, 2005. The record next reflects that the Veteran submitted a statement on July 20, 2005 requesting the RO to "re-open" his claim of service connection for chronic vertigo. He submitted a similar statement in December 2005. However, the record does not reflect that the Veteran filed a written document within one year from the April 19, 2005 notice of denial indicating disagreement with the RO's April 2005 decision and a desire for appellate review, as required by 38 C.F.R. § 20.201. Gallegos, 283 F.3d 1309 (Fed. Cir. 2002). That decision, therefore, became final. See 38 U.S.C.A. § 7105(c); 38 C.F.R. § 20.1103. The RO did accept the Veteran's July 20, 2005 statement as an application to reopen the claim of service connection for vertigo, and the RO has granted service connection for Meniere's syndrome effective to the date of the Veteran's application to reopen. Previously, the Veteran argued entitlement to an earlier effective date to the date of his original application based upon alleged CUE in a January 1998 RO rating decision. However, as discussed above, the Veteran did not appeal this issue to the Board. As reflected above, the Veteran's claim of service connection for vertigo symptoms was last finally denied by the RO in an April 2005 rating decision. The record reflects that, after the April 2005 denial, the Veteran next submitted a written document on July 20, 2005 requesting a reopening of his claim. This document serves as the basis for reopening the claim, the grant of service connection for Meniere's syndrome, and the assignment of an effective date of award. The Veteran clearly understood the difference between a reopened claim and an NOD because, following the notice of the January 2006 decision that granted service connection for Meniere's syndrome, previously claimed as vertigo and motion sickness, the Veteran submitted what he identified as a "notice of disagreement" to the RO. He specifically stated in that document that "I am submitting a notice of disagreement with my rating decision dated January 6, 2006." Consequently, this NOD was timely received to challenge the January 2006 RO decision. The statements in July 2005 and January 2006 were both worded carefully and precisely and were indicative of the Veteran's intent at those times. On review of the record, the Board finds no written document between the April 2005 rating decision and the July 20, 2005 application to reopen indicating an intent to reopen this claim. This aspect of the claim, therefore, must also be denied. The January 2006 rating decision granted service connection based on new and material evidence identified as "the opinions of two examiners" in December 2005. Such evidence, however, does not extend the time limit for initiating or completing an appeal. 38 C.F.R. § 20.304 (2009). The Board is cognizant that the Veteran's vertigo symptoms were documented to be present in medical reports prior to July 20, 2005. Under 38 C.F.R. § 3.157, a report of examination or hospitalization will be accepted as an informal claim for benefits. However, the provisions of 38 C.F.R. § 3.157 only apply once a formal claim for compensation or pension has been allowed or compensation disallowed because the disability is not compensable. Here, the Veteran's July 2005 claim was not pre-dated by an adjudication of the type cited in 38 C.F.R. § 3.157(b), and, as such, that regulation does not afford a basis for finding that his claim, be it formal or informal, of entitlement to service connection for a Meniere's disease was filed earlier than July 20, 2005. 38 C.F.R. § 3.157; Crawford v. Brown, 5 Vet. App. 33 (1993). Additionally, the mere presence of medical evidence of a disability in VA clinical records does not show an intent on the Veteran's part to seek service connection and therefore does not constitute a claim. See 38 C.F.R. § 3.155. The law is clear that the effective date for a grant of service connection on the basis of the receipt of new and material evidence following a final prior disallowance is the date of receipt of the application to reopen, or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110; 38 C.F.R. § 3.400(q)(1)(ii) (2008). See Leonard v. Nicholson, 405 F.3d 1333 (Fed. Cir. 2005); Sears v. Principi, 349 F.3d 1326 (Fed. Cir. 2003). In this case, the Veteran's specific request for a reopened claim was received on July 20, 2005, the later of the dates. For all the reasons discussed above, the appeal for an effective date earlier than July 20, 2005 must be denied. The Duty to Notify and the Duty to Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), 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 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2009). Here, the Veteran is challenging the initial evaluation and effective date of award assigned following a grant of service connection. In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the Court held that in cases where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service- connection claim has been more than substantiated, it has been proven, thereby rendering section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Id. at 490-91. Thus, because the notice that was provided before service connection was granted was legally sufficient, VA's duty to notify in this case has been satisfied. See generally Goodwin v. Peake, 28 Vet. App. 128 (2008). Nonetheless, a December 2007 RO letter reflects that the Veteran was advised of the criteria for establishing a disability rating and effective date of award. See Dingess, 19 Vet. App. 473 (2006). This letter advised the Veteran that his disability ratings were determined by a schedule for evaluating disabilities published at title 38 Code of Federal Regulations, Part 4. He was informed that evidence considered in determining the disability ratings included the nature and symptoms of the condition, the severity and duration of the symptoms, and the impact of the condition and symptoms on employment. Examples of evidence to be considered included information about on-going treatment records, including VA or other Federal treatment records, he had not previously identified; recent Social Security determinations; statements from employers as to job performance, lost time, or other information regarding how his condition affected his ability to work; or statements discussing his disability symptoms from people who have witnessed how they affected him. Additionally, an August 2008 RO letter advised the Veteran of the schedular criteria applicable to the claim at hand. Thus, although additional notice was not required per Dingess, the RO did provide additional notice to ensure complete development of the claims. The Veteran and his representative have not argued any prejudicial error regarding VCAA notice deficiencies on his downstream claims. Accordingly, the Board finds that adjudication of the claims at this time would not be prejudicial to the Veteran. Any potential timing deficiencies were cured with readjudication of the claims in the supplemental statements of the case dated August 2008 and July 2009. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). VA has a duty to assist the Veteran in the development of his claims. This duty includes assisting the Veteran in the procurement of STRs and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The RO has obtained the Veteran's STRs, VA clinical records and SSA records. The Veteran has been advised to submit his private records to the RO or, alternatively, to complete and return an attached VA Form 21- 4142 (Authorization and Consent to Release Information) which would allow the RO to obtain those records on his behalf. There are no outstanding requests for VA to obtain any additional evidence. The Veteran was last afforded VA examinations to evaluate the nature and severity of his disability in May 2009. The VA examination reports contain sufficiently specific clinical findings and informed discussion of the pertinent history and features of the disability on appeal to provide probative medical evidence adequate for rating purposes. Since this VA examination, there is no credible lay or medical evidence suggesting an increased severity of disability to the extent that a higher rating may be warranted. As such, additional examination is not warranted. VAOPGCPREC 11-95 (Apr. 7, 1995). Significantly, neither the Veteran nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claims. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist him in the development of the claims. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). ORDER The claim of entitlement to an initial rating in excess of 30 percent for Meniere's syndrome, previously claimed as vertigo and motion sickness, is denied. The claim of entitlement to an effective date prior to July 20, 2005, for the grant of service connection for Meniere's syndrome is denied. REMAND In January 2009, the Board referred to the RO the Veteran's raised claim of entitlement to TDIU for development and adjudication. As noted in the Jurisdiction portion of this decision, the TDIU claim is now deemed currently before the Board. Rice, 22 Vet. App. at 453-54; Comer, 552 F.3d at 1366 (Fed. Cir. 2009). It would be fundamentally unfair to the Veteran to decide a claim which has not been developed and adjudicated by the RO. See Bernard v. Brown, 4 Vet. App. 384 (1993). In order to comply with precedential Court opinion, this issue, therefore, is remanded for further development. Accordingly, the case is REMANDED for the following action: 1. Provide the Veteran notice consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) regarding the claim of entitlement to TDIU. 2. After completion of any necessary notice, assistance (to include obtaining pertinent VA treatment report), and other development which may be deemed necessary, the RO should adjudicate the Veteran's claim of entitlement to TDIU. All appropriate administrative and appellate procedures should be followed. The appellant has the right to submit additional evidence and argument on the matter 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 Supp. 2009). ______________________________________________ M. SABULSKY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs