Citation Nr: 1309435 Decision Date: 03/20/13 Archive Date: 04/01/13 DOCKET NO. 10-39 424 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to an initial compensable rating for service-connected benign positional vertigo, prior to June 9, 2012. 2. Entitlement to an initial rating in excess of 10 percent for service-connected benign positional vertigo, from June 9, 2012 forward. 3. Entitlement to an initial compensable rating for service-connected degenerative arthritis of the lumbar spine, prior to May 24, 2011. 4. Entitlement to an initial rating in excess of 20 percent for service-connected degenerative arthritis of the lumbar spine, from May 24, 2011 forward. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD K. M. Schaefer, Counsel INTRODUCTION The Veteran served on active duty from June 1988 to August 2009. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from an October 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina, which in pertinent part, granted service connection for degenerative arthritis of the lumbar spine and benign positional vertigo, both rated as 0 percent disabling, effective the day after discharge. The Veteran then appealed with respect to the initial assigned ratings. In a July 2012 supplemental statement of the case, a 20 percent rating was assigned for the lumbar spine disability, effective May 24, 2011 and a 10 percent rating was assigned for the benign positional vertigo, effective June 9, 2012. However, as these ratings are still less than the maximum benefit available, the appeal is still pending. AB v. Brown, 6 Vet. App. 35, 38 (1993). The Board observes that in September 2012, the Veteran filed a notice of disagreement with the effective dates of the increased ratings for his service-connected lumbar spine and vertigo disabilities. In cases where ratings have been staged, as here, the question of an earlier effective date is implicit in the consideration of whether a higher rating is appropriate for the first stage of the appeal period. If a higher rating is assigned for the period prior to the existing increase, then the effective date for the higher rating would naturally pre-date the one assigned when the rating was staged. Therefore, as the issue of an earlier effective date for the increased rating assigned during the second stage of the appeal period is adjudicated by the agency of original jurisdiction and the Board during consideration of the initial rating claim, the Board will address the issues as stated on the title page of this decision. The lumbar spine rating issues are addressed in the REMAND portion of the decision below and are REMANDED to the Department of Veterans Affairs Regional Office. FINDINGS OF FACT 1. Prior to June 9, 2012, service-connected benign positional vertigo is manifested by dizziness with balance difficulties, but not staggering, occurring five times per month and lasting from 10 to 15 minutes. 2. From June 9, 2012 forward, service-connected benign positional vertigo is manifested by dizziness with balance difficulties, but not staggering, occurring once per week and lasting for less than an hour. CONCLUSIONS OF LAW 1. Prior to June 9, 2012, the criteria for a rating of 10 percent, but no greater, for service-connected benign positional vertigo have been met. 38 U.S.C.A. § 1155 (West 2002); 38 U.S.C.A. § 4.87, Diagnostic Codes 6299-6204 (2012). 2. From June 9, 2012 forward, the criteria for a rating in excess of 10 percent for service-connected benign positional vertigo have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.87, Diagnostic Codes 6299-6204 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VA's Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) imposes certain duties upon VA to notify the claimant of the shared obligations of the claimant and VA in developing his or her claim and to assist the claimant by making reasonable efforts to obtain relevant evidence in support of the claims. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Here, the Veteran is appealing the initial rating assignment as to his benign positional vertigo. Once service connection has been granted, the context in which the claim initially arose, the claim has been substantiated; therefore, additional VCAA notice under § 5103(a) is not required because the initial intended purpose of the notice has been fulfilled, so any defect in the notice is not prejudicial. Goodwin v. Peake, 22 Vet. App. 128 (2008); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Rather, thereafter, once a notice of disagreement (NOD) has been filed, for example contesting a downstream issue such as the initial rating assigned for the disability, only the notice requirements for a rating decision and statement of the case (SOC) described in 38 U.S.C. §§ 5104 and 7105 control as to the further communications with the Veteran, including as to what evidence is necessary to establish a more favorable decision with respect to downstream elements of the claim. 38 C.F.R. § 3.159(b)(3) (2012). The RO has provided the Veteran the required SOC discussing the reasons and bases for not assigning a higher initial rating and citing the applicable statutes and regulations. VA has also fulfilled its duty to assist the Veteran in making reasonable efforts to identify and obtain relevant records in support of the Veteran's claims and providing him with a VA examination. The Veteran's service treatment records and the reports of March 2009 and June 2012 VA examinations were reviewed by both the AOJ and the Board in connection with adjudication of his claims. The Veteran has not identified any additional, relevant treatment records the Board needs to obtain for an equitable adjudication of the claims. With regard to the VA examinations, the Board notes that once VA undertakes to provide a VA examination, it must ensure that the examination is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). In this case, each examiner reviewed the claims file, documented the Veteran's subjective complaints and medical history, and evaluated the Veteran. Thereafter, in the reports they provided information sufficient in detail and relevance to the rating criteria to allow for determination of the appropriate disability rating. Nothing suggests that either examiner documented findings inconsistent with the medical history outlined in the claims file or not representative of the Veteran's symptomatology; therefore, the Board finds the VA examination reports in this case adequate for rating purposes. Accordingly, the Board concludes that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issues on appeal has been met. 38 C.F.R. § 3.159 (c)(4). In light of the above, the Board concludes that the medical evidence of record is sufficient to adjudicate the Veteran's claims without further development and additional efforts to assist or notify the Veteran in accordance with VCAA would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements of the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the Veteran). Therefore, the Board determines that the Veteran will not be prejudiced by the Board proceeding to the merits of the claims. II. Analysis Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2012). 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 their residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluation is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. Pyramiding, the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a veteran's service-connected disabilities. 38 C.F.R. § 4.14. In Fenderson v. West, 12 Vet. App. 119 (1999), the Court held that evidence to be considered in the appeal of an initial assignment of a disability rating was not limited to that reflecting the then current severity of the disorder. As such, the Board has considered all evidence of record in evaluating the Veteran's benign positional vertigo disability. Also, in Fenderson, the Court discussed the concept of the "staging" of ratings, finding that in cases where an initially assigned disability evaluation has been disagreed with, it was possible for a veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period. Fenderson at 126-28. As such, in accordance with Fenderson, the Board has considered the propriety of staged ratings in evaluating the Veteran's service-connected disability. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise the lower rating will be assigned. 38 C.F.R. § 4.7. All benefit of the doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. Regulations provide that, when the disability being rated is not specifically provided for in the rating schedule, it will be rated under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous. 38 C.F.R. § 4.20. Further, the provisions of 38 C.F.R. § 4.27 provide that unlisted disabilities requiring rating by analogy will be coded with the first two numbers of the schedule provisions for the most closely related body part and "99." Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned. The additional code is shown after a hyphen. The Veteran's service-connected benign positional vertigo has been assigned a noncompensable rating prior to June 9, 2012 and a 10 percent rating from that date forward, pursuant to 38 C.F.R. § 4.87, Diagnostic Codes 6299-6204 (2012). The Veteran contends that his symptoms are more severe than contemplated by these ratings. In particular, he asserts that he had occasional dizziness prior to June 9, 2012 and warranting a compensable rating. The Veteran's benign positional vertigo has been rated analogously to peripheral vestibular disorders which are rated under Diagnostic Code 6204. Under this code, dizziness and occasional staggering warrants a 30 percent rating, and occasional dizziness warrants a 10 percent rating. Objective findings supporting the diagnosis of vestibular disequilibrium are required before a compensable evaluation can be assigned under this code, and hearing impairment or suppuration is separately rated and combined. 38 C.F.R. § 4.87, Diagnostic Code 6204. Relevant evidence includes the reports of two VA examinations. There is no treatment evidence of record. In March 2009, the Veteran reported having symptoms of dizziness causing difficulty balancing about five times per month, lasting from 10 to 15 minutes each time. The external ear, tympanic membrane, and mastoid were all normal on both sides. There was no ear disease or infection present or disturbance of balance on the right or the left. The examiner indicated that there was no upper respiratory disease, staggering gait, or cerebella gait. In June 2012, the examiner noted that the Veteran had vertigo more than once weekly, lasting for less than one hour. The ear canal, tympanic membrane, gait, limb coordination, and all other testing for vertigo were normal. The examiner did not note staggering as a symptom. In light of the above, the Board finds that a rating of 10 percent, but no greater, for service-connected benign positional vertigo, is warranted for the entire appeal period. The 10 percent rating contemplates occasional dizziness, which was represented by dizziness with trouble balancing about five times per month prior to June 9, 2012. From June 9, 2012 onward, it was represented by vertigo more than once weekly. However, the Board finds that a rating in excess of 10 percent is not supported by the evidence at any time during the appeal period. Such a rating requires staggering. While the Veteran had difficulty balancing, he did not report staggering, and the examiner in March 2009 found no staggering gait. In June 2012, there was no impairment of gait or limb coordination to indicate staggering. The Veteran's reports of his occasional dizziness were contemplated by the Board in assigning the 10 percent rating prior to June 9, 2012. He is competent to describe such symptoms, and occasional dizziness with balance issues is the most severe symptomatology asserted by the Veteran. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Generally, evaluating a disability using either the corresponding or analogous diagnostic codes contained in the Rating Schedule is sufficient. See 38 C.F.R. §§ 4.20, 4.27 (2012). However, because the ratings are averages, it follows that an assigned rating may not completely account for each individual veteran's circumstance, but nevertheless would still be adequate to address the average impairment in earning capacity caused by disability. However, in exceptional cases where the rating is inadequate, it may be appropriate to assign an extra-schedular rating. 38 C.F.R. § 3.321(b) (2012). The threshold factor for extra-schedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate, a task performed either by the RO or the Board. Id.; see Thun v. Peake, 22 Vet. App. 111, 115 (2008), aff'd, 572 F.3d 1366 (2009); see also Fisher v. Principi, 4 Vet. App. 57, 60 (1993) ("[R]ating [S]chedule will apply unless there are 'exceptional or unusual' factors which render application of the schedule impractical."). Therefore, initially, there must be a comparison between the level of severity and symptomatology of the Veteran's service-connected disability with the established criteria found in the Rating Schedule for that disability. Thun, 22 Vet. App. at 115. If the criteria reasonably describe the Veteran's disability level and symptomatology, then the Veteran's disability picture is contemplated by the Rating Schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. The Board finds that the Veteran's disability picture is not so unusual or exceptional in nature as to render the already assigned rating inadequate. Service-connected benign positional vertigo is evaluated under the rating criteria for peripheral vestibular disorders, which criteria the Board has found to specifically contemplate the level of occupational and social impairment caused by these disabilities. 38 C.F.R. § 4.87, Diagnostic Codes 6299-6204. The Veteran's service-connected vertigo is manifested by occasional dizziness with balance difficulties occurring from at least once weekly to five times per month. When comparing this disability picture with the symptoms contemplated by the Rating Schedule, the Board finds that the Veteran's symptoms are congruent with the disability picture represented by the 10 percent rating for the disability as assigned by the RO and the Board herein. Evaluations in excess of those assigned are provided for certain manifestations of this disability, namely occasional dizziness with staggering. However, as noted above, the evidence demonstrates that those manifestations are not present in this case. The criteria for the ratings assigned by the RO and Board reasonably describe the Veteran's disability level and symptomatology. Consequently, the Board concludes that a schedular evaluation is adequate and that referral of the Veteran's case for extra-schedular consideration is not required. See 38 C.F.R. § 4.87, Diagnostic Code 6204; see also VAOGCPREC 6-96; 61 Fed. Reg. 66749 (1996). Finally, while the appeal was pending, in Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a TDIU claim is part and parcel of an increased-rating claim when raised by the record. The Board has jurisdiction to consider the Veteran's possible entitlement to a TDIU rating in this circumstance when the TDIU issue is raised by assertion or reasonably indicated by the evidence and is predicated at least in part on the severity of the service-connected disability in question, regardless of whether the RO has expressly addressed this additional issue. See VAOPGCPREC 6-96 (Aug. 16, 1996). See also Caffrey v. Brown, 6 Vet. App. 377 (1994); Fanning v. Brown, 4 Vet. App. 225, 229 (1993); EF v. Derwinski, 1 Vet. App. 324 (1991). In this case, the Veteran has not filed a claim for TDIU and the record shows that he is employed full-time. While the Veteran's service-connected disability has an impact on his work day, nothing suggests that he is unable to perform his duties. Therefore, further contemplation of TDIU in this case is not necessary. ORDER Prior to June 9, 2012, entitlement to a rating of 10 percent, but no greater, for service-connected benign positional vertigo is granted. Subsequent to June 9, 2012, entitlement to a rating in excess of 10 percent for service-connected benign positional vertigo is denied. REMAND Upon review of the record, the Board determines that a remand is necessary with respect to the Veteran's lumbar spine disability rating claim. Specifically, the Board observes that May 2011 VA examination, the Veteran reported symptoms of numbness in the right and left lower extremities. The motor examination was normal for both extremities, showing no deficiencies in strength or reflexes. However, sensory symptoms such as numbness may be a sign of disability. 38 C.F.R. § 4.124a. The General Rating Formula for Diseases and Injuries of the Spine dictates that neurological disabilities associated with service-connected lumbar spine degenerative disc disease be rated separately. 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243, Note 1. Therefore, the Board determines that a VA examination must be conducted that fully evaluates any neurological disabilities that may be a result of the Veteran's service-connected degenerative disc disease. Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and ask him to identify any private or VA treatment for his back disability since he was discharged from service. Attempt to obtain any evidence identified. All attempts to obtain the records must be documented in the claims file. 2. Schedule the Veteran for a VA spine examination to determine the current severity of his service-connected lumbar spine disorder. The claims folder must be provided to the examiner in conjunction with the examination. All pertinent symptomatology and findings must be reported in detail. Any indicated diagnostic tests and studies, to include those required to objectively document neurologic manifestations of the Veteran's service-connected disorders must be accomplished. As to all information requested below, a complete rationale for all opinions must be provided. The examiner must state whether there is any evidence of favorable or unfavorable ankylosis of the spine, and determine range of motion, in degrees, noting by comparison the normal ranges of motion of the spine. It must also be determined whether there is weakened movement, excess fatigability, or incoordination attributable to the Veteran's lumbar spine disorder, expressed in terms of the degree of additional range of motion loss or favorable or unfavorable ankylosis due to any weakened movement, excess fatigability, or incoordination. Furthermore, an opinion must be given as to whether any pain associated with the Veteran's lumbar spine disorder could significantly limit functional ability during flare-ups or during periods of repeated use, noting the degree of additional range of motion loss or favorable or unfavorable ankylosis due to pain on use or during flare-ups. Any neurological manifestations of the Veteran's service-connected lumbar spine disability must be identified, including any numbness of the legs. It must also be noted whether the Veteran experiences incapacitating episodes, as defined by 38 C.F.R. § 4.71a, and the frequency and total duration of such episodes over the course of the past 12 months. 3. Notify the Veteran that it is his responsibility to report for the examination and to cooperate in the development of the claim. The consequences for failure to report for any VA examination without good cause may include denial of his claims. See 38 C.F.R. §§ 3.158, 3.655 (2012). 4. After completing the above development, and any other development deemed necessary, readjudicate the issue on appeal. If the benefit sought remains denied, provide a supplemental statement of the case to the Veteran and his representative, and return the appeal to the Board for appellate review, after the Veteran has had an adequate opportunity to respond. The Veteran 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. 2012). ______________________________________________ ROBERT C. SCHARNBERGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs