Citation Nr: 1312245 Decision Date: 04/12/13 Archive Date: 04/19/13 DOCKET NO. 06-25 648 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boise, Idaho THE ISSUE Entitlement to an initial disability rating in excess of 10 percent for vestibular nerve dysfunction. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD R. Erdheim, Counsel INTRODUCTION The Veteran had active service from May 1979 to July 1983 and from April 1985 to August 1987, as well as periods of active service in the Air National Guard from August to October 1993, from January to May 2002, and from February to May 2004. This matter comes before the Board of Veteran's Appeals (Board) on appeal from a January 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Boise, Idaho. In a July 2006 rating decision the RO increased the rating for vestibular nerve dysfunction from 0 to 10 percent disabling. The Board remanded the claim in August 2010, April 2012, and December 2012. FINDING OF FACT The Veteran's peripheral vestibular dysfunction results in more than occasional dizziness and requires him to stop all movement and squat or rest to avoid staggering. CONCLUSION OF LAW Throughout the pendency of the appeal, the criteria for an initial rating of 30 percent for a peripheral vestibular dysfunction have been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.87, Diagnostic Code 6204 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). See also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006). This appeal arises from the Veteran's disagreement with the initial evaluation following the grant of service connection for vestibular nerve dysfunction. Courts have held that once service connection is granted the claim is substantiated, additional notice is not required, and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). No additional discussion of the duty to notify is therefore required. VA also has a duty to assist the Veteran in the development of the claim, which is not abrogated by the granting of service connection. The Veteran's service treatment records and post-service VA and private treatment records have been obtained and considered. The Veteran has not identified any additional, outstanding records necessary to decide his pending appeal. The Veteran has also been afforded VA examinations in January 2006, November 2010, May 2012, and in February 2013 in order adjudicate his initial rating claim. The Board has also reviewed the Veteran's Virtual VA claims file. The Board finds these examinations to be adequate in order to evaluate the Veteran's peripheral vestibular dysfunction as, in all, they include an interview with the Veteran, a review of the record, and a full physical examination. Therefore, the Board finds that the examination reports of record are adequate to adjudicate the Veteran's initial rating claim and no further examination is necessary. The claim was previously remanded in order to provide the Veteran with a comprehensive VA examination that included findings related to whether his peripheral vestibular disorder caused staggering. The Board finds that such information has been obtained and thus there has been substantial compliance with the remand instructions. Thus, the Board finds that VA has fully satisfied the duty to assist. In the circumstances of this case, additional efforts to assist or notify the Veteran 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 appellant); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the appellant are to be avoided). VA has satisfied its duty to inform and assist the Veteran at every stage in this case, at least insofar as any errors committed were not harmful to the essential fairness of the proceeding. Therefore, he will not be prejudiced as a result of the Board proceeding to the merits of his claim. II. Analysis Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Separate rating codes identify the various disabilities. 38 C.F.R. Part 4. 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 required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability is resolved in favor of the veteran. 38 C.F.R. § 4.3. Staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran's peripheral vestibular dysfunction is rated as 10 percent disabling under 38 C.F.R. § 4.87, Diagnostic Code 6204 which specifically contemplates peripheral vestibular disorders. This Diagnostic Code provides for a 10 percent rating for occasional dizziness and a 30 percent rating for dizziness and occasional staggering. Regulations also provide ratings for Meniere's syndrome that includes combined symptoms of hearing impairment and vertigo. Even though the Veteran has been granted service connection and a noncompensable rating for a loss of hearing acuity and a 10 percent rating for tinnitus, he has not been diagnosed with Meniere's syndrome. Thus, consideration under the code for Meniere's disease is not appropriate. Turning to the evidence of record, a December 2004 private treatment record reflects that the Veteran had had motion sickness for years that had become more frequent. He had been vomiting after every flight while in service. He would sometimes get dizzy as a passenger in a car or when watching traffic. His dizziness was considered to be moderate, interfering with daily activities to some degree. On his June 2005 initial claim, the Veteran stated that due to his vestibular dysfunction, he was no longer able to fly military planes. During flight, he would have increasing airsickness. A 2005 private treatment record states that the Veteran experienced episodic dizziness one to times weekly. On January 2006 VA examination, the Veteran reported that he had had several examinations to confirm that he suffered from true vertigo. A service treatment record was reviewed which showed a conclusion that he suffered from 25 percent weakness of the vestibular nerve. He reported that as long as he didn't move his head too fast or do something that was unexpected with his head, he would have limited vertigo if any. He could ride in a car and did not get car sick. He could also ride in passenger planes without trouble. He was very careful when he drove a car because if he were to turn his head suddenly, it might trigger vertigo, though he had not had major problems. The assessment was true vertigo at least partially due to vestibular nerve dysfunction. His symptoms were brief but occurred unexpectedly. He had to avoid ladders and must be very careful when driving. In February 2006, the Veteran stated that he had reported to the VA examiner frequency of occurrences to be one to two times per week lasting three to five minutes at a time. He tried to avoid situations that would worsen his symptoms by not making sudden movements, climb high on a ladder, and taking care when driving. In February 2007, the Veteran stated that his dizzy spells occurred randomly and were moderate. He stated that he did not allow himself to get to the point of staggering because when he felt dizzy he would sit down or stand still immediately until he felt better. On November 2010 VA examination, the Veteran reported that his vertigo symptoms had mildly improved in that the frequency was about one to two times per week with flare-ups that lasted for 10 minutes. When the flare-ups occurred, the Veteran was limited when driving and would pull over until the symptoms subsided. He would also avoid activities such as climbing ladders or anything exertional until the symptoms resolved. He would also feel off balance and nauseated as well as sensation of movement. He did not have any vomiting. The onset and symptoms were consistent with his previously diagnosed vestibulitis. The vestibular weakness continued with little change. On May 2012 VA examination, the Veteran reported that his symptoms were about the same with a frequency of about two times per week lasting ten minutes at a time. The findings of this VA examination are exactly the same as those in November 2010. On February 2013 VA examination, the Veteran reported dizziness that was vertiginous with a spinning quality. His symptoms had remained the same in the past decade. He had symptoms two to three times per week lasting from five to ten minutes at a time. The symptoms were triggered by a head movement but no specific movement. He would get nauseous and had vomited five to six times in the past decade. His symptoms resolved with rest. When experiencing an episode, he would have to stop whatever he was doing and stay very still. If he was driving, he would have to immediately stop. He had not had episodes of staggering because he did not attempt to walk when experiencing an episode. He would immediately drop to his knees so that he wouldn't fall. He felt that if he attempted to stand, he would stagger. The history obtained was from the Veteran as well as review of the claims file. The diagnosis was peripheral vestibular dysfunction/weakness. The condition was unchanged. In this case, the Board finds that reasonable doubt favors the Veteran in assigning the next highest 30 percent rating under DC 6204. For one, the Veteran's dizziness is more than occasional in that he experiences a vertigo flare-up with dizziness several times per week and has had those spells throughout the appeal period. In terms of staggering, although the Veteran has not actually staggered, he has consistently stated he would stagger but for being very careful to immediately sit or stand still at the beginning of an episode. There is no indication that the Veteran is magnifying his symptoms when making such statements, and the February 2013 VA examiner did not indicate that there was symptom magnification. Rather, the VA examiner stated that the symptoms were consistent with a review of the claims file. To that extent, the Veteran has been consistent in stating that he had to immediately stop what he was doing and rest to prevent further vertigo. These statements are credible because he is capable of stating his symptoms of vertigo, and the statements have remained the same. Thus, the Board finds that the Veteran's vestibular dysfunction is worse than the current 10 percent rating. Therefore, the next higher 30 percent rating is appropriate because it takes into consideration his at least bi-weekly dizziness. Moreover, it is a persuasive contention that the Veteran would in fact experience occasional staggering if he did not immediately treat his symptoms, as he has contended. III. Other Considerations A total rating for compensation based on individual unemployability (TDIU) is an element of all appeals of an initial rating. Rice v. Shinseki, 22 Vet. App. 447 (2009). Entitlement to TDIU is raised where a Veteran : (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability. Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). However, TDIU is not raised in an increased rating claim unless the Roberson requirements are met. Jackson v. Shinseki, 587 F.3d 1106 (Fed. Cir. 2009). While the Veteran has testified that his vertigo prevents him from flying airplanes, he has not stated, and the evidence does not otherwise show, that his vertigo renders him unemployable in other positions. Hence further consideration of TDIU is not warranted. The evidence in this case does not show that the Veteran has manifestations of his service-connected peripheral vestibular dysfunction that are not contemplated by the rating criteria or such an exceptional disability picture that the available schedular evaluation for the service-connected disability is inadequate. His disability is manifested by dizziness and staggering. The rating criteria contemplate these symptoms. Accordingly, referral for consideration of 38 C.F.R. § 3.321(b)(1) is not warranted in this case. Thun v. Peake, 22 Vet. App. 111 (2008). The Board has considered whether a higher rating might be warranted for any period of time during the pendency of this appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). However, the weight of the credible evidence demonstrates that an increased 30 percent rating for the Veteran's peripheral vestibular dysfunction is warranted. The benefit-of-the-doubt rule has been applied in this case. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER An increased 30 percent rating for peripheral vestibular dysfunction is granted. ____________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs