Citation Nr: 1313983 Decision Date: 04/26/13 Archive Date: 05/03/13 DOCKET NO. 00-00 747 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Wilmington, Delaware THE ISSUES 1. Entitlement to an initial compensable evaluation for the service-connected postural syncope. 2. Entitlement to a total rating based on individual unemployability by reason of service-connected disability (TDIU). 3. Entitlement to special monthly compensation (SMC) based on need for regular aid and attendance or at the housebound rate. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD H. Seesel, Counsel INTRODUCTION The Veteran had active duty from October 1967 to July 1969 and from July 1974 to May 1999. These matters initially came before the Board of Veterans' Appeals (Board) on appeal from a July 2003 rating decision that granted service connection for postural syncope and assigned a noncompensable evaluation and a June 2011 rating decision that denied the claims for a TDIU rating and for SMC. The Veteran appealed the initial noncompensable evaluation assigned for the service-connected postural syncope, and the Board, in pertinent part, denied the claim in a decision promulgated in July 2004. The Veteran appealed this decision to the United States Court of Appeals for Veterans Claims (Court). In a May 2007 Memorandum Decision, the Court vacated the part of the July 2004 Board decision that denied a higher evaluation for the service-connected postural syncope and remanded the matter for readjudication. In June 2009, the Board remanded the matter of a compensable rating for the service-connected postural syncope to the RO for additional development. In July 2012, the Board again remanded the claims for increase for additional development. The RO substantially complied with all requested development, and the case has now been returned to the Board for further consideration. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). A review of the record reflects that, in January and February 2011 statements, the Veteran raised a claim of clear and unmistakable error (CUE) in the August 2002 rating decision that assigned an initial 70 percent evaluation for depression and indicated that the claim for a TDIU rating was moot based upon the combined 100 percent schedular rating. The issue of CUE has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction and refers the matter to the AOJ for appropriate action. The issues of entitlement to a TDIU rating and SMC are being remanded to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT The service-connected postural syncope or orthostatic hypotension is shown to be productive of a disability picture that more nearly approximates that of no more than two minor seizures in the last six months. CONCLUSION OF LAW The criteria for the assignment of an increased rating of 20 percent, but not higher for the service-connected postural syncope have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.124a including Diagnostic Code 8911 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION VA's Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (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); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the U.S. Court of Appeals for Veterans Claims (Court) held that notice under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) includes notice that a disability rating and an effective date for the award of benefits will be assigned if the claim is granted. Nevertheless, as this is an appeal arising from the initial grant of service connection, the notice that was provided in October 1999 before service connection was granted was legally sufficient and VA's duty to notify the Veteran in this case has been satisfied. See Hartman v. Nicholson, 483 F.3d 1311 (2006); see also VAOPGCPREC 8-2003 (December 22, 2003). Furthermore, the Veteran was provided notice of the all required notice elements in August 2009 and July 2012 letters. The claim was subsequently readjudicated in a December 2012 Supplemental Statement of the Case. VA also has a duty to assist the Veteran in the development of the claim which includes assisting the Veteran in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Here, the Board finds that all necessary development has been accomplished, as the record includes the Veteran's service treatment records, VA outpatient treatment records, private treatment records, lay statements and the reports of VA examinations. The Board notes that the VA examinations obtained in connection with the claims reviewed the Veteran's medical history, contain a description of the history of the disability at issue, document and consider the Veteran's complaints and symptoms, and provide medical evidence that is relevant to the governing rating criteria. Nieves- Rodriguez v. Peake, 22 Vet. App. 295 (2008) (the probative value of a medical opinion comes from when it is the factually accurate, fully articulated, and sound reasoning for the conclusion, not the mere fact that the claims file was reviewed). To the extent that the Veteran argued that the examinations were based on inaccurate factual predicate, the Board notes that he has submitted statements correcting these inaccuracies, submitted follow up questions to the VA examiners and received responses to these inquiries and submitted letters and treatment notes from private physicians that contained the correct factual basis. Furthermore, the Board remanded this matter in June 2009 to determine the severity of the service-connected postural syncope and to delineate the symptoms that were attributable to the postural syncope versus the benign positional vertigo. The Board again remanded the matter in July 2012 as the October 2009 VA examiner had not complied with the Board's remand directives. The RO scheduled a VA examination in August 2012; however, the Veteran failed to report to the examination. Under the laws and regulations, the Veteran has a responsibility of attending a VA examination to help establish entitlement to a claim. 38 C.F.R. §§ 3.326, 3.327. Failure to report to an examination without good cause has consequences including deciding the claim based upon the evidence in record and in some cases denying the claim. 38 C.F.R. § 3.655. Good cause includes, but is not limited to, the illness or hospitalization of the claimant, or the death of an immediate family member. 38 C.F.R. § 3.655(a). In the case at hand, the Veteran failed to appear for the August 2012 examination or to establish good cause missing the examination. His reason for not appearing was that he felt an examination was not necessary as the claim was for "retroactive" benefits. Contrary to the Veteran's assertion, the claim for an increased rating spans the entire period on appeal and a VA examination would have provided relevant data that would have assisted the Board in accurately rating the claim. See Fenderson v. West, 12 Vet. App. 119 (1999)(noting that when a Veteran appeals the initial assignment of a disability rating, the severity of the disability is to be considered during the entire period from the initial assignment of the evaluation to the present time). As the appeal stems from an original claim, the Board will decide the claim on the evidence of record. 38 C.F.R. § 3.655. The Board considered whether a further remand was necessary, especially in light of the July 2012 remand which sought clarification as to how to best rate the postural syncope and the Veteran's January 2013 statement that requested a "medical opinion." However, the Board finds there is sufficient evidence of record to decide the claim. Accordingly, the Board finds that a remand to obtain a medical opinion is not necessary. 38 C.F.R. § 3.159(c)(4); see Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements in 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 claimant). Hence, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of his 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). The Merits of the Claim The Veteran seeks an increased evaluation for the service-connected postural syncope. As noted in the Introduction, the RO granted service connection for postural syncope in a July 2003 rating decision. At that time a noncompensable evaluation was assigned pursuant to 38 C.F.R. § 4.104, 4.124a, Diagnostic Codes 7199-8911. The Veteran argues the current evaluation does not accurately reflect the severity of his disability. Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation 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. § 4.1. After careful consideration of the evidence, any reasonable doubt remaining will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. While the Veteran's entire history is reviewed when assigning a disability evaluation, 38 C.F.R. § 4.1, where service connection has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). However, the Board notes that the Veteran is appealing the initial assignment of a disability rating, and as such, the severity of the disability is to be considered during the entire period from the initial assignment of the evaluation to the present time. Fenderson v. West, 12 Vet. App. 119 (1999). The Court has also held that in determining the present level of a disability for any increased evaluation claim, the Board must consider the application of staged ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that all of the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis will focus specifically on what evidence is needed to substantiate the Veteran's claim, and what the evidence in the claims file shows, or fails to show, with respect to that claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000); see also May 2007 Memorandum Decision 8 ("To require the Board to explicitly discuss every piece of evidence and reject every alternative view of that evidence would be an impossible burden, particularly in a case such as this where the record on appeal exceeds 1,500 pages."). Factual Background The service treatment records show that, during a Medical Evaluation Board (MEB) proceeding, the Veteran reported having a history of pre-syncope episodes without vertigo or actual syncope, associated with head movement to the right on one occasion. There was no chest pain or palpitations. Approximately four episodes were described. Extensive cardiac evaluation was performed. A history of heart murmur was noted, and no further treatment indicated. The Veteran was afforded a VA examination in June 2001 to determine the nature and etiology of his pre-syncopal episodes. The Veteran described symptoms of near-syncope and presyncope several times during his service and reported having at least 4 episodes that occurred either while standing or sitting but not with exertion. They occurred during tasks that required increased concentration, and he was noted to be under increased stress and had poorly controlled hypertension. One report noted one of the episodes was associated with turning his head. An extensive workup was conducted including holter monitor three echocardiograms and three stress tests. The VA examiner reviewed the tests and explained that the stress tests findings indicated that the bradycardia was due to high vagal tone at rest and appropriate withdrawal of vagal tone with exercise. The examiner explained that marked bradycardia could cause syncope; however, because of the findings suggesting increased vagal tone, it could be stated that the bradycardia was extremely unlikely to be the cause of near syncope and instead was a marker of excellent cardiovascular fitness. The echocardiograms also did not provide evidence of cardiac abnormalities sufficient to suggest a cardiac cause of the near syncope. The examiner indicated that the Veteran's description of near syncope was similar to that documented while in service and included episodes that were not related to exertion. Some occurred while sitting and some while standing, but none was associated with prolonged standing, hot weather, or deficient consumption of liquids. One episode might have been associated with turning his head. He had no definite loss of consciousness and did not have consistent orthostatic dizziness, but on some occasions, he began to rise from sitting and found himself sitting again, unsure of what happened. The episodes occurred at times of great stress and also when he was somewhat sleep deprived. Since leaving service, the Veteran was more relaxed and the symptoms of dizziness and near syncope were less frequent and less severe. The VA examiner indicated it was not a significant problem for him. The examiner concluded that the Veteran's reported symptoms were consistent with presyncope that occurred during service and that he had a thorough workup that failed to show a cardiovascular disease that could explain it, although functional or autonomically mediated forms of presyncope could not be ruled out. The Veteran had marked bradycardia, but the history of excellent physical conditioning and response of heart rate and PR interval during exercise suggested it was due to increased vagal tone and therefore it was unlikely the Veteran's presyncope was due to sinus bradycardia. He did not have evidence of sick sinus syndrome. An undated response of the VA examiner to the Veteran's April 2002 request for clarification on the July 2001 VA examination indicated that the examiner agreed that the Veteran reported having frequent episodes of lightheadedness, including two episodes of loss of consciousness in the previous 3 months and had no reason to doubt the statement that he continued to have episodes of dizziness. He indicated the complaint of getting dizzy when bending to pick up a tennis ball would be a common and normal phenomenon and not indicative of a medical disease or abnormal condition as bending over caused abdominal contents to compress the veins returning blood to the heart and might result in a drop in blood pressure. The VA examiner noted the significant and abnormal drop in blood pressure when the Veteran changed from sitting to standing and agreed that the condition was best described as orthostatic hypotension. He felt the use of "neurocardiogenic syncope" confused the picture and explained that he would not use the term for the Veteran's postural change in blood pressure. He indicated that stress could increase his hypertension to dangerous levels and explained that treating the high blood pressure was a challenge in light of the orthostatic hypotension. The resting bradycardia could also be contributing to the orthostatic hypotension. He indicated that it was as likely as not that the Veteran had orthostatic hypotension in the setting of bradycardia that started while he was in active duty. A September 2001 evaluation performed for the Delaware Disability Determination Service noted that the Veteran reported diagnoses of presyncope and syncope and indicated the last syncopal episode occurred in 1999. Since then he had presyncopal episodes described as lightheadedness. The physician reviewed reports indicating the Veteran had orthostatic hypotension where blood pressure while sitting was 160/90 and the pulse was 56 and when standing the blood pressure dropped to 100/60 and the pulse increased to 65. A Holter monitor demonstrated significant bradycardia where the heart rate went down to 32. Upon initial reading on the date of examination the Veteran's blood pressure was 206/120 and his pulse was 94, but after talking, the pulse was 56. The assessment was that of presyncopal episodes with lightheadedness that might be related to orthostatic hypotension. A December 2001 statement of R.O., M.D., explained that more effort should be made to determine the etiology of presyncope and syncope rather than merely attributing it to bradycardia. He noted that the consultations during service did not contain any discussion of frequency of episodes or the effect the presyncope and syncope could have on his ability to perform his duties. A February 2008 statement of a VA examiner clarified that the Veteran's complaints of dizziness and passing out during service likely indicated he suffered from both orthostatic hypotension and benign postural vertigo (BPV) while in service. The physician explained that, while the symptoms were similar and easily confused by a patient, these were distinct ailments involving different body systems. BPV involved the inner ear, and orthostatic hypotension was neurocardiogenic. Dizziness and fainting with orthostatic hypotension occured when standing from a sitting or supine position or when standing in a fixed position for a period of time. With BPV, on the other hand, changes in head position usually caused vertigo, unsteadiness when walking and nausea. The physician explained that both disabilities inhibited the ability to work in any job where fainting or dizziness could result in injury to oneself, others or equipment, and as such, the Veteran would be precluded from any work involving heights, hazards, or constant rising from a seated position. The physician cautioned that the Veteran needed to be careful rising from a seated or supine position and avoid rapid movement because there was a real chance he could fall and injure himself. A March 2009 statement of a private physician V.D., M.D. explained that the Veteran's last documented syncopal episode was in 1999 and that he currently had intermittent symptoms of dizziness/vertigo of variable intensity, character and duration. These symptoms continued to impair daily activities and were usually posturally mediated (sitting to standing), but he also reported the onset of symptoms in a stationary standing position. In some office visits, the physician documented positive findings with the Barany's maneuver to support BPV, and the Veteran noted improvement with Epley's maneuver, but the results were inconsistent. Despite the overlap of symptoms of the two disease processes, Dr. D. believed it was as likely as not that the underlying symptoms were brought about by idiopathic orthostatic hypotension. Underlying sympotmatology would include staggering if the Veteran attempted to walk before systems stabilized. Dr. D. explained that the Veteran's insidious onset of orthostatic hypotension with chronicity, but no prominent gastrointestinal dysmotility, dryness of mouth, or puplillary dysfunction strongly suggested a degenerative form of autonomic dysfunction. It was noted without doubt that the symptoms were disabling and could be worsened with aggravating factors, such as fluid depletion, anxiety and pain. Dr. D. reviewed the symptoms under epilepsy and peripheral vestibular disorders and believed the latter's disease's symptoms and functional effects on body systems were analogous to the idiopathic orthostatic hypotension. The ailment would preclude him from work involving machinery, ladders, hazardous equipment or a profession that entailed prolonged standing or repeated rising from a seated position. Dr. D. explained that the medical records from June 1999 until April 2001 documented uncontrolled hypertension complicated by significant orthostatic hypotension that was clearly demonstrated during the August 2001 VA neurology consultation as the systolic blood pressure fell 60 points and diastolic blood pressure fell 30 points from sitting to standing with almost no compensatory increase in the heart rate. This was duplicated at the Veteran's most recent visit as the systolic blood pressure fell 20 points and the diastolic pressure fell 12 points from supine to standing with minimal compensatory increase in heart rate. He explained aggressive treatment of the high blood pressure could worsen the orthostatic hypotension and that stress and chronic diffuse pain could raise blood pressure to dangerous levels. He agreed with the disability determination evaluation that placed restrictions on the ability to work eight hours a day in substantially gainful employment as pain could impair concentration and the normal stresses of a typical work environment could significantly increase the risk of suffering a heart attack or stroke. Dr. D. concluded that the combined effect of all twelve of the service-connected ailments precluded the Veteran from working In a June 2009 letter V.D. MD explained that the symptoms from orthostatic hypotension were distinct from those related to BPV. In orthostatic hypotension, the patient suffered from dizziness or fainting upon standing or remaining in a fixed standing position. If the person attempted to walk before his system recalibrated the patient was likely to stumble, stagger or fall, or faint. He reported that, according to the Veteran, since retiring in 1999, he had experienced staggering but no falling or fainting, even though he had to steady himself to prevent falling at times. On the other hand, BPV symptoms included vertigo, nausea and even emesis, normally occurring with a change in head position. The symptoms could happen in bed or turning over. He explained the symptoms and severity of orthostatic hypotension could be affected by many factors, and BPV, and most closely corresponded to those of peripheral vestibular disorder with dizziness and occasional staggering. Dr. D. indicated, however, that if the orthostatic hypotension had to be rated as epilepsy, the frequency would be at least 9 to 10 a week. During a VA examination in October 2009, the Veteran reported being able to separate the symptoms of BPV and orthostatic hypotension. He indicated BPV occurred four to five times a year, up to 10 days at a time, and everything felt like it was spinning. Postural dizziness occurred upon standing, either immediately or within a few seconds. If he did not get up slowly or carefully, he would stagger or fall. How many times he got up from a seated pr recumbent position in a day would dictate how often he experienced lightheadedness, dizziness, or instability. Once he had 15 spells over the course of 3 days. Dizziness also occurred if he stayed standing in one position for a period of time without moving (like waiting in line). It occurred with standing or on changing to a standing position. The subjective complaints on the date of examination included reports of lightheadedness and dizziness upon arising quickly. The examiner reviewed the course of the symptoms over the years and concluded that the diagnosis was that of orthostatic hypotension, more likely secondary to medication side effects. The examiner reported that, since the Veteran could control the speed which he rose and did not experience symptoms when he took care not to get up quickly, the condition was not considered disabling. The VA outpatient treatment records span a period beginning in 1999. These records include a history of intermittent syncopal episodes. For example, in July 2000, the Veteran complained of being lightheaded with standing and sitting, and the assessment was that of pre-syncope. In August 2000, the Veteran was seen for evaluation of the pre-syncope, but the physician noted at that time that he had no real syncope. In October 2000, the Veteran was evaluated for complaints of dizziness, and the assessment was that of dizziness and pre-syncope that was non-cardiac in origin. An August 2001 treatment record noted the Veteran's history of syncope on active duty and episodes since service and significantly recorded a drop in blood pressure from 160/80 supine and seated to 100/60 while standing. The results suggested neurocardiogenic syncope. A handwritten notation on this record indicated that, after review of holter data and blood pressure readings on standing, it seemed evident that the presyncopal episodes were probably due to orthostatic hypotension in the setting of sinus bradycardia. A July 2003 statement of patient's treatment noted diagnoses of orthostatic hypotension and neurocardiogenic syncope and explained the patient might be subject to "dizzy spells," lightheadedness, and blackouts due to those diagnoses. A December 2003 VA treatment record reflected complaints and an assessment related to his benign positional vertigo (BPV), and the physician reassured the Veteran that he had no orthostatic changes. A February 2004 record noted complaints related to BPV and reported that there had been no syncopal episodes lately. In January 2008, the Veteran was seen for follow up for his BPV. At the time of the visit, the Veteran denied having symptoms of dizziness, lightheadedness, imbalance or nausea related to change of position of the head, but reported having dizziness on standing. The assessment was that of history of neurocardiogenic syncope and BPV currently in remission. In November 2008, the Veteran reported that he continued to experience dizziness with position change. The Social Security Administration (SSA) records noted a secondary diagnosis of questionable syncope and noted limitations based upon this diagnosis including limited sitting and standing to 6 hours a day, no ladders, rope or scaffolds, and avoiding machinery and heights. A December 1999 cardiology review report included in records received from the SSA noted that an organic basis for syncope and presyncope had not been established, but that vagal origin had not been ruled out. In a September 2001 evaluation conducted for SSA, a physician listed an assessment of presyncopal episodes, with lightheadedness that might be related to orthostatic hypotension. The Veteran also submitted numerous lay statements in support of his claim, including statements where he corrected inaccuracies noted in his medical records. These statements generally noted that his symptoms of postural syncope included starting to rise form a chair and finding himself sitting without remembering how he came to be sitting, dizziness upon standing, and occasionally stumbling and required the need to steady himself and prevent falling. He explained that his symptoms persisted after service and occurred no matter at what speed he stood. The Veteran explained that dizziness on standing was more or less constant while unsteadiness when walking was intermittent. He clarified that the symptoms preexisted his taking medication for hypertension and also explained he never drank much, contrary to the findings noted in a VA examination report. He indicated that the postural syncope restricted his activities and impacted employment as he could not work at jobs where falling or loss of consciousness could lead to an injury and prevented jobs requiring driving or operation of machinery. Additionally, the lay statements from G.L. related that the Veteran had dizziness that was pronounced on standing and while walking. She explained that he would steady himself by holding onto things in the immediate area and, at times, had to sit down to maintain balance or prevent falling. She also related that dizziness on standing was more or less constant and unsteadiness with walking was intermittent. The Veteran also submitted several copies of medical treatises. While these were informative as to the disease process generally and discussed the types of symptoms various patients might experience, none of these treatises discussed this Veteran's symptoms and accordingly are of limited probative value in determining the proper rating to be assigned in this cases. See eg Libertine v. Brown, 9 Vet. App. 521, 523 (1996); Wallin v. West, 11 Vet. App. 509, 513 (1998). Diagnostic Code The service-connected postural syncope has been rated under Diagnostic Codes 7199-8911. Diagnostic Code 7199 indicates the disability is not listed in the Schedule for Rating Disabilities and it has been rated by analogy under a closely related disease or injury. 38 C.F.R. §§ 4.20, 4.27. In the present case, the RO rated the claim under 38 C.F.R. § 4.124a, Diagnostic Code 8911 which evaluated epilepsy. Under Diagnostic Code 8911, petit mal epilepsy is rated under the general rating formula for minor seizures. The general rating formula directs that a confirmed diagnosis of epilepsy with a history of seizures is assigned a 10 percent rating. A 20 percent rating is assigned when there is at least 1 major seizure in the last 2 years, or at least 2 minor seizures in the last 6 months. When there is at least 1 major seizure in the last 6 months or 2 in the last year, or an average of at least 5 to 8 minor seizures weekly, a 40 percent rating will be assigned. A 60 percent rating is warranted when the disability averages at least 1 major seizure in 4 months over the last year, or 9 to 10 minor seizures per week. 38 C.F.R. § 4.124a, Diagnostic Code 8911. A major seizure is characterized by the generalized tonic-clonic convulsion with unconsciousness. A minor seizure consists of a brief interruption in consciousness or conscious control associated with staring or rhythmic blinking of the eyes or nodding of the head ("pure" petit mal), or sudden jerking movements of the arms, trunk, or head (myoclonic type) or sudden loss of postural control (akinetic type). 38 C.F.R. § 4.124a, Notes (1) and (2). As noted in the June 2009 remand, 38 C.F.R. § 4.87, Diagnostic Code 6204 which evaluates peripheral vestibular disorder contemplates symptoms such as dizziness and staggering. Under Diagnostic Code 6204, a 10 percent rating is assigned for peripheral vestibular disorders manifested by occasional dizziness. A 30 percent evaluation is assigned for peripheral vestibular disorders manifested by dizziness and occasional staggering. A Note to the Diagnostic Code provides that objective findings supporting the diagnosis of vestibular disequilibrium are required before a compensable rating can be assigned. In this regard, the assignment of a particular diagnostic code is "completely dependent on the facts of a particular case." See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code 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 diagnostic code by VA must be specifically explained. Pernorio v. Derwinski, 2 Vet. App. 625 (1992). In the present case, the Board remanded the claim in July 2012, in part, to obtain an opinion as to whether the Veteran's symptoms were more appropriately considered under the criteria for peripheral vestibular disorders, Diagnostic Code 6204. As discussed, the Veteran did not report to that examination. See 38 C.F.R. § 3.655. Although the examination was not obtained, a review of the record reflects there is sufficient evidence supporting a change of the Diagnostic Code from 8911 to 6204. In the present case, the evidence clearly demonstrates that the Veteran's predominant symptoms include dizziness when changing from sitting to standing, fainting (trying to stand and finding himself suddenly sitting again without knowing how he got there), and stumbling if he tries to walk too quickly after standing up. Syncope is defined as a temporary suspension of consciousness due to generalized cerebral ischemia. Postural syncope is syncope resulting from orthostatic hypotension. Dorland's Illustrated Medical Dictionary 1807 (30th ed. 2003). Orthostatic hypotension or postural hypotension is defined as a "fall in blood pressure associated with dizziness, blurred vision, and sometimes syncope, occurring upon standing or when standing motionless in a fixed position." Id. at 899. A peripheral vestibular disorder with dizziness and staggering (or vestibular vertigo) would be defined as vertigo due to disturbances of the vestibular system. Id. at 2035. A seizure is defined as a sudden attack or recurrence of a disease or a single episode of epilepsy. Id. at 1676. Epilepsy is one of a group of syndromes characterized by paroxysmal transient disturbances of the brain function that may be manifested as episodic impairment or loss of consciousness, abnormal motor phenomena, psychic or sensory disturbances or perturbation of the autonomic nervous system. Id. at 628. Additionally, as noted, for VA purposes, a minor seizure consists of a brief interruption in consciousness or conscious control associated with staring or rhythmic blinking of the eyes or nodding of the head ("pure" petit mal), or sudden jerking movements of the arms, trunk, or head (myoclonic type) or sudden loss of postural control (akinetic type). 38 C.F.R. § 4.124a, Notes (1) and (2). To the extent that the brief periods when the Veteran found himself sitting without knowing how he got there could be considered akin to a brief loss of consciousness, it is significant that such episodes are not associated with symptoms such as abnormal motor phenomena, psychic or sensory disturbances or perturbation of the autonomic nervous system or staring or rhythmic blinking of the eyes or nodding of the head ("pure" petit mal), or sudden jerking movements of the arms, trunk, or head (myoclonic type) or sudden loss of postural control (akinetic type). In March 2009, the Veteran's treating physician Dr. D. explained that he reviewed the symptoms under epilepsy and peripheral vestibular disorders and believed the latter disease's (the peripheral vestibular disorder) symptoms and functional effects on body systems were analogous to the idiopathic orthostatic hypotension. In June 2009, Dr. D. reiterated that the Veteran's symptoms of orthostatic hypotension most closely corresponded to those of peripheral vestibular disorder with dizziness and occasional staggering. The Board notes that the Veteran has recently argued against any change in the diagnostic code and stated that the Court did not take issue with the Board's rating by analogy under the Diagnostic Code for epilepsy. See January 2013 statement. Analysis for the Disability Evaluation The record reflects continued complaints of dizziness when the Veteran changes from a sitting to standing position. The Veteran is competent to testify as to the presence of observable symptomatology such as dizziness. Layno v. Brown, 6 Vet. App. 465 (1994). Additionally, the Veteran and G.L. provided competent and credible lay evidence that, when he stood or walked too quickly, he stumbled, had to grab an object or had to sit back down. In March 2009, Dr. D. explained that symptoms would include staggering if the Veteran attempted to walk before his systems stabilized. Similarly, the June 2009 letter of Dr. D. noted that the Veteran experienced staggering and had to steady himself to prevent falling. After carefully reviewing the entire record, the Board finds that the service-connected disability picture is shown to more nearly resemble the criteria for the assignment of a 20 percent rating in this case. During the most recent VA examination performed in October 2009, the Veteran described his symptoms as being postural dizziness that occurred upon standing either immediately or within a few seconds. He also reported experiencing related symptoms of the service-connected BPV that occurred four to five times a year, up to 10 days at a time, when everything felt like it was spinning. These more disabling manifestations currently are assigned a separate rating of 30 percent and cannot be considered in addressing the severity of the service-connected postural syncope. Significantly, the VA examiner in October 2009 added that, since the Veteran could control the speed with which he rose and did not experience symptoms when he took care not to get up quickly, the postural syncope was not considered disabling. The June 2009 private medical record that indicated that, if the condition had to be rated under epilepsy, the frequency would be 9 or 10 episodes a week; however, episodes of orthostatic hypertension consistent with actual instances of syncope or minor seizures on a monthly basis or more frequently are not documented in this record. Significantly, the private physician in June 2009 provided no rationale as to why the Veteran's symptoms of dizziness, stumbling or some instances of loss of consciousness were equivalent to recurrent episodes of syncope or minor seizure activity not only encompassed by loss of consciousness, but also contemplated by staring or rhythmic blinking of the eyes or nodding of the head ("pure" petit mal), or sudden jerking movements of the arms, trunk, or head (myoclonic type) or sudden loss of postural control (akinetic type). Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A]medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."). To the extent that the Veteran is not shown to have experienced syncope or episodes consistent with actual minor seizure activity on a more than an infrequent basis, the service-connected disability picture is not found to have been productive of more than two such episodes happening over a period of the last six months. Thus, in resolving all reasonable doubt in the Veteran's favor, the Board finds that a rating of 20 percent, but no more is warranted in this case. Extraschedular Evaluation The Board has also considered whether the postural syncope warrants referral for extraschedular consideration, especially as this condition is not in the schedule for rating criteria and has been rated by analogy. In exceptional cases where schedular disability ratings are found to be inadequate, consideration of an extraschedular disability rating is made. 38 C.F.R. § 3.321(b)(1). There is a three-step analysis for determining whether an extraschedular disability rating is appropriate. See Thun v. Peake, 22 Vet. App. 111 (2008). First, there must be a comparison between the level of severity and symptomatology of the service-connected disability and the established criteria found in the rating schedule to determine whether the Veteran's disability picture is adequately contemplated by the rating schedule. Id. If not, the second step is to determine whether the claimant's exceptional disability picture exhibits other related factors identified in the regulations as "governing norms." Id.; see also 38 C.F.R. § 3.321(b)(1) (governing norms include marked interference with employment and frequent periods of hospitalization). If the factors of step two are found to exist, the third step is to refer the case to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for a determination concerning whether, to accord justice, the claimant's disability picture requires the assignment of an extraschedular rating. Id. In this case, the evidence does not show that the Veteran's disability presents an exceptional disability picture, insofar as his symptoms are contemplated by the symptoms listed in Diagnostic Code 6204. As outlined, the Veteran has reported dizziness, fainting or brief periods of loss of consciousness (finding himself sitting when he had tried to stand), stumbling if he walked too quickly after standing. Dizziness and stumbling are contemplated by the schedular criteria set forth in 38 C.F.R. §4.87, Diagnostic Code 6204. In other words, the currently assigned Diagnostic Code 6204 adequately contemplates the Veteran's symptoms. As the rating criteria adequately contemplate the Veteran's symptoms, the first step of Thun has not been met and referral for the assignment of an extraschedular rating is not warranted. ORDER An increased rating of 20 percent, but not higher for the service-connected postural syncope is granted, subject to the regulations governing the disbursement of VA monetary awards. REMAND A review of the record reflects that the Veteran seeks SMC under 38 U.S.C.A. § 1114(s)(1) in light of the decisions in Buie v. Shinseki, 24 Vet. App. 242, 250 (2011) and Bradley v. Peake, 22 Vet. App. 280 (2008). Specifically, the Veteran argues that the RO should have adjudicated a claim for unemployability based solely upon his depression in 2002 and that he should be granted SMC as he should have a TDIU based upon his depression and other disabilities that combined to at least 60 percent disabling. He has made it clear that he seeks retroactive benefits; however, the current claims for TDIU and SMC were processed as new claims stemming from an October 2010 statement. Accordingly, even assuming arguendo, that the current claims were granted, the benefit could not go back to the date the Veteran wishes as these matters arose from an October 2010 claim. See 38 C.F.R. § 3.400(o)(2). As such, the Board has referred the claim for CUE that may enable him to get the retroactive benefits that he seeks. To the extent that the RO decision was subsumed by the subsequent Board decision (and indeed the May 2007 CAVC decision and June 2008 Federal Circuit decision), the Board notes that the Board, CAVC and Federal Circuit never considered the issue of the evaluation for the service-connected depression or a TDIU rating for the period after May 1, 2001. Accordingly, it is not improper to refer the claim for CUE. As there is a claim for CUE pending, consideration of the claims for a TDIU rating and SMC must be deferred pending completion of the development requested hereinabove. See Henderson v. West, 12 Vet. App. 11, 20 (1998) (citing Harris v. Derwinski, 1 Vet. App. 180 (1991) (where a decision on one issue would have a "significant impact" upon another, and that impact in turn could render any review of the decision on the other claim meaningless and a waste of appellate resources , the two claims are inextricably intertwined)). Accordingly, these remaining matters are REMANDED for the following action: 1. The RO should adjudicate the claim for CUE in the August 2002 rating decision and specifically whether it was CUE to deem a claim for a TDIU rating moot with the granting of a 100 percent combined rating evaluation and not consider whether TDIU rating could be assigned for the period after May 1, 2001, based solely on the service-connected depression. The RO should notify the Veteran and his representative of the decision and of the Veteran's appellate rights. If the CUE claim is denied and the Veteran files a timely Notice of Disagreement, the RO should issue an appropriate SOC and notify the Veteran and his representative that that matter will be before the Board only if a timely substantive appeal is submitted. 2. After completing all indicated development, the RO should readjudicate the claims for a TDIU rating and SMC, considering the determination in the CUE claim, in light of all the evidence of record. If any benefits sought on appeal remains denied, the Veteran and his representative should be furnished a fully responsive Supplemental Statement of the Case and afforded a reasonable opportunity for response. Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition. The Veteran has the right to submit additional evidence and argument on the matter or matters 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). ______________________________________________ STEPHEN L. WILKINS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs