Citation Nr: 1314591 Decision Date: 05/02/13 Archive Date: 05/15/13 DOCKET NO. 11-02 021 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to an initial rating in excess of 10 percent for vertigo. REPRESENTATION Appellant represented by: Virginia A. Girard-Brady, Attorney ATTORNEY FOR THE BOARD S.J. Janec, Counsel INTRODUCTION The Veteran served on active duty from May 1943 to November 1945. This matter comes before the Board of Veterans' Appeals (Board) from a February 2010 rating decision of the Muskogee, Oklahoma, Regional Office (RO) of the Department of Veterans Affairs (VA) that implemented a July 2009 Board decision which granted service connection for dizzy spells claimed as vertigo, and assigned a 10 percent rating, effective April 1, 2003, the date that the Veteran's claim was received. The Veteran submitted a timely notice of disagreement with the disability rating and effective date assigned for the disability and subsequently perfected an appeal to the Board. In an August 2012 decision, the Board denied an earlier effective date for the grant of service connection. Hence, that issue is no longer in appellate status and will not be addressed in this decision. The Board also remanded the issue of entitlement to a higher initial rating for further evidentiary development. The Board is satisfied that the requested development has been substantially accomplished and will proceed with appellate review of the matter. See Stegall v. West, 11 Vet. App. 268 (1998) (where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance). In a June 2010 rating decision, the RO granted entitlement to a total disability rating based on individual unemployability due to service-connected disability, effective September 12, 2006. In a February 2011 rating decision, the RO assigned an effective date of May 26, 2006 for the benefit. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDING OF FACT The Veteran's vertigo is manifested by occasional dizziness; his subjective reports of staggering have been attributed to age-related agility factors. CONCLUSION OF LAW The criteria for an initial rating in excess of 10 percent for vertigo have not been met during any portion of the appeal period. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321(b), 4.1, 4.3, 4.7, 4.87, Diagnostic Code 6204 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002) redefined VA's duty to assist the veteran in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Duty to Notify The notice requirements of the VCAA require VA to notify the veteran of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain. The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between the veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Such notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, insufficiency in the timing or content of VCAA notice is harmless if the errors are not prejudicial to the claimant. Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004) (VCAA notice errors are reviewed under a prejudicial error rule). In an October 2006 letter, the Veteran was provided notice regarding what information and evidence is needed to substantiate a claim for service connection, as well as what information and evidence must be submitted by the Veteran, and what information and evidence will be obtained by VA. The Veteran's appeal of the initial rating assigned for his disability is a downstream issue, and additional VCAA notice is not required. 38 C.F.R. § 3.159(b)(3) (2011); see Hartman v. Nicholson, 483 F.3d. 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Rather, the Veteran's appeal as to the initial rating assignments triggers VA's obligation to advise the Veteran of what is necessary to obtain the maximum benefit allowed by the evidence and the law. 38 U.S.C.A. §§ 5104, 7105 (West 2002). The January 2011 statement of the case, under the heading "Pertinent Laws; Regulations; Rating Schedule Provisions," set forth the relevant diagnostic code for rating the disability at issue. The Veteran was thus informed of what was needed not only to achieve the next-higher schedular rating, but also to obtain all schedular ratings above that assigned. Therefore, the Board finds that the Veteran has been informed of what was necessary to achieve a higher rating for the service-connected disability addressed in this decision. The Board also observes the holding of the United States Court of Appeals for Veterans Claims in Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), which focuses on VCAA notice requirements in an increased rating case. However, this case has been overturned in part by the United States Court of Appeals for the Federal Circuit. See Vazquez-Flores v. Shinseki, 580 F.3d. 1270 (2009). Hence, it need not be further discussed in this decision. Consequently, the Board finds that the duty to notify provisions have been satisfactorily met, and neither the Veteran nor his representative has pointed out any deficiencies that require corrective action. Duty to Assist The record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran. Specifically, the information and evidence that have been associated with the claims file include the Veteran's service treatment records, private and VA treatment reports, lay statements, the Veteran's statements, and VA examination reports, including the most recent examination in November 2012 generated in response to the Board's remand. The Board notes that the relevant VA examination report reflects that the examiner reviewed the Veteran's past medical history, documented the current medical conditions, and rendered appropriate diagnoses and opinions consistent with the remainder of the evidence of record, and with supporting rationale. Nieves-Rodriguez v. Peake, 22 Vet App 295 (2008). Consequently, the Board concludes that the medical examination is adequate for evaluation purposes. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). As such, the Board finds that VA's duty to assist has also been met. Analysis Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities (Schedule), found in 38 C.F.R. Part 4 (2012). The Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2012). In considering the severity of a disability, it is essential to trace the medical history of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41 (2012). Consideration of the recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2 (2012); Peyton v. Derwinski, 1 Vet. App. 282 (1991). Although the regulations do not give past medical reports precedence over current findings, the Board is to consider the veteran's medical history in determining the applicability of a higher rating for the entire period in which the appeal has been pending. Powell v. West, 13 Vet. App. 31, 34 (1999). Where an increase in the disability rating is at issue, the present level of the veteran's disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, consideration must be given as to whether staged ratings may be assigned to compensate entitlement to a higher rating at any point during the pendency of the claim. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). When 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. The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. The regulations require that where there is a question as to which of two evaluations is to 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 (2012). The Veteran's vertigo has been assigned a 10 percent rating pursuant to 38 C.F.R. § 4.87, Diagnostic Code 6204, which pertains to peripheral vestibular disorders. Diagnostic Code 6204 provides that a 10 percent evaluation is assigned with occasional dizziness. A 30 percent rating requires dizziness with occasional staggering. A note following the code states that objective findings supporting the diagnosis of vestibular disequilibrium are required before a compensable evaluation can be assigned under this code. Hearing impairment or suppuration shall be separately rated and combined. 38 C.F.R. § 4.87, Diagnostic Code 6204 (2012) (emphasis added). Based on a review of the record, the Board finds that the preponderance of the evidence is against a finding of entitlement to an initial evaluation in excess of 10 percent for the Veteran's vertigo at any time during the appeal period. The medical records in the file indicate that the Veteran's disability has been manifested by complaints of occasional dizziness, which is clearly contemplated by the current 10 percent rating. (See, for example, November 2008 and November 2012 VA examination reports; and a November 2004 VA outpatient report noting occasional dizzy spells, etc.). To warrant the next higher (and in fact, maximum rating), there must be evidence of dizziness that is presumably more than occasional, and staggering. However, the Board finds that the cumulative objective evidence does not reflect symptoms of this nature that are attributable to a vestibular disorder. Specifically, upon VA examination in November 2012, it was reported that the Veteran's vertigo occurred less than once a month and for a short duration. It was also noted that the Veteran experienced staggering less than once a month; however, this symptom was attributed to his gait, which was described as unsteady when switching positions but acceptable in light of his age. Accordingly, in the absence of objective evidence of more than occasional dizziness and staggering that is attributable to the vertigo, the Board concludes that a rating in excess of 10 percent may not be awarded at any time during the appeal period. The evidence supporting the Veteran's claim for a higher rating includes his and other lay statements regarding the severity of his vertigo and his reports of staggering or stumbling. The Board acknowledges that the Veteran is competent to report symptoms he experiences, such as dizziness and staggering. Charles v. Principi, 16 Vet. App. 370 (2002); see also, e.g., Layno v. Brown, 6 Vet. App. 465, 469 (1994) (a veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses). However, he is not competent to attribute a specific symptom to a specific disability. Id. Benign positional vertigo is a complex disorder that requires specialized training for a determination as to diagnosis and causation, and it is therefore not susceptible of lay opinions. As a result, his assertions cannot constitute competent medical evidence that his benign positional vertigo has increased in severity so as to warrant a higher evaluation. As such, the Board concludes that the medical findings on examination are of greater probative value than his allegations regarding the severity of the vertigo as well as the other symptoms that may be attributed to it. In conclusion, an award of a higher rating for the service-connected vertigo is not supported by the competent medical and competent and credible lay evidence of record. As the preponderance of the evidence is against the award of an increased rating, the benefit of the doubt doctrine is not applicable in the instant appeal and the claim must be denied. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, supra. The Board has considered whether extraschedular consideration is warranted. See Barringer v. Peake, 22 Vet. App. 242 (2008). The threshold factor for extraschedular consideration is a finding that the evidence presents such an exceptional disability picture that the available schedular rating for the service-connected disability is inadequate. There must be a comparison between the level of severity and symptomatology of the service-connected disability with the established criteria. If the criteria reasonably describe the Veteran's disability level and symptomatology, then the Veteran's disability picture is contemplated by the Rating Schedule, and the assigned schedular evaluation is, therefore, adequate, and no referral is required. Thun v. Peake, 22 Vet. App. 111 (2008). Here, the record does not establish that the rating criteria are inadequate for rating the Veteran's service-connected vertigo since the symptoms reported and documented in the record comport with the symptoms outlined in the rating criteria. Consequently, the Board finds that the effects of the Veteran's disability have been fully considered and are contemplated in the rating schedule. Hence, referral for an extraschedular rating is unnecessary at this time. ORDER An initial rating in excess of 10 percent for vertigo is denied. ____________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs