Citation Nr: 1322561 Decision Date: 07/16/13 Archive Date: 07/24/13 DOCKET NO. 09-25 749 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Des Moines, Iowa THE ISSUES 1. Entitlement to an initial disability rating in excess of 30 percent for vertigo/dizziness. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD T. Sherrard, Counsel INTRODUCTION The Veteran, who is the Appellant in this case, had active service from February 1958 to August 1958, and October 1961 to August 1962. This matter comes before the Board of Veterans' Appeals (BVA or Board) from May 2007 and December 2011 rating decisions by the above Department of Veterans Affairs (VA) Regional Office (RO). The Veteran provided testimony at a May 2013 videoconference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the claims folder. The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system to insure a total review of the evidence. 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). FINDINGS OF FACT 1. Throughout the initial rating period on appeal, the Veteran's vertigo has been manifested by up to three episodes of dizziness per day, sometimes accompanied by staggering. 2. The Veteran is not rendered unable to secure or maintain substantially gainful employment as a result of his service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for an initial disability rating in excess of 30 percent for vertigo/dizziness have not been met for any period. 38 U.S.C.A. §§ 1155, 5103(a), 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.87, Diagnostic Code 6204 (2012). 2. The criteria for a TDIU have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.15, 4.16, 4.18, 4.19, 4.25 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Increased Initial Rating for Vertigo Disability evaluations (ratings) 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 the symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the condition. The Board has a duty to acknowledge and consider all regulations that are potentially applicable. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10. 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. See 38 C.F.R. § 4.7. Reasonable doubt regarding the degree of disability will be resolved in the veteran's favor. 38 C.F.R. § 4.3. In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21 (2012). At the time of an initial rating, separate ratings can be assigned for separate periods of time based on facts found, a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119, 126 (1999). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). Lay testimony is competent when it regards the readily observable features or symptoms of injury or illness and "may provide sufficient support for a claim of service connection." See Layno, 6 Vet. App. at 469; 38 C.F.R. § 3.159(a)(2). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. The Board has reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by a veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). In the present case, service connection for vertigo was granted in the May 2007 rating decision that is the subject of this appeal. An initial 30 percent evaluation was assigned, effective from November 8, 2005, the date the Veteran's claim for service connection was received. The Veteran's vertigo has been evaluated to an analogous disability under Diagnostic Code 6204, which addresses peripheral vestibular disorders, as there is no diagnostic code which addresses vertigo specifically. Under Diagnostic Code 6204, a 10 percent evaluation is warranted for peripheral vestibular disorders with occasional dizziness. A 30 percent evaluation will be assigned with dizziness and occasional staggering. A note to Diagnostic Code 6204 explains that objective findings supporting the diagnosis of vestibular disequilibrium are required before a compensable evaluation can be assigned under Diagnostic Code 6204. See 38 C.F.R. § 4.87, Diagnostic Code 6204. In this case, the Veteran's vertigo diagnosis meets this requirement. The note to Diagnostic Code 6204 also provides that where hearing impairment or suppuration is present, they shall be separately rated. The Veteran's contentions relate to vertigo. There is no allegation or evidence to show that suppuration is present. Further, the Veteran has been granted a separate rating for service-connected hearing loss, and the rating for that disability is not before the Board. The Veteran, including through his representative, contends that his vertigo, which manifests episodes of dizziness up to three times daily, warrants an initial rating higher than 30 percent. He also avers that the correct diagnosis for his vertigo is Meniere's disease, which includes symptoms of pressure or fullness in the ears, tinnitus, hearing loss, dizziness, and imbalance, and that the degree of his symptoms warrant at least a 60 percent disability rating under Diagnostic Code 6205. As mentioned above, the Veteran has been granted a separate rating for bilateral hearing loss; he also has a separate award of service connection for tinnitus associated with bilateral hearing loss. After a review of all the evidence, lay and medical, in this Veteran's case, the Board finds that a preponderance of the evidence is against the claim for an initial disability rating in excess of 30 percent for service-connected vertigo/dizziness for the entire initial rating period on appeal. For the entire rating period, the Veteran's service-connected vertigo manifested episodes of dizziness up to three times daily, sometimes accompanied by staggering, which most nearly approximates the currently assigned 30 percent disability rating under Diagnostic Code 6204. 38 C.F.R. § 4.87. A November 2005 VA treatment note indicates the Veteran reported occasional episodes of imbalance, occurring between zero and three times daily. He stated that these episodes sometimes occurred when bending over, but at other times, they occurred with activities such as getting out of a car. During these episodes, he had to steady himself for a second or two or sit down. The VA clinician assessed disequilibrium, probably not of inner ear origin. A January 2006 VA treatment note indicates the Veteran stated that his balance problem was largely resolved. He reported having short-lived episodes of unsteadiness, but stated that his condition had been much better over the past month. The VA clinician noted that an electronystagmogram (ENG) was unremarkable, and assessed imbalance not of inner ear origin that was improving. In July 2006, the Veteran reported having a bad episode of imbalance the prior month, but stated he was doing much better currently. The VA doctor prescribed Meclizine. A January 2007 VA treatment note indicates the Veteran was doing well on periodic Meclizine. He had been taking it on an as needed basis, and stated that it controlled his imbalance symptoms. He reported having days where he experienced absolutely no symptoms and others in which he had mild symptoms. The VA clinician assessed low-grade hydrops. The following month, in February 2007, the Veteran reported having three to four attacks of imbalance per day. He stated he had to pause for a few minutes to regain his sense of equilibrium. The VA doctor noted that the imbalance episodes did not appear to be associated with tinnitus, drop in hearing, nausea, or vomiting. The doctor assessed dizziness, and stated he was not sure whether it was hydrops or posttraumatic-related issue. The Veteran was afforded a VA examination in April 2007. He reported experiencing episodes of vertigo up to three times daily, although medication had reduced the severity of his symptoms. He rated the severity from mild to severe episodes, all of which prevented him from driving, walking, and working when symptoms were present. He further stated that symptoms rarely occurred when driving, but, rather, seemed to occur after driving when standing and walking away from the car. He said that the episodes were unpredictable. He reported that he staggered to the right with active vertigo. The Veteran said he was able to walk greater than one mile and go up and down one to two flights of stairs without difficulty, and he denied any falls. He said he was able to perform both instrumental and basic activities of daily living without assistance. The April 2007 VA examiner assessed vertigo that was at least as likely as not secondary to chronic ear infections and middle ear disease that existed both prior to and during active service. In August 2007, the Veteran reported that he continued to do reasonably well as long as he took Meclizine. He denied any other significant complaints. The VA doctor assessed vertigo. An August 2008 VA treatment note indicates the Veteran reported short-lived episodes of dizziness that were related to motion. For instance, he stated that when he got up from sitting, he would walk ten to fifteen steps and then have an episode. He stated that sometimes he had two or three episodes a day, but then would go several days without any episodes. The VA doctor, an ENT physician, assessed intermittent vertigo, probably a combination of vertebrobasilar insufficiency and recent ear infection. In October 2008, the Veteran reported experiencing a significant episode of vertigo as he was walking in from the parking lot to the VA Medical Center. The episode lasted several minutes and he had to sit down, after which it resolved on its own. He reported that these episodes usually occurred in groups, and that he continued to take Meclizine as needed. The Veteran was afforded another VA examination in June 2009. He reported that weather had a dramatic impact on his vertigo symptoms, stating that when it was hot, the fluids within his inner ear expanded and caused increased symptoms. His symptoms included dizziness (one to three times daily lasting five to ten minutes on average), fatigue following episodes of dizziness, staggering, and loss of balance with all episodes. He denied any falls in the previous 90 days. The VA examiner concluded that the Veteran's imbalance disorder was more likely than not related to his service-connected ear disorders. Moreover, the examiner stated there was no present diagnosis of endolymphatic hydrops or Meniere's syndrome per the most recent ENT examination in August 2008 which assessed intermittent vertigo that was a combination of vertebrobasilar insufficiency and recent ear infection. Thus, the VA examiner stated the imbalance condition is more likely than not due to vertigo, and that past confusion of specialists concerning the exact diagnosis was more likely than not related to the establishment of differential diagnosis and the ongoing "ruling out" process. VA treatment notes from 2010 indicate the Veteran continued to follow up for vertigo. In November 2010, he reported monthly falls that were not dramatic and not accompanied by loss of consciousness. In a February 2012 statement, the Veteran's wife wrote that the Veteran sometimes experienced episodes of dizziness frequently, and sometimes not so frequently. She stated they usually occurred after he had started walking after getting up from a seated position. He would stagger and either have to sit down or hold onto something to keep from falling. At the May 2013 Board hearing, the Veteran testified that he experienced the more significant episodes of vertigo approximately three times per week, and that the episodes lasted between five and fifteen minutes. He stated that the room spun during episodes and that he sometimes fell and bruised himself. He stated that on one occasion, he had to pull over when driving due to a vertigo episode. However, he testified that no doctor has said that he could not drive due to his vertigo. The Board notes that the Veteran's current disability rating of 30 percent is the highest rating available under Diagnostic Code 6204. Thus, there is no higher disability rating available under Diagnostic Code 6204. The Board has considered whether the Veteran is entitled to a higher disability rating under other diagnostic codes, but finds that none apply. The evidence of record does not show chronic suppurative otitis media or mastoiditis (or any combination), and the Veteran already has a separate disability rating for a post-operative cholesteatoma of the right ear, so Diagnostic Code 6200 does not allow for a higher initial disability rating. The evidence of record also does not demonstrate chronic nonsuppurative otitis media with effusion, otosclerosis, loss of auricle, malignant neoplasm of the ear, benign neoplasms of the ear, chronic otitis externa, or perforation of the tympanic membrane. Therefore, Diagnostic Codes 6201, 6202, and 6207 through 6211 are not for application. 38 C.F.R. § 4.87. Further, the Board finds that a diagnosis of Meniere's syndrome is not present in this case, so Diagnostic Code 6205 is not applicable. Namely, although two physicians assessed possible endolymphatic hydrops (another name for Meniere's syndrome) in early 2007, the diagnosis appears to have been ruled out since then, as VA treatment records consistently record the diagnosis as vertigo. Moreover, the 2009 VA examiner opined that the Veteran did not have Meniere's syndrome and provided adequate rationale for his opinion. The 2009 VA opinion is competent and probative medical evidence because it is factually accurate, and is supported by an adequate rationale. The VA examiner was informed of the pertinent evidence, reviewed the claims file, interviewed and examined the Veteran, and fully articulated the opinion. There are no contrary medical opinions of record, nor does the medical evidence otherwise suggest a current diagnosis of Meniere's, as discussed above. While the Board understands the Veteran's central concern that he has a debilitating disability manifested by vertigo, it is important for the Veteran to understand that a 30 percent evaluation indicates a significant impact on the Veteran's functional ability. Such a disability evaluation by VA recognizes the frequency of the Veteran's dizziness episodes with occasional staggering, indicating generally a 30 percent reduction in the Veteran's ability to function due to his vertigo. For these reasons, the Board finds that the weight of the evidence is against a finding of an initial evaluation in excess of 30 percent for vertigo for any period. To the extent any higher level of compensation is sought, the preponderance of the evidence is against this claim, and hence the benefit-of-the-doubt doctrine does not apply. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 4.3, 4.7. In addition to the foregoing, the Board has considered whether referral for an extraschedular evaluation is warranted for the Veteran's vertigo. In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321 (2012). The threshold factor for extraschedular 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. Therefore, initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. Thun v. Peake, 22 Vet. App. 111 (2008). Under the approach prescribed by VA, if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. In the second step of the inquiry, however, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." 38 C.F.R. 3.321(b)(1) (related factors include "marked interference with employment" and "frequent periods of hospitalization"). When the rating schedule is inadequate to evaluate a claimant's disability picture and that picture has related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for completion of the third step - a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extraschedular rating. Id. Turning to the first step of the extraschedular analysis, the Veteran's vertigo has manifested in up to several episodes of dizziness daily, sometimes accompanied by staggering. The schedular criteria for rating vertigo (38 C.F.R. § 4.87, Diagnostic Code 6204) specifically provide for ratings based on the presence of dizziness and occasional staggering. In this case, comparing the Veteran's disability level and symptomatology of his vertigo to the rating schedule, the degree of disability of the vertigo throughout the entire period under consideration is contemplated by the rating schedule and the assigned rating is, therefore, adequate. The schedule is intended to compensate for average impairments in earning capacity resulting from service-connected disability in civil occupations. 38 U.S.C.A. § 1155. "Generally, the degrees of disability specified [in the rating schedule] are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability." 38 C.F.R. § 4.1. In this case, the problems reported by the Veteran are specifically contemplated by the criteria discussed above, including the effect on his daily life. In the absence of exceptional factors associated with the vertigo, the Board finds that the criteria for submission for assignment of an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are not met. See Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). TDIU Analysis Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule), which is based on the average impairment of earning capacity. 38 U.S.C.A. § 1155. Total disability is considered to exist when there is any impairment which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. Total disability may or may not be permanent. 38 C.F.R. § 3.340(a)(1). Total ratings are authorized for any disability or combination of disabilities for which the Rating Schedule prescribes a 100 percent evaluation. 38 C.F.R. § 3.340(a)(2). TDIU may be assigned when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. If there is only one such disability, it must be rated at 60 percent or more; if there are two or more disabilities, at least one disability must be rated at 40 percent or more, with sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, (2) disabilities resulting from common etiology or a single accident, (3) disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric, (4) multiple injuries incurred in action, or (5) multiple disabilities incurred as a prisoner of war. 38 C.F.R. § 4.16(a). The central inquiry is "whether the veteran's service connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Consideration may be given to his or her level of education, special training, and previous work experience, but advancing age and the impairment caused by nonservice-connected disabilities are not for consideration in determining whether such a total disability rating is warranted. See 38 C.F.R. §§ 3.341, 4.16, 4.19 (2012); Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Marginal employment, defined as an amount of earned annual income that does not exceed the poverty threshold determined by the United States Department of Commerce, Bureau of the Census, shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). Substantially gainful employment is work that is more than marginal, which permits the individual to earn a "living wage." See Moore v. Derwinski, 1 Vet. App. 356 (1991). In reaching a determination of TDIU, it is necessary that the record reflect some factor which takes his case outside the norm with respect to a similar level of disability under the rating schedule. 38 C.F.R. §§ 4.1, 4.15 (2012); Van Hoose, 4 Vet. App. 361. The fact that a claimant is unemployed or has difficulty obtaining employment is not enough. The question is whether or not the Veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. See Beaty v. Brown, 6 Vet. App. 532, 538 (1994). In this case, the Veteran contends that he is unable to secure employment due to his service-connected disabilities combined. Specifically, at the May 2013 Board hearing, he testified that his service-connected cholesteatoma caused difficulty breathing and fluid build-up in his ears, which made his vertigo worse. Further, with regard to his vertigo, he had no warning as to when an episode was going to occur, which made it difficult for him to drive anywhere. Finally, he stated that his service-connected hearing loss and tinnitus made it difficult for him to talk on the telephone with clients or customers. The Veteran's service-connected disabilities, as evaluated under the VA Rating Schedule, are: (1) bilateral hearing loss, evaluated as 70 percent disabling from November 8, 2010; (2) vertigo/dizziness, evaluated as 30 percent disabling from November 8, 2005; (3) tinnitus, evaluated as 10 percent disabling from July 8, 2003; (4) skull loss associated with post-operative cholesteatoma of the right ear, evaluated as noncompensably disabling from June 9, 2004; and (5) post-operative cholesteatoma of the right ear, evaluated as noncompensably disabling from June 9, 2004. His combined disability evaluation is 80 percent from April 3, 2010 (prior to the date of the TDIU claim), which is the entire period under consideration for a TDIU. Thus, the Veteran meets the percentage requirements set forth in 38 C.F.R. § 4.16(a) for consideration of a TDIU, and entitlement to TDIU is considered based on the combined rating percentages met under 38 C.F.R. § 4.16(a). The Board notes that the Veteran worked as a tire builder until 1979, when he injured his low back on the job. He was then self-employed as a real estate agent and appraiser until 1999, according to a VA Form 21-527 submitted in 2002. In the context of the current claim, the Veteran has stated that he stopped working altogether in 1992. After a review of all the evidence, the Board concludes that the weight of the evidence demonstrates that a TDIU is not warranted for any period, in that the weight of the evidence is against a finding that the Veteran is unable to secure or follow substantially gainful employment due to service-connected disabilities. The evidence in favor of the Veteran's claim for TDIU includes the Veteran's multiple statements showing his belief that he is unemployable due to his service-connected disabilities, as described in detail above. Additional evidence in favor of the Veteran's claim for a TDIU includes a November 2010 VA treatment note in which the VA clinician noted that the Veteran had a significant history of vertigo with falls that would likely qualify him for disability and limit his ability to perform day-to-day activities in a work place environment. The evidence weighing against the Veteran's claim for TDIU includes a December 2010 VA general medical examination report in which the VA examiner opined that there was no objective evidence to support unemployability based on the Veteran's service-connected conditions, although employment would be limited to sedentary work. The VA examiner reasoned that vertigo had been present since active service and the Veteran had been successfully employed in that time. The Board acknowledges the Veteran's statements that he is afraid to drive due to concern of experiencing an episode of vertigo while driving. However, as described above, he has stated on multiple occasions that his vertigo symptoms rarely manifest themselves while he is in a seated position or while driving; rather, he has reported that they usually occur after he gets up from a seated position and walks several feet. Moreover, no physician has stated that he cannot drive due to his vertigo. In a separate December 2010 VA audiological examination report, a different VA examiner opined that, with amplification and reasonable accommodations, the Veteran's hearing loss and/or tinnitus alone would not significantly affect the Veteran's vocational potential or limit participation in most work activities. The VA examiner noted that the Veteran did not currently wear hearing aids; while he had been offered hearing aids in the past, the Veteran stated he declined them, as he wanted to get his teeth fixed first. In addition, at the VA audiological examination, the Veteran stated that he stopped working in 1992 to care for his ailing father-in-law, rather than due to any service-connected disability. With regard to the Veteran's service-connected cholesteatoma, he was afforded a VA examination specifically geared to this disability in April 2010. The VA examiner concluded that the Veteran did not have any residuals from the right ear cholesteatoma other than symptoms of dizziness, vertigo, and hearing loss. In addition, in another November 2011 VA opinion, a different VA examiner opined that the Veteran's claimed nasal drip, cough, phlegm, and difficulty breathing were symptoms associated with allergic rhinitis and chronic obstructive pulmonary disease (COPD) (both non-service-connected conditions), and were not related to the remote history of a cholesteatoma which had not had evidence of recurrence and had remained stable for many years. VA treatment notes show that in January 2012, the Veteran requested a note from his doctor stating that he was unemployable due to vertigo and hearing loss. However, the VA physician wrote that he reviewed the Veteran's treatment records, noting that although he had vertigo, there had been no syncopal episodes, ENT providers had noted the Veteran's conditions to be stable, and there was no mention of physical disability in his chart. Therefore, the doctor declined to provide a statement saying that the Veteran was unemployable due to his service-connected vertigo and hearing loss. In sum, the weight of the evidence demonstrates that the Veteran's service-connected vertigo, hearing loss, tinnitus, and cholesteatoma have not rendered him incapable of securing or maintaining gainful employment. The Veteran has not contended that his service-connected loss of skull has rendered him unemployable, nor does any of the medical evidence suggest that this noncompensably disabling condition has affected his employment during the time period in question. The VA opinions cited to above are competent and probative medical evidence because they are factually accurate, and are supported by an adequate rationale. The VA examiners were informed of the pertinent evidence, reviewed the claims file, interviewed and examined the Veteran, and fully articulated the opinions. Further, they are more probative than the tentative statement made by the VA clinician in 2010 that the Veteran's service-connected disabilities would "limit" his ability to perform day-to-day activities at work. Indeed, the Board does not disagree that the Veteran's service-connected disabilities would limit his activities in a work place setting, as reflected by his combined 80 percent disability rating. However, the weight of lay and medical evidence shows that the Veteran's service-connected disabilities have not rendered him unable to obtain or maintain substantially gainful employment. The Board has weighed and considered the Veteran's statements that his service-connected disabilities have rendered him unable to work; however, the weight of the lay and medical evidence demonstrates that the Veteran is not unable to secure substantially gainful employment due to his service-connected disabilities. There is rather significant evidence against this claim, as discussed above. For these reasons, the Board finds that the weight of the credible evidence demonstrates that the criteria for TDIU have not been met or more nearly approximated for any period. As the preponderance of the evidence is against this claim, the benefit of the doubt rule is not for application, and the Board must deny the claim. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The notice requirements of VCAA require VA to notify the claimant 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 Board notes that a "fourth element" of the notice requirement requesting the claimant to provide any evidence in the claimant's possession that pertains to the claim was removed from the language of 38 C.F.R. § 3.159(b)(1). See 73 Fed. Reg. 23,353-356 (April 30, 2008). The United States Court of Appeals for Veterans Claims (Court) issued a decision in the appeal of Dingess v. Nicholson, 19 Vet. App. 473 (2006), which held that the notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim, including the degree of disability and the effective date of an award. Those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Because the current disability rating appeal arises from the Veteran's disagreement with the initial evaluation following the grant of service connection for vertigo/dizziness, no additional notice is required with regard to that issue. The United States Court of Appeals for the Federal Circuit (Federal Circuit) and the Court have held that, once service connection is granted and the claim is substantiated, additional notice is not required, and any defect in notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App.112 (2007); 38 C.F.R. § 3.159(b)(3)(i) (no duty to provide VCAA notice upon receipt of a notice of disagreement); VAOPGCPREC 8-2003 (in which the VA General Counsel interpreted that separate notification is not required for "downstream" issues following a service connection grant, such as initial rating and effective date claims). With regard to the TDIU claim, in a timely November 2011 letter, the RO provided notice to the Veteran regarding what information and evidence is needed to substantiate a claim for a TDIU, what information and evidence must be submitted by the Veteran, and what information or evidence VA will attempt to obtain. The letter also described how VA determines disability ratings and effective dates. The Board is also satisfied VA has made reasonable efforts to obtain relevant records and evidence. Specifically, the information and evidence that has been associated with the claims file includes the Veteran's service treatment records, post-service VA and private treatment records, VA opinions, and the Veteran's statements, including his testimony at a May 2013 Board hearing. The Board notes that VA requested the Veteran's Social Security Administration (SSA) records, but received a response from SSA in November 2010 indicating that SSA could not send the medical records requested as such records did not exist and further efforts to obtain them would be futile. The Board finds that VA's duty to assist with regard to attempting to obtain the SSA records has been satisfied. The Court held in Bryant v. Shinseki, 23 Vet. App. 488 (2010), that 38 C.F.R. 3.103(c)(2) requires that the RO official or VLJ who conducts a hearing fulfill two duties to comply with the above regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during the May 2013 Board hearing, the undersigned Veterans Law Judge asked questions pertaining to the criteria necessary for establishing his claims, including regarding specific evidence that may help substantiate his claims. Moreover, neither the Veteran, nor his representative, has asserted that VA failed to comply with 38 C.F.R. 3.103(c)(2), nor has he identified any prejudice in the conduct of the Board hearing. As such, the Board finds that, consistent with Bryant, the Veterans Law Judge complied with the duties set forth in 38 C.F.R. 3.103(c)(2), and that any error in notice provided during the hearing constitutes harmless error. The Veteran has been afforded an adequate examination on the issue of rating the vertigo/dizziness. VA provided the Veteran with examinations in April 2007 and June 2009. The Veteran's history was taken, and complete examinations were conducted. Conclusions reached and diagnoses given were consistent with the examination report. Therefore, the Veteran has been afforded an adequate examination on the increased rating issue decided herein. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). In addition, VA opinions were obtained in December 2010 with regard to the question of whether the Veteran was rendered unemployable due to his service-connected disabilities. To that end, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the December 2010 VA opinions obtained in this case are adequate as to the question of whether the Veteran's service-connected disabilities have rendered him unemployable. The opinions were predicated on a full reading of the private and VA medical records in the Veteran's claims file, as well as a thorough physical and audiological examination. The VA opinions considered all of the pertinent evidence of record, to include VA treatment records, comprehensive physical examinations, and the statements of the Veteran, and provide complete rationale for the opinions stated, relying on and citing to the records reviewed. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion for the TDIU claim has been met. 38 C.F.R. § 3.159(c)(4). Notably, the Veteran has not identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). ORDER An initial disability rating in excess of 30 percent for vertigo is denied. A TDIU is denied. ____________________________________________ MICHELLE L. KANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs