Citation Nr: 1333413 Decision Date: 10/24/13 Archive Date: 10/24/13 DOCKET NO. 08-28 211 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to a compensable disability rating for a benign mass of the right lung, status post upper lobe wedge resection. 2. Entitlement to a disability rating in excess of 10 percent for benign positional vertigo. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The appellant ATTORNEY FOR THE BOARD Rebecca Feinberg, Counsel INTRODUCTION The Veteran served on active duty from December 1981 to December 1994. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a November 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. In July 2013, the Veteran testified at a hearing before the undersigned Veterans Law Judge at the RO. A transcript of the hearing is associated with the Veteran's virtual VA claims folder. That virtual file was reviewed by the RO prior to the April 2013 supplemental statement of the case and by the Board prior to issuing this decision. Following the July 2013 hearing, the Veteran submitted additional VA outpatient treatment records, some of which were relevant to her appeal. However, she indicated during her July 2013 hearing that she was waiving initial consideration of such evidence by the RO. Therefore, the Board will proceed with this appeal, considering all of the evidence of record. As noted below, the Veteran has raised the issue of numbness of the right breast and cramping in the lower chest. In particular, she believes that such symptoms are due to nerve damage that resulted from surgery. However, these issues have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. The issue of entitlement to an increased disability rating for benign positional vertigo, on an extraschedular basis, is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The Veteran's benign mass of the right lung, status post upper lobe wedge resection are not productive of any respiratory manifestations or symptomatology warranting an increased evaluation. All FVC, FEV-1, and FEV-1/FVC results were in excess of 80 percent predicted, and no other symptoms or manifestations have been shown on examination. 2. The Veteran's benign positional vertigo is manifested by dizziness and occasional staggering. CONCLUSIONS OF LAW 1. The criteria for a compensable rating for a benign mass of the right lung, status post upper lobe wedge resection, are not met. 38 U.S.C.A. §§ 1155, 5103(a), 5103A (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.2, 4.7, 4.97, Diagnostic Code 6820 (2013). 2. The criteria for a 30 percent rating for benign positional vertigo, on a schedular basis, are met. 38 U.S.C.A. §§ 1155, 5103(a), 5103A (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.7, 4.87, Diagnostic Code 6204 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist Upon receipt of a substantially complete application for benefits, VA must notify the claimant what information or evidence is needed in order to substantiate the claim and it must assist the claimant by making reasonable efforts to get the evidence needed. 38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.159(b); see Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The notice required must be provided to the claimant before the initial unfavorable decision on a claim for VA benefits, and it must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5103(a); 38 C.F.R. § 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). With regard to claims for increased disability ratings for service-connected conditions, the law requires VA to notify the claimant that, to substantiate a claim, the claimant must provide, or ask VA to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159; Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), vacated and remanded sub nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). The claimant must be notified that, should an increase in disability be found, a disability rating will be determined by applying relevant Diagnostic Codes, which typically provide for a range in severity of a particular disability from noncompensable to as much as 100 percent (depending on the disability involved), based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration. Finally, the notice must provide examples of the types of medical and lay evidence that the Veteran may submit (or ask the VA to obtain) that are relevant to establishing her or his entitlement to increased compensation. However, the notice required by section 5103(a) need not be specific to the particular Veteran's circumstances; that is, VA need not notify a Veteran of alternative diagnostic codes that may be considered or notify of any need for evidence demonstrating the effect that the worsening of the disability has on the particular Veteran's daily life. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). The notice must be provided prior to an initial unfavorable decision 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 an August 2006 letter, the RO informed the Veteran of what the evidence needed to show to substantiate her claims and informed her of her and VA's respective responsibilities in obtaining evidence. This letter was issued prior to the initial adjudication of the claim. However, the rating criteria specific to the Veteran's disabilities was provided in a letter dated in June 2008, which was after the initial adjudication of the claims. Nevertheless, this letter was issued prior to the RO's adjudication in the July 2008 statement of the case, thereby curing any timing defect. See Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (finding that the issuance of a fully compliant notification followed by readjudication of the claim, such as a statement of the case or supplemental statement of the case, is sufficient to cure a timing defect). In addition, the duty to assist the Veteran has also been satisfied in this case. The Veteran's service treatment record and all identified and available post-service medical records pertinent to the time period of the appeal are in the claims file and were reviewed by both the RO and the Board in connection with the Veteran's claims. The Veteran has not identified any outstanding records that are available and relevant to the claim being decided herein. Moreover, the record includes various written statements provided by the Veteran and her representative, as well as a transcript of the Veteran's July 2013 Board hearing. In addition, the Veteran was afforded VA examinations in August 2006, September 2006, August 2012, and February 2013 in connection with her claims. 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 VA examinations in this case are adequate, as the examiners considered the Veteran's medical history and complaints and fully addressed the rating criteria that are relevant to rating the disabilities in this case. Moreover, there is no objective evidence indicating that there has been a material change in the severity of the Veteran's service-connected disabilities since she was last examined. 38 C.F.R. § 3.327(a). The duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate VA examination was conducted. VAOPGCPREC 11-95. While the Veteran testified in July 2013 that her August 2012 VA examination with regard to her vertigo was inadequate, she was subsequently afforded a February 2013 VA examination about which she made no such allegation. As stated above, the Board finds that the examinations afforded to the Veteran with regard to her two disabilities, when taken together, are adequate. Thus, there is adequate medical evidence of record to make a determination as to the Veteran's service-connected disabilities. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issue on appeal has been met. 38 C.F.R. § 3.159(c)(4). Moreover, as previously noted, the Veteran was also afforded an opportunity to present testimony at a hearing before the Board in July 2013. In Bryant v. Shinseki, 23 Vet. App. 488, 496-97 (2010), the Court held that the Veterans Law Judge who chairs a hearing fulfill two duties to comply with 38 C.F.R. § 3.103(c)(2). These duties consist of (1) fully explaining the issues pertinent to the claim(s) on appeal; and (2) suggesting the submission of evidence that may have been overlooked. See also 38 C.F.R. § 3.103(c)(2). In this case, the undersigned Veterans Law Judge set forth the issues to be discussed and sought to identify pertinent evidence not currently associated with the claims folder. The hearing focused on the elements necessary to substantiate the claims and the Veteran, through her testimony and questioning by her representative, demonstrated her actual knowledge of the elements necessary to substantiate her claims. Moreover, the undersigned Veterans Law Judge agreed to hold the record open for an additional 60 days after the hearing in order to allow the Veteran and her representative additional time to submit relevant evidence. As such, the Board finds that VA complied with the duties set forth in 38 C.F.R. 3.103(c)(2) and Bryant v. Shinseki, 23 Vet. App. 488, 492 (2010). The Board concludes the Veteran was provided the opportunity to meaningfully participate in the adjudication of his claims and did in fact participate. Washington v. Nicolson, 21 Vet. App. 191 (2007). For these reasons, the Board concludes that VA has fulfilled the duty to assist the Veteran in this case. Hence, there is no error or issue that precludes the Board from addressing the merits of this appeal. Law and Analysis Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating 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; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. 38 C.F.R. § 4.7. 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. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). While the regulations require review of the recorded history of a disability by the adjudicator to ensure a more accurate evaluation, the regulations do not give past medical reports precedence over the current medical findings. 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, where VA's adjudication of an increased rating claim is lengthy, a claimant may experience multiple distinct degrees of disability that would result in different levels of compensation from the time the increased rating claim was filed until a final decision on that claim is made. Thus, VA's determination of the "present level" of a disability may result in a conclusion that the disability has undergone varying and distinct levels of severity throughout the entire time period the increased rating claim has been pending. Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran's benign mass of the right lung, status post upper lobe wedge resection, is currently rated noncompensable under the criteria of 38 C.F.R. § 4.97, Diagnostic Code 6820 (2013). That diagnostic code specifically indicates that benign neoplasms of any specified part of the respiratory system are to be evaluated using an appropriate respiratory analogy. The Veteran's vertigo is currently assigned a 10 percent rating under the criteria of 38 C.F.R. § 4.87, Diagnostic Code 6299-6204 (2013). Benign positional vertigo is not specifically listed in the Rating Schedule, and this hyphenated diagnostic code including the "99" series indicates that the most analogous diagnosed code for the Veteran's benign positional vertigo is Diagnostic Code 6204, which applies to peripheral vestibular disorders. 38 C.F.R. § 4.20 (providing for rating by analogy). Diagnostic Code 6204 indicates that a 10 percent rating is assigned for occasional dizziness, and a maximum schedular 30 percent rating is assigned for dizziness and occasional staggering. A note following the rating criteria indicates 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. A November 2005 VA outpatient treatment record shows that the Veteran complained of occasional vertigo and reported a history of benign lung tumors. A June 2006 VA report indicates that the Veteran's vertigo continued. She specified that it occurred approximately once per month and lasted for two to three hours. In August 2006, the Veteran underwent a VA examination for her vertigo during which she described dizziness with difficulty walking and sitting. She had difficulty balancing. When she was sick, the Veteran had difficulty balancing and walking straight. These symptoms occurred twice per week and lasted for 24 hours. There was no change in the diagnosis of benign positional vertigo. There was subjective dizziness and no objective symptoms. In September 2006, the Veteran underwent a VA examination for her lungs. On chest 2 V, the lungs were clear with no pneumothorax or rib fracture, and pulmonary vasculature was within normal limits. There were surgical sutures noted in the right upper quadrant. A pulmonary function test revealed that FVC, FEV-1, and FEV-1/FVC results were all in excess of 100 percent predicted. The examiner noted that all results were within normal limits. The pulmonary function diagnosis was normal spirometry. The examination report indicated that the Veteran complained of a cough with sputum, night sweats, pain and discomfort in the chest area on exertion, and cramping in the lower rib. The symptoms occurred at all times. The lungs showed decreased breath sounds on the right side, but x-rays revealed no active pulmonary disease. There was no change in the diagnosis of benign mass, right mass, status post upper lobe wedge resection. There was no cor pulmonale, no right ventricular hypertrophy, pulmonary hypertension, or chronic respiratory failure. In a December 2006 written statement, the Veteran asserted that her vertigo symptoms worsened as she got older. The symptoms included dizziness. She was unable to walk straight and staggered to get where she needed to go. She also had feelings that she would vomit, which prevented her from eating for an entire day. Her medication caused her to become drowsy, which also affected her workday. Regarding her lungs, she had been told that one-third of her lungs were scarred, and she had pain when she took deep breaths. Since her last surgery in 1997, the Veteran had cramping in her lower right chest area that brought her to tears. She also described numbness in the lower part of her right breast. Her doctors could not explain these symptoms. In a June 2008 written statement, the Veteran indicated that, when she was feeling sick from vertigo, she was not able to stand up to walk or get out of bed. With regard to her lungs, she acknowledged that the symptoms she experienced may not affect her pulmonary function. However, she noted that she did not have the pain, numbness, and cramping prior to her two surgeries. She believed that the surgery that occurred twice in the same area in her back affected her nerves. In a September 2008 written statement, the Veteran indicated that she had reported to the VA examiner that, when she experienced her vertigo symptoms, she was unable to get out of bed and walk. A May 2009 VA outpatient treatment record shows that the Veteran reported vertigo from time to time. She used medication as needed, and she became nauseated with that at times. A February 2011 VA outpatient report shows that the Veteran reported having a severe episode of vertigo with emesis. During that time, she tried to lie down, but it became worse. She then took medication and went to sleep. On the next day, she was fine. It was also noted that she had episodes about once a week. In a January 2012 rating decision, the RO denied entitlement to service connection for bilateral hearing loss. Tinnitus had already been service-connected. An April 2012 VA record shows that the Veteran reported a recent severe episode of vertigo. She was unable to walk and had to lie down in a recliner. She experienced nausea, vomiting, and dizziness, but she denied chest pain or tightness or shortness of breath. A May 2012 VA outpatient treatment record shows that a CT urogram revealed that the lung bases contained no consolidation or pleural effusions. There was asymmetric breast tissue noted in the right relative to the left. In August 2012, the Veteran underwent another VA examination for her vertigo, and the diagnosis was benign paroxysmal positional vertigo. She complained of dizziness, nausea, and disorientation, and she indicated that she took medication. The Veteran also reported vertigo and staggering that occurred more than once a week and lasted up to 24 hours. An examination of the ears and balance was normal, and the examiner opined that the Veteran's ear and peripheral vestibular conditions did not affect her ability to work. An audiological examination also revealed normal hearing for VA disability purposes. In August 2012, the Veteran underwent a VA respiratory examination at which time it was noted that the pulmonary function test was terminated because the Veteran was not able to blow for six seconds. Nevertheless, the examiner opined that the Veteran had normal pulmonary function tests. FVC, FEV-1, and FEV-1/FVC results were all in excess of 85 percent predicted. A chest x-ray revealed no acute infiltrate and post-surgical changes in the right upper lobe. She had no residual conditions or complications due to her previous neoplasm or its treatment. The Veteran's respiratory condition did not impact her ability to work. In August 2012, the Veteran underwent a VA examination for her scar. The Veteran indicated that her scar of the trunk had been left after two surgeries to extract tumors from her right lung. The pain of the scar caused cramps in the upper back and side of chest. She often experienced sharp pain around the scar. It was noted that the scar is located on the right side of the chest and reached from the right side of the ribcage to the right upper back area. The scar was superficial and non-linear, and it measured 23 centimeters by 0.5 centimeters. The area of the scar was 1.9 centimeters squared on the anterior trunk and 11.5 centimeters squared on the posterior trunk. The scar did not result in any limited function. The Veteran stated that, when she reported her pain and cramps to her VA doctor, she was told it was caused by nerve damage from the surgeries. In February 2013, the Veteran underwent another VA examination for her vertigo, and the diagnosis was noted to be benign paroxysmal positional vertigo. The Veteran indicated that her vertigo had increased in frequency. She became unbalanced towards the left when this happened and experienced nausea and vomiting. She noted times when she had trouble walking or driving during these episodes. She currently did not drive anywhere due to her vertigo, and her daughter had driven her to this examination. On examination, the Veteran reported vertigo and staggering that occurred up to four times per month. Examination of the ears was normal. The examiner opined that the vertigo impacted her ability to work. During episodes, she was incapacitated. She was limited in transportation because it was dangerous for her to drive due to the unpredictability of when the episodes occurred. In an April 2013 VA outpatient report, the Veteran indicates that her vertigo continued to be about the same. In a May 2013 written statement, the Veteran described extreme dizziness, disorientation, and nausea caused by her vertigo. During one particular incident that occurred while she was driving, she swerved dangerously into oncoming traffic. She increasingly had to depend on her husband and daughter for transportation. A recent attack of vertigo caused her to stagger and nearly collapse. She uncontrollably vomited. In July 2013, the Veteran testified before the undersigned Veterans Law Judge. She reported experiencing dizziness almost every day, and, if she does not take her medication right away, she will vomit on some days. During these times, she was unable to walk unaided, and she stated that these heavy spells occur twice per month. The Veteran also testified that she was employed as a schoolteacher and that someone had to transport her to work and back because she was unable to drive if she was taking her medication. Even if she did not take her medication, her dizziness still made driving dangerous. In this regard, she noted that she has had episodes of car accidents. The Veteran indicated that she was able to keep working because her boss understood. However, in the past year, the Veteran lost about 20 days of work due to her vertigo. She complained that her last examination only evaluated her hearing. The Veteran described nausea, vomiting, unsteadiness, and staggering associated with her vertigo. With regard to her respiratory condition, the Veteran testified at the hearing that she had cramping and numbness on the bottom of her breast. She denied any respiratory symptoms, but then reported pain when taking a deep breath. She also indicated that she was monitored as to whether she would develop lung tumors in the future. The Veteran's representative clarified that the Veteran was not experiencing respiratory symptoms, but was instead experiencing the numbness and cramping. Benign Positional Vertigo Based on the evidence of record, the Board finds that the Veteran is entitled to an increased evaluation of 30 percent for her vertigo under the criteria of Diagnostic Code 6204. Throughout the appeal period, the Veteran has reported that she experienced staggering when she had episodes of vertigo. She has also consistently reported dizziness. The Veteran's reports are both competent and credible. Layno v. Brown, 6 Vet. App. 465, 469 (1994). Therefore, the Board finds that the criteria for a 30 percent rating for vertigo under Diagnostic Code 6204 are met. This is the maximum schedular rating under these criteria. In compliance with the note accompanying the diagnostic criteria, the Veteran also underwent an audiological examination in August 2012. However, the results indicated that the Veteran's hearing loss, to the extent that it exists, is not at a level considered to be disabling for VA purposes. 38 C.F.R. § 3.385. Accordingly, entitlement to service connection for bilateral hearing loss was denied in a January 2012 RO rating decision, which the Veteran did not appeal. Nevertheless, because the Veteran did not demonstrate a hearing disability for VA purposes at any time during the appeal period, a separate rating is not warranted. In addition, all examinations of the ears were normal, and there are no other potentially relevant diagnostic codes or rating criteria. As such, the Veteran is now in receipt of the maximum schedular evaluation for her disability. To the extent that consideration of an extraschedular rating may be warranted, that is addressed in the remand portion of this decision below. Benign Mass of the Right Lung Regarding the Veteran's benign mass of the right lung, status post upper lobe resection, the Veteran and her representative have indicated that are no respiratory manifestations or symptoms. In addition, her pulmonary function tests and all respiratory examinations have been normal or warrant no more than a noncompensable evaluation. Specifically, all FVC, FEV-1, and FEV-1/FVC results were in excess of 80 percent predicted, and no other symptoms or manifestations are shown on examination. Therefore, a compensable rating under any of the respiratory diagnostic criteria is not warranted. See 38 C.F.R. § 4.97, Diagnostic Codes 6502-6847. Instead, the Veteran's complaints consist of numbness, cramping, and pain in her right breast and upper chest. She believes that these symptoms are a result of nerve damage that she incurred during the two surgeries she underwent to remove the benign masses from her right lung. She has not alleged that they are due to the mass itself. Nevertheless, the RO has never adjudicated a claim for nerve damage due to surgery, and to the extent that the Veteran claims the nerve damage and resulting symptoms are related to her service-connected disability, they are being referred to the RO for adjudication above. Finally, the Board notes that the Veteran has a scar as a result of her surgeries and has been assigned a 10 percent rating for that scar. While the Veteran did not specifically perfect an appeal with regard to this disability, she was afforded a VA examination for her scar in August 2012. Nevertheless, because none of the medical or lay evidence suggests that the one service-connected scar is of the head, face, or neck; has an area of at least 12 square inches (77 square centimeters); or causes any other effects, an increased rating for the scar cannot be assigned at this time. See 38 C.F.R. § 4.118, Diagnostic Codes 7800-05. Based on the foregoing, the evidence supports a 30 percent rating for vertigo and preponderates against a finding that a compensable evaluation is warranted for a benign mass of the right lung. As the disabilities have remained consistent throughout the appeal period, staged ratings are not warranted. In reaching this decision, the potential application of various provisions of Title 38 Code of Federal Regulations have been considered, whether or not they were raised by the Veteran. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). In particular, the Board has considered the provisions of 38 C.F.R. § 3.321(b)(1) with regard to the benign mass of the right lung. However, in this case, the Board finds that the record does not show that the Veteran's disability is so exceptional or unusual as to warrant the assignment of a higher rating on an extraschedular basis. See 38 C.F.R. § 3.321(b)(1). 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. See Thun v. Peake, 22 Vet. App. 111 (2008). In this regard, 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. If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule and the assigned schedular evaluation is therefore adequate, and no extraschedular referral is required. Id. See also VAOGCPREC 6-96 (Aug. 16, 1996). Otherwise, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, VA must determine whether the claimant's exceptional disability picture exhibits other related factors, such as those provided by the extraschedular regulation (38 C.F.R. § 3.321(b)(1)) as "governing norms" (which include marked interference with employment and frequent periods of hospitalization). The evidence in this case does not show such an exceptional disability picture that the available schedular evaluation for the service-connected respiratory disability is inadequate. A comparison between the level of severity and symptomatology of the Veteran's assigned rating with the established criteria found in the rating schedule shows that the rating criteria reasonably describe the Veteran's disability level and symptomatology. As discussed above, there are higher ratings available under the diagnostic code, but the Veteran's disability is not productive of such manifestations. The Veteran has essentially stated that she has no respiratory symptoms, and the examination reports corroborate this finding. As such, it cannot be said that the available schedular evaluation for the disability is inadequate. Based on the foregoing, the Board finds that the requirements for an extraschedular evaluation for the Veteran's service-connected respiratory disability under the provisions of 38 C.F.R. § 3.321(b)(1) have not been met. Bagwell v. Brown, 9 Vet. App. 33 (1996); Shipwash v. Brown, 8 Vet. App. 218 (1995); Thun v. Peake, 22 Vet. App. 111 (2008). ORDER A compensable disability rating for a benign mass of the right lung, status post upper lobe wedge resection, is denied. A 30 percent disability rating for benign positional vertigo, on a schedular basis, is granted, subject to the laws and regulations governing the payment of VA benefits. REMAND Throughout the appeal, the Veteran has indicated that her benign positional vertigo interferes with her ability to drive. She is currently employed as a school teacher and relies on her daughter or husband to drive her to work. She has also described past incidents during which vertigo would suddenly occur while she was driving, thereby causing her to have an accident. She has indicated that she no longer drove herself for this reason. Moreover, the Veteran reported at one time missing up to 20 days of work due to vertigo. The February 2013 VA examiner also indicated that the Veteran's vertigo impacted her ability to work. The Board finds that, based on this effect of her service-connected disability, a remand is necessary to afford the Veteran consideration for an extraschedular rating. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should refer the benign positional vertigo claim to the VA Under Secretary for Benefits or the Director, Compensation and Pension Service for extraschedular consideration under 38 C.F.R. § 3.321(b). 2. After completing all requested action, and any additional notification and/or development warranted by the record, the RO/AMC should readjudicate the remanded claim with consideration of all pertinent evidence and legal authority and addressing all relevant theories of entitlement. If any benefit sought on appeal remains denied, the RO/AMC should provide the Veteran and her representative a supplemental statement of the case (SSOC). The Veteran and her representative should then be afforded the appropriate time period to respond. The appellant 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). ______________________________________________ JESSICA J. WILLS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs