Citation Nr: 1335135	
Decision Date: 11/01/13    Archive Date: 11/13/13

DOCKET NO.  08-16 708	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Atlanta, Georgia


THE ISSUES

1.  Entitlement to an initial disability rating in excess of 10 percent for service-connected peripheral vestibular disorder.

2.  Entitlement to a total rating based on individual unemployability (TDIU).


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

N. T. Werner, Counsel



INTRODUCTION

The Veteran served on active duty from July 1971 to December 1974. 

This matter comes to the Board of Veterans' Appeals (Board) on appeal from a July 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia.  In November 2011, the Board remanded the rating claims for additional development.

In a November 2012 statement, the Veteran claimed that his service-connected peripheral vestibular disorder caused him to lose his job in 2004.  Therefore, the Board finds that the record raises a claim for a TDIU.  See Rice v. Shinseki, 22 Vet. App. 447 (2009) (per curiam) (holding that claims for higher evaluations also include a claim for a total rating based on TDIU the appellant claims he is unable to work due to a service connected disability).   

The claim for a TDIU 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.


FINDING OF FACT

The Veteran's peripheral vestibular disorder has been productive of dizziness and occasional staggering throughout the pendency of the appeal.   


CONCLUSION OF LAW

The criteria for a 30 percent rating for peripheral vestibular disorder have been met throughout the pendency of the appeal.  38 U.S.C.A. §§ 1155, 5100, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.326, 4.1, 4.2, 4.3, 4.7, 4.10, 4.27, 4.88a, Diagnostic Code 6204 (West 2002).


REASONS AND BASES FOR FINDING AND CONCLUSION

The Veterans Claims Assistance Act of 2000 (VCAA)

The VCAA describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits.  See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013).  

Here, however, the Veteran is challenging the initial evaluation assigned following the grant of service connection for the disability at issue.  In Dingess v. Nicholson, 19 Vet. App. 473, 490 (2006), the United States Court of Appeals for Veterans Claims (Court) held that in cases where service connection has been granted and initial disability evaluation has been assigned, the service connection claim has been more than substantiated, it has been proven, thereby rendering VCAA notice no longer required because the purpose that the notice is intended to serve has been fulfilled.  

As to the duty to assist, the Board finds that VA has secured all available and identified pertinent in-service and post-service evidence including the Veteran's service treatment records as well as his post-service records from the Atlanta and Memphis VA Medical Centers, including all post-May 2009 treatment records, in substantial compliance with the Board's remand instructions.  See 38 U.S.C.A. § 5103A(b); Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict compliance with the terms of a remand request, is required); Dyment v. West, 13 Vet. App. 141, 146-47 (holding that there was no Stegall violation when the examiner made the ultimate determination required by the Board's remand, because such determination more than substantially complied with the Board's remand orders).

The Veteran was provided with VA examinations in February 2006 and January 2012 the Board finds are adequate for rating purpose.  As to the January 2012 examination, it also substantially complied with the Board's remand order.  The Board has reached these conclusions because these examination reports reflect that after a review of the record on appeal or after taking a detailed history from the Veteran a comprehensive examination was conducted  and opinions were provided as to the severity of the disability that allow the Board to rate it under all relevant Diagnostic Codes.  See 38 U.S.C.A. § 5103A(d); Barr v. Nicholson, 21 Vet. App. 303 (2007); Stegall, supra; D'Aries, supra; Dyment, supra.

In summary, the facts relevant to this appeal have been properly developed and there is no further action to be undertaken to comply with the provisions of 38 U.S.C.A. §§ 5103(a), 5103A or 38 C.F.R. § 3.159.  Therefore, the Veteran will not be prejudiced as a result of the Board proceeding to the merits of the appeal.  See Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993).  

In adjudicating the claim below, the Board has reviewed all of the evidence in the Veteran's claims file including those found in virtual VA (VA's electronic files).  Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that all the evidence submitted by the 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 files 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).

The Claim

The Veteran and his representative assert that the peripheral vestibular disorder is worse than rated and warrants a higher evaluation.  Specifically, in numerous statements to the RO as well as to his VA examiners and to his treating healthcare professionals the Veteran alleged that his peripheral vestibular disorder both caused him to be dizzy and stagger at times.  See, for example, statements in support of claim received in June 2009, January 2012, and November 2012; VA examinations dated in June 2006 and January 2012; VA treatment records dated in December 2009.  He also claimed that he became dizzy with sudden head movement and walking down halls with white walls and shiny white tile floors.  Id.  Lastly, the Veteran reported that his adverse symptomatology caused him to fall on a number of occasions.  Id.

Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity.  38 U.S.C.A. § 1155; 38 C.F.R. § 4.1.  Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes.  38 C.F.R. § 4.27.  When rating the Veteran's service-connected disability, the entire medical history must be borne in mind.  Schafrath v. Derwinski, 1 Vet. App. 589 (1991).  Separate higher or lower compensable evaluations may be assigned for separate periods of time if such distinct periods are shown by the competent evidence of record during the appeal, a practice known as "staged" ratings.  See Fenderson v. West, 12 Vet. App. 119, 126 (1999).

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.

In evaluating the evidence in any given appeal, it is the responsibility of the Board to weigh the evidence and decide where to give credit and where to withhold the same and, in so doing, accept certain medical opinions over others.  In this regard, the Board has been charged with the duty to assess the credibility and weight given to evidence.  Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007).  Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so.  Bryan v. West, 13 Vet. App. 482, 488-89 (2000).  In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so.  Evans v. West, 12 Vet. App. 22, 30 (1998).  

The July 2006 rating decision granted service connection for a peripheral vestibular disorder and granted a 10 percent disability rating under 38 C.F.R. § 4.88a, Diagnostic Code 6204, effective from August 31, 2005.

Under Diagnostic Code 6204, a 10 percent evaluation is warranted for peripheral vestibular disorders with occasional dizziness and a 30 percent evaluation will be assigned with dizziness and occasional staggering.  38 C.F.R. § 4.88a.  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 and that hearing impairment with suppuration is to be separately rated and combined.   

With the above criteria in mind, the Board notes that VA treatment records generated during the pendency of the appeal show that the Veteran has a history of vertigo with no treatment.  Moreover, VA treatment records dated in May 2009, June 2009, and June 2010 noted that he had not had any falls in the last three months.  Similarly, VA treatment records dated in January 2011, August 2011, and September 2011 noted that he had not had any falls in the last twelve months and standard fall prevention measures were in place.  In January 2012, the Veteran was afforded a vestibular and balance evaluation.  At that time, the Veteran complained of occasional dizziness which prevented sudden head movement as well as a problem with loss of balance on uneven terrain, walking down halls with white walls, and walking on shinny floors.  On examination, the Veteran ambulated with a normal gait pattern without an assistive device; displayed normal static/dynamic balance of uneven surfaces; complained of moderate dizziness during left Hallpike maneuver with the examiner unable to see any nystagmus; reported having dizziness within 15 to 30 seconds during each repositional maneuver as well as mild transient dizziness during right Hallpike maneuver; displayed a surface dependent preference for stability and was unable to safely ambulate on foam; and was unable to stand on foam with eyes closed and displayed loss of spacial orientation which required the tester to prevent him from falling.  The Veteran was given a Berg Balance Score of 54 out of a possible 56 indicating that he was a low fall risk.  Thereafter, January and February 2012 VA vestibular rehabilitation treatment records noted that the Veteran had not had any episodes of dizziness but he did complain of several episodes of loss of balance which reappeared using the treadmill. 

Further, at the June 2006 VA examination it was opined that Rotary Chair testing was valid and reliable and the claimant had "significant vestibular impairment."  Moreover, an October 2008 VA treatment record documented the Veteran's seeking treatment at an emergency room because of, among other things, vertigo.  Similarly, a December 2009 VA treatment record noted that the Veteran's history included a fall one week earlier and two falls in the last three months.  Likewise, at the January 2012 VA examination it was opined that ENG testing showed a spontaneous left beating nystagmus which was present throughout most of these examination and bilaterally reduced caloric response and his ocular motor abnormalities were consistent with left beating nystagmus.  Likewise, the Board finds that the Veteran's lay claims regarding having an ongoing problem with dizziness and staggering, in his writings to VA and as recoded by VA healthcare professions, is both competent and credible evidence of the occurrence of this adverse symptomatology because this type of adverse symptomatology is observable by a lay person.  See Davidson, supra.  

Given the above history, which is uniform in documenting a problem with dizziness and also contains credible evidence of occasional staggering and loss of balance, the Board finds that the evidence as to whether the Veteran's service connected peripheral vestibular disorder meets the criteria for a higher, 30 percent, rating is at least in equipoise.  Under such circumstances, and granting the Veteran the benefit of any doubt in this matter, the Board concludes the criteria for an increased 30 percent rating are met.   38 U.S.C.A. § 5107; 38 C.F.R. § 3.102, 4.88a, Diagnostic Code 6204 (2013).  Moreover, because the Veteran's adverse symptomatology was substantially the same throughout the appeal's period the Board finds that a staged rating is not warranted.  See Fenderson, supra.

Because the Veteran is receiving the highest rating possible under Diagnostic Code 6204, the Board will next consider whether an even higher evaluation is warranted under one of the other Diagnostic Codes found at 38 C.F.R. § 4.88a for rating ear disabilities.  In this regard, the Board notes that the 30 percent rating meets or exceeds the maximum rating possible under 38 C.F.R. § 4.87 except for Diagnostic Code 6205 (Meniere's disease), Diagnostic Code 6207 (loss of auricle), and Diagnostic Code 6208 (malignant neoplasm).  But, the record does not contain objective evidence of any of these disabilities.  Therefore, the Board finds that Diagnostic Codes 6205, 6207, and 6208 do not afford a basis for a higher rating.  

As to an extra-schedular rating, the threshold factor for this consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that disability are inadequate.  Therefore, initially, there must be a comparison between the level of severity and symptomatology of the 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, the assigned schedular evaluation is, therefore, adequate, and no referral is required.  

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.  When the an analysis of the first two steps reveals that the rating schedule is inadequate to evaluate a claimant's disability picture and that picture has attendant thereto 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.  

With respect to a comparison between the level of severity and symptomatology of the Veteran's disability with the established criteria, the evidence shows that the rating criteria specifically describe the Veteran's adverse symptomatology and degree of disability.  Therefore, referral of this case for extra-schedular consideration pursuant to 38 C.F.R. 3.321(b)(1) is not warranted. 




ORDER

Subject to the laws and regulations governing the award of monetary benefits, a 30 percent rating for peripheral vestibular disorder for the entire appeal period is granted.  


REMAND

As explained above, the record raises a claim for a TDIU.  See Rice, supra.  However, the Board finds that the TDIU issue is not as yet fully developed for appellate review.  Specifically, the Board notes that the Veteran has not been provided with notice of the laws and regulations governing a TDIU or an examination to obtain an opinion as to whether his service connected disabilities prevented him from working.  See 38 U.S.C.A. §§ 5103(a), 5103A(b) (West 2002); 38 C.F.R. § 19.31; McLendon, supra; Dingess v. Nicholson, 19 Vet. App. 473 (2006).  Therefore, the Board finds that a remand for such development is required.

The record also shows that the Veteran receives ongoing treatment from the Memphis VA Medical Center.  His post-February 2012 treatment records should be sought.  

Accordingly, this issue is REMANDED to the RO/AMC for the following actions:

1.  The RO/AMC shall obtain and physically or electronically associate with the claims file all of the Veteran's post-February 2012 treatment records from the Memphis VA Medical Center.  All actions to obtain the requested records should be documented fully in the claims file.

2.  The RO/AMC shall provide the Veteran with notice of the laws and regulations governing a TDIU in accordance with 38 U.S.C.A. § 5103A (West 2002).

3.  After undertaking the above development to the extent possible, the RO/AMC should schedule the Veteran for an examination to determine whether his service connected disabilities preclude substantially gainful employment.  The claims file should be provided to the examiner in connection with the examination.  All indicated tests and studies deemed appropriate by the examiner should be accomplished and all clinical findings should be reported in detail.  The examiner should provide a review of the Veteran's history, current complaints, and the nature and extent of his service connected disabilities.  Not taking into account any impairment from age or non-service connected disability, the examiner should thereafter provide an opinion as to whether it is at least as likely as not that the Veteran's service connected disabilities prevented him from engaging in substantially gainful employment.  

A complete rationale with citation to relevant evidence found in the claims file should be provided for the opinion.  

If the examiner cannot provide the requested opinion, the reasons for that should be explained, e.g., because the limits of medical knowledge had been exhausted or because further information to assist in making the determination is needed such as additional records and/or diagnostic studies.  

4.  The RO/AMC should thereafter adjudicate the claim for the TDIU.  If the benefit sought on appeal is denied, the RO/AMC shall issue a supplemental statement of the case to the Veteran that includes notice of all relevant the laws and regulations governing a TDIU.  After providing an opportunity to respond, return the case to the Board.

The appellant has the right to submit additional evidence and argument on the matter 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 or by the Court 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).




______________________________________________
MICHAEL E. KILCOYNE
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs