Citation Nr: 1338825	
Decision Date: 11/25/13    Archive Date: 12/06/13

DOCKET NO.  07-11 952	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) 
in Winston-Salem, North Carolina



THE ISSUES

1. Entitlement to a compensable evaluation for the service-connected Eustachian tube dysfunction with hearing loss.

2. Entitlement to an increased rating for the service-connected residuals of a fracture of the right transverse process with degenerative disc disease, currently evaluated as 40 percent disabling.

3. Entitlement to an initial evaluation in excess of 10 percent for the service-connected radiculopathy of the left lower extremity.

4. Entitlement to service connection for a lightheaded sensation claimed as vertigo, as secondary to the service-connected tinnitus or Eustachian tube dysfunction with hearing loss.

5. Entitlement to a total rating based on individual unemployability by reason of service-connected disability (TDIU) prior to June 11, 2012.
REPRESENTATION

Veteran represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

M. Donohue, Counsel


INTRODUCTION

The Veteran served on active duty from May 1981 to January 1986 and from July 1986 to January 1993.

This matter initially arose before the Board of Veterans' Appeals (Board) on appeal of September 2004, February 2007 and May 2007 rating decisions by the ROs in Cleveland, Ohio; Louisville, Kentucky; and Winston-Salem, North Carolina, respectively.  The RO in Winston-Salem, North Carolina currently has original jurisdiction over the Veteran's claims. 

In February 2009, the Board remanded the Veteran's claims for additional development. The case is once again before the Board. 

The Veteran was scheduled to appear for a hearing with a Veterans Law Judge in September 2013.  He failed to report for this hearing.  The Veteran has provided no explanation for his failure to report and has not since requested that the hearing be rescheduled.  His hearing request, therefore, is deemed withdrawn.  See 38 C.F.R. §§ 20.702(d); 20.704(d) (2013).

In a June 2010 rating decision, the RO granted a TDIU rating effective on June 11, 2012. The issue of entitlement to a TDIU rating prior to June 11, 2012, remains on appeal.

The issues of an increased rating for left leg radiculopathy, service connection for vertigo, and entitlement to a TDIU rating prior to June 11, 2012, are being remanded to the RO via the Appeals Management Center (AMC) in Washington, DC.



FINDINGS OF FACT

1. The service-connected Eustachian tube dysfunction with bilateral hearing loss is shown to have been productive of no more than a Level I designation in the right ear and Level I designation on the left.

2. The service-connected residuals of a fracture of the right transverse process with degenerative disc disease is manifested by complaints of fatigue, stiffness and pain, with demonstrated weakness and a limitation of motion; unfavorable ankylosis of the entire thoracolumbar spine is not demonstrated. 



CONCLUSIONS OF LAW

1. The criteria for the assignment of an initial compensable rating for the service-connected Eustachian tube dysfunction with hearing loss have not been met.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.7, 4.85, 4.86 including Diagnostic Code 6100 (2013).

2. The criteria for the assignment of a disability rating in excess of 40 percent for the service-connected residuals of a fracture of the right transverse process with degenerative disc disease are not met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.71a including Diagnostic Code 5242 (2013).



REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

After the evidence has been assembled, the Board is responsible for evaluating the entire record.  38 U.S.C.A. § 7104(a) (West 2002).  When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant.  See 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2013).  

Indeed, in Gilbert v. Derwinski, 1 Vet.App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims (Court) stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail."  To deny a claim on its merits, the preponderance of the evidence must be against the claim.  See Alemany v. Brown, 9 Vet.App. 518, 519 (1996), citing Gilbert, 1 Vet.App. at 54.

Furthermore, the Board notes that it has reviewed all of the evidence in the 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 the Veteran or obtained on his behalf be discussed in detail.  

Rather, the Board's analysis will focus specifically on what evidence is needed to substantiate the issues adjudicated herein and what the evidence in the claims file shows, or fails to show, with respect to these claims.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet.App. 122, 128-30 (2000).  


I.  The Veterans Claims Assistance Act of 2000 (VCAA)

VCAA, codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2013), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim.  The law and regulations also require VA to notify the claimant and the claimant's representative, if any, of any information and any medical or lay evidence not previously provided to VA that is necessary to substantiate the claim.  

As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. 

In March 2006, the Court issued its decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet.App. 473 (2006) and held that the notice requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a "service connection" claim.  As previously defined by the courts, those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability.  

Upon receipt of an application for "service connection," therefore, VA is required to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application.  This includes notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded.

In the present case, VA issued a VCAA notice letter to the Veteran in October 2007.  This letter informed the Veteran of what evidence was required to substantiate his service connection and increased rating claims and of his and VA's respective duties for obtaining evidence.  

The October 2007 letter also informed the Veteran as to the law pertaining to the assignment of a disability rating and effective date as the Court required in Dingess.  

As VCAA notice was not completed prior to the initial AOJ adjudication of the claims, such notice was not compliant with Pelegrini v. Principi, 18 Vet.App. 112, 119 (2004).  However, since the case was readjudicated thereafter, there has been no prejudice to the Veteran in this regard.  See Prickett v. Nicholson, 20 Vet.App. 370, 376 (2006). 

In short, the record indicates that the Veteran received appropriate notice pursuant to VCAA.

VCAA also provides that VA shall make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate a claim for VA benefits, unless no reasonable possibility exists that such assistance would aid in substantiating the claim.  

In the present appeal, the Board finds that reasonable efforts have been made to assist the Veteran in obtaining evidence necessary to substantiate his claims, and that there is no reasonable possibility that further assistance would aid in substantiating such claims.  

In this capacity, the Board remanded the Veteran's claim in February 2009 in order to schedule him for a hearing before a Veterans Law Judge and for the RO to issue a Statement of the Case which addressed the issue of entitlement to an increased rating for radiculopathy of the left lower extremity. 

Following the Board's remand, the Veteran was notified that he was scheduled for a hearing to take place on September 12, 2013.  However, the Veteran failed to report for this hearing and has not requested that his hearing be rescheduled.  Accordingly, his hearing request is deemed withdrawn. 

The Veteran was issued an SOC in March 2009 which addressed the issue of an increased rating for the radiculopathy of the left lower extremity.  He subsequently perfected an appeal as to this issue.

Accordingly, the Board's remand instructions have been fully complied with.  See Stegall v. West, 11 Vet.App. 268, 271 (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). 

Further, the record contains the Veteran's service treatment records, service personnel records, VA treatment records, private medical records, records from the Social Security Administration, VA examination reports, and a medical article submitted by the Veteran. 

The Board has carefully reviewed the Veteran's statements and concludes that he has not identified further evidence not already of record.  The Board has also reviewed the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claim. 

As will be discussed, the Veteran was provided with VA examinations in November 2006, October 2008, March 2010 and June 2012.  The reports of these examinations reflect that the examiners reviewed the Veteran's past medical history, recorded his current complaints, conducted appropriate examinations and rendered appropriate diagnoses consistent with the remainder of the evidence of record, and pertinent to the rating criteria.  See Barr v. Nicholson, 21 Vet.App. 303 (2007); Nieves-Rodriguez v. Peake, 22 Vet.App. 295 (2008).  The Board therefore concludes that the examinations are adequate for rating purposes.  See 38 C.F.R. § 4.2 (2013). 

The Board additionally observes that all appropriate due process concerns have been satisfied.  See 38 C.F.R. § 3.103 (2013).  The Veteran has been accorded the opportunity to present evidence and argument in support of his claims.  His failure to appear for a scheduled video teleconference with a Veterans Law Judge, and his subsequent failure to reschedule, is being treated as a withdrawal, as detailed in the Introduction.  See 38 C.F.R. § 20.704(d) (2013).  

Based on the foregoing, the Board finds that all relevant facts have been properly and sufficiently developed in this appeal and that no further development is required to comply with the duty to assist the Veteran in developing the facts pertinent to his claim.  

Essentially, all available evidence that could substantiate the claim has been obtained. There is no indication in the file that there are additional relevant records that have not yet been obtained.  


II. Increased rating claims 

Disability ratings are assigned in accordance with the VA's Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from disability.  See 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.321(a), 4.1 (2013).  Separate diagnostic codes identify the various disabilities.  See 38 C.F.R. Part 4.  

The Court has held that an appeal from an initial rating is a separate and distinct claim from a claim for an increased rating.  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." See Fenderson v. West, 12 Vet.App. 119, 126 (1999).

The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case."  See Butts v. Brown, 5 Vet.App. 532, 538 (1993).  One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, the current diagnosis and demonstrated symptomatology.  Any change in a diagnostic code by VA must be specifically explained.  Pernorio v. Derwinski, 2 Vet.App. 625 (1992).


	A. Eustachian Tube Dysfunction with Hearing Loss.

In evaluating service-connected hearing loss, disability ratings are derived from mechanical application of the rating schedule to numeric designations assigned after audiometric evaluations are performed.  Lendenmann v. Principi, 3 Vet.App. 345 (1992).  

Disability ratings of bilateral hearing loss range from noncompensable to 100 percent based on organic impairment of hearing acuity, as measured by a controlled speech discrimination test (Maryland CNC) and the average hearing threshold, as measured by puretone audiometric tests at the frequencies of 1,000, 2,000, 3,000 and 4,000 Hertz.  The rating schedule establishes 11 auditory acuity levels designated from Level I, for essentially normal hearing acuity, through level XI for profound deafness.  

An examination for hearing impairment for VA purposes must be conducted by a State-licensed audiologist and must include a controlled speech discrimination test (Maryland CNC) and a puretone audiometry test.  Examinations will be conducted without the use of hearing aids.  38 C.F.R. § 4.85(a). 

Under 38 C.F.R. § 4.85, Table VI (Numeric Designation of Hearing Impairment Based on Puretone Threshold Average and Speech Discrimination) is used to determine a Roman numeral designation (I through XI) for hearing impairment based on a combination of the percent of speech discrimination (horizontal rows) and the puretone threshold average (vertical columns).  The Roman numeral designation is located at the point where the percentage of speech discrimination and puretone average intersect.  38 C.F.R. § 4.85(b).  

The puretone threshold average is the sum of the puretone thresholds at 1,000, 2,000, 3,000 and 4,000 Hertz, divided by 4.  This average is used in all cases to determine the Roman numeral designation for hearing impairment.  38 C.F.R. § 4.85(d).  

Table VII, (Percentage Evaluations for Hearing Impairment) is used to determine the percentage evaluation by combining the Roman numeral designations for hearing impairment of each ear.  The horizontal rows represent the ear having the better hearing and the vertical columns the ear having the poor hearing.  The percentage evaluation is located at the point where the rows and column intersect.  38 C.F.R. § 4.85(e). 

VA regulations also provide that in cases of exceptional hearing loss, when the puretone thresholds at each of the four specified frequencies (1,000, 2,000, 3,000 and 4,000 Hertz) is 55 decibels or more, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIa, whichever results in the higher numeral.  Each ear will be evaluated separately.  38 C.F.R. § 4.86(a).  

The provisions of 38 C.F.R. § 4.86(b) further provide that, when the puretone threshold is 30 decibels or less at 1,000 Hertz, and 70 decibels or more at 2,000 Hertz, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIa, whichever results in the higher numeral.  That numeral will then be elevated to the next higher Roman numeral.  Each ear will be evaluated separately. 

Under 38 C.F.R. § 4.85(f), if impaired hearing is service-connected in only one ear, in order to determine the percentage evaluation from Table VII, the nonservice-connected ear will be assigned a Roman Numeral designation for hearing impairment of I, subject to the provisions of § 3.383.

Under 38 C.F.R. § 3.383, for paired organs and extremities, compensation may be payable for the combination of service-connected and nonservice-connected disabilities as if both disabilities were service-connected.  

As it pertains to hearing loss, § 3.383 provides that compensation is payable for hearing loss in both ears as if both disabilities were service-connected if (1) hearing impairment in the service- connected ear is compensable to a degree of 10 percent or more; (2) hearing impairment in the nonservice-connected ear, as measured by audio thresholds or speech discrimination scores, meets the criteria to be considered a disability under 38 C.F.R. § 3.385, and; (3) hearing loss in the nonservice-connected ear is not the result of the veteran's own willful misconduct. 

As noted, the Veteran's hearing loss has been associated with Eustachian tube dysfunction and the Board has considered whether another rating code is "more appropriate" than the one used by the RO, Diagnostic Code 6100.  See Tedeschi v. Brown, 7 Vet.App. 411, 414 (1995).

As noted, the Veteran is seeking service connection for vertigo and this issue is being remanded for additional development.  As a result, application of Diagnostic Codes 6204 (peripheral vestibular disorders) and 6205 (Meniere's syndrome) is not appropriate.  

Moreover, the evidence of record does not indicate that the Veteran's complaints of lightheadedness and vertigo have been attributed to his hearing loss and Eustachian tube dysfunction and the Veteran does not contend otherwise.  Indeed, the Veteran is seeking service connection for a separate disability as secondary to his service-connected hearing loss and Eustachian tube dysfunction. 

Upon review, the Board can identify nothing in the evidence to suggest that another diagnostic code would be more appropriate, and the Veteran has not requested that another diagnostic code should be used.  

The record reflects that the Veteran is appropriately rated under Diagnostic Code 6100 and his complaints of dizziness and vertigo will be addressed in the Remand portion of this decision. 

Here, the record reflects that the Veteran underwent a VA audiological examination in November 2006 which yielded the following results: 





HERTZ



1000
2000
3000
4000
Average
RIGHT
10
15
60
60
36
LEFT
15
20
75
65
44

Speech discrimination scores were 98 percent in the right ear and 94 percent in the left ear.  

Applying the schedular criteria, this examination report yielded a numerical designation of I in the right ear (0-41 percent average puretone decibel hearing loss, with between 92 and 100 percent speech discrimination) and a numerical designation of I for the left ear (42-49 percent average puretone decibel hearing loss, with between 92 and 100 percent speech discrimination).

Entering the category designations from the November 2006 examination into Table VII results in a no percent rating under Diagnostic Code 6100.  

These test results do not require consideration of exceptional patterns of hearing impairment under subsections (a) or (b) of 38 C.F.R. § 4.86 (thresholds of 55 or greater for all four Hertz frequencies, or 30 or less at the 1000 Hertz frequency and 70 or greater at the 2000 Hertz frequency).  

The Veteran was afforded an additional VA examination in October 2008 which yielded the following results: 





HERTZ



1000
2000
3000
4000
Average
RIGHT
10
10
55
55
33
LEFT
20
25
80
60
46

Speech discrimination scores were 100 percent in the right ear and 98 percent in the left ear.  

Applying the schedular criteria, this examination report yielded a numerical designation of I in the right ear (0-41 percent average puretone decibel hearing loss, with between 92 and 100 percent speech discrimination) and a numerical designation of I for the left ear (42-49 percent average puretone decibel hearing loss, with between 92 and 100 percent speech discrimination).

Entering the category designations from the October 2008 examination into Table VII results in a no percent rating under Diagnostic Code 6100.  

These test results do not require consideration of exceptional patterns of hearing impairment under subsections (a) or (b) of 38 C.F.R. § 4.86.

Following the Board's remand, the Veteran was afforded an additional VA audiological examination in March 2010 which yielded the following results: 





HERTZ



1000
2000
3000
4000
Average
RIGHT
5
5
55
60
31
LEFT
30
15
90
85
55

Speech discrimination scores were 100 percent in the right ear and 100 percent in the left ear.  

Applying the schedular criteria, this examination report yielded a numerical designation of I in the right ear (0-41 percent average puretone decibel hearing loss, with between 92 and 100 percent speech discrimination) and a numerical designation of I for the left ear (50-57 percent average puretone decibel hearing loss, with between 92 and 100 percent speech discrimination).

Entering the category designations from the March 2010 examination into Table VII results in a no percent rating under Diagnostic Code 6100.  

These test results also do not require consideration of exceptional patterns of hearing impairment under subsections (a) or (b) of 38 C.F.R. § 4.86.  

Finally, the Veteran was afforded a VA examination in June 2012 which yielded the following results: 





HERTZ



1000
2000
3000
4000
Average
RIGHT
0
5
50
50
26
LEFT
15
10
10
70
26

Speech discrimination scores were 100 percent in both ears. 

Applying the schedular criteria, this examination report yielded a numerical designation of I in the both ears (0-41 percent average puretone decibel hearing loss, with between 92 and 100 percent speech discrimination).

Entering the category designations from the June 2012 examination into Table VII results in a no percent rating under Diagnostic Code 6100.  

These test results do not require consideration of exceptional patterns of hearing impairment under subsections (a) or (b) of 38 C.F.R. § 4.86.

In this case, the evidence of record supports the proposition that the Veteran's service-connected ear hearing loss disability has not changed appreciably since he filed his claim.  There are no medical findings and no other evidence which would allow for the assignment of a compensable disability rating at any time during the period of time here under consideration.  

The Board will address the Veteran's entitlement to an extraschedular evaluation in a common discussion hereinbelow.


	B. Degenerative Disc Disease of the Lumbar Spine 

The rating criteria for the spine were amended effective September 26, 2003.  See 68 Fed. Reg. 51, 454-51, 458 (Aug. 27, 2003).  Because the Veteran filed his claim in February 2004, only the revised criteria are applicable. 

Under the General Rating Formula for Diseases and Injuries of the Spine, (38 C.F.R. § 4.71a) for Diagnostic Codes 5235 to 5243, unless Diagnostic Code 5243 is evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, the following criteria apply:

With or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease

100 percent rating - Unfavorable ankylosis of the entire spine;

50 percent rating - Unfavorable ankylosis of the entire thoracolumbar spine;

40 percent rating - Unfavorable ankylosis of the entire cervical spine, or forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine;

Note (1): Evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code.

Note (5): For VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis.

In addition to evaluating intervertebral disc syndrome (Diagnostic Code 5243) under the General Rating Formula for Diseases and Injuries of the Spine, as outlined above, it may also be rated on incapacitating episodes, depending on whichever method results in the higher evaluation when all service-connected disabilities are combined under 38 C.F.R. § 4.25.  Note (1) to Diagnostic Code 5243 defines an "incapacitating episode" as "a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician."  See 38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5243 (2013).

Here, the service-connected spine disability is currently rated under the General Rating Formula for Diseases and Injuries of the Spine.  The Board observes that all spine disabilities, except intervertebral disc syndrome, are rated using the same criteria.

The Veteran has been diagnosed with degenerative disc disease of the lumbar spine.  See, e.g., the June 2012 VA examination report.  As such, the Board finds that Diagnostic Code 5242 (Degenerative arthritis) is the appropriate diagnostic code to rate the service-connected neck disability.  

The record also indicates that the Veteran has been diagnosed with radiculopathy of the lower extremities and the Board has therefore considered whether to rate the disability under Diagnostic Code 5243, which provides different rating criteria for intervertebral disc syndrome.  

However, such diagnostic code is not favorable to the Veteran because he has not been prescribed bed rest based due to incapacitating episodes.  Accordingly, the current Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes is not for application.  

As noted, the Veteran has been assigned separate compensable ratings for radiculopathy of the right and left lower extremities.  The Board has been unable to identify any additional neurological pathology which is consistent with a separate neurological disability, such as bowel or bladder difficulties.  

In short, there is no evidence of any other additional neurological deficiency so as to warrant a separate disability rating under the diagnostic codes pertinent to rating neurological disorders.  See 38 C.F.R. § 4.124a.  

Accordingly, a separate neurological rating, in addition to the radiculopathy of the right and left lower extremities, is not warranted during any portion of the current appeal period.

As noted, the service-connected lumbar spine disability is rated 40 percent disabling.  To obtain a higher disability rating of 50 percent under the General Rating Formula for Diseases and Injuries of the Spine, unfavorable ankylosis would have to be shown.  

Ankylosis is defined as the "immobility and consolidation of a joint due to disease, injury or surgical procedure." See Lewis v. Derwinski, 3 Vet.App. 259. 

The Veteran has not been diagnosed with ankylosis during any VA examination or outpatient treatment, nor has he alleged as much.  

During the June 2012 VA examination, the Veteran demonstrated more than 40 degrees of forward flexion.  Because the Veteran was able to move his back joint, by definition, it is not immobile.  

Therefore, as ankylosis is not shown, a higher rating under the General Rating Formula for Disease and Injuries of the Spine is not warranted.

With respect to the provisions of 38 C.F.R. §§ 4.40 and 4.45, in Johnston v. Brown, 10 Vet.App. 80, 85 (1997), the Court has determined that if a claimant is already receiving the maximum disability rating available based on symptomatology that includes limitation of motion, it is not necessary to consider whether 38 C.F.R. § 4.40 and 4.45 are applicable.  

In the instant case, the Veteran is receiving the maximum rating allowable under the current General Rating Formula for Diseases and Injuries of the Spine, absent ankylosis.  


	C. Extraschedular Considerations

Under Floyd v. Brown, 9 Vet.App. 88, 95 (1996), the Board cannot make a determination as to an extraschedular evaluation in the first instance.  See also VAOPGCPREC 6-96.  However, the Board can address the matter of referral of a disability to appropriate VA officials for such consideration.

According to the regulation, an extraschedular disability rating is warranted upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards.  See 38 C.F.R. § 3.321(b)(1) (2013).  

An exceptional case is said to include such factors as marked interference with employment or frequent periods of hospitalization as to render impracticable the application of the regular schedular standards. See Fanning v. Brown, 4 Vet.App. 225, 229 (1993).

Under Thun v. Peake, 22 Vet.App. 111 (2008) aff'd sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009), there is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. 

First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate.  

Second, if the schedular evaluation does not contemplate the level of disability and symptomatology and is found to be inadequate, the Board must then determine whether the claimant's disability picture exhibits other related factors such as those provided by the regulation as "governing norms."  

Third, if the rating schedule is inadequate to evaluate a veteran'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 to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating.

With respect to the initial inquiry posed by Thun, the Board has been unable to identify an exceptional or unusual disability picture with respect to the Veteran's service-connected Eustachian tube dysfunction with hearing loss or degenerative disc disease.  

The medical evidence fails to demonstrate symptomatology of such an extent that application of the ratings schedule would not be appropriate.  

In fact, the Veteran's complaints which included hearing loss, radiating pain, weakness and limitation of motion are specifically contemplated under the appropriate ratings criteria.  Accordingly, the Board finds that the Veteran's disability picture has been contemplated by the ratings schedule.

Accordingly, the Board finds that the Veteran's disability picture has been contemplated by the ratings schedule. The Board therefore has determined that referral of the case for extraschedular consideration pursuant to 38 C.F.R. 3.321(b)(1) is not warranted.  


ORDER

An increased, compensable evaluation for the service-connected Eustachian tube dysfunction with hearing loss is denied. 

An increased rating for the service-connected residuals of a fracture of the right transverse process with degenerative disc disease, currently evaluated as 40 percent disabling is denied.


REMAND

For the following reasons, the Board finds that the remaining issues must be remanded to ensure that the Veteran is accorded full compliance with the statutory duty to assist.

The record reflects that the Veteran had a cerebrovascular accident (stroke) in March 2011 and remained on the floor for several days before receiving medical treatment.  As a result of this inactivity, the Veteran developed rhabdomyolysis and deep vein thrombosis (DVT) with compression syndrome.  See, e.g., a September 2012 VA examination report.  A VA examiner has determined that the Veteran's DVT has resulted in weakness in his left lower extremity. Id. 

While the September 2012 VA examiner noted that the Veteran was experiencing weakness of the left lower extremity, a physical examination performed during a June 2012 VA spine examination (which was also conducted after his stroke) noted that the Veteran had normal muscle tone and full muscle strength in his left lower extremity.  However, an August 2011 VA examiner reported that the Veteran was experiencing "muscle issues" due to the residuals of removal of a clot that caused the stroke and his spinal fusion with nerve involvement.

In a July 2012 statement, the Veteran reported that he experienced numbness on his left side following his stroke and had lost the use of his left leg.  Upon review, neither the June 2012 or September 2012 VA examiners commented on the Veteran's complaints of numbness. 

The Veteran reflects that the Veteran has not been afforded a VA peripheral nerve examination for his left lower extremity radiculopathy and the record is unclear as to which nerve(s) are impacted from his radiculopathy.  In addition, in light of the conflicting medical evidence discussed above, the record is also unclear as to what symptoms are attributable to the Veteran's radiculopathy. 

Consequently, this issue contains certain questions which cannot be answered by the Board.  See Colvin v. Derwinski, 1 Vet.App. 171, 175 (1991) (the Board is prohibited from exercising its own independent judgment to resolve medical questions). 

With respect to the issue of service connection for vertigo, the Veteran contends that he experiences vertigo as the result of his service-connected tinnitus or Eustachian tube dysfunction with hearing loss.

While the Veteran's VA treatment records document a diagnosis of vertigo, in November 2006, a VA examiner stated that it was unlikely that he was experiencing benign paroxysmal positional vertigo.  The Board notes, however, that the VA examiner did not provide any rationale for this conclusion.   See Hernandez-Toyens v. West, 11 Vet.App. 379, 382 (1998) (the failure of the health care provider to provide a basis for his/her opinion goes to the weight or credibility of the evidence); see also Bloom v. West, 12 Vet.App. 185, 187 (1999) (the probative value of a physician's statement is dependent, in part, upon the extent to which it reflects 'clinical data or other rationale to support his opinion.')

In May 2007, a separate VA examiner documented that the Veteran "complain[ed] of lightheadedness if he [stood] up quickly or turn[ed] his head quickly.  This lightheadedness last[ed] two to four seconds, and then [was] gone.  He really [did] not have a balance or gait problem."  

After conducting a physical examination, the May 2007 VA examiner diagnosed the Veteran with a "lightheaded sensation" when standing, but did not diagnose vertigo.  

While the VA examiner noted that the Veteran experienced recurrent eustachian tube dysfunction and that "eustachian tube dysfunction [could] cause some mild transient dizziness" he noted that the Veteran had normal eustachian tube function during the examination. 

In a June 2010 statement, the Veteran reported that the May 2007 VA examiner did not properly record his complaints.  Specifically, the Veteran stated the examiner's finding that he did not experience a balance problem was incorrect since his vertigo had caused him to fall.  The Veteran also submitted an excerpt from a medical article which notes that symptoms of benign paroxysmal positional vertigo include the sensation of disorientation after certain head movements.  

VA has a duty to ensure that any examination or VA opinion it provides is adequate. Barr v. Nicholson, 21 Vet.App. 303, 312 (2007).  As the May 2007 VA examination did not take into consideration the Veteran's lay statements and did not comment on whether the Veteran's previous Eustachian tube dysfunction could result in vertigo, the Board finds that a new examination is necessary. 

Finally, the Board notes that the claim for a TDIU rating is inextricably intertwined with the other claims, as the resolution of that claim might have bearing upon the claim for a TDIU rating. 

The appropriate remedy where a pending claim is inextricably intertwined with a claim currently on appeal is to remand the claim on appeal pending the adjudication of the inextricably intertwined claim. 

Accordingly, the remaining issues are  REMANDED for the following action:

1. The RO should take appropriate steps to contact the Veteran and ask that he identify the names and addresses of all health care providers who have treated him for his left lower extremity radiculopathy and vertigo since May 2013. 

The RO should attempt to obtain such records. All efforts to obtain such records should be documented in the claims folder. All available records should be associated with the Veteran's VA claims folder.

The Veteran should also be notified that he may submit medical evidence or treatment records to support his claims.

2. After securing VA treatment records and any other additional evidence, the RO should have the Veteran scheduled for a VA examination to ascertain the current severity of the service-connected radiculopathy of the left lower extremity. 

The purpose of this examination is to determine which nerve(s) are affected by the radiculopathy and the extent of such impairment.  To the extent possible, the examiner is asked to distinguish between symptoms attributable to the Veteran's left lower extremity radiculopathy and residuals of his stroke.  The examination should include any diagnostic testing or evaluation deemed necessary.

The Veteran must be advised that failure to report for a scheduled VA examination without good cause shown may have adverse consequences for his claims. The claims folder must be made available for review for the examination and the examination report must state whether such review was accomplished.

3.  Then, the RO should have the Veteran scheduled for a VA examination to determine the nature and likely etiology of the claimed lightheadedness and vertigo.  The claims folder must be provided to the examiner for review. All necessary testing should be conducted. 

Following the examination and review of the claims folder, the examiner is requested to provide an opinion as to whether it is at least as likely as not, i.e., a 50 percent probability or greater, that the Veteran has a disability vertigo that was caused or aggravated (permanently worsened beyond normal progression) by his service-connected Eustachian tube dysfunction with hearing loss or tinnitus. 

In rendering an opinion, the VA examiner should comment on the medical article on the Common Causes of Vertigo submitted by the Veteran. 

Complete rationale should be provided for all opinions expressed. 

4. After completing all indicated development, the RO should readjudicate the issues remaining on appeal in light of all the evidence of record.  If any benefit sought on appeal remains denied, the RO should provide the Veteran and his representative with a fully responsive SSOC and afford them a reasonable opportunity for response.  

Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition.

The Veteran has the right to submit additional evidence and argument on the 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 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).



______________________________________________
STEPHEN L. WILKINS
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs