Citation Nr: 1422158 Decision Date: 05/16/14 Archive Date: 05/29/14 DOCKET NO. 11-08 898A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUE Entitlement to an initial disability rating greater than 30 percent for vertigo. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD A. Haddock, Associate Counsel INTRODUCTION The Veteran had active military service from August 1970 to December 1973 and from December 1974 to June 1975. This case comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas. A November 2009 rating decision granted service connection for vertigo, assigning an initial disability rating of 10 percent. A subsequent decision in February 2011 increased the rating to 30 percent, effective the date service connection was granted. The Veteran did not explicitly disagree with the 2009 decision; rather, he expressed his intent to submit a claim for an increase. However, after that claim was denied in a March 2010 rating decision, he submitted a notice of disagreement later that month. Although he expressed an intent to appeal the 2010 rating, his notice of disagreement would also be timely with respect to the 2009 rating. To accord him the greatest possible consideration, the Board will accept his appeal as pertaining to the 2009 decision and consider whether a higher rating could be granted for any time period since service connection was granted. In accordance with his request, a hearing before a Veterans Law Judge was scheduled in February 2013. However, he did not appear or request rescheduling. His hearing request is considered withdrawn. At various times, the Veteran has stated that he could not work because of his vertigo, but at other times it appears he has continued to work regardless. The Court of Appeals for Veterans Claims has held that a claim for a total disability rating based on individual unemployability (TDIU) can be inferred as part of the original claim for a higher initial rating in certain circumstances. Rice v. Shinseki, 22 Vet. App. 447 (2009) (per curium). This case differs, however. Here, a formal TDIU claim was denied in October 2011 and July 2012 rating decisions, while this appeal was pending. VA can bifurcate adjudication of the TDIU and increased rating claims, as long as the claimant has reasonable notice that this is being done. Locklear v. Shinseki, 24 Vet. App. 311 (2011). Here, the Veteran received independent adjudication of the TDIU issue from the RO. There is nothing in the Rice case that the Board sees as somehow vitiating the finality of the 2011 and 2012 rating decisions. The Veteran had already filed a notice of disagreement and perfected his appeal as to the 2009 and 2010 rating decisions that denied a higher rating for his vertigo. He clearly has knowledge, then, of how to appeal an adverse decision, yet he did not do so with the denial of TDIU in 2011 or in 2012. Therefore, in the factual and legal circumstances of this case, the Board declines to apply Rice and take jurisdiction over a TDIU claim, and, instead REFERS the Veteran to the RO should he wish to file another claim in the future. FINDING OF FACT The Veteran has recurring episodes of severe vertigo, with nausea, often on a daily basis, which can last for seconds or hours, and which affect his functional abilities during such episodes. CONCLUSION OF LAW There is no legal basis for assigning a rating higher than 30 percent for vertigo. 38 U.S.C.A. §§ 1155 , 5107(b) (West 2002); 38 C.F.R. §§ 4.3, 4.7, 4.87, Diagnostic Code (DC) 6204 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. In order to evaluate the level of disability and any changes in severity, it is necessary to consider the complete medical history of a Veteran's disability. 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. It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. Any reasonable doubt regarding the degree of disability is resolved in favor of the veteran. 38 C.F.R. §§ 3.102, 4.3. The Veteran was granted service connection for vertigo as secondary to his service-connected hearing loss. Peripheral vestibular disorders are evaluated under DC 6204. Under DC 6204, a 10 percent evaluation is warranted for peripheral vestibular disorders with occasional dizziness. A 30 percent evaluation will be assigned with dizziness and occasional staggering. 30 percent is the maximum schedular rating. The Veteran had VA examinations in 2009, 2010, and 2012, and his VA outpatient records are part of his file. He certainly complains of severe vertigo attacks, which vary in frequency and severity, anywhere from a few seconds to days, and which affect his balance and gait. He also experiences nausea. He takes medication and restricts his daily activities such as driving. In his notice of disagreement, he stated the episodes last 15-30 minutes and occur 8-10 times per day, even with medication. However, since 30 percent is the maximum rating available for vertigo, the only way he could receive an increase would be if his condition were rated under another diagnostic code, or if he qualified for an extraschedular rating. Therefore, the Board has considered whether other diagnostic codes would provide a basis for a higher rating. DC 6205 is applicable when symptoms have been linked to Meniere's syndrome. A note to DC 6205 provides that Meniere's syndrome is to be rated either under these criteria or by separately rating vertigo (as a peripheral vestibular disorder), hearing impairment, and tinnitus, whichever method results in a higher overall rating. The note also provides that a rating for hearing impairment, tinnitus, or vertigo is not to be combined with a rating under DC 6205. In this case, a medical opinion was sought as to whether the Veteran has Meniere's syndrome, and a claim for service connection for that condition was denied in a May 2010 rating decision. The medical opinions obtained in 2010 indicated the Veteran's vertigo was more likely due to benign paroxysmal postural vertigo (BPPV), and not Meniere's syndrome. This is consistent with VA outpatient records, as an ENT physician noted in April 2010 that the vertigo was largely positional in nature (BPPV), and Meniere's is less likely given normal ENG testing. Considering these medical opinions, and further considering that service connection was denied with no appeal filed, evaluating the Veteran's disability under DC 6205 is not warranted. The Board simply cannot evaluate him under a diagnostic code for a condition the medical evidence states he does not have. Therefore, the Board finds there are no other diagnostic codes potentially applicable to his condition. Finally, the Board has considered whether an extraschedular evaluation is warranted in this case under 38 C.F.R. § 3.321(b). In argument to the Board, the Veteran's representative argued that a remand is warranted to consider assigning an extraschedular rating. However, if the rating 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 referral is required. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). Here, the medical evidence fails to show anything unique or unusual about the Veteran's vertigo that would render the schedular criteria inadequate. Although the representative has requested extraschedular consideration, no unusual symptoms or aspects of the disability were identified. The Veteran's main symptoms are frequent episodes of dizziness which affect his everyday life, and these symptoms are specifically contemplated in the schedular rating assigned. As such, the Board believes that the schedular rating criteria adequately describe the Veteran's disability picture. Therefore, the first prong of Thun is not satisfied and the Board declines to remand this issue for referral for extraschedular consideration. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating their claims for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. In addition, the decision of the U.S. Court of Veterans Appeals (Court) in Dingess v. Nicholson, 19 Vet. App. 473 (2006), requires more extensive notice in claims for compensation, e.g., as to potential downstream issues such as disability rating and effective date. Here, in response to the claim for service connection, VCAA notice was provided in a July 2009 letter. The U.S. Court of Appeals for Veterans Claims (Court) has held that, where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service-connection claim has been more than substantiated, it has in fact been proven, thereby rendering section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Dingess, supra, at 490-91. Therefore, no further notice, beyond that afforded in the context of the Veteran's initial claim for service connection, is needed under the VCAA with regard to the increased rating claim. However, the RO still sent another letter in December 2009 as to the increased rating aspect of his claim, informing him of the evidence needed to show his condition had worsened. Regarding VA's statutory duty to assist in claims development, the RO afforded the Veteran medical examinations. In September 2009, he was examined in connection with the claim for service connection, resulting in a grant. Thereafter, in March and April 2010, and again in April 2012, he was examined to ascertain the severity of his vertigo (and to determine whether he had Meniere's syndrome). Taken together, the examination reports include all relevant findings and medical opinions needed to evaluate fairly the Veteran's claim. The Board has reviewed the VA outpatient records, which show symptoms and findings similar to those from the VA examinations. For these reasons, we find that no further examination or opinion is needed. Also, the Veteran's service treatment records (STRs) are included in the physical claims folder. Post-service treatment records adequately identified as relevant to the Veteran's claim have also been obtained to the extent possible, or otherwise submitted, and are associated with the record. Attempts were made to obtain records from the Social Security Administration, but those records have been destroyed. The Veteran was notified of this fact via a July 2012 letter and has not submitted any records. He has not made the RO or the Board aware of any other evidence relevant to the appeal that needs to be obtained. Based on the foregoing, the Board finds that all relevant facts have been properly and sufficiently developed in this appeal and no further development is required to comply with the duty to assist the Veteran in developing the facts pertinent to the claim adjudicated herein. ORDER Entitlement to an initial disability rating greater than 30 percent for vertigo is denied. ____________________________________________ MICHELLE KANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs