Citation Nr: 1617084 Decision Date: 04/28/16 Archive Date: 05/04/16 DOCKET NO. 11-02 780A ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska THE ISSUES 1. Entitlement to service connection for right ear hearing loss. 2. Entitlement to a disability rating for dizziness in excess of 0 percent prior to April 2, 2012, in excess of 30 percent since April 2, 2012. 3. Entitlement to a separate compensable disability rating for headaches associated with rhinosinusitis. 4. Entitlement to a disability rating for rhinosinusitis in excess of 0 percent prior to February 23, 2012, in excess of 50 percent since February 23, 2012. 5. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: National Association of County Veterans Service Officers ATTORNEY FOR THE BOARD L. Cramp, Counsel INTRODUCTION The appellant is a veteran (the Veteran) who had active duty service from April 1966 to April 1968. This appeal comes before the Board of Veterans' Appeals (Board) from October 2010 and June 2011 rating decisions of the RO in Lincoln, Nebraska. In March 2014, the Board remanded these issue for additional evidentiary development. The appeal has since been returned to the Board for further appellate action. The Board also denied an earlier effective date for the grant of service connection for headaches and granted an increased rating for dizziness, issues on appeal at that time. The Board's decision with respect to those issues is final. See 38 C.F.R. § 20.1100 (2015). The RO obtained additional clinical records after the most recent Supplemental Statement of the Case. The Board has reviewed these records and finds that they are not pertinent to any issue decided here. The issue of entitlement to a disability rating in excess of 0 percent for left ear hearing loss has been raised by the record in a February 17, 2016, VA Form 21-526EZ, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. See 38 C.F.R. §19.9(b)(2015). The issues of entitlement to a disability rating for rhinosinusitis in excess of 0 percent prior to February 23, 2012, in excess of 50 percent since February 23, 2012, and entitlement to a TDIU, are addressed in the REMAND below and are therein REMANDED to the RO via the Appeals Management Center (AMC) in Washington, DC. VA will notify the Veteran if further action is required. FINDINGS OF FACT 1. The Veteran had a right ear hearing defect at the time of examination, acceptance, and enrollment for service that qualified as a disability for VA purposes. 2. The pre-existing right ear hearing loss disability was not permanently worsened beyond natural progress by service. 3. Prior to April 2, 2012, the Veteran's dizziness was manifested by dizziness with occasional staggering. 4. Since April 2, 2012, the Veteran is receiving the maximum rating contemplated for vestibular disorders. 5. For the entire period on appeal, the Veteran's headaches associated with rhinosinusitis consisted of symptomatology, which was already compensated by the rating for rhinosinusitis. CONCLUSIONS OF LAW 1. Right ear hearing loss was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1153, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.306, 3.385 (2015). 2. Prior to April 2, 2012, the criteria for a disability rating of 30 percent for dizziness were met; the criteria for a disability rating higher than 30 percent were not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.10, 4.97, Diagnostic Code 6204 (2015). 3. Since April 2, 2012, the criteria for a disability rating higher than 30 percent for dizziness have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.10, 4.97, Diagnostic Code 6204 (2015). 4. The criteria for a disability rating higher than 0 percent for headaches have not been met for any period. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.10, 4.124a, Diagnostic Code 8100 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service Connection Claim VA law provides that, for disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service, during a period of war, or other than a period of war, the United States will pay to any veteran thus disabled and who was discharged or released under conditions other than dishonorable from the period of service in which said injury or disease was incurred, or preexisting injury or disease was aggravated, compensation, except if the disability is a result of the veteran's own willful misconduct or abuse of alcohol or drugs. 38 U.S.C.A. §§ 1110, 1131 (West 2014). Entitlement to service connection on a direct basis requires (1) evidence of current nonservice-connected disability; (2) evidence of in-service incurrence or aggravation of disease or injury; and (3) evidence of a nexus between the in-service disease or injury and the current nonservice-connected disability. 38 C.F.R. § 3.303(a); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection for impaired hearing shall only be established when hearing status as determined by audiometric testing meets specified pure tone and speech recognition criteria. Audiometric testing measures threshold hearing levels (in decibels) over a range of frequencies (in Hertz). Hensley v. Brown, 5 Vet. App. 155, 158 (1993). Impaired hearing will be considered to be a "disability" when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. The Board notes that service connection has already been granted for left ear hearing loss and for tinnitus. Thus, noise exposure in service has been acknowledged and that element is substantiated. The reason for the denial with respect to the right ear, and the basis for this appeal, is that the RO determined that there was pre-existing hearing loss in the right ear at service entrance, and that there was no aggravation of this hearing loss during service. Accordingly, the Board's discussion will focus on the question of aggravation. Every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304(b); see also Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004) The Board acknowledges a recent holding of the United States Court of Appeals for Veterans' Claims (Veterans Court) in a case where the degree of hearing loss noted on a veteran's entrance examination did not meet VA's definition of a "disability" for hearing loss under § 3.385, the Veterans Court held that the veteran in that case was entitled to the presumption of soundness under 38 U.S.C. § 1111. See McKinney v. McDonald, 2016 WL 932820, No. 13-2273 (March 11, 2016). At service entry in December 1966, the Veteran's hearing was tested. It is important to note that, prior to November 1967, audiometric results were reported in standards set forth by the American Standards Association (ASA). Those figures are on the left in each column and are not in parentheses. Since November 1, 1967, those standards have been set by the International Standards Organization--American National Standards Institute (ISO--ANSI). In order to facilitate data comparison, the ASA standards have been converted to ISO--ANSI standards and are represented by the figures on the right in each column in parentheses. Converted puretone thresholds in decibels at service entry were recorded as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15(30) 5(15) 5(15) 35(45) 60(65) As a right ear hearing defect was noted at enlistment, and as that defect qualifies as a disability for VA purposes, the presumption that the Veteran's right ear hearing was sound at entry into service does not attach in this case. A preexisting injury or disease will be considered to have been aggravated by active service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C.A. § 1153 (West 2014); 38 C.F.R. § 3.306(a) (2015). The Veteran was examined for service separation in February 1968. As this is after November 1967, the readings do not need to be converted. The following puretone thresholds in decibels were recorded: HERTZ 500 1000 2000 3000 4000 RIGHT 15 10 5 -- 50 The Veteran was afforded a special audiometric assessment in February 1968. It was noted that the Veteran gave a history of having worked with high speed drills and as a mechanic in civilian life prior to active duty and his induction revealed a hearing loss of an H-3 level at that time; however, he was profiled as H2. The examiner acknowledged that he had been exposed to some acoustical trauma while in the Service. The diagnosis was sensory-neural hearing loss secondary to acoustical trauma. This was found not to have occurred in line of duty, but to have existed prior to service. The Board acknowledges that there are several opinions that relate right ear hearing loss to service. A July 6, 2000, statement of Audiologist C. Foss notes that, from the history of being exposed to rifles and artillery while in the military during the late 1960's, during which time the Veteran often had temporary threshold shifts after shooting rifles on the practice range, without the advantage of ear protection, it is quite likely that this was the beginning of his hearing loss. The type and degree of hearing level on the audiogram was found to be consistent with noise induce hearing loss (VBMS record 07/31/2000). An October 2004 letter from R. Crouch, DO, states that the Veteran has had decreased hearing since service (VBMS record 12/20/2004). A July 2010 letter from G. Wyeno, Au.D., states that it is at least likely as not that the tinnitus and hearing loss in both ears is related to his military service (VBMS record 08/16/2010). In a report of VA examination in December 2000, the examiner opined that the Veteran's hearing loss was consistent with a history of noise exposure. It is reasonable to assume that at least a portion of the veteran's hearing loss may be a result of the noise exposure he received while serving in the military. In a report of VA examination in May 2001, the examiner opined that these results were consistent with a cochlear site of lesion secondary to noise exposure. However, in one of the few post-service reports to acknowledge review of the service treatment records, the examiner noted that no change in hearing appears to have occurred between the time of induction and discharge (VBMS record 05/18/2001). The report of a VA examination in December 2015 includes a conversion of both entrance and separation examination findings from ASA to ISO--ANSI. When converted from ISO to ASA, the thresholds are as follows for the entrance examination: HERTZ 500 1000 2000 3000 4000 RIGHT 29 15 13.5 43.5 66 The converted figures for the service separation examination are as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 29 20 13.5 -- 56 As noted above, it does not appear necessary to convert the service separation results as they are recorded after November 1967. Nevertheless, even with this conversion, which has the effect of increasing the values for each entry and is to the benefit of the claim, the examiner opined that the Veteran's right ear hearing impairment is less likely as not (LESS THAN 50\50 probability) aggravated by military noise exposure. The examiner also found that hearing loss existed prior to service and was not aggravated beyond normal progression in military services. The rationale was that there were no significant shifts in right ear thresholds from induction to discharge. In explaining the opinion, the examiner cited to guidance from the National Institute for Occupational Safety and Health (NIOSH), which recommends that a significant threshold shift is defined as a 15 dB shift or more at any one frequency of 500 Hz to 4000 Hz. Here, there is no significant shift in thresholds from induction to discharge in the right ear. According to the examiner, current science indicates that "understanding of the mechanisms and processes involved in the recovery from noise exposure suggests that a delay of many years in the onset of noise-induced hearing loss following an earlier noise exposure is extremely unlikely" (Institute of Medicine). "The evidence from laboratory studies in humans and animals is sufficient to conclude that the most pronounced effects of a given noise exposure on pure-tone thresholds are measurable immediately following the exposure" (Institute of Medicine). It is the responsibility of the Board to assess the credibility and weight to be given the evidence. See Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993) (citing Wood v. Derwinski, 1 Vet. App. 190, 192-93 (1992)). The probative value of medical evidence is based on the physician's knowledge and skill in analyzing the data, and the medical conclusion the physician reaches; as is true of any evidence, the credibility and weight to be attached to medical opinions are within the province of the Board. See Guerrieri v. Brown, 4 Vet. App. 467, 470-471 (1993). The Board may appropriately favor the opinion of one competent medical authority over another. See Owens v. Brown, 7 Vet. App. 429, 433 (1995). However, the Board may not reject medical opinions based on its own medical judgment. Obert v. Brown, 5 Vet. App. 30 (1993); see also Colvin v. Derwinski, 1 Vet. App 171 (1991). The weight of a medical opinion is diminished where that opinion is ambivalent, based on an inaccurate factual premise, based on an examination of limited scope, or where the basis for the opinion is not stated. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993); Sklar v. Brown, 5 Vet. App. 140 (1993). Here, the only opinions that actually acknowledge and discuss the audiometric readings at service entrance and separation are in agreement that the Veteran's right ear hearing loss was not aggravated by service. As the other opinions do not address this crucial evidence, the Board assigns them diminished probative weight in comparison to the December 2015 opinion. The Board acknowledges the Veteran's account that he experienced temporary reductions in hearing acuity in service, as well as his sister's account in July 2007 that he could not hear for a few days following a motor vehicle accident in service, due to swelling. Generally, lay evidence is competent with regard to identification of a disease with 'unique and readily identifiable features' which are 'capable of lay observation.' See Barr v. Nicholson, 21 Vet. App. 303, 308-09 (2007). A lay person may speak to etiology in some limited circumstances in which nexus is obvious merely through observation, such as sustaining a fall leading to a broken leg. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Lay persons may also provide competent evidence regarding a contemporaneous medical diagnosis or a description of symptoms in service which supports a later diagnosis by a medical professional. However, a lay person is not competent to provide evidence as to more complex medical questions, i.e., those which are not capable of lay observation. Lay statements are not competent evidence regarding diagnosis or etiology in such cases. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (concerning rheumatic fever); Jandreau, at 1377, n. 4 ('sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer'); see 38 C.F.R. § 3.159(a)(2). The Board acknowledges that certain aspects of hearing impairment may be capable of lay observation. In Martinak v. Nicholson, 21 Vet. App. 447 (2007), the Veterans Court noted that, unlike the rating schedule for hearing loss, the extraschedular provisions did not rely exclusively on objective test results to determine whether referral for an extraschedular rating was warranted, and that the functional effects of hearing loss may be described in lay terminology. However, the extraschedular provisions are not applicable to a service connection claim. The Board finds that establishing that there has been a worsening of hearing loss during service, and that such worsening is beyond the expected or natural progress of the condition is inherently reliant on audiometric testing and measurement. It is not the equivalent of relating a broken bone to a specific injury (Jandreau, at 1377). Accordingly, the Veteran's lay statements, and those submitted on his behalf, are not competent evidence of aggravation of right ear hearing loss by service. In addition, the Board notes that both accounts refer to temporary worsening and do not assert that there was permanent worsening during service. In sum, the presumption of soundness does not attach with respect to the Veteran's right ear hearing loss, which was shown to have a defect at the time of examination, acceptance, and enrollment for service, which qualified as a disability for VA purposes. The evidence pertinent to service demonstrates that there was no significant shift in audiometric readings during service, and that the pre-existing disability was not aggravated by service. Accordingly, the Board concludes that service connection is not warranted for right ear hearing loss. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Increased Rating Claims Disability ratings are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. See 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. If two ratings are potentially applicable, the higher rating will be assigned if the disability more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the veteran. See 38 C.F.R. § 4.3. A disability rating may require re-evaluation in accordance with changes in a veteran's condition. Thus, it is essential that the disability be considered in the context of the entire recorded history when determining the level of current impairment. See 38 C.F.R. § 4.1. See also Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Nevertheless, where a veteran is appealing the rating for an already established service-connected condition, his present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, when an appeal is based on the assignment of an initial rating for a disability, following an initial award of service connection for this disability, the rule articulated in Francisco does not apply. Fenderson v. West, 12 Vet. App. 119 (1999). Instead, the evaluation must be based on the overall recorded history of a disability, giving equal weight to past and present medical reports. Id. Staged ratings are appropriate for an increased-rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Dizziness The current appeal arises from a claim of entitlement to service connection for dizziness received at the RO on December 28, 2010. Service connection for dizziness was granted in a February 2011 rating decision. A 0 percent rating was assigned under Diagnostic Code 6204, effective December 28, 2010. In a December 2015 rating decision, the RO granted an increased rating of 30 percent, effective April 2, 2012. The Board notes that the RO did not prepare a Supplemental Statement of the Case after granting the increased rating, but found that the 30 percent rating was the maximum benefit sought on appeal and therefore, the appeal was resolved. Of course, the appeal is not resolved as the period on appeal extends back to December 28, 2010, and the RO only granted a 30 percent rating for part of that period. The Board notes that under 38 C.F.R. § 19.31, the RO was required to provide a Supplemental Statement of the Case to consider the VA examination obtained in December 2015. However, unlike the situation with the claim for an increased rating for rhinosinusitis, discussed in the remand below, the RO's error with respect to this claim is not prejudicial. While the RO did not prepare a Supplemental Statement of the Case, it did issue a rating decision which considered the additional evidence. As there is no prejudice, the Board has addressed the issue despite the acknowledged error rather than remanding the issue for issuance of a Supplemental Statement of the Case, which would not reasonably aid in substantiating the claim. Peripheral vestibular disorders are rated under Diagnostic Code 6204, which provides only two ratings. A 10 percent rating is available for occasional dizziness. A maximum rating of 30 percent is available with dizziness and occasional staggering. There is no higher schedular rating available. 38 C.F.R. § 4.87, Diagnostic Code 6204. The Board has considered the diagnostic code for Meniere's disease; however, the Veteran does not have Meniere's disease. There is no such diagnosis of record. The Veteran also does not have cerebellar gait which is required for any rating above 30 percent under that code. Moreover, the Veteran's hearing loss and tinnitus would have to be rated in combination with his dizziness under that code, which would result in the loss of a separate 10 percent rating for tinnitus. Accordingly, that specific diagnostic code is not appropriate. The Veteran has not suggested any other diagnostic code and the Board can find no other appropriate code that would permit any higher rating. Regarding the period prior to the effective date of 30 percent rating (April 2, 2012), the Board finds that a 30 percent rating is warranted for the entire period on appeal. The effective date chosen for the 30 percent rating is apparently based on a VA Form 21-526b received on that date, which requests an increased rating for dizziness, and which notes that the condition had worsened in severity. The Board observes that this document has no procedural significance, i.e., as the date of claim, as the rating for dizziness was already on appeal, having arisen from the December 28, 2010, claim for service connection. The December 2015 VA examination conducted in response to the Board's remand was the first comprehensive examination regarding the severity of the Veteran's dizziness. That examination not only confirmed the presence of dizziness and staggering, but also confirmed that these symptoms were present on a daily basis, worse with bouts of sinusitis, and that there was a "strong history" of staggering, with falls, as well as evidence of horizon shift on ambulation, which causes staggering. These symptoms were not described as having recent onset, but were noted by the Veteran to have started about 8 years prior, at which time he began experiencing a sensation of movement when there was no true movement, and, at times, he would fall to the ground as a result. The Veteran has reported dizziness for many years as discussed by the Board in a July 2009 decision which denied service connection on a direct basis for dizziness. There are references in the private medical records and in the VA outpatient records to complaints of disequilibrium extending back at least as far as the Veteran's sinus surgery in 2010. A February 24, 2010, report from T. Knudsen, MD, includes the Veteran's account that he had been off balance and somewhat dizzy for several days. On March 1, 2010, he reported that his sense of dysequilibrium and imbalance was worsened (VBMS record 01/24/2011). While the precise date as of which the Veteran became entitled to a 30 percent rating cannot be determined from the evidence of record, the evidence does not suggest that it was on April 2, 2012, but suggests that symptoms of similar severity had existed throughout the period on appeal. Accordingly, the Board finds that the evidence in favor of a 30 percent rating prior to April 2, 2012, has attained relative equipoise with the evidence against the claim. With resolution of all reasonable doubt in favor of the claim, the Board concludes that a 30 percent rating is warranted for dizziness prior to April 2, 2012. However, for reasons already addressed above, the Board finds that no higher schedular rating for the Veteran's peripheral vestibular disorder is contemplated or warranted at any time. Headaches The Veteran is seeking a separate compensable rating for headaches associated with rhinosinusitis, in addition to the rating for rhinosinusitis. The question for resolution is not whether the Veteran has headaches associated with his rhinosinusitis, but whether he has any symptomatology not already compensated by the rating for rhinosinusitis. Under Diagnostic Code 8100, a 10 percent rating is warranted for migraines with characteristic prostrating attacks averaging one episode in 2 months over the last several months. A 30 percent evaluation is warranted for migraines manifested by characteristic prostrating attacks occurring on an average of once a month over several months. A 50 percent evaluation is warranted for migraines with very frequent and completely prostrating and prolonged attacks which produce severe economic inadaptability. 38 C.F.R. § 4.124a, Diagnostic Code 8100. The evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14. After reviewing the totality of the evidence, the Board finds that a separate compensable rating is not warranted for the Veteran's headaches as this would inherently evaluate the same disability under two diagnoses. Here, the Veteran has not been diagnosed with migraines and a December 2015 VA examiner found that he does not have characteristic prostrating attacks of migraine or non-migraine headache pain. Rather, the medical record consistently refers to the Veteran's headaches as a symptom of his service-connected sinusitis, rather than as a separate disability in its own right. The Veteran has described experiencing headaches in conjunction with bouts of sinusitis. He reported to the December 2015 VA examiner that he had daily mild headaches every morning with associated symptoms of sinus congestion. He also reported that he gets more severe headaches in bilateral frontal and maxillary areas on average every 6 weeks or so. These tend to occur in association with sinus infections and typically last 3 days or so. The General Rating Formula for Sinusitis (38 C.F.R. § 4.97) specifically includes the symptom of headaches. The critical element for assignment of a separate rating is that none of the symptomatology for any of the conditions is duplicative of or overlapping with symptomatology of the other conditions. Under the General Rating Formula, the presence of headaches is encapsulated within the rating criteria and compensable ratings are assigned based on the frequency and severity of incapacitating episodes. Similarly, Diagnostic Code 8100, the code for migraines, provides evaluations based on the frequency of prostrating attacks. Thus, the symptom of headaches is overlapping. There appears to be no symptomatology claimed by the Veteran that is addressed by the Diagnostic Code for migraines, but not by the Diagnostic Code for sinusitis. The Veteran's service-connected rhinosinusitis is evaluated under rating criteria which take into consideration the disabling effects of headaches, and a separate rating for headaches would result in the duplicative, overlapping evaluation of the same manifestations. In short, a separate evaluation for the Veteran's headaches, in addition to the rating he is receiving for rhinosinusitis, would violate 38 C.F.R. § 4.14. Where the law and not the evidence is dispositive, the claim must be denied because of the appellant's lack of legal entitlement under the law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Extraschedular Consideration The Board has considered whether an extraschedular evaluation is warranted for the issue of entitlement to a disability rating in excess of 30 percent for dizziness. The Board observes that the rating for sinusitis is not being adjudicated at this time. The issue of whether a separate rating is warranted for headaches is being denied as a matter of law on the basis that symptomatology is overlapping with sinusitis. This finding would also preclude assignment of an extraschedular rating for headaches in addition to the rating for sinusitis. In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321 (2015). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Therefore, initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. Thun v. Peake, 22 Vet. App. 111 (2008). Under the approach prescribed by VA, if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. In the second step of the inquiry, however, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." 38 C.F.R. 3.321(b)(1) (related factors include "marked interference with employment" and "frequent periods of hospitalization"). When the rating schedule is inadequate to evaluate a claimant's disability picture and that picture has related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for completion of the third step-a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extraschedular rating. Id. The Board finds that the first Thun element is not satisfied here. The Veteran's service-connected dizziness is manifested by signs and symptoms such as disequilibrium, staggering, and falling. These signs and symptoms, and their resulting impairment, are fully contemplated by the rating schedule. The diagnostic codes in the rating schedule corresponding to disabilities of the peripheral vestibular system provide disability ratings on the basis of the presence of dizziness and staggering. Given the ways in which the rating schedule contemplates functional loss for peripheral vestibular disorders, the Board concludes that the schedular rating criteria reasonably describe the Veteran's disability picture. In short, there is nothing exceptional or unusual about the Veteran's disability because the rating criteria reasonably describe his disability level and symptomatology. Thun, 22 Vet. App. at 115. In this regard and consistent with the reasoning presented above, the Board finds that the rating schedule is adequate, even in regard to the collective and combined effect of all of the Veteran's service connected disabilities, and that referral for extraschedular consideration is not warranted under the circumstances of this case. Johnson v. McDonald, 762 F.3d 1362, 1365-66 (Fed. Cir. Aug. 6, 2014). In so finding, the Board notes that the Veteran has not identified or asserted that the collective and combined effect of all of the Veteran's service connected disabilities have rendered the rating schedule for peripheral vestibular disorders inadequate. Duties to Notify and Assist The Veteran does not assert that there has been any deficiency in the notice provided to him in August 2010 and October 2015 under the Veterans Claims Assistance Act of 2000 (VCAA) and he has not identified any prejudice resulting from any deficiency. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (no presumption of prejudice on a notice deficiency; the burden of showing that an error is harmful or prejudicial falls upon the party attacking the agency's determination). The RO has obtained pertinent medical records including the service treatment records, VA outpatient treatment reports, and private treatment reports identified by the Veteran. The Veteran has not identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of these claims that has not been obtained. The RO has also obtained a thorough medical examination regarding these claims, as well as medical opinions. The Veteran has made no specific allegations as to the inadequacy of any opinion. Sickels v. Shinseki, 643 F.3d 1362 (Fed. Cir. 2011) (holding that the Board is entitled to presume the competence of a VA examiner and the adequacy of his opinion). As noted above, this appeal involves a remand by the Board for additional evidentiary development. A remand by the Board confers on the claimant, as a matter of law, the right to compliance with the remand orders. Stegall v. West, 11 Vet. App. 268, 271 (1998). While substantial compliance is required, strict compliance is not. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) citing Dyment v. West, 13 Vet. App. 141, 146-47 (1999). In this case, the RO substantially complied with the Board's remand instructions by providing appropriate notice that includes the criteria required for a TDIU. This was accomplished in a October 2015 letter. That letter also provided the Veteran an opportunity to submit any other information. The RO also associated with the file outstanding records of VA treatment generated after November 2012. The RO then scheduled an audiological examination to determine the nature, extent, onset and etiology of the Veteran's right hearing loss disability. The examiner converted the December 1965 service entrance exanimation to ANSI/ISO and stated whether the Veteran's preexisting bilateral hearing loss underwent an increase during service. The RO also scheduled a VA examination to determine the current nature, extent, and severity of his headaches and dizziness. ORDER Service connection for right ear hearing loss is denied. Prior to April 2, 2012, a disability rating of 30 percent, but not higher, for dizziness is granted. Since April 2, 2012, a disability rating in excess of 30 percent for dizziness is denied. A separate compensable disability rating for headaches is denied. REMAND In an August 2012 rating decision, the RO denied a disability rating in excess of 30 percent for rhinosinusitis. In October 2012, the Veteran filed a Notice of Disagreement with the denial of a higher rating. The RO did not issue a Statement of the Case; however, in a February 2013 rating decision, the RO granted an increased 50 percent rating for rhinosinusitis, effective February 23, 2012, corresponding to the date of receipt of a VA Form 21-4138. The RO noted that this was the maximum schedular rating and resolved the appeal as to that issue. Upon review of the February 2012 VA Form 21-4138, the Board finds that the issue is not resolved. On that form, the Veteran notified the RO that he had submitted a letter dated December 23, 2010, written by his doctor, T. Knudsen, which stated that a 50 percent rating was warranted for rhinosinusitis. The Veteran requested a rating "for this claim for an increase of my service connected sinus condition that was submitted in December of 2010." The Board notes that the December 2010 letter, was submitted on December 28, 2010, and was accompanied by a letter from the Veteran's attorney, which noted submissions of a Notice of Disagreement and "1 page medical statement in support of claim (headaches, sinusitis)." The Board finds that this is reasonably construed as an unacknowledged claim for increase for rhinosinusitis with supporting medical evidence, which was received on December 17, 2010. Thus, the grant of a 50 percent rating effective February 23, 2012, does not resolve the appeal with respect to the period prior to February 23, 2012. The Board also notes that, in the February 2013 decision, the RO made no finding regarding whether referral for an extraschedular rating was warranted for the period since February 23, 2012, but simply found that the highest "schedular evaluation" had been granted. Thus, it is not clear from the February 2013 rating decision that the maximum benefit had in fact been granted or the appeal resolved. Where a Notice of Disagreement is filed, but a Statement of the Case has not been issued, the Board must remand the claim to the Agency of Original Jurisdiction to direct that a Statement of the Case be issued. See 38 C.F.R. §19.9(c)(2015); Manlincon v. West, 12 Vet. App. 238 (1999). The separate issue of entitlement to TDIU is inextricably intertwined and the proposed development will encompass that issue. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) Accordingly, the issues of entitlement to a disability rating for rhinosinusitis in excess of 0 percent prior to February 23, 2012, in excess of 50 percent since February 23, 2012, and entitlement to a TDIU are REMANDED for the following action: Issue a Statement of the Case pertaining to the issue of entitlement to a disability rating for rhinosinusitis in excess of 0 percent prior to February 23, 2012, in excess of 50 percent since February 23, 2012, and in connection therewith, provide the Veteran with appropriate notice of his appellate rights. The Veteran is reminded that, to vest the Board with jurisdiction over this issue, a timely Substantive Appeal (completed and signed VA Form 9 or equivalent) must be filed after receiving the Statement of the Case. 38 C.F.R. § 20.202 (2015). If, and only if, the Veteran perfects the appeal to this it must be returned to the Board for appellate review. Regardless of whether the Veteran perfects the appeal of the rating issue, the TDIU issue must be returned to the Board. 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). These issues must be afforded expeditious treatment. The law requires that all claims 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 2014). ____________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs