Citation Nr: 1803327 Decision Date: 01/18/18 Archive Date: 01/29/18 DOCKET NO. 14-22 983 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to an initial disability rating in excess of 10 percent for benign paroxysmal positional vertigo (vertigo). 2. Entitlement to service connection for a headache disorder. 3. Entitlement to service connection for nystagmus. 4. Entitlement to service connection for Meniere's disease. REPRESENTATION Veteran represented by: Jan Dils, Attorney at Law WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD T. Minot, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from October 1981 to October 1988. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. In September 2017, the Veteran testified before the undersigned at a Board videoconference hearing. A transcript of the hearing is of record. The Board notes that in June 2017 and July 2017 rating decisions, the RO granted service connection and assigned a 50-percent initial evaluation for major depressive disorder and denied service connection for a back condition, gastroesophageal reflux disease (GERD), allergic rhinitis, and chronic sinusitis. The Veteran submitted timely notices of disagreement with respect to these determinations in September 2017 and December 2017. As these claims are currently under development at the RO, the Board will not address them at this time. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). FINDINGS OF FACT 1. The Veteran's service-connected vertigo is manifested by dizziness and occasional staggering. 2. The Veteran's headache disorder is causally related to her service-connected vertigo. 3. At her September 2017 Board hearing and in subsequent written correspondence received by VA in October 2017, prior to the promulgation of a decision in the appeal, the Veteran withdrew her appeal as to her claims for service connection for nystagmus and Meniere's disease. CONCLUSIONS OF LAW 1. The criteria for a 30-percent initial disability rating for vertigo have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 4.87, Diagnostic Code (DC) 6204 (2017). 2. The criteria for service connection for a headache disorder have been met. 38 U.S.C. §§ 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. § 3.310 (2017). 3. The criteria for withdrawal of an appeal by the Veteran regarding the issues of entitlement to service connection for nystagmus and Meniere's disease have been met. 38 U.S.C. § 7105(b)(2); (d)(5) (2012); 38 C.F.R. § 20.204 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Increased Initial Rating for Vertigo The Veteran contends that her vertigo symptoms are more severe than what is reflected by her current 10-percent disability rating. For the following reasons, the Board agrees that a higher rating is warranted. The Veteran's symptoms are rated under DC 6204. See 38 C.F.R. § 4.87 (2017). Under DC 6204, a 10-percent rating is warranted for occasional dizziness, and a maximum 30-percent rating is warranted for dizziness and occasional staggering. Id. The term "staggering" is not defined in the rating schedule, but is generally defined as standing or proceeding unsteadily. See Webster's New College Dictionary 1099 (3rd ed. 2008). At her Board hearing, the Veteran and her representative asserted that her vertigo symptoms satisfied the criteria for a 30-percent rating. At the outset, the Board notes that the Veteran is competent to report symptoms such as dizziness, staggering, and loss of balance. See Layno v. Brown, 6 Vet. App. 465, 469-70 (1994). Moreover, the Veteran, a registered nurse, is highly qualified to report her symptoms and the medical significance thereof. The record clearly demonstrates that the Veteran's vertigo is productive of dizziness and occasional staggering. Notably, the Veteran testified that she experiences these symptoms on a regular basis, and her private neurologist corroborated these reports in an August 2017 clinical note. The Veteran's VA treatment records reflect that she receives physical therapy for balance problems. Additionally, she has submitted numerous "buddy statements" from co-workers and acquaintances that attest to her having episodes of dizziness and staggering. In light of the competent and credible evidence discussed above, the Board finds that the Veteran is entitled to a maximum 30-percent evaluation under DC 6204. The Board is aware that higher schedular ratings are available for symptoms associated with Meniere's disease, under DC 6205. See 38 C.F.R. § 4.87. However, as discussed below, the Veteran has withdrawn her claim for that disease. Moreover, as the service-connected condition on appeal is listed in the rating schedule, rating by analogy to another DC is not appropriate. See Copeland v. McDonald, 27 Vet. App. 333, 336-37 (2015) (quoting 38 C.F.R. §§ 4.20 and 4.27 as well as Suttman v. Brown, 5 Vet. App. 127, 134 (1993)). The Board further notes that while the Veteran's vertigo has been shown to cause tinnitus, she has been awarded a separate 10-percent rating for that disability. In sum, the preponderance of the evidence demonstrates that the Veteran's vertigo symptoms satisfy the criteria for a 30-percent rating. To that extent, her claim for an increased rating will be granted. Service Connection for a Headache Disorder The Veteran contends that her current headache disorder is secondary to her service-connected vertigo. For the following reasons, the Board finds that entitlement to service connection is warranted. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a link between the claimed in-service disease or injury and the present disability. Romanowsky v. Shinseki, 26 Vet. App. 289, 293 (2013). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In addition, service connection may be granted on a secondary basis for disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. In January 2013, the Veteran underwent a VA Headaches examination following which diagnoses of migraine and tension headaches were noted. The examiner opined that it was at least as likely as not that the Veteran's headaches were incurred in service, but noted that headaches were "not a primary diagnosis," but instead attributable to vertigo. Nonetheless, subsequent private and VA medical records clarify that the Veteran does indeed have a distinct headache disorder, variously characterized as migraines, headaches, and tension headaches. In this case, the Board finds that the evidence discussed above supports a finding that the Veteran has a diagnosed headache disorder that is causally related to her service-connected vertigo. Service connection on a secondary basis is therefore warranted. See 38 C.F.R. § 3.310. Withdrawn Claims The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204. Withdrawal may be made by the Veteran or by his or her authorized representative. Id. Here, the Veteran clearly expressed her intent to withdraw her appeals as to the claims for service connection for nystagmus and Meniere's disease at her September 2017 Board hearing. She reiterated her desire to withdraw these claims in written correspondence received by VA in October 2017. Consequently, the Board finds that the Veteran has withdrawn her appeals as to these issues. Hence, there remain no allegations of errors of fact or law for appellate consideration at this time. Accordingly, the Board does not have jurisdiction to review the appeals, and they are dismissed. ORDER Entitlement to an initial disability rating of 30 percent for benign paroxysmal positional vertigo is granted. Entitlement to service connection for a headache disorder is granted. The appeal as to the claim for entitlement to service connection for nystagmus is dismissed. The appeal as to the claim for entitlement to service connection for Meniere's disease is dismissed. ______________________________________________ YVETTE R. WHITE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs