Citation Nr: 18146506 Decision Date: 10/31/18 Archive Date: 10/31/18 DOCKET NO. 17-10 712 DATE: October 31, 2018 ORDER Entitlement to service connection for migraine headaches is granted. Entitlement to service connection for depressive disorder is granted. Entitlement to an evaluation of 60 percent for intermittent peripheral vestibulopathy is granted. Entitlement to a total disability evaluation based upon individual unemployability due to service-connected disabilities (TDIU) is granted. Entitlement to an effective date earlier than January 3, 2014, for the award of an increased evaluation for intermittent peripheral vestibulopathy is denied. The May 2015 reduction in the disability evaluation assigned for hypothyroidism post thyroidectomy from 30 percent to 10 percent, effective August 1, 2015, was proper; the appeal is denied. REMANDED Entitlement to service connection for a left hip disability to include as secondary to service-connected bilateral pes planus is remanded. Entitlement to service connection for a right hip disability to include as secondary to service-connected bilateral pes planus is remanded. Entitlement to service connection for a left knee disability to include as secondary to service-connected bilateral pes planus is remanded. Entitlement to service connection for a right knee disability to include as secondary to service-connected bilateral pes planus is remanded. Entitlement to service connection for heel spurs of the left foot to include as secondary to service-connected bilateral pes planus is remanded. Entitlement to service connection for heel spurs of the right foot to include as secondary to service-connected bilateral pes planus is remanded. Entitlement to service connection for a left Achilles tendon disability to include as secondary to service-connected bilateral pes planus is remanded. Entitlement to service connection for a right Achilles tendon disability to include as secondary to service-connected bilateral pes planus is remanded. Entitlement to service connection for plantar fasciitis to include as secondary to service-connected bilateral pes planus is remanded. Entitlement to an evaluation in excess of 30 percent for bilateral pes planus is remanded. Entitlement to an evaluation in excess of 10 percent for right posterior tibial tendinitis. Entitlement to an evaluation in excess of 10 percent for costochondritis. Entitlement to an evaluation in excess of 10 percent for hypothyroidism. Entitlement to a compensable evaluation for residual scarring post thyroid surgery. Entitlement to an effective date earlier than June 1, 2015, for the award of a compensable evaluation for costochondritis is remanded. FINDINGS OF FACT 1. The Veteran has been diagnosed with depressive disorder that is proximately due to her service-connected disabilities. 2. The Veteran has been diagnosed with migraine headaches that is proximately due to her service-connected disabilities. 3. The Veteran’s intermittent peripheral vestibulopathy has been manifest throughout the appeal period by hearing impairment with attacks of vertigo, cerebellar gait, tinnitus, and staggering occurring one to four times per month. 4. After the Board’s decision herein is effectuated, the Veteran meets the criteria for assignment of a TDIU as of January 3, 2014. 5. The competent evidence is at least in equipoise in demonstrating that the Veteran’s service-connected disabilities render her unable to obtain or maintain gainful employment outside of a protected environment, given her occupational experience and educational background. 6. The Veteran’s new claim for an increased evaluation for her intermittent peripheral vestibulopathy was received by VA on January 3, 2014; the competent and credible evidence of record does not indicate that the Veteran was entitled to an increased evaluation for this disability in the year prior to the January 3, 2014, claim. 7. A May 2015 rating decision reduced the evaluation for the Veteran’s service-connected hypothyroidism from 30 percent to 10 percent, effective August 1, 2015; all due process requirements were met. 8. A preponderance of the evidence demonstrates that the Veteran’s hypothyroidism underwent sustained improvement under ordinary conditions of life and work. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for depressive disorder have been met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.310. 2. The criteria for entitlement to service connection for migraine headaches have been met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.310. 3. The criteria for an evaluation of 60 percent, but not greater, for intermittent peripheral vestibulopathy have been met throughout the appeal period. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.7, 4.87, Diagnostic Codes 6204 and 6205. 4. The criteria for entitlement to a TDIU have been met as of January 3, 2014. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. 5. The criteria for an effective date earlier than January 3, 2014, for the award of a 60 percent evaluation for intermittent peripheral vestibulopathy have not been met. 38 U.S.C. §§ 1155, 5110; 38 C.F.R. §§ 3.1, 3.151, 3.155, 3.400(o). 6. The reduction of the disability evaluation for the Veteran’s service-connected hypothyroidism from 30 percent to 10 percent was proper. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.105, 3.344, 4.119, Diagnostic Code 7903. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service from December 1986 to December 1996 and from October 2001 to December 2003. Board decisions must be based on the entire record, with consideration of all the evidence. 38 U.S.C. § 7104. The law requires only that the Board address its reasons for rejecting evidence favorable to the claimant. Timberlake v. Gober, 14 Vet. App. 122 (2000). The Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000). It is VA’s defined and consistently applied policy to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. By reasonable doubt it is meant that an approximate balance of positive and negative evidence exists which does not satisfactorily prove or disprove the claim. Reasonable doubt is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Service Connection Service connection may be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service-connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. See 38 C.F.R. § 3.310(a); see also Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). When aggravation of a Veteran’s non-service-connected condition is proximately due to or the result of a service-connected condition, the Veteran shall be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. Allen, 7 Vet. App. 439. The Veteran asserts she suffers from depressive disorder and migraine headaches as a result of her service-connected disabilities. Significantly, she has submitted two medical opinions in support of her claim. Following an October 2016 examination and clinical interview, Dr. R.W., a private psychologist, concluded that the Veteran’s depressive disorder is due to her service-connected medical conditions. Dr. R.W. stated this opinion is based on the results of a mental status examination, review of the Veteran’s medical records, and supportive evidence-based research. At an April 2017 examination, the Veteran was diagnosed with migraine headaches. In an accompanying opinion, Dr. H.S. opined that the Veteran’s migraines are as likely as not caused by and permanently aggravated by her major depressive disorder and previously service-connected peripheral vestibulopathy. In this regard, Dr. H.S. noted that a December 2014 VA examination indicated the Veteran’s peripheral vestibular disorder results in symptoms of headaches. Dr. H.S. also noted that medical research states that patients with mental health conditions are more likely to develop headaches because pain and mood are regulated by the same part of the brain. It is well established that mental disorders both cause and aggravate headaches. “[A] Veteran need only demonstrate that there is an ‘approximate balance of positive and negative evidence’ in order to prevail.” Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Entitlement need not be established beyond a reasonable doubt, by clear and convincing evidence, or by a fair preponderance of the evidence. Under the benefit of the doubt doctrine established by Congress, when the evidence is in “relative equipoise, the law dictates that the Veteran prevails.” Id. In light of the October 2016 and April 2017 medical opinions, the Board finds that service connection for depressive disorder and migraine headaches is warranted. Increased Rating Disability evaluations are determined by comparing a Veteran’s present symptomatology with criteria set forth in the VA’s Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran’s entire history is reviewed when making disability evaluations. See generally, 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). The Veteran’s intermittent peripheral vestibulopathy has been evaluated as 30 percent disabling throughout the appeal period pursuant to 38 C.F.R. § 4.87, Diagnostic Code 6204. Initially, the Board observes that, at 30 percent, the Veteran has been awarded the maximum schedular evaluation under this Diagnostic Code. However, also potentially applicable to the Veteran’s appeal is Diagnostic Code 6205, pertaining to Meniere’s syndrome. Under this Diagnostic Code, a 60 percent evaluation is warranted for hearing impairment with attacks of vertigo and cerebellar gait occurring from one to four times a month, with or without tinnitus. A maximum 100 percent evaluation is warranted for hearing impairment with attacks of vertigo and cerebellar gait occurring more than once weekly, with or without tinnitus. See 38 C.F.R. § 4.87. Turning to the record, at a December 2014 VA examination, the Veteran was diagnosed with peripheral vestibular disorder treated with Meclizine. She described symptoms as a combination of headaches, blurred vision, tinnitus, vertigo, and nausea, which can occur randomly and last for days at a time. The VA examiner indicated the Veteran’s disability is manifest by hearing impairment with attacks of vertigo, cerebellar gait, tinnitus, and staggering occurring one to four times per month. Resolving all doubt in the Veteran’s favor, the Board finds that the Veteran’s disability is more appropriately evaluated pursuant to Diagnostic Code 6205, commensurate with Meniere’s syndrome. The Board is cognizant that the Veteran has not been diagnosed with Meniere’s syndrome; however, Diagnostic Code 6205 more accurately reflects the symptoms experienced by the Veteran due to her peripheral vestibulopathy. See Butts v. Brown, 5 Vet. App. 532, 538 (the assignment of a particular diagnostic code is “completely dependent on the facts of a particular case”). Based on the December 2014 VA examination report, the Board finds that the criteria for a 60 percent evaluation under Diagnostic Code 6205 have been met. However, as the Veteran’s symptoms do not occur more than once weekly, the preponderance of the evidence indicates a higher evaluation of 100 percent is not warranted. As a final note, the Board has considered the note appended to Diagnostic Code 6205. However, it is not more beneficial to the Veteran to evaluate the symptoms associated with her service-connected disability separately and then combine these evaluations. Accordingly, for the reasons discussed above, a 60 percent evaluation for intermittent peripheral vestibulopathy is granted throughout the appeal period. TDIU Entitlement to a TDIU requires the presence of impairment so severe that it is impossible for the average person to follow a substantially gainful occupation. Consideration may be given to the Veteran’s level of education, special training, and previous work experience in arriving at a conclusion, but not to age or to the impairment caused by nonservice-connected disabilities. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19. In reaching such a determination, the central inquiry is “whether the Veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability.” Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). The law provides in pertinent part that a total disability rating may be assigned where the schedular rating is less than total, when the person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. See 38 C.F.R. § 4.16(a). The Veteran is service-connected for a number of disabilities. Following implementation of the Board’s decision above, the Veteran will have a combined evaluation of at least 80 percent, and has been assigned a 60 percent evaluation for intermittent peripheral vestibulopathy. The Veteran is therefore eligible to receive TDIU benefits on a schedular basis throughout the appeal period, and there is no prejudice to the Veteran in the Board adjudicating this issue at the present time. 38 C.F.R. § 4.16(a). Turning to the record, in his October 2016 medical statement, Dr. R.W. determined that the Veteran’s depressive disorder “continues to be severe enough to completely disable and preclude [the Veteran] from sustaining any substantial, gainful employment activity since date of claim (01/03/2014) uninterrupted to present time.” In addition, Dr. H.S. opined in his April 2017 examination report that the Veteran would not be able to maintain substantial gainful employment due to the amount of work missed because of her migraine headaches. Significantly, as discussed above, the Board has awarded service connection for both depressive disorder and migraine headaches in the instant decision. As such, in light of the October 2016 and April 2017 medical opinions, and resolving all doubt in favor of the Veteran, the Board finds entitlement to TDIU is warranted. Effective Date The Veteran seeks an effective date prior to January 3, 2014, for the award of an increased evaluation for intermittent peripheral vestibulopathy. The effective date provisions for awards of increased disability compensation include a general rule which is that an award based on a claim for increase of compensation “shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefore.” 38 U.S.C. § 5110(a). The corresponding VA regulation expresses this rule as “date of receipt of claim or date entitlement arose, whichever is later.” 38 C.F.R. § 3.400(o)(1). The law provides an exception to this general rule governing claims “for increase” which exception governs awards “of increased compensation.” 38 U.S.C. § 5110(a), (b)(2). If the evidence shows that the increase in disability occurred prior to the date of receipt of claim, the RO may assign the earliest date as of which it is ascertainable that the increase occurred as long as the claim for the increased disability rating was received within a year of the date that the increase occurred. 38 U.S.C. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2). Thus, determining whether an effective date assigned for an increased rating is correct or proper under the law requires (1) a determination of the date of the receipt of the claim for the increased rating and (2) a review of all the evidence of record to determine when an increase in disability was “ascertainable.” Hazan v. Gober, 10 Vet. App. 511 (1992). The Veteran filed a new claim for an increased evaluation for her intermittent peripheral vestibulopathy that was received by VA on January 3, 2014. As discussed above, she has been awarded a 60 percent evaluation for this disability as of this date. However, as noted above, the Board must review the evidence dating one year prior a claim for increase to determine the “earliest date as of which,” within the year prior to the claim, an increase in disability was factually ascertainable. See 38 C.F.R. § 3.400(o)(2). The Board has reviewed the evidence of record and observes there is no evidence dating from January 3, 2013, to January 2, 2014, which demonstrates that an increase in disability was factually ascertainable. As such, the Board finds that the Veteran’s appeal for an effective date earlier than January 3, 2014, for the award of an increased evaluation for intermittent peripheral vestibulopathy must be denied. In reaching this decision the Board considered the benefit of the doubt doctrine; however, as the preponderance of the evidence is against the claim the doctrine is not for application. 38 U.S.C. § 5107. Reduction In March 2015, the RO proposed to reduce the Veteran’s 30 percent evaluation for her service-connected hypothyroidism to 10 percent. This reduction was accomplished in a May 2015 rating decision, effective August 1, 2015. Initially, the Board observes the RO complied with the procedural safeguards regarding the manner in which the appellant was given notice of the proposed rating reduction and the implementation of that reduction. See 38 C.F.R. § 3.105. The Board will now consider the propriety of the rating reduction. A rating reduction is not proper unless the Veteran’s disability shows actual improvement in his or her ability to function under the ordinary conditions of life and work. See Faust v. West, 13 Vet. App. 342, 349 (2000). In considering the propriety of a reduction, the Board must focus on the evidence available to the RO at the time the reduction was effectuated (although post-reduction medical evidence may be considered in the context of considering whether actual improvement was demonstrated). Dofflemyer v. Derwinski, 2 Vet. App. 277, 281-82 (1992). The Veteran need not demonstrate that retention of the higher evaluation is warranted; rather, it must be shown by a preponderance of the evidence that the reduction was warranted. See Brown v. Brown, 5 Vet. App. 413, 418 (1993). The question of whether a disability has improved involves consideration of the applicable rating criteria. Pursuant to 38 C.F.R. § 4.119, Diagnostic Code 7903, hypothyroidism warrants a 30 percent evaluation for symptoms of fatigability, constipation, and mental sluggishness. A 10 percent evaluation is warranted for fatigability or when continuous medication is required for control. The previous 30 percent evaluation was awarded by a December 2011 rating decision, based in significant part on the results of a June 2011 VA examination. At this examination, the Veteran reported symptoms of fatigability, sleepiness, constipation, and slowing of thought with intolerance to hot weather. At a September 2014 VA examination, a diagnosis of hypothyroidism with continuous medication use was rendered. The Veteran reported symptoms of fatigability with no other chronic residuals or symptoms. Similar findings were reported at a July 2015 VA examination. Based on the evidence above, the Board finds that the preponderance of the evidence demonstrates that the Veteran’s service-connected hypothyroidism has undergone sustained improvement, including under the ordinary conditions of life and work. In this regard, at the time of the May 2015 reduction, the evidence demonstrated that the Veteran’s hypothyroidism no longer resulted in symptoms of constipation or mental sluggishness; fatigability was the only symptom reported. While similar findings reported at a post-reduction July 2015 VA examination may not serve as a basis for reduction, it does support a finding there was sustained improvement in the Veteran’s disability. Therefore, at the time of the May 2015 rating decision, the reduction was warranted. The benefit of the doubt rule does not apply, and the appeal must be denied. See generally 38 C.F.R. § 3.344. As a final note, to the extent the Veteran has appealed the effective date of the reduction, August 1, 2015, the Board notes that reductions are effective the first day of the month following a 60-day period after notification to the Veteran of the final rating decision that effectuates the reduction. See 38 C.F.R. § 3.105(e). As the Veteran was notified of the reduction by a May 22, 2015, letter, August 1, 2015, is the proper effective date for the reduction. REASONS FOR REMAND The remaining claims on appeal must be remanded for additional development. Initially, the Board notes VA treatment records have not been associated with the claims file since April 1, 2015. On remand, all outstanding VA treatment records should be obtained. In addition, in May 2015, the Veteran submitted a statement that she was treated for costochondritis in the emergency room the previous month. Records related to such treatment have not been obtained. With respect to the service connection claims on appeal, the Veteran asserts she suffers from a number of disabilities as secondary to her service-connected bilateral pes planus and right posterior tibial tendinitis. While a VA opinion addressing some of these disabilities was obtained in December 2013, this opinion does not adequately address the aggravation prong of a secondary service connection claim. On remand, the Veteran should be provided a new VA examination to address her service connection claims. Finally, as the Veteran’s appeals are being remanded for other development, the Board believes it would be beneficial to provide the Veteran new VA examinations to address the current severity of her service-connected hypothyroidism, bilateral pes planus, costochondritis, right posterior tendinitis, and residual scarring post thyroidectomy. The matters are REMANDED for the following action: 1. Obtain and associate with the claims file all outstanding VA treatment records. Specifically, any treatment records generated from April 2015 to the present must be obtained. Efforts to obtain these records must be associated with the claims file and requests for these records must continue until the AOJ determines that the records sought do not exist or that further efforts to obtain those records would be futile. If the records have been archived, they must be obtained from the archive, or certified that they are unavailable by any reasonable means of searching. 2. Contact the Veteran and request she identify and complete a VA Form 21-4142 for any applicable medical provider who has treated her for costochondritis or any other claimed disability. After receiving the necessary authorization, appropriate efforts should be undertaken to obtain any identified records. All attempts to obtain records should be documented in the claims file. Each of the above instructions must be fully completed before taking the following actions. It is noted that multiple examinations are requested below. It may be that one examiner may be able to conduct more than one of the examinations. That the matters are set out in separate paragraphs does not mean that separate examinations are needed where it is medically feasible for a single examiner to address several of the requests below. 3. Schedule the Veteran for an appropriate VA examination to address the nature and etiology of her claimed plantar fasciitis, left and right heel spurs, and left and right hip, left and right knee, left and right Achilles tendon disabilities. A complete copy of the claims file must be provided to the examiner for review, and the examination report should reflect such a review was accomplished. Any clinically indicated testing and/or consultation must be performed. Following a physical examination of the Veteran and review of the claims file, the examiner should address the following: (a.) Identify a current diagnosis for any chronic plantar fasciitis, left and right heel spurs, and left and right hip, left and right knee, left and right Achilles tendon disabilities. (b.) For each disability diagnosed, provide an opinion as to whether it is at least as likely as not (probability of at least 50 percent) that any such disability had its onset or is otherwise etiologically related to the Veteran’s period of active service. (c.) For each disability diagnosed, provide an opinion as to whether it is at least as likely as not (probability of at least 50 percent) that any such disability is either proximately due to (caused by) or aggravated (chronically worsened beyond normal progression) by the Veteran’s service-connected bilateral pes planus and/or right posterior tibial tendinitis. A complete rationale must be provided for all opinions expressed. 4. Schedule the Veteran for the appropriate VA examinations to determine the nature and severity of the Veteran’s service-connected bilateral pes planus, right posterior tendinitis, costochondritis, hypothyroidism, and residual scarring post thyroidectomy. A complete copy of the claims file must be provided to the examiners for review, and the examination reports should reflect such a review was accomplished. Any clinically indicated testing and/or consultation must be performed. The examiners should provide an assessment of each diagnosed disorder, including identifying the functional impairment of each disability on the Veteran’s activities of daily living. A complete rationale must be provided for any opinion offered. 5. Review the expanded record and ensure compliance with the instructions above. If any examination report or   medical opinion is deficient, corrective measures must be undertaken prior to recertification of the appeal to the Board. MICHAEL D. LYON Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Christopher Murray, Counsel