Citation Nr: 18151705 Decision Date: 11/20/18 Archive Date: 11/19/18 DOCKET NO. 16-56 942 DATE: November 20, 2018 ORDER Entitlement to an effective date prior to May 18, 2016, for the assignment of a 30 percent evaluation for service-connected peripheral vestibular disorder with benign paroxysmal positional vertigo (BPPV) is denied. FINDINGS OF FACT 1. The Veteran’s claim for service connection for a peripheral vestibular disorder was received on November 24, 2008. 2. The Veteran was assigned a 10 percent evaluation for a peripheral vestibular disorder with benign paroxysmal positional vertigo (BPPV) effective from November 24, 2008, and a 30 percent evaluation effective from May 18, 2016. 3. It is not factually ascertainable that the severity of the Veteran’s peripheral vestibular disorder increased prior to May 18, 2016, and that she met the requirements for a 30 percent evaluation under the applicable rating criteria prior to that date. CONCLUSION OF LAW The criteria for entitlement to an effective date prior to May 18, 2016, for assignment of an evaluation of 30 percent for service-connected peripheral vestibular disorder with benign paroxysmal positional vertigo (BPPV) have not been met. 38 U.S.C. §§ 5101, 5110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.400 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from January 1992 to October 1992. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2016 rating decision. Law and Analysis Neither the Veteran nor her representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Unless specifically provided otherwise, the effective date of an award based on an original claim, a claim reopened after final adjudication, or a claim for increase, compensation, dependency and indemnity compensation, or pension, shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor. 38 U.S.C. § 5110(a). The implementing regulation clarifies this to mean, except as otherwise provided, the effective date of an evaluation and award of pension, compensation or dependency and indemnity compensation based on an original claim, a claim re-opened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 C.F.R. § 3.400. The effective date of an award of increased compensation shall be the earliest date as of which it is factually ascertainable that an increase in disability had occurred if claim is received within one year from such date. Otherwise, the effective date will be the date of receipt of the claim. 38 U.S.C. § 5110 (b); 38 C.F.R. § 3.400(o)(2); see also Gaston v. Shinseki, 605 F.3d 979, 983 (Fed. Cir. 2010) (“It is clear from the plain language of [section] 5110(b)(2) that it only permits an earlier effective date for increased disability compensation if that disability increased during the one-year period before the filing of the claim.”); Hazan v. Gober, 10 Vet. App. 511, 519 (1997) (“increase” for this purpose is one to the next disability level); VAOPGCPREC 12-98 (Sept. 23, 1998). A specific claim in the form prescribed by VA must be filed in order for benefits to be paid or furnished to any individual under the laws administered by VA. 38 U.S.C. § 5101 (a); 38 C.F.R. § 3.151(a). The term “claim” or “application” means a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 C.F.R. § 3.1(p). Any communication or action indicating an intent to apply for one or more benefits under laws administered by VA from a claimant may be considered an informal claim. Such informal claim must identify the benefit sought. Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. 38 C.F.R. § 3.155(a). To determine when a claim was received, the Board must review all communications in the claims file that may be construed as an application or claim. See Quarles v. Derwinski, 3 Vet. App. 129, 134 (1992). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the weight of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that an effective date prior to May 18, 2016, is not warranted for the assignment of a 30 percent evaluation for peripheral vestibular disorder with benign paroxysmal positional vertigo (BPPV). In a June 2016 rating decision, the RO granted service connection for a peripheral vestibular disorder and assigned a 10 percent evaluation, effective November 24, 2008, which was the date the Veteran’s claim for service connection was received. A 30 percent evaluation was assigned effective from May 18, 2016, which was the date that the Veteran underwent a VA examination for her peripheral vestibular disorder. She submitted a notice of disagreement with the effective date of the 30 percent evaluation in July 2016. Thus, the June 2016 rating decision is not final with regard to the effective date of the assignment of a 30 percent evaluation for the peripheral vestibular disorder. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 3.104, 20.200, 20.202, 20.302, 20.1103 (2017). The Veteran has contended that the effective date for the 30 percent evaluation should be from November 24, 2008, the date of the claim. She has asserted that her symptoms of the peripheral vestibular disorder were as severe as they were at the time of the May 18, 2016, VA examination. The Veteran’s peripheral vestibular disorder peripheral vestibular disorder with benign paroxysmal positional vertigo (BPPV) is currently assigned a 10 percent evaluation pursuant to 38 C.F.R. § 4.87, Diagnostic Code 6204, from November 24, 2008 to May 18, 2016. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. 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 for that rating. 38 C.F.R. § 4.7. Under Diagnostic Code 6204, a 10 percent evaluation is assigned for occasional dizziness. 38 C.F.R. § 4.87, Diagnostic Code 6204 (2017). A 30 percent evaluation is assigned for dizziness and occasional staggering. With regard to the date of entitlement, the RO assigned an evaluation of 30 percent in the June 2016 rating decision based upon findings from a May 2016 VA examination, which showed that the Veteran experienced staggering as result of her peripheral vestibular disorder. After reviewing the evidence of record, the Board finds that the weight of the evidence shows that the Veteran did not experience staggering prior to the May 2016 VA examination. VA treatment records do not show any evidence of staggering prior to May 2016. In a December 2008 VA treatment record, the Veteran reported dizziness; however, her gait was noted as being normal. In a September 2011 VA treatment record, she continued to report dizziness, yet in a VA treatment record dated in August 2011, approximately one month prior, she denied having had any falls in the past 12 months. Similarly, in a subsequent March 2013 VA treatment record, the Veteran was documented as having a steady gait. The Veteran has contended that she experienced staggering since 2007. In her July 2016 notice of disagreement, she indicated that July 2008 VA treatment records noted that she had balance issues. She also reported that she was hospitalized in May 2008 at the Chicago VA Medical Center (VAMC) due to an episode of vomiting with staggering. In a December 2016 statement, the Veteran indicated that she had been staggering since 2007, but she thought that she was just clumsy and was tripping over her own feet. She reported staggering and falling at home and that she had been walking more slowly over the years. She indicated that she did not report her staggering because she thought she was just tripping over her feet. The Veteran also submitted statements from her spouse and from a colleague. In the July 2016 statement submitted by D.P. (initials used to protect privacy), her spouse, he indicated that the Veteran had staggered and lost her balance continuously over the past seven years. In the July 2016 statement submitted by C.N., her colleague, he reported that the Veteran was staggering and lost her balance during an April or May 2008 training. The Board finds that the Veteran’s reports of staggering prior to May 2016 are not supported by the contemporaneous medical record. The Veteran referenced a July 2008 VA treatment record and a May 2008 hospitalization in her notice of disagreement. July 2008 VA treatment records of the Veteran’s neurology consultation noted that the Veteran was treated at the Chicago VAMC for vertigo and that she was diagnosed with labrynitis. However, the examiner actually noted that she had no balancing problems. Moreover, in an addendum to the record, the examiner specifically noted that the Veteran did not exhibit gait unsteadiness. In addition, during an August 2014 VA examination of the Veteran’s ear, the examiner did not note that the Veteran had symptoms of staggering or vertigo related to her vestibular condition. In light of the conflicting evidence, the Board finds that the contemporaneous clinical records are entitled to greater probative weight than the remote recollections of the Veteran and other individuals regarding the onset of the Veteran’s claimed symptom, which were made in the context of a claim for benefits. See Curry v. Brown, 7 Vet. App. 59, 68 (1994). The medical records provide affirmative evidence documenting that she did not have staggering. Given the contemporaneous clinical evidence, the Board finds that the Veteran’s more recent assertions that she experienced staggering prior to May 2016, are not reliable or credible. Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006) (the Board retains the discretion to make credibility determinations and otherwise weigh the evidence submitted, including lay evidence). Indeed, the Veteran reported that the July 2008 VA treatment records would document staggering, yet the records clearly show otherwise. Thus, her reported history and recollections are not accurate. Thus, the Board finds that the most probative evidence shows that the Veteran did not experience staggering prior to May 18, 2016, and therefore, it is not factually ascertainable that the criteria for a 30 percent evaluation for her peripheral vestibular disorder were met prior to that date. In summary, the Board concludes that the evidence supports an effective date of May 18, 2016, which is the earliest date on which it was factually ascertainable that the Veteran’s disability worsened and met the criteria for the assignment of a 30 percent evaluation for the Veteran’s peripheral vestibular disorder. The effective date of an award of increased compensation shall be the earliest date as of which it is factually ascertainable that an increase in disability had occurred, or the effective date will be the date of receipt of the claim. 38 U.S.C. § 5110(b); 38 C.F.R. § 3.400(o)(2). Accordingly, an effective date prior to May 18, 2016 is not warranted for the assignment of a 30 percent evaluation for service-connected peripheral vestibular disorder. J.W. ZISSIMOS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Saikh, Associate Counsel