Citation Nr: 18152364 Decision Date: 11/21/18 Archive Date: 11/21/18 DOCKET NO. 08-34 075A DATE: November 21, 2018 REMANDED The claim of entitlement to a disability rating in excess of 30 percent for residuals of a perforated eardrum with related vertigo, on an extraschedular basis only, is remanded. REFERRED The issue of entitlement to service connection for Meniere’s Disease was referred to the Agency of Original Jurisdiction (AOJ) for initial adjudication in 2014 and 2016 Board remands. To date, no action has been taken on this referred issue. This issue is partially intertwined with the issue on appeal and is of utmost importance to adjudicate. Accordingly, the Board again refers the issue to the AOJ for adjudication. REASONS FOR REMAND The Veteran served on active duty for training from April to September 1976. This claim comes before the Board of Veterans’ Appeals (Board) on appeal of a November 2006 rating decision, in which the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois, continued the noncompensable (0 percent) ratings assigned the Veteran’s perforated right eardrum and right ear hearing loss. By Decision Review Officer decision dated September 2010, the RO increased the rating assigned the perforated right eardrum, recharacterized to include vertigo, to 30 percent. In June 2013, the Board issued a decision continuing the 0 percent rating assigned the right ear hearing loss and the 30 percent rating assigned the perforated right eardrum with related vertigo. The Veteran appealed the Board’s June 2013 decision to the United States Court of Appeals for Veterans Claims (Court). In January 2014, based on a Joint Motion for Partial Remand (JMPR), the Court remanded the claim of entitlement to a rating in excess of 30 percent for residuals of a perforated eardrum with related vertigo to the Board for action consistent with the JMPR. As the Veteran agreed to discontinue pursuing the remaining claim, the Court dismissed it. In August 2014, to comply with the terms of the JMPR, the Board remanded this claim to the RO for additional action. In October 2016, the Board denied a schedular rating in excess of 30 percent for residuals of a perforated eardrum with related vertigo. In the same decision, the Board remanded the claim of entitlement to a rating in excess of 30 percent for residuals of a perforated eardrum with related vertigo on an extraschedular basis. The claim has been returned to the Board for appellate consideration. Entitlement to a disability rating in excess of 30 percent for residuals of a perforated eardrum with related vertigo, on an extraschedular basis only In certain circumstances, the Board may assign an increased rating on an extraschedular basis, but not in the first instance. When the question is raised either by the claimant, or reasonably by the evidence of record, the adjudicator must specifically decide whether to refer the claim to the Chief Benefits Director of VA’s Compensation and Pension Service under 38 C.F.R. § 3.321 for consideration of the matter. Barringer v. Peake, 22 Vet. App. 242 (2008). The Director is authorized to approve the assignment of an extraschedular rating if the claim “presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards.” 38 C.F.R. § 3.321(b)(1). If the claimant or the evidence raises the question of entitlement to an increased rating on an extraschedular basis, as a threshold matter, the Board must determine whether the evidence before VA presents such an exceptional disability picture that the available schedular rating for the service-connected disability is inadequate. This requires comparing the level of severity and symptomatology of the service-connected disability with the established criteria found in the rating schedule pertaining to that disability. Thun v. Peake, 22 Vet. App. 111, 118 (2008). If the criteria reasonably describe the level of severity and symptomatology of the disability, the disability picture is contemplated by the rating schedule, the assigned schedular rating is adequate and no referral is necessary. Id. If the criteria do not reasonably describe the level of severity and symptomatology of the disability, the disability picture is not contemplated by the rating schedule and the assigned schedular rating is inadequate. The RO or Board must then determine whether the exceptional disability picture involves other related factors such as those outlined in 38 C.F.R. § 3.321 (b)(1) as “governing norms”, including “marked interference with employment” and “frequent periods of hospitalization”. Id. The Veteran claims that the rating criteria do not account for all residuals of his perforated eardrum. As noted by the Board in October 2016, the Veteran’s assertions, particularly regarding his loss of balance and abnormal gait, raised a claim for an increased rating on an extraschedular basis. The 30 percent rating assigned residuals of the Veteran’s perforated eardrum with vertigo under DC 6204 contemplates vestibular disequilibrium, dizziness and occasional staggering, symptoms that likely play a role in the Veteran’s reported tendency to lose his balance and have an altered gait. The Board noted in October 2016 that treatment records and reports of VA examinations since 2006 attribute the loss of balance and gait disturbances to, or discuss in conjunction with, multiple causes, including the perforated eardrum, vertigo, disability of the spine, hypotension, a sleeping disorder, and a longstanding tobacco use disorder. The Board directed that the evidence of record be reconciled by a medical professional before any decision be made on whether the loss of balance and gait disturbances actually represent symptoms of the perforated eardrum with vertigo. The Board then directed the RO to make a determination of whether the issue should be referred to the Director of Compensation Service for extraschedular consideration. A VA examination was conducted in February 2017. The examiner provided a new diagnosis of perforated right ear drum with related vertigo, cerebellar gait, imbalance, and gait disturbances, indicating that it was a correction of the old diagnosis in that it was a better, more accurate depiction, of the Veteran’s condition. In an opinion, the examiner explained that the Veteran’s vertigo and gait disturbances, including cerebellar gait, were due solely to the service-connected perforated ear drum and not any other disability. The examiner provided additional rationale in support of the February 2017 opinion in a September 2017 addendum. The Board accepts that cerebellar gait and imbalance may be part of the Veteran’s disability picture for his service-connected perforated right ear drum with related vertigo. Cerebellar gait and imbalance are not specifically contemplated by the 30 percent evaluation that is assigned pursuant to DC 6204. 38 C.F.R. § 4.87 (2018). These symptoms are specifically contemplated by DC 6205, which evaluates Meniere’s syndrome. However, the Veteran’s perforation and vestibular disorder are listed in the rating schedule, under DCs 6211 and 6204, and when a condition is specifically listed in the Schedule, it may not be rated by analogy. See Copeland v. McDonald, 27 Vet. App. 333, 338 (2015) (pes planus is specifically rated under Diagnostic Code 5276; hence an analogous rating under DC 5284 was not permitted). The Board noted this in the October 2016 decision when it denied entitlement to an increased rating on a schedular basis. The Board finds that the evidence presents such an exceptional disability picture that the available schedular rating for the service-connected disability may be inadequate and that it may result in marked interference with employment. See February 2017 VA examination report. The Board is not permitted to assign an extraschedular rating in the first instance; rather the matter must initially be referred to those officials who possess the delegated authority to assign such a rating. See Floyd v. Brown, 9 Vet. App. 88, 95 (1996). Anderson v. Shinseki, 22 Vet. App. 423 (2009). Therefore, the Board finds that remand is warranted in order for the AOJ to prepare such a referral to the Under Secretary for Benefits or the Director of the VA’s Compensation and Pension Service. The matter is REMANDED for the following action: Refer the Veteran’s claim for an extraschedular disability rating in excess of 30 percent for residuals of a perforated eardrum with related vertigo to VA’s Director of Compensation Service for extraschedular consideration. K. MILLIKAN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Steve Ginski, Associate Counsel