Citation Nr: 18156522 Decision Date: 12/11/18 Archive Date: 12/10/18 DOCKET NO. 16-23 862 DATE: December 11, 2018 ORDER Restoration of a 30 percent disability rating for service-connected vestibular disorientation ear condition is denied. FINDINGS OF FACT 1. In a June 2011 rating decision, the RO proposed to reduce the disability evaluation for the Veteran’s service-connected vestibular disorientation ear condition, from 30 percent to 10 percent. The RO promulgated that proposed reduction in a November 2011 rating decision and the Veteran’s evaluation was decreased to 10 percent, effective February 1, 2012. 2. The RO’s decision to reduce the Veteran’s evaluation for vestibular disorientation ear condition to 10 percent was supported by the evidence contained in the record at the time of the reduction. CONCLUSION OF LAW The RO’s decision to reduce the evaluation for service-connected vestibular disorientation ear condition from 30 percent to 10 percent was proper. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.105, 3.344, 4.87, Diagnostic Code 6204 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from December 2003 to November 2005. The Board notes that the Veteran has filed a November 2015 notice of disagreement for a reduction of his service-connected traumatic brain injury (TBI) with memory loss. He also requested a RO hearing in September 2013 for that issue. As the RO appears to be working on the claim, it is not currently before the Board. Restoration of the 30 percent disability rating for service-connected vestibular disorientation ear condition. The Veteran contends that his 30 percent disability rating for his service-connected vestibular disorientation ear condition should be restored. By way of background, in a September 2008 rating decision the RO granted service connection for vestibular disorientation ear condition and assigned a 30 percent disability rating (under Diagnostic Code 6204 for peripheral vestibular disorders), effective February 11, 2008. Following a June 2011 rating decision, in which the RO proposed a reduction to 10 percent, the RO reduced the rating to 10 percent in a November 2011 rating decision, effective February 1, 2012 (less than 5 years after the initial rating became effective), finding there had been sustained improvement. General regulatory requirements for disability ratings must be met in making a determination regarding whether improvement is shown. Brown v. Brown, 5 Vet. App. 413 (1993). Reexamination disclosing improvement will warrant a rating reduction. 38 C.F.R. § 3.344(c). The entire recorded history of the disability must be reviewed. 38 C.F.R. §§ 4.1, 4.2. The evidence must reflect an actual change in the disability and not merely a difference in the thoroughness of the examination or in the use of descriptive terms. 38 C.F.R. § 4.13. It must further show that the disability has improved in such a manner that the Veteran’s ability to function under the ordinary conditions of life and work has been enhanced. 38 C.F.R. §§ 4.2, 4.10; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). In determining whether a reduction was proper, the Board must focus upon evidence available to the RO at the time the reduction was effectuated, although post-reduction medical evidence may be considered in the context of evaluating whether the condition had actually improved. Dofflemyer v. Derwinski, 2 Vet. App. 277, 281-282 (1992). It should be emphasized, however, that such after-the-fact evidence may not be used to justify an improper reduction. The Board finds that the RO’s decision to reduce the Veteran’s evaluation to 10 percent was supported by the evidence contained in the record at the time of the reduction and demonstrated an actual improvement in the overall disability under the ordinary conditions of life and work had occurred at the time of the November 2011 rating decision and when the reduction became effective on February 1, 2012. The RO initially, rated the service-connected vestibular disorientation ear condition at the maximum 30 percent level, under Diagnostic Code 9204. A 30 percent disability rating is assigned for dizziness and occasional staggering. Occasional dizziness warrants a 10 percent disability rating. A note under that code indicates that “[o]bjective findings supporting the diagnosis for vestibular disequilibrium are required before a compensable evaluation can be assigned under the code.” When the RO established the 30 percent disability rating (in a September 2008 rating decision), the August 2008 VA examination indicated intermittent vertigo 4-5 times a day and gait problems by history. An September 2008 VA medical record documented reports of moderate loss of balance and feeling dizzy, with mild poor coordination. Subsequent VA examinations and VA medical records are supportive of the finding of the reduction from a 30 percent disability rating at the time of the reduction (effective February 1, 2012). Although the Veteran has subjective reports of occasional dizziness, the most probative evidence of record does not support finding occasional staggering necessary for a 30 percent disability rating under Diagnostic Code 9204. In the March 2016 statement of the case, the RO explained that testing did not show objective signs of dizziness and occasional staggering that is required to maintain a 30 percent evaluation. Additionally, although subjective symptoms to maintain a 10 percent evaluation were also not shown; however, the RO resolved reasonable doubt in the Veteran’s favor and continued the 10 percent disability rating. The December 2010 VA examination showed that the Veteran reported intermittent vertigo daily of a minute or less and that he denied a history of balance or gait problems. The VA examiner also found no signs of staggering gait or imbalance. In a March 2011 VA examination, the Veteran reported dizziness or vertigo once or twice a week, associated with elevation changes getting out of bed too quickly. The examiner noted intermittent dizziness and vertigo that affected he occupational activities only when the symptoms occur, which was a brief period. The examiner found that the disorder had stabilized and no balance and coordination problems. Evidence from after the February 1, 2012 effective date of the reduction similarly document symptoms indicative of less than a 30 percent disability rating, with actual improvement in such a manner that the Veteran’s ability to function under the ordinary conditions of life and work has been enhanced A November 2012 VA examination for TBI included a finding that the Veteran’s subjective symptoms (which would have included dizziness if found, but was not found on examination) did not interfere with work or instrumental activities of daily living. The examiner found no gait, coordination or balance problems. The only TBI functional impact noted by the examiner was the separately service-connected headaches. During his May 2015 VA hearing loss examination, the Veteran denied having unusual dizziness, though he did indicate some dizziness with fast movement. During his May 2015 TBI VA examination, the Veteran reported vertigo, which flared with flying, motion sickness, and getting out of the bed too fast or up too quickly. During his May 2015 ear VA examination, he reported some motion sickness with flying, being lightheaded with arising or moving too quickly, and occasionally feeling like he was “drunk.” The examiner noted consideration of conflicting medical evidence and found that objective testing did not reveal a diagnosis for the Veteran’s subjective complaints of vertigo. Therefore, it would not affect his ability to perform either sedentary or physical work in any way. The only functional impact from the Veteran’s TBI found by the examiner was his separately service-connected headaches. Although the Veteran has provided subjective reports of staggering or balance problems, the Board finds that the probative medical evidence of record does not support finding that such reports are credible. In a June 2015 VA medical record, the Veteran complained of vertigo and unsteadiness; however, vestibular test results were normal. The examiner reported that vertigo was not observed. Additionally, although the Veteran scored below normal on balancing test, the provider noted that such an extremely low score should demonstrate difficulty walking, which the examiner did not find. Such a score was actually worse from 2008, but only on that June 2015 evaluation made after the February 2012 reduction and after the multiple May 2015 VA examinations (which did not include reports by the Veteran of such significant balancing problems). VA medical records and other VA examinations prior to that time also made no such medical findings of balance problems. The Board further notes that the Veteran has a history of providing noncredible reports of symptomatology. The May 2015 PTSD VA examiner found that the December 2012 and October 2008 psychiatric VA examinations were considered invalid due to apparent poor effort, and that the January 2013 VA examination had not contained validity scores. The VA examiner found the January 2013 scores were extraordinarily inconsistent with his current functioning, noting that: Scores as low…would be consistent with rather severe dementia, to the point…unable to function independently. Scores that low would NOT be consistent with obtaining a bachelor’s degree, owning his own landscaping business, or successfully working in the insurance industry. Scores that low would be consistent with a person who likely needed full time supervision. Clearly the Veteran neither requires such supervision, nor is he himself incapable of providing competent supervision to his 2-year-old daughter, which would likely not be possible if…testing was actually valid. That VA examiner further noted that in January 2013, the Veteran had reported he was unconscious for 24-48 hours, which was not consistent with medical records. The Board finds that at the time the reduction was effectuated in February 2012, the most probative and credible evidence of record, including VA examinations and clinical records, showed sustained and material improvement under the ordinary conditions of life at that time. A restoration of the 30 percent disability rating for vestibular disorientation ear condition is denied. H.M. WALKER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Lindio