Citation Nr: 18159526 Decision Date: 12/19/18 Archive Date: 12/19/18 DOCKET NO. 16-44 052 DATE: December 19, 2018 ORDER Service connection for sleep apnea is denied. Service connection for mood disorder is granted. A rating in excess of 30 percent prior to July 20, 2016, for Meniere’s disease, hearing loss, and tinnitus is denied. A rating in excess of 30 percent beginning July 20, 2016, for vertigo with hearing loss (previously rated as Meniere’s disease, hearing loss, and tinnitus) is denied. A rating in excess of 10 percent beginning July 20, 2016 for tinnitus, separate from the disability evaluation assigned for vertigo with hearing loss, is denied. REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. The competent evidence of record does not show that the Veteran has been diagnosed with sleep apnea at any point during the appeal period. 2. Resolving reasonable doubt in his favor, the Veteran’s mood disorder is caused by his service-connected Meniere’s disease. 3. Throughout the entire appeal period, the competent evidence of record shows that the Veteran’s service-connected Meniere’s disease is manifested by hearing loss, tinnitus, and occasional dizziness; he does not suffer from a cerebellar gait, and his auditory acuity is no worse than level VI in the right ear and level I in the left ear. 4. Prior to July 20, 2016, the competent evidence of record does not show any evidence of occasional staggering or cerebellar gait. 5. Since July 20, 2016, the competent evidence of record shows that the Veteran experienced occasional staggering, with no evidence of cerebellar gait. CONCLUSIONS OF LAW 1. The criteria for service connection for sleep apnea have not been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). 2. The criteria for service connection for mood disorder have been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2017). 3. Prior to July 20, 2016, the criteria for a rating in excess of 30 percent for the Veteran’s Meniere’s disease, hearing loss, and tinnitus under DC 6205 are not met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.85, 4.86, 4.87, Diagnostic Code (DC) 6100, 6204, 6205, 6260 (2017). 4. Since July 20, 2016, the criteria for a rating in excess of 30 percent for the Veteran’s Meniere’s disease with hearing loss under DC 6204 (previously rated as Meniere’s disease, hearing loss, and tinnitus under DC 6205) are not met. 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.85, 4.86, 4.87, DC 6100, 6204, 6205, 6260 (2017). 5. Since July 20, 2016, the criteria for a rating in excess of 10 percent for the Veteran’s tinnitus are not met. 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.85, 4.86, 4.87, DC 6260 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 2007 to August 2007. This appeal comes before the Board of Veterans’ Appeals (Board) from September 2013 and May 2014 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Saint Louis, Missouri. The Veteran’s claim for an increased rating was received in July 2012. The relevant period for consideration in this appeal begins one year prior to that submission (i.e., in July 2011). After the Veteran filed his August 2014 Notice of Disagreement, service connection for headaches was granted in an August 2016 rating decision. Because that decision represents a full grant of the benefits sought, this issue is not before the Board. Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). The record reflects that the Veteran’s service-connected disabilities may have prevented him from securing and following substantially gainful employment during the appeal period. See November 2014 medical opinion. Because a TDIU rating is inherent in any claim for an increased rating, see Rice v. Shinseki, 22 Vet. App. 447 (2009), it has been added as an issue. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.304. To establish a right to compensation for a present disability, a Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. See Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be granted for any disease initially 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 the absence of a current diagnosed disability, service connection cannot be granted for such disability. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The requirement that a current disability be present is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or at any time during the pendency of that claim. See McClain v. Nicholson, 21 Vet. App. 319 (2007). However, “when the record contains a recent diagnosis of a disability prior to a Veteran filing a claim for benefits based on that disability, the report of diagnosis is relevant evidence that the Board must address in determining whether a current disability existed at the time the claim was filed or during its pendency.” Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013). In addition, service connection may be established on a secondary basis for a disability that is proximately due to, or the result of, or aggravated by a service connected disease or injury. 38 C.F.R. § 3.310 (2017). In order to prevail under a theory of secondary service connection, there must be: (1) evidence of a current disability; (2) evidence of a service-connected disease or injury; and, (3) nexus evidence establishing a connection between the service-connected disease or injury and the current disorder. See Wallin v. West, 11 Vet. App. 509, 512 (1998). The Board must fully consider the lay evidence of record. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). A layperson is competent to report on the onset of disability and, when applicable, continuity of his or her current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case-by-case basis, whether the Veteran’s particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau, supra. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 1. Service connection for sleep apnea The Veteran contends that he is entitled to service connection for sleep apnea. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. After a review of the evidence of record, the Board concludes that the Veteran does not have a current diagnosis of sleep apnea and has not had one at any time during the pendency of the claim or recent to the filing of the claim and thus, service connection is not warranted. Indeed, the medical evidence of record does not support the conclusion that the Veteran has a current diagnosis of sleep apnea. His VA treatment records are silent for a diagnosis. A July 2016 psychiatry consult note states that the Veteran reported problems with sleeping due to difficulty with focus and concentration, and noted that this had been a lifelong issue. The Board notes that per this decision, the Veteran is service-connected for depression. However, the evidence does not show any diagnosis of sleep apnea during the Veteran’s service or during the appeal period. Moreover, there is no diagnosis of record of any other sleep disability. Indeed, while problems with sleeping due to difficulty and concentration has been noted, this is a symptom not a diagnosed disability. Remand for a VA examination for sleep apnea is unnecessary because there is no competent evidence of a current disability, or persistent or recurrent symptoms of a disability. See McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). Notably, all VA and private medical records consistently note that the Veteran denied any personal history of sleep apnea. The Board therefore finds that the competent medical evidence of record shows that the Veteran does not have a current disability of sleep apnea and service connection is not warranted. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). 2. Service connection for mood disorder The Veteran contends that he is entitled to service connection for a mood disorder. The Board finds that the Veteran’s mood disorder is related to his service-connected Meniere’s disease. The record shows that the Veteran has been diagnosed with mood disorder. A current disability is established. In a September 2013 Rating Decision, the Veteran was granted service connection for Meniere’s disease, hearing loss, and tinnitus. The second element of secondary service connection is met. Lastly, the Board finds that the medical record supports finding of a nexus between the Veteran’s current disability and service-connected Meniere’s disease. A private physician reviewed the Veteran’s claim file and interviewed the Veteran to determine the relationship between the Veteran’s Meniere’s disease and mood disorder. She opined that the Veteran’s Meniere’s disease, hearing loss, and tinnitus more likely than not aggravate his mood disorder. She specifically noted that the Veteran’s episodes of dizziness and vertigo impact his ability to work, cause difficulty understand conversations, and cause a remarkable decline in his quality of life. The Veteran reported difficulty establishing and maintaining relationships, difficulty adapting to stressful circumstances including work, and mild memory loss following surgery for Meniere’s disease. This opinion is based on a review of the Veteran’s relevant medical history and relevant medical literature, and the Board finds the opinion highly probative. The Board finds that this medical evidence supports a finding that the Veteran’s mood disorder is related to his service-connected Meniere’s disease. It light of the foregoing, the Board is satisfied that the criteria for entitlement to secondary service connection for mood disorder have been met. The evidence, at a minimum, gives rise to a reasonable doubt on the matter. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Therefore, the Board finds that service connection is warranted on a secondary basis for the Veteran’s mood disorder. 3. Increased rating for Meniere's disease with hearing loss and tinnitus A. Law and Regulations 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. In considering the severity of a disability, it is essential to trace the medical history of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Consideration of the whole recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). While the regulations require review of the recorded history of a disability by the adjudicator to ensure a more accurate evaluation, the regulations do not give past medical reports precedence over the current medical findings. Where an increase in the disability rating is at issue, the present level of the veteran’s disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Where a veteran appeals the initial rating assigned for a disability when a claim for service connection for that disability has been granted, evidence contemporaneous with the claim for service connection and with the rating decision granting service connection would be most probative of the degree of disability existing at the time that the initial rating was assigned and should be the evidence “used to decide whether an [initial] rating on appeal was erroneous...” Fenderson v. West, 12 Vet. App. 119, 126 (1999). If later evidence obtained during the appeal period indicates that the degree of disability increased or decreased following the assignment of the initial rating, “staged” ratings may be assigned for separate periods of time based on facts found. Id.; see also Hart v. Mansfield, 21 Vet. App. 505 (2007) (VA’s determination of the “present level” of a disability may result in a conclusion that the disability has undergone varying and distinct levels of severity throughout the entire time period the increased rating claim has been pending). 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, 4.3; 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). The Board notes that DC 6205 indicates that Meniere’s disease can be rated by separately rating vertigo under DC 6204 for dizziness and/or staggering, DC 6100 for hearing impairment, and DC 6260 for tinnitus, and applying the method which results in a higher overall evaluation (but ratings for hearing impairment, tinnitus, or vertigo are not to be combined with an evaluation under DC 6205). 38 C.F.R. § 4.87, DC 6205. Therefore, in examining the Veteran’s disability, the Board will consider not only DC 6205, but also DC 6204 (peripheral vestibular disorders), DC 6260 (tinnitus, recurrent), and 38 C.F.R. § 3.385, DC 6100 (hearing loss), in order to determine the highest overall evaluation to which the Veteran is entitled. Under DC 6204, peripheral vestibular disorders, a 10 percent disability rating is warranted for occasional dizziness; and a 30 percent rating is appropriate for dizziness and occasional staggering. 38 C.F.R. § 4.87, DC 6204. The note associated with DC 6204 states that objective findings supporting the diagnosis of vestibular disequilibrium are required before a compensable evaluation can be assigned under DC 6204. Under DC 6205, Meniere’s disease, a 30 percent disability rating is warranted for hearing impairment with vertigo less than once a month, with or without tinnitus; a 60 percent rating is appropriate for hearing impairment with attacks of vertigo and cerebellar gait occurring from one to four times a month, with or without tinnitus; and a 100 percent rating is appropriate for hearing impairment with attacks of vertigo and cerebellar gait occurring more than once weekly, with or without tinnitus. 38 C.F.R. § 4.87, DC 6205. Under DC 6260, a 10 percent disability rating is warranted for recurrent tinnitus. Under 38 C.F.R. § 3.385, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1,000, 2,000, 3,000 or 4,000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1,000, 2,000, 3,000, or 4,000 hertz are 26 decibels or greater; or when speech recognition scores are less than 94 percent. 38 C.F.R. § 3.385 (2015). Disability ratings are then assigned on the degree of impaired hearing. DC 6100. VA audiological evaluations are conducted using a controlled speech discrimination test together with the results of pure tone audiometry tests. The vertical line in Table VI (printed in 38 C.F.R. § 4.8) represents nine categories of the percentage of discrimination based on a controlled speech discrimination test. The horizontal columns in Table VI represent nine categories of decibel loss based on the pure tone audiometry test. The numeric designation of impaired hearing (Levels I through XI) is determined for each ear by intersecting the vertical row appropriate for the percentage of discrimination and the horizontal column appropriate to the pure tone decibel loss. The percentage evaluation is found from Table VII (in 38 C.F.R. § 4.85 and the statement of the case) by intersecting the vertical column appropriate for the numeric designation for the ear having the better hearing acuity and the horizontal row appropriate for the numeric designation for the level for the ear having the poorer hearing acuity. See 38 C.F.R. § 4.85. Regulations also provide that in cases of exceptional hearing loss, i.e., when the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000 and 4000 Hertz) is 55 decibels or more, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIa, whichever results in the higher numeral. Each ear will be evaluated separately. 38 C.F.R. § 4.86 (a). The United States Court of Appeals for the Federal Circuit has held that VA “is specifically required to assess a disability ‘in relation to its history’ when making disability ratings determinations[.]” Moore v. Shinseki, 555 F.3d 1369, 1373 (Fed. Cir. 2009) (citing 38 C.F.R. § 4.1 (2009) (“It is thus essential, both in the examination and in the evaluation of disability, that each disability be viewed in relation to its history.”)). The Board, therefore, will examine the Veteran’s entire history regarding his symptoms of Meniere’s disease, peripheral vestibular disorders, tinnitus, and hearing loss. B. Procedural History A September 2013 rating decision granted service connection and assigned a 30 percent rating for Meniere’s disease, hearing loss, and tinnitus under DC 6205. The Veteran disagreed with the disability rating assigned. The Veteran underwent a VA examination in July 2016, showing an increase in vertigo. An August 2016 rating decision evaluated the Veteran’s disability under DC 6204 and assigned a 30 percent rating for Meniere’s disease with hearing loss, with an additional separate 10 percent rating for tinnitus, effective July 20, 2016. Therefore, the Veteran’s combined rating, with consideration of the ratings for hearing loss, tinnitus, and Meniere’s disease was 30 percent prior to July 20, 2016, and 40 percent from July 20, 2016. For clarity purposes, the Veteran’s Meniere’s disease, hearing loss, and tinnitus evaluated under DC 6205 will be addressed as “Meniere’s disease.” The Veteran’s Meniere’s disease with hearing loss (separate from tinnitus) evaluated under DC 6204 will be addressed as “vertigo.” C. Meniere’s Disease evaluated under DC 6205 prior to July 20, 2016 As noted above, under DC 6205, Meniere’s disease, a 30 percent disability rating is warranted for hearing impairment with vertigo less than once a month, with or without tinnitus; a 60 percent rating is appropriate for hearing impairment with attacks of vertigo and cerebellar gait occurring from one to four times a month, with or without tinnitus; and a 100 percent rating is appropriate for hearing impairment with attacks of vertigo and cerebellar gait occurring more than once weekly, with or without tinnitus. 38 C.F.R. § 4.87, DC 6205. Prior to July 20, 2016, the Veteran is rated at 30 percent under DC 6205. To warrant a higher rating of 60 percent, the evidence must show cerebellar gait occurring from one to four times a month. The evidence does not show that the Veteran had a cerebellar gait during the appeal period. The Veteran was afforded a VA examination in July 2013. He reported a history of Meniere’s disease, requiring right ear surgery with cutting of one of the vestibular nerves in 2008, resulting in decreased hearing. The Veteran still had dizziness and vertigo, but not as severe. The Veteran reported episodes of vertigo and/or dizziness about every two days, lasting from five minutes up to an hour. No staggering or gait problems were noted. A review of the Veteran’s VA and private treatment records during the appeal period show consistently normal gait, with no problems noted. Moreover, a VA audiological examination conducted in September 2013 sow puretone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 80 80 70 70 70 LEFT 35 45 40 40 45 The average of the puretone thresholds findings at 1000, 2000, 3000, and 4000 Hertz was 72 decibels in the right ear and 42 decibels in the left ear. The speech recognition score on the Maryland CNC word list was 68 percent for the right ear and 94 percent for the left ear. These audiometric findings equate to Level VI hearing loss in the right ear and Level I hearing loss in the left ear. See 38 C.F.R. § 4.85, Table VI. When those values are applied to Table VII, it shows that a noncompensable evaluation is warranted for the Veteran’s bilateral hearing loss under the provisions of 38 C.F.R. § 4.85. The Board has also considered the provisions of 38 C.F.R. § 4.86 governing exceptional patterns of hearing impairment. The Veteran’s right ear has thresholds of 55 or more at 1000, 2000, 3000, and 4000 Hertz, so Table VIA is applicable. Using Table VIA, the Veteran has Level VI hearing in his right ear, which still results in a noncompensable evaluation. Thus, the September 2013 VA audiological evaluation has resulted in findings corresponding to a noncompensable evaluation under DC 6100. The Board has considered the Veteran’s lay assertions regarding his diminished hearing. However, the assignment of disability ratings for hearing impairment are derived by a mechanical application of the Rating Schedule to the numeric designations based on the audiology examination results. See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). It is clear from the Rating Schedule that a higher rating can be awarded only when loss of hearing has reached a specified measurable level. As to vertigo, the Veteran’s condition is not shown to be manifested by staggering prior to July 20, 2016. As such, no more than a 10 percent rating is warranted under DC 6204. Further, as previously noted, 10 percent is the maximum available rating for tinnitus under DC 6260. As such, the 30 percent rating currently assigned under DC 6205 is more beneficial to the Veteran than separate ratings for hearing loss (0 percent), vertigo (10 percent), and tinnitus (10 percent) under DC 6100, 6204, and 6260, combined under 38 C.F.R. § 4.25. In summary, based on the foregoing, prior to July 20, 2016, the Board finds that the rating of 30 percent under DC 6205 is the highest possible evaluation available for the Veteran’s Meniere’s disease with hearing loss, vertigo and tinnitus, and a higher rating under DC 6205 is not warranted. See 38 U.S.C. § 5107 (b); Gilbert, supra. D. Vertigo evaluated under DC 6204 beginning July 20, 2016 As noted above, DC 6205 indicates that Meniere’s disease can be rated by separately rating vertigo under DC 6204 for dizziness and/or staggering, DC 6100 for hearing impairment, and DC 6260 for tinnitus, and applying the method which results in a higher overall evaluation (but ratings for hearing impairment, tinnitus, or vertigo are not to be combined with an evaluation under DC 6205). 38 C.F.R. § 4.87, DC 6205. Under DC 6204, peripheral vestibular disorders, a 10 percent disability rating is warranted for occasional dizziness; and a 30 percent rating is appropriate for dizziness and occasional staggering. 38 C.F.R. § 4.87, DC 6204. Beginning on July 20, 2016, the Veteran is rated at 40 percent based on separate ratings for vertigo (30 percent), and tinnitus (10 percent) under DC 6204 and 6260, combined under 38 C.F.R. § 4.25. 30 percent is the highest schedular rating allowed under the law for peripheral vestibular disorder under DC 6204. 10 percent is the highest schedular rating allowed under the law for tinnitus under DC 6260. To warrant a higher combined rating under 38 C.F.R. § 4.25, the evidence must show compensable hearing loss under 38 C.F.R. § 4.85, Table VI. As discussed further below, the evidence does not show that the Veteran had compensable hearing loss during the appeal period. In this regard, the Board has considered whether the Veteran’s hearing loss would allow for a higher disability rating. In this regard, the Board notes that the Veteran was afforded another VA audiological examination in August 2016. At the time, puretone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 75 80 75 70 80 LEFT 50 50 40 45 55 The average of the puretone thresholds findings at 1000, 2000, 3000, and 4000 Hertz was 76 decibels in the right ear and 48 decibels in the left ear. The speech recognition score on the Maryland CNC word list was 72 percent for the right ear and 100 percent for the left ear. These audiometric findings equate to Level VI hearing loss in the right ear and Level I hearing loss in the left ear. See 38 C.F.R. § 4.85, Table VI. When those values are applied to Table VII, it shows that a noncompensable evaluation is warranted for the Veteran’s bilateral hearing loss under the provisions of 38 C.F.R. § 4.85. The Board has also considered the provisions of 38 C.F.R. § 4.86 governing exceptional patterns of hearing impairment. The Veteran’s right ear has thresholds of 55 or more at 1000, 2000, 3000, and 4000 Hertz, so Table VIA is applicable. Using Table VIA, the Veteran has Level VI hearing in his right ear, which still results in a noncompensable evaluation. The Board has considered the Veteran’s lay assertions regarding his diminished hearing. However, the assignment of disability ratings for hearing impairment are derived by a mechanical application of the Rating Schedule to the numeric designations based on the audiology examination results. See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). It is clear from the Rating Schedule that a higher rating can be awarded only when loss of hearing has reached a specified measurable level. In summary, based on the foregoing, beginning on July 20, 2016, the Board finds that the combined rating of 40 percent based on separate ratings for vertigo (30 percent), and tinnitus (10 percent) under DC 6204 and 6260, combined under 38 C.F.R. § 4.25, is the highest possible evaluation available for the Veteran’s Meniere’s disease with hearing loss, vertigo and tinnitus, and a higher rating under DC 6205 is not warranted. See 38 U.S.C. § 5107 (b); Gilbert, supra. REASONS FOR REMAND The issue of entitlement to a TDIU has been raised as part of the Veteran’s increased rating claims on appeal. The Board finds that the issue of TDIU is inextricably intertwined with the issues on appeal. As such, consideration must be deferred until the intertwined issues are either resolved or prepared for appellate consideration. See Harris v. Derwinski, 1 Vet. App. 180 (1991) (two issues are “inextricably intertwined” when they are so closely tied together that a final decision on one issue cannot be rendered until a decision on the other issue has been rendered). Accordingly, the matters are REMANDED for the following action: 1. The AOJ should provide the Veteran with appropriate notice of VA’s duties to notify and to assist in regard to how to substantiate a claim for entitlement to TDIU. Additionally, provide him with VA Form 21-8940 in connection with the inferred claim for entitlement to TDIU, and request that he supply the requisite information. Thereafter, conduct any additional development deemed necessary to determine the impact of his service-connected disability(ies) on employability and adjudicate the issue of entitlement to TDIU pursuant to the holding in Rice v. Shinseki, 22 Vet. App. 447 (2009), to include on an extraschedular basis if necessary. 2. If upon completion of the above action the issues remain denied, the case should be returned to the Board after compliance with appellate procedures. E. I. VELEZ Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD I. Kerner, Associate Counsel