Citation Nr: 18160155 Decision Date: 12/26/18 Archive Date: 12/26/18 DOCKET NO. 17-39 818 DATE: December 26, 2018 ORDER Entitlement to a rating in excess of 10 percent for dizziness/vertigo, history of Meniere’s disease (hereinafter “peripheral vestibular disorder”), is granted. REMANDED Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDING OF FACT For the duration of the period on appeal, the Veteran’s service-connected peripheral vestibular disorder is manifested by dizziness and occasional staggering. CONCLUSION OF LAW For the entire period on appeal, the criteria for a rating of 30 percent for a peripheral vestibular disorder have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.87, Diagnostic Code 6204. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the Army from July 1945 to January 1947, including service during World War II. His awards and decorations include the World War II Victory Medal and Army of Occupation Medal. This matter was previously remanded in November 2017 for further development. Peripheral Vestibular Disorder The Veteran seeks an increased rating for his service-connected peripheral vestibular disorder. A rating of 10 percent is effective from May 12, 1995. Resolving all doubt in the favor of the Veteran, the Board finds that the maximum schedular rating of 30 percent is warranted for the entire period on appeal. Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities. The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. 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. 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. The Veteran’s peripheral vestibular disorder is evaluated under Diagnostic Code 6204. Under this diagnostic code, a 10 percent rating is warranted for occasional dizziness, and a maximum 30 percent rating is warranted for dizziness and occasional staggering. 38 C.F.R. § 4.87. The term “staggering” is not defined in the rating schedule, but is generally defined as standing or proceeding unsteadily. See Webster’s New College Dictionary, 3rd ed., at 1099. The Board notes that the Veteran is competent to report symptoms such as dizziness, staggering, and loss of balance. See Layno v. Brown, 6 Vet. App. 465, 469-70 (1994). The Veteran received a VA Ear Conditions examination in January 2015. The examiner stated that the Veteran did not have an ear vestibular condition or any symptoms of a vestibular condition. The Veteran’s gait was noted as unsteady and wide-based. The examiner stated that the Veteran’s dysequilibrium was most consistent with a central cerebellar disorder and not a peripheral or vestibular process. On VA examination in May 2017, the examiner noted diagnoses of Meniere’s syndrome or endolymphatic hydrops and benign paroxysmal positional vertigo (BPPV). The Veteran reported occasional dizziness, unstable gait, and falls. He also had vertigo occurring less than once a month, and staggering more than once weekly, for less than an hour during each episode. He had an unsteady gait and experienced vertigo during the examination. The Veteran received another VA examination in January 2018 and was noted to have BPPV. He reported vertigo occurring less than once a month, lasting less than an hour during each episode. Gait was unsteady and no staggering was noted. The Veteran also submitted lay statements in support of his claim. In a statement received in March 2016, the Veteran reported that his balance had worsened and his head would spin every day when he stood up, which caused him to stagger and sometimes fall. In a July 2017 statement, the Veteran reported that he is dizzy every day and he falls and staggers in different directions. After consideration of the medical and lay evidence, the Board resolves reasonable doubt in favor of the Veteran and finds that a rating of 30 percent is warranted from October 20, 2014 for the Veteran’s peripheral vestibular disorder. The evidence demonstrates that his vertigo is productive of dizziness and occasional staggering. The Veteran has asserted that he experiences these symptoms on a daily basis and the VA examinations document the Veteran’s occasional staggering. Resolving all doubt in the Veteran’s favor, dizziness and occasional staggering are approximated from October 20, 2014 under Diagnostic Code 6204. The Board notes that the Veteran has a history of Meniere’s disease and a diagnosis of Meniere’s syndrome or endolymphatic hydrops was noted at the May 2017 VA examination. As such, consideration under Diagnostic Code 6205, Meniere’s disease, is appropriate. Diagnostic Code 6205 provides that 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, Diagnostic Code 6205. A Note to Diagnostic Code 6205 provides that Meniere’s disease can be rated by separately rating vertigo under Diagnostic Code 6204 as a peripheral vestibular disorder, Diagnostic Code 6100 for hearing impairment, and Diagnostic Code 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 Diagnostic Code 6205). 38 C.F.R. § 4.87, Diagnostic Code 6205. From October 20, 2014, the Veteran is service-connected for bilateral defective hearing, rated as 70 percent disabling under Diagnostic Code 6100; tinnitus, rated as 10 percent disabling under Diagnostic Code 6260; and dizziness/vertigo, rated as 30 percent disabling under Diagnostic Code 6204 pursuant to the Board’s decision herein. Although the May 2017 VA examiner noted a diagnosis of Meniere’s disease, the Veteran indicated to the May 2017 and January 2018 VA examiners that his vertigo occurred less than once a month. Accordingly, rating the Veteran’s disability as Meniere’s disease (and aggregating the manifestations of his currently separate ratings for vertigo, hearing impairment, and tinnitus), would not result in a higher rating under Diagnostic Code 6205. As such, an evaluation under Diagnostic Code 6205 is not warranted. REASONS FOR REMAND Entitlement to a TDIU is remanded. The Veteran contends that he is unable to maintain gainful employment as the result of his service-connected disabilities. The Veteran submitted VA Form 21-8940 dated October 2014, in which he stated he last worked full-time in 1976 and became too disabled to work in 2001. In January 2015, the RO sent the Veteran letter indicating he did not provide his last employer’s mailing address on his VA Form 21-8940. The RO requested that the Veteran have his last employer complete and return VA Form 21-4192, Request for Employment Information. Instead, the Veteran completed the VA Form 21-4192 himself and submitted it to the RO. On the form, the Veteran indicated that he last worked in December 2010. A remand is necessary to obtain an updated VA Form 21-8940 to clarify the Veteran’s work history and names and addresses of the Veteran’s prior employers. The Veteran should indicate his prior employers and have each employer complete a VA Form 21-4192. The matter is REMANDED for the following action: 1. Request that the Veteran submit an updated VA Form 21-8940 (Veteran’s Application for Increased Compensation Based on Unemployability). In addition, ask the Veteran to provide VA with contact information for his past/present employers so that relevant information can be obtained from them. Then contact the Veteran’s past/present employers to obtain the relevant information regarding the Veteran’s claim. 2. Invite the Veteran to submit any evidence showing that his service-connected disabilities render him unemployable. JENNIFER HWA Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Freeman, Associate Counsel