Citation Nr: 20005322 Decision Date: 01/22/20 Archive Date: 01/22/20 DOCKET NO. 04-44 151 DATE: January 22, 2020 ORDER Entitlement to a rating in excess of 30 percent for service-connected vestibular abnormality and positional vertigo on an extraschedular basis is denied. FINDING OF FACT The Veteran’s service-connected vestibular abnormality and positional vertigo does not cause marked interference with employment, frequent hospitalizations, or unique and unusual factors that would justify an extraschedular rating. CONCLUSION OF LAW The criteria for a rating in excess of 30 percent for service-connected vestibular abnormality and positional vertigo on an extraschedular basis pursuant to 38 C.F.R. § 3.321 (b)(1), are not met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321(b)(1). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from October 1963 to August 1967. The Veteran had a hearing before the undersigned in December 2013. A transcript of the hearing is of record. Following a long procedural history, in December 2018 the Board denied the Veteran’s claim for entitlement to an initial schedular disability rating in excess of 30 percent for service-connected vestibular abnormality and positional vertigo and remanded the claim to be referred to the Director of Compensation Service for consideration of whether an extraschedular rating for the service-connected vestibular abnormality and positional vertigo was warranted pursuant to 38 C.F.R. § 3.321 (b)(1). In May 2019, a VA memorandum by Decision Review Officer (DRO) recommended a denial of the claim on extraschedular basis, and in an August 2019 decision, the Director, Compensation Service concurred with this denial. The case has now been returned to the Board for further appellate review. As the Director has considered the matter in the first instance, the Board now has jurisdiction to consider the merits of the claim. 1. Entitlement to a rating in excess of 30 percent for service-connected vestibular abnormality and positional vertigo on an extraschedular basis. Disability ratings are determined by the application of VA’s Schedule for Rating Disabilities (Schedule), which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Pertinent regulations do not require that all cases show all findings specified by the Schedule, but that findings sufficient to identify the disease and the resulting disability and, above all, coordination of the rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21; see also Mauerhan v. Principi, 16 Vet. App. 436 (2002). To accord justice in exceptional cases where the schedular standards are found to be inadequate a RO is authorized to refer the case to the Under Secretary for Benefits or the Director, Compensation and Pension Service, for assignment of an extraschedular rating commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities. The governing norm in these exceptional cases is a finding that the case 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). When the Board finds that an extraschedular rating may be warranted based on the above factors, it cannot grant an extraschedular rating in the first instance. Anderson v. Shinseki, 23 Vet. App. 423, 428-429 (2009). Rather, it must remand the claim to the Agency of Original Jurisdiction (AOJ) for referral to the Director of Compensation Service (Director). See Thun v. Peake, 22 Vet. App. 111 (2008), aff’d sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). Here, the Board referred the case for extraschedular consideration to the Director in December 2018. In August 2019, the Director denied an extraschedular rating for vestibular abnormality and positional vertigo. The Director stated that although the vestibular disability caused additional symptoms not explicitly noted in the rating schedule, the evidence failed to show an unusual or exceptional disability pattern that would render the regular rating criteria inadequate as it did not show marked interference with work or frequent hospitalization. The AOJ continued the denial of the extraschedular rating for vestibular abnormality and positional vertigo in a supplemental statement of case also dated November 2019. The Director’s decision is not evidence, but rather the de facto AOJ decision, and the Board must conduct de novo review of this decision. Wages v. McDonald, 27 Vet. App. 233, 238-39 (2015) (holding that the Board conducts de novo review of the Director’s decision denying extraschedular consideration). The Board also points out that the Board’s determination that referral for extraschedular consideration is warranted does not establish that an extraschedular rating is warranted. Thun v. Peake, 22 Vet. App. 111 (2008), describes the three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular rating for that service-connected disability is inadequate. Second, if the schedular rating does not contemplate the veteran’s level of disability and symptomatology and is found inadequate, the Board must determine whether the Veteran’s disability picture exhibits other related factors such as those provided by the regulation as “governing norms.” Third, if the rating schedule is inadequate to evaluate the veteran’s disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director, Compensation and Pension Service, to determine whether, to accord justice, the veteran’s disability picture requires the assignment of an extraschedular rating. If an extraschedular disability rating is denied in the first instance, then the matter is returned to the Board for reevaluation based on the first two criteria. As determined in the December 2018 Board decision, the Veteran’s service-connected vestibular abnormality and positional vertigo is currently evaluated as 30 percent disabling, pursuant to 38 C.F.R. § 4.87, Diagnostic Code 6205. Under Diagnostic Code 6205, contemplating Meniere’s syndrome (endolymphatic hydrops), a 30 percent rating is warranted for hearing impairment with vertigo less than once a month, with or without tinnitus, and a 60 percent rating is warranted for hearing impairment with attacks of vertigo and cerebellar gait occurring from one to four times a month, with or without tinnitus. A 100 percent rating is warranted 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 provides that Meniere’s syndrome can be evaluated either under these criteria or by separately evaluating vertigo as a peripheral vestibular disorder, hearing impairment, and tinnitus, whichever method results in a higher overall evaluation. However, a combined evaluation for hearing impairment, tinnitus, or vertigo with an evaluation under Diagnostic Code 6205 is inappropriate. Id. As also previously noted in the December 2018 Board decision, the Veteran’s service-connected vestibular abnormality and positional vertigo manifested the symptoms of nausea and blurred vision that are not specifically contemplated by the rating schedule. A December 2006 VA examination reflects the Veteran’s reports of nausea and blurred vision because of his vertigo. After considering the additional symptoms, the examiner did not find that the vestibular abnormality and positional vertigo interfered with the Veteran’s employment. A February 2016 VA examination report again detailed the Veteran’s symptoms of blurred vision and nausea as related to his service-connected vestibular abnormality and positional vertigo. The February 2016 examiner also did not find that the vestibular abnormality and positional vertigo interfered with employment. After reviewing the strong supporting information taken from the remaining competent evidence of record, the Board concludes that ultimately an extraschedular evaluation is not assignable in this case. The December 2006 and February 2017 VA examiners both concluded that the Veteran’s vestibular abnormality and positional vertigo condition did not interfere with his employment, and the findings on examination were not tantamount to marked interference with employment. None of the other medical evidence of record indicates that the Veteran’s vestibular abnormality and positional vertigo results in marked interference with employment. The Board agrees with the December 2006 and February 2017 opinions and, moreover, finds them wholly persuasive in light of what the supporting medical evidence shows. The Board does not doubt that the service-connected vestibular abnormality and positional vertigo resulted in some meaningful impact upon the Veteran’s occupational functioning when he was working; however, marked interference in employment is not shown in light of the medical opinions of record or the circumstances of this particular case. Aside from employability, the Veteran also has not had any periods of hospitalization resulting from his service-connected vestibular abnormality and positional vertigo or other factors that would contribute to a particularly acute or unusual disability picture. Medical treatment records do not show that the Veteran was frequently hospitalized for vestibular abnormality and positional vertigo and there is no other documentation of record to support frequent hospitalization as a result of this disability. The Board does not dispute that the vestibular abnormality and positional vertigo may interfere with employment; however, this is recognized in the assignment of a 30 percent rating. In summary, there is no evidence that the Veteran’s disability picture exhibits other related factors such as those provided by the regulation as “governing norms” in accordance with Thun. Thun, 22 Vet. App. 111. Accordingly, the claim for entitlement to an increased rating for vestibular abnormality and positional vertigo on an extraschedular basis is denied. Thomas H. O'Shay Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. Peden The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.