Citation Nr: 21003692 Decision Date: 01/22/21 Archive Date: 01/22/21 DOCKET NO. 16-17 217 DATE: January 22, 2021 ORDER Entitlement to a 10 percent disability rating for peripheral vestibular disorder is granted for the entire period on appeal (so as of January 1, 2014, rather than just as of August 30, 2020). However, a rating in excess of 10 percent for the peripheral vestibular disorder, either prior to or since August 30, 2020, is denied. FINDING OF FACT The Veteran has experienced occasional dizziness for the entire period on appeal, so since January 1, 2014, but not also occasional staggering. CONCLUSION OF LAW Giving him the benefit of the doubt, the criteria are met for a 10 percent disability rating, but no greater, for his peripheral vestibular disorder for the entire period on appeal, therefore since January 1, 2014 (not just, instead, since August 30, 2020). 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.87, Diagnostic Code (DC/Code) 6204. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1990 to July 1994 and from July 1997 to December 2013. This appeal to the Board of Veterans’ Appeals (BVA) originated from a December 2014 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO) that, in part, granted service connection for peripheral vestibular disorder (PVD) and assigned an initial 0 percent (so noncompensable) rating for it retroactively effective from January 1, 2014, so back to the day following conclusion of the Veteran’s second and final period of service. He appealed for a higher initial rating. See Fenderson v. West, 12 Vet. App. 119 (1999) (indicating that, in this circumstance, VA adjudicators must consider whether to “stage” a rating – meaning, assign different ratings since the effective date of the award if there have been occasions when the disability has been more severe than at others). In support of his claim for a higher initial rating for this disability, and other claims he also had appealed, the Veteran testified at a hearing in August 2019 before the undersigned Veterans Law Judge of the Board. That same month, the Board issued a decision dismissing his claim for service connection for a cardiac disability since he had withdrawn that claim. The Board also, however, granted his claims for service connection for a skin disability and for sciatica of his right lower extremity. But the Board, instead, remanded this remaining claim for a higher initial rating for his PVD because he needed to be reexamined to reassess the severity of this disability. There since has been the required compliance, certainly the acceptable substantial compliance, with that remand directive. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the remand instructions); but see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only “substantial” rather than “strict” or “exact” compliance with the Board's remand directives is required under Stegall); accord Dyment v. West, 13 Vet. App. 141, 146-47 (1999).   Indeed, on remand, the rating for the PVD was “staged” because, in a September 2020 decision since issued, the RO increased the rating from 0 to 10 percent as of August 30, 2020, so as of the date of the Veteran’s VA contract examination on remand, because the RO determined his symptoms had worsened as of that date to warrant this higher rating. As such, the rating increase did not go all the way back to the January 1, 2014, effective date of the initial rating – meaning this appeal now concerns whether an initial rating higher than 0 percent (so a compensable rating) was warranted prior to August 30, 2020, i.e., from January 1, 2014 to August 29, 2020, and whether a rating higher than 10 percent has been warranted since August 30, 2020. See AB v. Brown, 6 Vet. App. 35, 38-39 (1993) (receipt of a higher rating, but less than maximum possible rating (and for the entirety of the appeal period), does not abrogate a pending appeal unless the Veteran expressly indicates he is satisfied or content with the new rating). In the December 2020 Appellant’s Post-Remand Brief, the Veteran’s representative contended that an even higher 30 percent rating is warranted for the PVD. The higher 10 percent rating for the PVD is granted for the entire period on appeal – so since January 1, 2014, rather than just as of August 30, 2020 Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule), which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10.   When evaluating the severity of a disability, it is essential the disability is considered in the context of its entire recorded history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). But, as already indicated, if the factual findings show distinct time periods where the service-connected disability exhibits symptoms that warrant different ratings, then separate ratings may be assigned for separate periods of time based on the facts found. This practice is known as "staged" ratings and is employed for initial or established ratings. Fenderson, 12 Vet. App. at 125-26; Hart v. Mansfield, 21 Vet. App. 505 (2007). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. In general, it is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran's PVD is rated under 38 C.F.R. § 4.87, Diagnostic Code (DC) 6204. Under DC 6204, a PVD diagnosis warrants a 0 percent rating; occasional dizziness warrants a 10 percent rating; and dizziness and occasional staggering warrant a maximum 30 percent rating. Dizziness can be characterized as unsteadiness, imbalance, or disequilibrium, which is “any derangement of the sense of equilibrium.” See 38 C.F.R. § 4.87, DC 6204; DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 577 (32nd ed. 2012). DC 6204 requires objective findings to support a PVD diagnosis. As dizziness generally cannot be measured objectively, but can be objectively observed, this can be read as inclusive of any objective findings, such as a related chronic disorder diagnosis or triggering condition. The Veteran’s service treatment records (STRs) show he was seen for what was described as disequilibrium (sometimes spelled “dysequilibrium”) in April 2009, and he indicated he had been experiencing his symptoms for about a year, so since April 2008 or thereabouts. He had eustachian tube dysfunction diagnosis in September 2009, and he reported problems with imbalance to medical providers in June 2011 and August 2013. His military service ended a relatively short time later, in December 2013.   During his initial VA examination in January 2014, the Veteran stated that his symptoms were more severe at outset but became milder as time passed. At the time of that examination, he said he was experiencing frequent episodes of mild vertigo, imbalance, and left ear “fullness.” However, the examiner found the symptoms amounted to hearing impairment with vertigo and gait impairment less than once a month, with constant tinnitus but without objective findings to support a PVD diagnosis. The Veteran underwent another VA examination in December 2014. He again reported more severe, less frequent disequilibrium (9-10 times a year) at the outset. However, his milder symptoms occurred 7 to 10 times monthly, generally related to loud music, phone calls, and cardiovascular activity. During that evaluation, the examiner identified the Veteran’s September 2009 eustachian tube dysfunction as related to PVD, and in response it was determined that later same month – in the December 2014 RO decision that precipitated this appeal – that the Veteran was entitled to service connection for PVD but with an initial 0 percent rating for this disability. The rating, however, since has been increased 10 percent, albeit not back to the same effective date as his prior rating that prompted this appeal. In August 2019, at his hearing before this Board during the pendency of his appeal, the Veteran testified that he becomes unbalanced 2 to 3 times weekly (so roughly equivalent to the 7-10 times monthly reported in December 2014). He said his friends and exercise-buddies recognize when he is having symptoms and resultantly generally slow down, allowing him to lean on someone’s shoulder before moving on. During his September 2020 VA contract examination, on remand, he reported intermittent, transient vertigo occurring up to 7 days a week. The Veteran is competent to comment on factual matters concerning which he has first-hand knowledge, such as experiencing dizziness, imbalance, or vertigo, including insofar as when it started occurring and how long it has persisted, both in terms of each episode and throughout time. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). Based on his recounted history of this disability, the Board finds sufficient evidence to conclude he has experienced occasional dizziness even since January 1, 2014, thereby satisfying the criteria for the higher 10 percent rating for the entire period on appeal – not just since his most recent VA contract examination, on remand, on August 30, 2020. Thus, he is entitled to this higher 10 percent rating for his PVD as of that earlier effective date. See Harper v. Brown, 10 Vet. App. 125 (1997). The RO cited the date of that August 30, 2020 VA contract examination as first indication the Veteran met the requirements for this higher 10 percent rating. However, in McGrath v. Gober, 14 Vet. App. 28 (2000), the U. S. Court of Appeals for Veterans Claims (Veterans Court/CAVC) held that, when evidence is created is irrelevant compared to when the Veteran experienced the symptoms. It is possible that a particular piece of evidence demonstrates that the Veteran suffered from the symptoms of a disability or rating level earlier than the date of the examination, opinion, or diagnosis. See DeLisio v. Shinseki, 25 Vet. App. 45, 56 (2011) (holding that “entitlement to benefits for a disability or disease does not arise with a medical diagnosis of the condition, but with the manifestation of the condition and the filing of a claim for benefits for the condition” (citing 38 U.S.C. § 5110(a)); Tatum v. Shinseki, 24 Vet. App. 139, 145 (2010) (holding that “it is the information in a medical opinion, and not the date the medical opinion was provided that is relevant when assigning an effective date”). The Veteran’s statements regarding his symptoms are largely unopposed on record. It appears the December 2014 rating decision that found no compensable symptoms ignored or certainly did not reconcile the Veteran’s complaints of disequilibrium, vertigo, and imbalance during his January and December 2014 medical examinations. Since his competent lay statements concerning this are supported by physical findings of an underlying ear dysfunction and internally consistent over a number of years, the Board finds them also credible and, thus, ultimately probative. It resultantly is as likely as not the Veteran was experiencing occasional dizziness commensurate with the higher 10 percent rating for the entire period on appeal – again, meaning even since January 1, 2014 and not just, instead, only since August 30, 2020.   Entitlement to a disability rating higher than 10 percent for the PVD, both prior to and since August 30, 2020 (i.e., at any time since January 1, 2014) In his most recent submission, in December 2020, the Veteran’s representative argued that an even higher 30 percent rating is warranted for the PVD. As already mentioned, the only rating exceeding 10 percent under DC 6204 is the maximum 30 percent rating that requires dizziness and staggering. Although the term “staggering” is not defined in the Rating Schedule, it is generally defined as standing or proceeding unsteadily. See Webster's New College Dictionary, 3rd ed., at 1099. And, here, although the evidence clearly reflects instances of dizziness, the Veteran does not contend, and the medical records do not tend to substantiate, that he also experiences staggering. Further, there is no evidence that he requires crutches or aids to walk or is a fall risk. In August 2019, he testified that, when he gets dizzy, he leans on a rail or on a friend’s shoulder so that he does not trip over his feet. In essence, then, he testified that he becomes imbalanced, but only insomuch as he has to stop and regain that balance. Dizziness, as expressed here, is already encompassed by the 10 percent rating criteria of DC 6204. Further, the Board finds that there are no manifestations of the Veteran's PVD unaccounted for by application of the schedular rating criteria. Application of the schedular rating criteria has not been rendered impractical by the reported disequilibrium, which is understood to be contemplated by the rating criteria even if not specifically mentioned therein. Thun v. Peake, 22 Vet. App. 111, 115 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009); 38 C.F.R. §§ 4.1, 4.10. Accordingly, the available schedular ratings are adequate to rate this disability, and the first step of the inquiry for extraschedular consideration is not satisfied. Id. In the absence of this threshold finding, the second step of the inquiry, namely, whether there are related factors such as marked interference with employment or frequent periods of hospitalization, is moot. Id., at 118-19. Therefore, the Board finds that it is not required to refer this claim to the Director of the Compensation Service for extra-schedular consideration under 38 C.F.R. § 3.321(b). For the reasons and bases discussed, although the evidence supports assigning the higher 10 percent rating as of an earlier effective date (again, as of January 1, 2014, rather than just as of August 30, 2020), the Board instead finds that the preponderance of the evidence is against assignment of any greater rating at any time since January 1, 2014. There is no reasonable doubt to be resolved in the Veteran’s favor regarding the latter. See 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). KEITH W. ALLEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board W. Stearns, Associate Counsel 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. Department of Veterans Affairs YOUR RIGHTS TO APPEAL OUR DECISION The attached decision by the Board of Veterans' Appeals (Board) is the final decision for all issues addressed in the "Order" section of the decision. The Board may also choose to remand an issue or issues to the local VA office for additional development. If the Board did this in your case, then a "Remand" section follows the "Order." However, you cannot appeal an issue remanded to the local VA office because a remand is not a final decision. The advice below on how to appeal a claim applies only to issues that were allowed, denied, or dismissed in the “Order.” If you are satisfied with the outcome of your appeal, you do not need to do anything. Your local VA office will implement the Board’s decision. However, if you are not satisfied with the Board's decision on any or all of the issues allowed, denied, or dismissed, you have the following options, which are listed in no particular order of importance: • Appeal to the United States Court of Appeals for Veterans Claims (Court) • File with the Board a motion for reconsideration of this decision • File with the Board a motion to vacate this decision • File with the Board a motion for revision of this decision based on clear and unmistakable error. Although it would not affect this BVA decision, you may choose to also: • Reopen your claim at the local VA office by submitting new and material evidence. There is no time limit for filing a motion for reconsideration, a motion to vacate, or a motion for revision based on clear and unmistakable error with the Board, or a claim to reopen at the local VA office. Please note that if you file a Notice of Appeal with the Court and a motion with the Board at the same time, this may delay your appeal at the Court because of jurisdictional conflicts. If you file a Notice of Appeal with the Court before you file a motion with the Board, the Board will not be able to consider your motion without the Court's permission or until your appeal at the Court is resolved. How long do I have to start my appeal to the court? You have 120 days from the date this decision was mailed to you (as shown on the first page of this decision) to file a Notice of Appeal with the Court. If you also want to file a motion for reconsideration or a motion to vacate, you will still have time to appeal to the court. As long as you file your motion(s) with the Board within 120 days of the date this decision was mailed to you, you will have another 120 days from the date the Board decides the motion for reconsideration or the motion to vacate to appeal to the Court. You should know that even if you have a representative, as discussed below, it is your responsibility to make sure that your appeal to the Court is filed on time. Please note that the 120-day time limit to file a Notice of Appeal with the Court does not include a period of active duty. If your active military service materially affects your ability to file a Notice of Appeal (e.g., due to a combat deployment), you may also be entitled to an additional 90 days after active duty service terminates before the 120-day appeal period (or remainder of the appeal period) begins to run. How do I appeal to the United States Court of Appeals for Veterans Claims? Send your Notice of Appeal to the Court at: Clerk, U.S. Court of Appeals for Veterans Claims 625 Indiana Avenue, NW, Suite 900 Washington, DC 20004-2950 You can get information about the Notice of Appeal, the procedure for filing a Notice of Appeal, the filing fee (or a motion to waive the filing fee if payment would cause financial hardship), and other matters covered by the Court's rules directly from the Court. You can also get this information from the Court's website on the Internet at: http://www.uscourts.cavc.gov, and you can download forms directly from that website. The Court's facsimile number is (202) 501-5848. To ensure full protection of your right of appeal to the Court, you must file your Notice of Appeal with the Court, not with the Board, or any other VA office. How do I file a motion for reconsideration? You can file a motion asking the Board to reconsider any part of this decision by writing a letter to the Board clearly explaining why you believe that the Board committed an obvious error of fact or law, or stating that new and material military service records have been discovered that apply to your appeal. It is important that your letter be as specific as possible. A general statement of dissatisfaction with the Board decision or some other aspect of the VA claims adjudication process will not suffice. If the Board has decided more than one issue, be sure to tell us which issue(s) you want reconsidered. Issues not clearly identified will not be considered. Send your letter to: Litigation Support Branch Board of Veterans' Appeals P.O. Box 27063 Washington, DC 20038 VA FORM DEC 2016 4597 Page 1 CONTINUED ON NEXT PAGE Remember, the Board places no time limit on filing a motion for reconsideration, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to vacate? You can file a motion asking the Board to vacate any part of this decision by writing a letter to the Board stating why you believe you were denied due process of law during your appeal. See 38 C.F.R. 20.904. For example, you were denied your right to representation through action or inaction by VA personnel, you were not provided a Statement of the Case or Supplemental Statement of the Case, or you did not get a personal hearing that you requested. You can also file a motion to vacate any part of this decision on the basis that the Board allowed benefits based on false or fraudulent evidence. Send this motion to the address on the previous page for the Litigation Support Branch, at the Board. Remember, the Board places no time limit on filing a motion to vacate, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to revise the Board's decision on the basis of clear and unmistakable error? You can file a motion asking that the Board revise this decision if you believe that the decision is based on "clear and unmistakable error" (CUE). Send this motion to the address on the previous page for the Litigation Support Branch, at the Board. You should be careful when preparing such a motion because it must meet specific requirements, and the Board will not review a final decision on this basis more than once. You should carefully review the Board's Rules of Practice on CUE, 38 C.F.R. 20.1400-20.1411, and seek help from a qualified representative before filing such a motion. See discussion on representation below. Remember, the Board places no time limit on filing a CUE review motion, and you can do this at any time. How do I reopen my claim? You can ask your local VA office to reopen your claim by simply sending them a statement indicating that you want to reopen your claim. However, to be successful in reopening your claim, you must submit new and material evidence to that office. See 38 C.F.R. 3.156(a). Can someone represent me in my appeal? Yes. You can always represent yourself in any claim before VA, including the Board, but you can also appoint someone to represent you. An accredited representative of a recognized service organization may represent you free of charge. VA approves these organizations to help veterans, service members, and dependents prepare their claims and present them to VA. An accredited representative works for the service organization and knows how to prepare and present claims. You can find a listing of these organizations on the Internet at: http://www.va.gov/vso/. You can also choose to be represented by a private attorney or by an "agent." (An agent is a person who is not a lawyer, but is specially accredited by VA.) If you want someone to represent you before the Court, rather than before the VA, you can get information on how to do so at the Court’s website at: http://www.uscourts.cavc.gov. The Court’s website provides a state-by-state listing of persons admitted to practice before the Court who have indicated their availability to the represent appellants. You may also request this information by writing directly to the Court. Information about free representation through the Veterans Consortium Pro Bono Program is also available at the Court’s website, or at: http://www.vetsprobono.org, mail@vetsprobono.org, or (855) 446-9678. Do I have to pay an attorney or agent to represent me? An attorney or agent may charge a fee to represent you after a notice of disagreement has been filed with respect to your case, provided that the notice of disagreement was filed on or after June 20, 2007. See 38 U.S.C. 5904; 38 C.F.R. 14.636. If the notice of disagreement was filed before June 20, 2007, an attorney or accredited agent may charge fees for services, but only after the Board first issues a final decision in the case, and only if the agent or attorney is hired within one year of the Board’s decision. See 38 C.F.R. 14.636(c)(2). The notice of disagreement limitation does not apply to fees charged, allowed, or paid for services provided with respect to proceedings before a court. VA cannot pay the fees of your attorney or agent, with the exception of payment of fees out of past-due benefits awarded to you on the basis of your claim when provided for in a fee agreement. Fee for VA home and small business loan cases: An attorney or agent may charge you a reasonable fee for services involving a VA home loan or small business loan. See 38 U.S.C. 5904; 38 C.F.R. 14.636(d). Filing of Fee Agreements: If you hire an attorney or agent to represent you, a copy of any fee agreement must be sent to VA. The fee agreement must clearly specify if VA is to pay the attorney or agent directly out of past-due benefits. See 38 C.F.R. 14.636(g)(2). If the fee agreement provides for the direct payment of fees out of past-due benefits, a copy of the direct-pay fee agreement must be filed with the agency of original jurisdiction within 30 days of its execution. A copy of any fee agreement that is not a direct-pay fee agreement must be filed with the Office of the General Counsel within 30 days of its execution by mailing the copy to the following address: Office of the General Counsel (022D), Department of Veterans Affairs, 810 Vermont Avenue, NW, Washington, DC 20420. See 38 C.F.R. 14.636(g)(3). The Office of the General Counsel may decide, on its own, to review a fee agreement or expenses charged by your agent or attorney for reasonableness. You can also file a motion requesting such review to the address above for the Office of the General Counsel. See 38 C.F.R. 14.636(i); 14.637(d). VA FORM DEC 2016 4597 Page 2 SUPERSEDES VA FORM 4597, APR 2015, WHICH WILL NOT BE USED