Citation Nr: 21068453 Decision Date: 11/10/21 Archive Date: 11/10/21 DOCKET NO. 14-38 564A DATE: November 10, 2021 ORDER A higher 30 percent rating, though no greater, is granted for Meniere's Syndrome from March 21, 2012 to April 10, 2013 (so not just since April 10, 2013) under Diagnostic Code (DC) 6205, subject to the statutes and regulations governing payment of retroactive compensation. As of June 25, 2014, the Veteran is no longer entitled to a compensable rating under DC 6205 because a 30 percent rating is granted instead under DC 6204, also a 10 percent rating under DC 6260, and a 0 percent (noncompensable) rating under DC 6100, subject to the statutes and regulations governing payment of retroactive compensation. FINDINGS OF FACT 1. The most probative (meaning most competent and credible) evidence is against finding that the Veteran has cerebellar gait due to his Meniere's Syndrome. 2. But it is as likely as not he has had hearing impairment with vertigo and tinnitus since March 21, 2012. 3. It also is as likely as not he has had occasional staggering since June 25, 2014. CONCLUSIONS OF LAW 1. The criteria are met for a 30 percent rating for the Meniere's Syndrome from March 21, 2012 to June 25, 2014 under DC 6205, but separate ratings for tinnitus, vertigo, and bilateral hearing loss are not warranted during this initial period. 38 U.S.C.§§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.85 - 4.87, DC 6205. 2. However, as of June 25, 2014, a rating under DC 6205 is no longer warranted, but from that date onward the criteria are met for a 30 percent rating instead under DC 6204, a 10 percent rating under DC 6260, and a 0 percent (noncompensable) rating under DC 6100. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.85 - 4.87, DCs 6204, 6260, and 6100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1965 to April 1972. This claim most recently was before the Board in August 2020, at which time it was remanded back to the local Regional Office (RO), so back to the Agency of Original Jurisdiction (AOJ), for further development and consideration including especially for needed VA compensation examinations reassessing the severity of this service-connected disability, particularly in terms of all associated symptoms. There since has been the required compliance, certainly acceptable substantial compliance, with the remand directives. See Dyment v. West, 13 Vet. App. 141 (1999) (noting that another remand is not required under Stegall v. West, 11 Vet. App. 268, 271 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). Increased Rating Disability evaluations are determined by comparing a Veteran's present symptoms with criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a particular DC, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. 38 C.F.R.§ 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. Id. § 4.3. "Staged" ratings are appropriate for an increased-rating claim when the factual findings show distinct time periods when the service-connected disability exhibits symptoms warranting different ratings irrespective of whether an initial or established rating. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). 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 was actually experiencing the symptoms. Thus, the Board will consider whether the evidence of record suggests that the severity of pertinent symptoms increased sometime prior to the date of the examination reports noting pertinent findings. Entitlement to an increased rating for the Meniere's Syndrome, including when considering symptoms such as vertigo, staggering, tinnitus, and hearing loss Meniere's Syndrome is to be rated either under certain criteria that are based on frequency of hearing impairment, vertigo, cerebellar gait, and tinnitus or by separately rating vertigo as a peripheral vestibular disorder, hearing impairment, and tinnitus, whichever method results in a higher overall rating. The Veteran's Meniere's Syndrome was rated as noncompensable under DC 6205 prior to April 10, 2013, but he had separate ratings for tinnitus and bilateral hearing loss from March 21, 2012 to April 10, 2013, for a combined rating of 10 percent. See 38 C.F.R. § 4.25. From April 10, 2013 to August 9, 2021, his symptoms were rated as 30-percent disabling under DC 6205 for Meniere's Syndrome, and he was no longer separately rated for hearing loss and tinnitus as they were encompassed in his rating under DC 6205. Since August 9, 2021, his symptoms have been separately rated as 30-percent disabling for vertigo and staggering (DC 6205-6204), 10-percent disabling for tinnitus under DC 6205-6260, and a noncompensable rating for bilateral hearing loss under DC 6205-6100, for a combined rating of 40 percent. His combined ratings therefore were 10 percent from March 21, 2012, 30 percent from April 10, 2013, and 40 percent since August 9, 2021. Historically, in a January 2013 rating decision, the RO granted service connection for tinnitus, hearing loss, and Meniere's Syndrome and assigned an effective date of March 21, 2012. The RO rated the Veteran's disability based on hearing loss and tinnitus, but not based on "hearing impairment with vertigo" that would have warranted at least a 30 percent rating under DC 6205. On April 10, 2013, thus, within a year of that January 2013 rating decision, the Veteran contacted the RO and requested an increased rating, also to reopen his claim or to have his claim reconsidered. See VA Form 21-0820. In response, the RO considered that contact as a new claim for an increased rating; however, it reasonably certainly liberally can be construed as a Notice of Disagreement (NOD) with the January 2013 rating decision because it was within one year of that rating decision and because it was prior to March 25, 2015 (the effective date when VA started only accepting issues listed on a timely VA Form 21-0958, i.e., on a standardized NOD form, see 79 Fed. Reg. 57660). Therefore, in keeping with the Veteran-centric role of VA, the Board finds that the January 2013 rating decision did not become a final and binding determination. See 38 C.F.R. § 20.201 (2015) (a communication expressing dissatisfaction with a RO decision and a desire to contest the result constitutes a NOD; special wording not required); see also Palmer v. Nicholson, 21 Vet. App. 434, 437 (2007) ("VA has always been, and will continue to be, liberal in determining what constitutes a [NOD]."). The Board find that a 30 percent rating is warranted from March 21, 2012, the date of service connection, under DC 6205 for hearing impairment with vertigo and tinnitus. A February 2012 Disability Benefits Questionnaire (DBQ) from Dr. J. Ruddy reflects that the Veteran has noise-induced hearing loss, tinnitus, and vertigo. He did not have staggering noted as a symptom. The hearing impairment with vertigo was more than once a week. Thus, the Veteran's disability met the criteria for a 30 percent rating under DC 6205. A higher rating is not warranted because he did not have hearing impairment with attacks of vertigo and cerebellar gait occurring from one to four times a month without or without tinnitus (60 percent), or hearing impairment with attacks of vertigo and cerebellar gait occurring more than once weekly, with or without tinnitus (100 percent). Essentially, he did not have the required cerebellar gait to warrant a higher rating. A February 2012 private record by D. Ramon/Dr. Salazar reflects that the Veteran reported subjective vertigo, tinnitus, and hearing loss. It was noted that on the Romberg test, he had slight swaying backwards but no loss of balance. This does not support cerebellar gait. See AZ v. Shinseki, 731 F.3d 1303, 1318 (Fed. Cir. 2013) (recognizing the widely held view that the absence of an entry in a record may be considered evidence that the fact did not occur if it appears that the fact would have been recorded if present). A May 2014 VA Form 21-4138 from Dr. Salazar reflects that the Veteran suffers from continuous tinnitus and "continuous vertigo with trivial head movements. On Betahistine his dizziness is typically just on waking for minutes before his symptom clears." Again, this does not support cerebellar gait. On a May 2014 VA Form 21-0958, the Veteran asserted that he has continuous tinnitus, and that he takes Betahistine to control his vertigo and "associated dizziness and instability". He reported having instability daily after rising in the morning and that it varies from a few seconds up to a minute. He asserted that his symptoms had caused him to retire from his job for safety reasons (i.e., he no longer believed it was safe to carry a weapon). A June 2014 Ear Conditions DBQ list diagnoses of Meniere's Syndrome, peripheral vestibular disorder, and benign paroxysmal positional vertigo (BPPV). It indicates the Veteran has staggering of less than once an hour in duration, but the DBQ does not reflect the frequency. It also notes hearing impairment with attacks of vertigo and cerebellar gait lasting less than an hour, but again does not reflect the frequency. Thus, it does not adequately present evidence to warrant a higher evaluation. On his October 2014 VA Form 9, Substantive Appeal to this Board, the Veteran stated that he has "cerebellar gait" occurring daily when rising in the morning and lasting several minutes. He added that the gait disturbance does not occur after that initial period. He asserted that he was entitled to a 60 or 100 percent rating. October 2014 Wolfville Hearing Clinic, Ltd. (Dr. Fisk) correspondence shows the Veteran reported increasing hearing loss, constant daily tinnitus, and episodic vertigo. Dr. Fisk conceded he was not a specialist in vestibular audiology. A January 2015 VA preventive health nurse record shows the Veteran's gait was normal. On a February 2015 VA Form 9, the Veteran asserted that his "morning instability has been described as 'cerebellar gait'." March 2017 correspondence from Wolfville Hearing Clinic Ltd. (Audiologist S. Bonnell) reflects that the Veteran has "balance difficulties", hearing loss, and tinnitus. In a September 2017 statement, the Veteran asserted that his dizziness associated with Meniere's is "quite well controlled with" medication, but that he also has "spinning sensation and subsequent loss of balance" in the morning when he rises, and he believes that it is attributable to BPPV. A "spinning sensation" is a characteristic of vertigo. Vertigo is an illusory sense that either the environment or one's own body is revolving. BPPV is a more specific type of vertigo that occurs when the head is placed in a certain position such as with one ear down, and relieved by returning to an upright position. See DORLAND'S ILLUSTRATED MEDICAL DICTIONARY. A January 2020 DBQ shows the Veteran reported having "a funny walk on occasions, like ataxia." He also reported bumping into the door earlier that same month on January 5, 2020. When noting the Veteran's symptoms, the examiner did not check the box that the Veteran had staggering or the box that he had cerebellar gait but nonetheless noted that the Veteran has slow gait and reaches out towards a wall (i.e., unsteady). The examiner stated that, due to unsteadiness, the Veteran has falls. The examiner noted that the Veteran "maintains personal log, started 2018 through end of 2019, averaging three ataxia attacks a day." It was noted that he does not use a cane. During testing, he began to fall backwards. The examiner did not check that the Veteran had cerebellar gait, but rather found he had staggering. According to VA's Adjudication Procedures Manual, a cerebellar gait is a wide-based gait with lateral veering, a slow, jerky and irregular cadence, variable stride length, variability of foot placement from step to step, postural adjustments and propensity to lose balance, in essence a staggering associated with vertigo. Dizziness is a sensation or perception of unsteadiness, imbalance, or potential unconsciousness. Vertigo is best understood as a variety of dizziness where the feeling of unsteadiness or imbalance is due to the sense of spinning. See M21-1, Part V. Subpart iii.2.B.4.a. and e. While the M21-1 is not binding on the Board, it provides some perspective as to the difference between dizziness and vertigo, and types of gait. As noted by the U. S. Court of Appeals of Veterans Claims, the Board is required to discuss any relevant portions of the M21-1 as part of its duty to provide adequate reasons and bases. See Nat'l Org. of Veterans' Advocates, 981 F.3d at 1376 (2020), citing Overton v. Wilkie, 30 Vet. App. 257 (2018). In addition, cerebellar or ataxic gait "is described as clumsy, staggering movements with a wide-based gait. While standing still, the patient's body may swagger back and forth and from side to side, known as titubation. Patients will not be able to walk from heel to toe or in a straight line. The gait of acute alcohol intoxication will resemble the gait of cerebellar disease." Gait Abnormalities, Stan. Med., as cited by the Court in Johnson v. McDonough, 2021 U.S. App. Vet. Claims Lexis 579 (March 31, 2021). An August 9, 2021 DBQ reflects that the Veteran has hearing impairment with vertigo, tinnitus, vertigo, and staggering, but the examiner did not check that the Veteran had hearing impairment with attacks of vertigo and cerebellar gait. The examiner noted that the Veteran had a "subtle ataxic gait not sufficient to require a cane or walker for support." The examiner noted that the Veteran's disability impacts his ability to work when he would have to climb while looking up, such as when changing a light bult, he loses his balance. He was also unable to lay flat and work on something overhead such as under a kitchen sink. Leaning over at the waist will also precipitate vertigo. The examiner found that the Veteran's hearing loss and tinnitus make group communication challenging and his balance difficulty would affect his ability to safely navigate a work environment. The Board finds that the Veteran's disability does not meet the criteria for a rating greater than 30 percent under DC 6205 because no examiner has found that he has cerebellar gait occurring at least once a month. Moreover, while he is competent to report feeling dizzy or unbalanced, he is not competent to diagnose his particular gait disturbance as "cerebellar" since this determination is medically complex, not instead merely simple. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). Moreover, as the Court has explained, the "connection between what a physician said and the layman's account of what he purportedly said, filtered as it was through a layman's sensibilities, is simply too attenuated and inherently unreliable to constitute 'medical evidence.'' Robinette v. Brown, 8 Vet. App. 69, 77 (1995). Despite several evaluations, no clinician has both observed and noted a gait that resembles the gait of someone who is acutely intoxicated or has described this Veteran's gait in terms of such severity. Although the June 2014 Ear Conditions DBQ reports that the Veteran had cerebellar gait, it does not provide a frequency of such and is not supported by the other clinical records in evidence. This is not a situation such as in Savage v. Shinseki, 24 Vet. App. 259 (2011), wherein VA was required to seek clarification of a private examination report as to what type of test was used during an audiology examination. In the present situation, the examiner would not be able to now provide objective evidence of frequency of cerebellar gait. Also, the examiner noted "normal" gait in the office and was merely reporting that the Veteran had stated he had an unsteady gait upon waking. As other relevant evidence, the Board also has considered the Veteran's statements that his dizziness is controlled, in part, due to his medication. The Board may not consider the ameliorative effects of medication unless this is expressly contemplated by the rating criteria. See Jones v. Shinseki, 26 Vet. App. 56 (2012). Here, though, there is no evidence that, without use of medication, the Veteran would have cerebellar gait at least once a month. As the highest warranted rating under DC 6205 is 30 percent, the Board also has considered whether, instead, separate ratings under DC 6204 (peripheral vestibular disease), DC 6100 (hearing loss), and DC 6260 (tinnitus) would result in a higher combined rating. Under DC 6204, occasional dizziness warrants a 10 percent rating. Dizziness with occasional staggering warrants a 30 percent rating. As discussed, a June 25, 2014 Ear Conditions DBQ affirms the Veteran was unsteady upon waking, although it was not observed by the evaluating clinician. Thus, along with the reports of dizziness, the Board nonetheless can find that the Veteran warrants a 30 percent rating under DC 6204 effective from June 25, 2014. In this regard, in being Veteran-centric, the Board will allow that he can report unsteadiness upon waking but is not competent to assess the more complex cerebellar gait with vertigo. Moreover, the Board finds that his earlier assessment of "instability" is not synonymous with staggering; instead, the earliest probative evidence when it can be factually ascertained there was staggering is the June 15, 2014 DBQ. A 10 percent rating is the maximum permissible schedular rating for recurrent tinnitus under DC 6260. See Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006). As for hearing loss, the examination reports are against finding that a compensable rating is warranted. 38 C.F.R. §§ 4.85, 4.86, DC 6100. A February 2012 private audiology record (Nova Scotia Hearing and Speech Centres, Kentville Community Clinic) reveals that average puretone threshold for the Veteran's right ear was 28.75 decibels (dB) with a speech recognition score of 96 percent, and for the left ear was 28.75 dB with a speech recognition score of 92 percent (although it was not confirmed that the required Maryland CNC Word list was used). Disability ratings for hearing loss are derived by a "mechanical" (meaning nondiscretionary) application of the Rating Schedule to the numeric designations assigned after audiometric evaluations are performed. See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). Hearing loss disability evaluations range from 0 percent (noncompensable) to 100 percent based on organic impairment of hearing acuity, as measured by controlled speech discrimination tests in conjunction with the average hearing threshold, as measured by pure tone audiometric tests in the frequencies of 1,000, 2,000, 3,000 and 4,000 cycles per second (Hertz (Hz)). The Rating Schedule establishes 11 auditory acuity levels designated from Level I for essentially normal hearing acuity, through Level XI for profound deafness. VA audiometric examinations are conducted using a controlled speech discrimination test together with the results of a pure tone audiometric test. The horizontal lines in Table VI (in 38 C.F.R. § 4.85) represent nine categories of the percentage of discrimination based on the controlled speech discrimination test. The vertical columns in Table VI represent nine categories of decibel loss based on the pure tone audiometric test. The numeric designation of impaired hearing (Levels I through XI) is determined for each ear by intersecting the horizontal row appropriate for the percentage of discrimination and the vertical column appropriate to the pure tone decibel loss. The percentage evaluation is found from Table VII (in 38 C.F.R. § 4.85) by intersecting the horizontal row appropriate for the numeric designation for the ear having the better hearing acuity and the appropriate vertical column to the numeric designation level for the ear having the poorer hearing acuity. See 38 C.F.R. § 4.85. Applying 38 C.F.R. § 4.85, Table VI, to the 2012 examination findings and speech recognition scores reveals the Veteran had Level I hearing loss in his right ear and Level I hearing loss also in his left ear. Applying 38 C.F.R. § 4.85, Table VII, his hearing losses, in turn, correlate to a 0 percent (noncompensable) rating. Moreover, there was not an exceptional pattern of hearing impairment as contemplated by 38 C.F.R. § 4.86. A March 2012 record from Ear, Nose and Throat (ENT) Ruddy shows a threshold level of 25 dB for right ear and of 26.25 dB for the left ear. Speech recognition testing did not use the Maryland CNC but instead used the NU-6; thus, it is not adequate or useable for rating purposes. See 38 C.F.R. § 4.85 October 2014 correspondence from Wolfville Hearing Clinic (Dr. Fisk) indicates a puretone average threshold decibel level of 45 in the right ear and 48 in the left ear but fails to discuss which frequencies were used; when the Board reviews the September 2014 audiologic report graph, it reflects an average threshold of 35 dB for the right ear and 46.6 dB for the left ear. The report also notes a 100 percent word recognition score, bilaterally, so in each ear (it does not specify whether the Maryland CNC test was used, although for purposes of this decision the Board will assume it was). Applying 38 C.F.R. § 4.85, Table VI, to the 2014 examination findings and speech recognition scores reveals the Veteran had Level I hearing loss bilaterally. Applying 38 C.F.R. § 4.85, Table VII, his hearing losses, in turn, correlate to a 0 percent (noncompensable) rating. A September 2017 DBQ indicates the Veteran had an average puretone hearing threshold of 31. 25 dB for his right ear and an average of 37.5 dB for his left ear. He had a speech recognition score of 74 percent for his right ear and 86 percent for his left ear using the Maryland CNC Word list. Applying 38 C.F.R. § 4.85, Table VI, to the 2017 examination findings and speech recognition scores reveals he had Level VI hearing loss in his right ear and Level II hearing loss in his left ear. Applying 38 C.F.R. § 4.85, Table VII, his hearing losses, in turn, still correlate to a 0 percent (noncompensable) rating. A May 2021 DBQ reflects an average puretone threshold of 32.50 dB for the right ear with a speech recognition score of 90 percent. For the left ear, the Veteran had an average of 41.25 dB and a speech recognition score of 98 percent. Applying 38 C.F.R. § 4.85, Table VI, to the examination findings and speech recognition scores reveals he had Level II hearing loss in his right ear and Level I hearing loss in his left ear. Applying 38 C.F.R. § 4.85, Table VII, his hearing losses, in turn, again correlate to a 0 percent (noncompensable) rating. Prior to June 25, 2014 The Veteran's symptoms were adequately compensated by one rating under DC 6205 at 30 percent. DC 6205 includes consideration of his hearing impairment, vertigo, and tinnitus. From June 25, 2014 VA disability ratings are combined using VA's Combined Ratings Table. When applying the Veteran's ratings for peripheral vestibular disorders (to account for staggering) at 30 percent, tinnitus at 10 percent, and hearing loss at 0 percent, he has a combined rating of 37 percent, which is rounded up to 40 percent. See 38 C.F.R. § 4.25. Thus, it is the more favorable way to evaluate his symptoms and their consequent effects. Extra-schedular Consideration The Board has considered the Veteran's complaints, to include his constant tinnitus. Tinnitus is "a noise in the ear, such as ringing, buzzing, roaring, or clicking." See Dorland's Illustrated Medical Dictionary 1714 (28th ed. 1994). Tinnitus is often subjective in nature; indeed, because of its inherently subjective nature, even a layman such as the Veteran is considered competent to report the observable manifestations of this condition like this ringing, buzzing, roaring, or clicking sound mentioned. He is competent to provide evidence regarding tinnitus, as it is a condition readily apparent through the senses. Layno v. Brown, 6 Vet. App. 465, 469 (1994) (a Veteran is competent to report symptoms that require only personal knowledge, not medical expertise, as they come to him through his senses). Because tinnitus is "subjective," its existence is generally determined by whether the claimant claims to experience it. Indeed, for VA compensation purposes, tinnitus has been specifically found to be a disorder with symptoms that can be identified through lay observation alone. See Charles v. Principi, 16 Vet. App. 370 (2002). Acknowledging this, it stands to reason tinnitus will have some effect on concentration and/or sleep to some degree. But the Board finds that the 10 percent rating for this disability adequately compensates the Veteran for his symptoms and consequent functional impairment. In addition, his difficulties with hearing loss and vertigo are also, by their very nature, adequately compensated in the ratings. TDIU A claim for a total disability rating based on individual unemployability (TDIU) may be raised as a derivative claim stemming from a Veteran's claim of entitlement to an increased rating for a service-connected disability, provided the disability is at least one of the reasons he is unemployable or claims to be. See Rice v. Shinseki, 22 Vet. App. 447 (2009). The Veteran does not have sufficient ratings to warrant a TDIU on a schedular basis because his combined evaluation is 40 percent (his symptoms are considered as one disability as they stem from common etiology). Under 38 C.F.R. § 4.16(a), the rating must be at least 60 percent; thus, he would only be eligible for this benefit instead on an extra-schedular basis under § 4.16(b). Moreover, the Board would be precluded from assigning an extra-schedular TDIU in the first instance, having instead to refer the matter to the Director of the Compensation Service for this initial consideration. Bowling v. Principi, 15 Vet. App. 1 (2001). However, it is incumbent on the Board to consider whether this referral is warranted. The schedular rating criteria are designed to compensate for average impairments in earning capacity resulting from service-connected disability in civil occupations. 38 U.S.C. § 1155. "Generally, the degrees of disability specified [in the Rating Schedule] are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability." 38 C.F.R. § 4.1. So, above and beyond that, there must be indication of inability to work in any substantially gainful capacity for a claim of entitlement to a TDIU to prevail. In determining whether the Veteran is entitled to a TDIU, neither his nonservice-connected disabilities nor his age may be considered. See Van Hoose v. Brown, 4 Vet. App. 361 (1993). The test of individual unemployability is whether the Veteran, as a result of his service-connected disability, alone, is unable to secure or follow any form of substantially gainful occupation that is consistent with his education and occupational experience. 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.16. The Court has held that "substantially gainful employment" contains economic and noneconomic components; the economic component means "an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person," while the noneconomic component requires consideration of a veteran's ability to secure or follow that type of employment. Ray v. Wilkie, 31 Vet. App. 58 (2019). The Court also provided guidance as to the meaning of a veteran's ability to "secure and follow" such employment, noting that attention must be given to: the Veteran's occupational history, education, skill and training; whether the Veteran has the physical ability to perform occupational activities; and whether the Veteran has the mental ability to perform occupational activities. Substantially gainful employment is defined as work that is more than marginal and that permits the individual to earn a living wage. Moore v. Derwinski, 1 Vet. App. 356 (1991). Marginal employment is not considered substantially gainful employment. For purposes of 38 C.F.R. § 4.16, marginal employment generally shall be deemed to exist when a Veteran's earned annual income does not exceed the amount established by the U.S. Department of Commerce as the poverty threshold for one person. Marginal employment also may be held to exist, on a facts-found basis (includes but is not limited to employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold. Consideration shall be given in all claims to the nature of the employment and the reason for termination. 38 C.F.R. §§ 4.16(a), 4.18. Turning now to this Veteran, the evidence reflects that he speaks at least two languages, has four years of college education, and he was previously employed by the U.S. Federal Government as an inspector until he retired sometime before May 2014. In a May 2014 statement, he asserted that he had retired because of his Meniere's disease because he was armed while on duty and retirement was necessary for safety reasons (see VA Form 21-0958). However, the evidence does not suggest that it is as likely as not that he is precluded from obtaining and maintaining some other type of employment, substantially gainful no less, consistent with his level of education, prior work experience and training, and that does not require that he carry a weapon. Notably, his claimed instability occurred when he first got up in the morning and only lasted at most, up to a minute. As an inspector for government agencies, the Veteran could reasonably be found to be responsible for duties such as conducting and supervising audits, investigations and/or inspection reports, and/or performing inspections of cargo. The Board has considered the evidence and the Veteran's contentions, to include that his disability makes sleep difficult, he is unsteady when he first gets up in the morning, he wears hearing aids, that he gets vertigo at times, and that he would likely be precluded from work involving overhead or laying down. However, there are many employment positions that someone with a four-year college degree could perform while primarily sitting at a desk, such as reviewing investigations, aiding in translations, and administrative work. For these reasons and bases, the Board finds that a TDIU is not warranted, including referral of this derivative claim to the Director of the Compensation Service for special consideration on an extra-schedular basis. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). KEITH W. ALLEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Wishard 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.