Citation Nr: 21070182 Decision Date: 11/23/21 Archive Date: 11/23/21 DOCKET NO. 18-01 947 DATE: November 23, 2021 ORDER Entitlement to an extraschedular, 60 percent disability evaluation for benign paroxysmal positional vertigo for the entire appeal period is granted. Entitlement to a 70 percent disability evaluation for major depressive disorder, for the rating period prior to June 5, 2017, is granted. FINDINGS OF FACT 1. For the rating period prior to June 5, 2017, the Veteran's major depressive disorder is productive of occupational and social impairment with difficulties in most areas, such as work, family relations, and mood, due to symptoms such as disturbance of mood and motivation, difficulty concentrating, anxiety, sleep impairment, and depression; total occupational and social impairment was not shown. 2. Throughout the appeal period, the Veteran's benign paroxysmal positional vertigo has been manifested by symptoms that are not specifically contemplated by the schedular criteria; these symptoms cause marked interference with employment. CONCLUSIONS OF LAW 1. The criteria for a disability rating of 70 percent, but no higher, for major depressive disorder are met for the rating period prior to June 5, 2017. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.7, 4.126, 4.130, Diagnostic Code 9434 (2020). 2. The criteria for a disability rating of 60 percent, but no higher, for benign paroxysmal positional vertigo, on an extraschedular basis, are met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.7, 4.87, Diagnostic Code 6204 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from September 1970 to March 1972, April 1973 to July 1976, and November 1979 to May 1981. These matters come before the Board of Veterans' Appeals (Board) on appeal from December 2016 and March 2017 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). The December 2016 rating decision granted service connection for benign paroxysmal positional vertigo and assigned a 30 percent disability evaluation, effective March 19, 2010. The March 2017 rating decision granted service connection for major depressive disorder and assigned a 50 percent disability evaluation, effective July 22, 2016. In a January 2020 decision, the Board denied the Veteran's claims for increased disability evaluations for his service-connected benign paroxysmal positional vertigo and major depressive disorder on a schedular basis. The Veteran appealed the denials of the claims for increased disability evaluations to the Court of Appeals for Veterans Claims (Court); regarding the Veteran's claim for an increased disability evaluation for major depressive disorder, the Veteran only appealed the disability rating assigned for the rating period prior to June 5, 2017. In March 2021, the parties filed a Joint Motion for Partial Remand (Joint Motion or JMR) which requested that the Board's decision as to these issues be vacated and remanded. A March 2021 Court Order granted the motion and remanded the claims for readjudication consistent with the terms of the Joint Motion. Additionally, in the January 2020 Board decision, the Board referred the Veteran's claim for an increased disability evaluation for benign paroxysmal positional vertigo for an opinion from the Director, Compensation Service, as to whether an extraschedular evaluation should be considered with regard to the Veteran's claim of entitlement to a rating in excess of 30 percent for benign paroxysmal positional vertigo. Duties to Notify and Assist Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Increased Rating Disability evaluations are determined by application of the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. An evaluation of the level of disability present must also include consideration of the functional impairment of the Veteran's ability to engage in ordinary activities, including employment. 38 C.F.R. § 4.10. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. Separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be staged. Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Entitlement to an increased disability evaluation for major depressive disorder, rated as 50 percent disabling for the rating period prior to June 5, 2017. The Veteran's depression is evaluated as 50 percent disabling for the rating period from October 11, 2011 to August 28, 2018 and a 100 percent disabling for the rating period since August 28, 2018 pursuant to 38 C.F.R. § 4.130, Diagnostic Code 9434. A 50 percent disability rating requires occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short-term and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. See 38 C.F.R. § 4.130, Diagnostic Code 9432. For the next higher 70 percent evaluation to be warranted, there must be occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood due to symptoms such as: suicidal ideation; obsessive rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); and an inability to establish and maintain effective relationships. Id. A 100 percent rating is provided for total occupational and social impairment, due to such symptoms as: Gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. 38 C.F.R. §§ 4.125-4.130. When determining the appropriate disability evaluation under the general rating formula, the Board's primary consideration is a veteran's symptoms, but it must also make findings as to how those symptoms impact the veteran's occupational and social impairment. See VazquezClaudio v. Shinseki, 713 F.3d 112, 11617 (Fed. Cir. 2013); Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). Because the use of the term "such as" in the rating criteria demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list. Nevertheless, as all ratings in the general rating formula are also associated with objectively observable symptomatology and the plain language of the regulation makes it clear that the veteran's impairment must be "due to" those symptoms, a veteran may only qualify for a given disability rating under the general rating formula by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. Vazquez-Claudio, 713 F.3d at 11718. Here, in a September 2016 treatment record, the Veteran's mood was stable, with good and bad days. The Veteran reported occasional suicidal ideation but with no intention or plan. He explained that his suicidal ideation had improved since what it was previously. He denied homicidal ideation. His sleep was pretty good with medication. The Veteran explained that he enjoyed reading, walking, and exercising. On mental status examination, the Veteran was alert, oriented in all spheres. The Veteran had good eye contact and full expressions; no psychomotor retardation or agitation was noted. His attitude was cooperative, and he was appropriately groomed, with no apparent distress. The Veteran's speech was spontaneous and clear, with normal rate, rhythm, and tone. His mood was stable with congruent affect. His thought process was linear, goal-directed, coherent, and logical. There was no indication of suicidal intention, and/or plan and no indication of homicidal ideation, intention, or plan. There was no indication of auditory or visual hallucinations and no delusions were noted. His judgment and insight were fair to good. Lastly, his attention and memory were grossly intact, with average intelligence. At the January 2017 VA examination, the Veteran's diagnosis of recurrent moderate major depressive disorder was continued. He reported depressed mood nearly daily, anger, isolation, feelings of hopelessness, sleep difficulty, decreased energy and motivation, difficulty concentrating, and sporadic thoughts of suicide. The VA examiner summarized the Veteran's level of occupational and social impairment as occupational and social impairment with reduced reliability and productivity. The VA examiner noted that the Veteran had a depressed mood, anxiety, chronic sleep impairment, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances, including work and work like setting. As to behavioral observations, the VA examiner noted that the Veteran was neatly groomed and appropriately dressed. The Veteran was open and cooperative with the VA examiner, and he was alert and oriented. His eye contact was good, but his affect was mildly constricted. The Veteran's mood was mildly angry/irritable. His speech was normal in rate and rhythm. His thought processes were logical, and goal directed. There was no evidence of a thought disorder, delusions, flight of ideas, or obsessional thinking. The Veteran's memory was grossly intact except as to the dates of events. He denied suicidal or homicidal ideation. Likewise, he denied auditory or visual hallucinations. After a review of all the evidence, the Board finds that the Veteran's service-connected major depressive disorder more nearly approximates the criteria for a 70 percent disability evaluation, but no higher, for the entire rating period on appeal (prior to June 5, 2017). The Board finds that the Veteran's psychiatric symptoms have been relatively consistent, and that the 70 percent evaluation takes into account the Veteran's level of social and occupational impairment. Throughout the rating period on appeal, the Veteran's major depressive disorder has been characterized by occupational and social impairment with deficiencies in most areas, including work, thinking, and mood due to symptoms such as depression, irritability, disturbances of motivation and mood, and sleep impairment, as demonstrated by the findings at the January 2017 VA examination, as well his available VA treatment records. The Veteran has complained of anxiety, sleep impairment, difficulty concentrating, decreased interest and motivation, and depression at his VA examination and in seeking treatment at VA. He also reported experiencing social isolation, feelings of hopelessness, and irritability, as well as difficulty adapting to stressful circumstances and understanding complex commands. A 70 percent disability evaluation accounts for the Veteran's social and occupational impairment as caused by these symptoms. The evidence does not show that the Veteran experienced total occupational and social impairment due to his symptoms at any time during the rating period on appeal. The Board acknowledges that the Veteran reported a history of suicidal ideation, but that he did not have an intent or plan, and that the Veteran denied recent suicidal ideation at his VA examination. Moreover, the Board notes that he did not demonstrate manifestations such as grossly impaired thought processes, delusions and hallucinations, persistent danger of hurting himself or others, or neglect of personal hygiene, as contemplated in the listed criteria for a 100 percent disability rating under Diagnostic Codes 9400 9440. In fact, the VA examination report and treatment records indicate that the Veteran is able to communicate effectively and that he is alert and oriented. The Veteran lives on his own, has good hygiene, and is able to perform household tasks. While the Board recognizes the Veteran's significant occupational and social impairment, it is not total. His symptoms do not equate in frequency, duration, or severity with total social impairment. Accordingly, the Board finds that the Veteran's symptoms do not equate in severity, frequency, and duration to total social impairment. For these reasons, the Board finds that the evidence supports a disability rating of 70 percent, but no higher, for the Veteran's major depressive disorder for the rating period prior to June 5, 2017. 38 C.F.R. §§ 4.3, 4.7. 3. Entitlement to an extraschedular disability evaluation for benign paroxysmal positional vertigo. Here, the Veteran contends that his service-connected vertigo warrants a rating in excess of 30 percent disabling, on an extraschedular basis. Based on the evidence, the Board agrees. At the outset, the Veteran's benign paroxysmal positional vertigo is currently rated as 30 percent disabling pursuant to 38 C.F.R. § 4.87, Diagnostic Code 6204, throughout the pendency of the claim, since March 19, 2010. Under Diagnostic Code 6204, a maximum 30 percent disability rating is warranted for dizziness and occasional staggering. 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 1099 (3rd ed. 2008). Generally, disability rating are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in VA's Rating Schedule. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. However, to accord justice in the exceptional case where the criteria in VA's Rating Schedule are found to be inadequate, an extraschedular rating that is commensurate with the average earning capacity impairment caused by the service connected disability is warranted. 38 C.F.R. § 3.321(b)(1). 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). The United States Court of Appeals for Veterans Claims (Court) has clarified that there is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. Thun v. Peake, 22 Vet. App. 111, 115 (2008). Initially, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular ratings for the service-connected disability are inadequate. See Yancy v. McDonald, 27 Vet. App. 484 (2016); Doucette v. Shulkin, 28 Vet. App. 366 (2017) (holding that either the veteran must assert that a schedular rating is inadequate or the evidence must present exceptional or unusual circumstances); Sowers v. McDonald, 27 Vet. App. 472, 478 (2016) ("[t]he rating schedule must be deemed inadequate before extraschedular consideration is warranted"). 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 marked interference with employment and frequent periods of hospitalization. Thun, 22 Vet. App. at 116. Third, if the first two Thun elements have been satisfied, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the veteran's disability picture requires the assignment of an extraschedular rating. Thun, 22 Vet. App. at 116. In other words, the first element of Thun compares a veteran's symptoms to the rating criteria, while the second element considers the resulting effects of those symptoms; if either prong is not met, then referral for extraschedular consideration is not appropriate. Yancy, 27 Vet. App. at 494-95 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 Court reaffirmed that the Board has jurisdiction to review the entirety of the Director's decision denying or granting an extraschedular rating and elaborated that the Board is authorized to assign an extraschedular rating when appropriate. Kuppamala v. McDonald, 27 Vet. App. 447, 457 (2015). In July 2010, the Veteran underwent a VA examination for his vertigo. The Veteran reported intermittent lightheadedness, dizziness with some nausea, and occasional vomiting. This occurred with standing quickly, bending over nad occasionally while walking. He explained that the episodes would last five minutes occurring three to five times a week. The examiner indicated that the Veteran had weekly occurrences of dizziness lasting five minutes or less, as well as, a history of balance or gait problems, occurring weekly. The examiner noted that the Veteran did not report vertigo on several treatment updates except for an October 2009 record, where he complained of sporadic dizzy spells. The examiner added that there were signs of balance disturbance as a complication of an ear disease, but the Veteran's cranial nerves were intact, and he tested normal on finger to nose test and Romberg test. In an October 2010 private treatment record, Dr. J.L. stated that he treated the Veteran for chronic episodic dizziness, described as vertigo associated with nausea, spinning, and breaking out in a cold sweat without vomiting. He explained that the episodes occurred every couple of months and lasted thirty minutes. The condition is aggravated by motion and occurred in different positions. Dr. J.L. noted that the examination was remarkable for counterclockwise nystagmus; indicative of right posterior canal disease. In subsequent treatment records from 2011-2017, the Veteran complained of intermittent dizziness with nausea and occasional vomiting. Furthermore, the Veteran was prescribed 25mg of meclizine to control his dizziness and he added Benadryl and Compazine to further alleviate his dizziness. In the July 2017 VA examination, the Veteran's diagnosis of benign paroxysmal positional vertigo was continued. The Veteran reported that he had off and on episodes of symptoms including nausea/vomiting, dizziness, and room spinning without any trigger. He added that his symptoms would last two to three hours and are at random. The examiner indicated that the Veteran had tinnitus one to four times per month for less than one hour in duration. Likewise, the Veteran suffered from vertigo one to four times per month for one to twenty-four hours. On examination, the Veteran's ears and tympanic membranae were normal. The Veteran's gait was unsteady, and he used a cane for ambulation. The examiner noted; however, that the use of the cane for ambulation was secondary to the Veteran's back condition. Romberg test was normal, but Dix Hallpike test for vertigo was abnormal. The Veteran reported feeling symptoms of vertigo during testing. Likewise, the Veteran was unable to touch his nose or the examiner's fingers on 2 of 3 attempts during limb coordination testing. The examiner remarked that during an acute episode, the Veteran would be unable to operate heavy machinery. In its January 2020 decision, the Board granted the Veteran a separate, 10 percent disability evaluation for tinnitus, and as previously discussed, referred the Veteran's claim for an increased disability evaluation to the Director, Compensation Service, for an opinion as to whether an extraschedular evaluation should be considered with regard to the Veteran's claim of entitlement to an increased rating for benign paroxysmal positional vertigo. In an "Administrative Review for Entitlement" which served as the AOJ's referral to the Director, Compensation Service for an opinion as to whether an increased disability rating for benign paroxysmal positional vertigo order is warranted on an extraschedular basis in accordance with 38 C.F.R. § 3.321(b)(1), the requesting official detailed the findings of the aforementioned July 2010 and July 2017 VA examinations, the October 2010 letter from Dr. J.L., and the Veteran's relevant treatment records. The official also reported that the Veteran's VA Form 21-8940 noted that the Veteran last worked full time in 2007 as a truck driver and completed high school. The official concluded that, given the foregoing, the Veteran's service-connected benign paroxysmal positional vertigo presents an exceptional or unusual disability picture because the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of this service-connected disability. The official stated that it is reasonable to infer that the Veteran's service-connected benign paroxysmal positional vertigo may have markedly interfered with his prior employment as a truck driver. The official noted that it is the established policy of VA that all Veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled, but nonetheless found that the available evidence of record does not support the Veteran's contentions that his service-connected disabilities preclude him from all forms of substantially gainful employment. The referring official nevertheless recommended granting the Veteran a 60 percent disability evaluation for his service-connected benign paroxysmal positional vertigo on an extraschedular basis. In December 2020, the Executive Director, Compensation Service, provided her opinion as to whether extraschedular consideration of the Veteran's claim for an increased disability rating for benign paroxysmal positional vertigo order is warranted. The Director noted that 38 C.F.R. § 4.1 notes "the percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and their residual conditions in civil occupations" and that 38 C.F.R. § 3.321 notes "ratings shall be based, as far as practicable, upon the average impairments of earning capacity." She further noted that, "to accord justice to the exceptional case where the schedular evaluation is inadequate to rate a single service-connected disability, the Director of Compensation Service or his or her delegate is authorized to approve on the basis of the criteria set forth in this paragraph (b), an extra-schedular evaluation commensurate with the average impairment of earning capacity due exclusively to the disability. The governing norm in these exceptional cases is a finding by the Director of Compensation Service or delegate that application of the regular schedular standards is impractical because the disability is so exceptional or unusual due to such related factors as marked interference with employment or frequent periods of hospitalization." The Director stated that both 38 C.F.R. § 3.321 and 38 C.F.R. § 4.1 clearly note that evaluations are to be based on impairment in/of earning capacity. She reiterated the findings detailed in the September 2020 referral, and noted that 38 C.F.R. § 4.87, Diagnostic Code 6204 affords an evaluation of 30 percent for "dizziness and occasional staggering." She also noted that TDIU was granted effective July 22, 2016, based on all of the Veteran's service connected disabilities, and concluded that, because TDIU was granted in part based on the Veteran's motion sickness/dizziness, consideration has been given and afforded to such disability, and entitlement to an extraschedular rating is denied. She explained that the July 2017 examination demonstrates a worsening in the disability, and this is after the date of the award of TDIU, and that the Veteran was awarded a separate 10 percent disability evaluation for tinnitus. Based on the evidence of record, the Board finds that an extraschedular disability rating for the Veteran's service-connected benign paroxysmal positional vertigo is appropriate. Indeed, there is both lay and medical evidence of significant interference with physical and sedentary employment caused by the service-connected benign paroxysmal positional vertigo. The Director's opinion noted that the Veteran is in receipt of TDIU effective July 22, 2016 on the basis of all of the Veteran's service-connected disabilities, and that the Veteran was awarded a separate disability evaluation for his tinnitus; she also noted that the evidence does not reflect a worsening of the Veteran's benign paroxysmal positional vertigo symptoms prior to the Veteran's July 2017 VA examination, which was subsequent to the grant of TDIU. However, the Director did not specifically address whether the Veteran's service-connected benign paroxysmal positional vertigo interfered with the Veteran's employment; to this point, the Board observes that the Veteran reported that he had not worked since 2007 due to his service-connected benign paroxysmal positional vertigo. Likewise, the Director's opinion did not discuss the Veteran's lay statements and the evidence from the VA medical records, which are indicative of marked interference with employment. The evidence shows that the Veteran is prevented from working by symptoms that are due to his service-connected benign paroxysmal positional vertigo that the schedular criteria do not contemplate. The above evidence reflects that there is interference with employment to a degree beyond that which is contemplated by the schedular ratings. The Board finds that this is an exceptional case where the criteria in VA's Rating Schedule are inadequate, and an extraschedular rating that is commensurate with the average earning capacity impairment caused by the service-connected disability is warranted. 38 C.F.R. § 3.321(b)(1). To this extent, the Board finds that entitlement to an increased rating for service-connected benign paroxysmal positional vertigo on an extraschedular basis is granted. The question remaining is what rating percentage should be assigned. As noted by the Court, "[b]ecause the nature of extraschedular consideration requires that the disability picture be unique and not contemplated by the rating schedule, there logically is no guidance as to the specific rating that should be assigned in any particular case." See Kuppamala, supra, (citing Floyd v. Brown, 9 Vet. App. 88, 97 (1996)). Given that the evidence shows the Veteran to as likely as not unemployable due to attacks of vertigo one to four times per month, with tinnitus, the Board finds it appropriate to assign a 60 percent disability evaluation, which is the next highest disability evaluation for Meniere's disease pursuant to 38 C.F.R. § 4.87, Diagnostic Code 6205. As such symptoms of attacks of vertigo have been shown in the records dating back to the March 19, 2010 claim, this extraschedular rating is warranted from the pendency of this appeal. In sum with application of reasonable doubt the Board finds an extraschedular rating of 60 percent is warranted for the Veteran's service-connected benign paroxysmal positional vertigo is warranted. GAYLE STROMMEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board H. Brokowsky, 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.