Citation Nr: 21073020 Decision Date: 12/07/21 Archive Date: 12/07/21 DOCKET NO. 16-29 996 DATE: December 7, 2021 ORDER Entitlement to service connection for dizziness, claimed as Meniere's disease is denied. REMANDED Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU), to include on an extraschedular basis is remanded. FINDING OF FACT The preponderance of the evidence is against finding that dizziness, claimed as Meniere's disease, began during active service, or is otherwise related to an in-service injury or disease. CONCLUSION OF LAW The criteria for service connection for dizziness, claimed as Meniere's disease, are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from August 1968 to September 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2013 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. The Veteran presented sworn testimony at a hearing before the undersigned in June 2018. The Board remanded these matters in May 2019 for additional development. 1. Entitlement to service connection for dizziness, claimed as Meniere's disease. The Veteran contends that his dizziness condition is related to his service. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran has current symptoms of dizziness, and evidence shows that a single instance of dizziness was reported in service, the preponderance of the evidence weighs against finding that the Veteran's dizziness began during service or is otherwise related to an in-service injury, event, or disease. A May 1971 service treatment record notes the Veteran reported experiencing a headache and mild dizziness for which he was placed on no-duty status for 24 hours. In an August 2012 letter, the Veteran's wife stated that in October 2010, the Veteran developed an abdominal hernia which was surgically treated, after which they "first noticed his balance problems and trouble walking." She further stated that he "complains of dizziness when he first stands up and a total lack of balance when he walks." The Veteran was afforded a VA general medical examination in May 2013. The Veteran reported experiencing dizziness once or more per day. The Veteran testified at the June 2018 Board hearing that his dizziness first began roughly 10 years prior "when [he] stood up too quick or somebody hollered at [him] from one side or another, [and he] would flip [his] head around too quick and get dizzy for just a second". The Veteran was afforded a VA ear conditions examination in August 2019. The Veteran reported experiencing dizziness 10 to 12 years prior and states that he gets dizzy when bending over or standing up from lying down. He then reported that he is not dizzy all the time and that his dizziness lasts several seconds. Upon examination, the Veteran's external ear, ear canal, and tympanic membrane were noted as normal. His gait was described as unsteady, ataxic, and wide-based. His limb coordination was abnormal. The examiner stated that the Veteran's dizziness symptoms are consistent with postural hypotension of older age, "when the baroreceptors that regulate blood pressure start slowing down." The examiner then noted that the Veteran's medications, gabapentin and diuretics, can lead to this condition. The examiner then stated that his COPD, central pontine myelinosis, and history of meningioma "may all be contributing" to his condition. The Board notes that the Veteran is not service connected for amy of these conditions. The examiner stated that the Veteran does not have a diagnosis of Meniere's disease. The examiner noted that the Veteran did have an episode of headache and dizziness in May 1971. The VA examiner opined that the Veteran's dizziness is less likely than not caused by his service, noting that his symptoms are consistent with postural hypotension of older age when the baroreceptors that regulate blood pressure start breaking down. The examiner's opinion is probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). While the Veteran is competent to report having experienced symptoms of dizziness, he is not competent to provide a diagnosis in this case or determine that these symptoms were manifestations of the single incidence of dizziness he reported in-service roughly four decades prior. The issue is medically complex, as it requires knowledge of the interaction between multiple organ systems in the body and interpretation of complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). In light of the above, the Board finds that the weight of the evidence is against a finding that the Veteran's dizziness, claimed as Meniere's disease, had its onset in or was otherwise caused by his service and that service connection is not warranted. The benefit of the doubt rule is inapplicable. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND 1. Entitlement to a TDIU, to include on an extraschedular basis is remanded. The Veteran asserts that he is entitled to a TDIU based on the symptoms of his service-connected lumbar disc disease. Specifically, in the September 2021 IHP, the Veteran's representative raised the issue of entitlement to an extraschedular TDIU. A TDIU may be assigned when the schedular rating for service-connected disabilities is less than 100 percent, and when it is found that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age, provided that, if there is only one such disability, it is ratable at 60 percent or more, or, if there are two or more disabilities, there is at least one disability ratable at 40 percent or more and additional disabilities to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16. For cases where the percentage standards are not met, but unemployability is shown, referral to the Director for extraschedular consideration is appropriate. 38 C.F.R. § 4.16(b). Here, the Veteran is service connected for lumbar disc disease at 10 percent, tinnitus at 10 percent, and hearing loss noncompensable at 0 percent, with a combined evaluation of 20 percent. As such, the Veteran's disability percentage does not meet the minimum schedular requirements for a TDIU under 38 C.F.R. § 4.16(a), and a schedular TDIU cannot be granted on appeal. However, a TDIU may still be granted on an extra-schedular basis where a veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disability. 38 C.F.R. § 4.16(b). The Board cannot, in the first instance, award an extraschedular TDIU, but must remand the matter to the VA's Director of Compensation Service for consideration. Bowling v. Principi, 15 Vet. App. 1, 10 (2001). The decision to refer a claim for extraschedular consideration is a factual finding that does not bind the Board when it later decides whether to award an extraschedular rating. This is so because the decisions to refer and to award a rating are fundamentally different. Ray v. Wilkie, 31 Vet. App. 58, 65 (U.S. 2019). In Ray, the Court defined the term "unable to secure and follow a substantially gainful occupation" as having two components: one economic and one noneconomic. 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. The non-economic component includes consideration of the following: The Veteran's history, education, skill, and training; whether the veteran has the physical ability to perform the type of activities required by the occupation at issue; and whether the veteran has the mental ability to perform the activities required by the occupation at issue. Here, the evidence of record shows the Veteran was self-employed as a construction contractor until October 2011. In a July 2019 letter, the Veteran asserted that his lumbar disc disease "is the primary cause of [his] disability/unemployability." An August 2019 VA examination report notes the Veteran experiences increasing back pain, cannot sleep in bed, has to sleep in recliner due to the pain, and reported flare-ups of pain due to prolonged sitting, standing, walking, running, climbing. In a June 2018 statement, the Veteran's wife stated that he has gone from a self-employed contractor to an occasional insurance restoration adviser to other contractors. She then stated that he can no longer lift anything over 25 to 30 pounds, sit for more than 30 minutes, or lie flat on his back without pain after a short time. She then stated that he has gone from being totally independent to becoming increasingly dependent on her for day-to-day tasks. Pursuant to Ray, entitlement to an extraschedular TDIU must be referred to the Director, Compensation Service for an initial determination where there is sufficient evidence to substantiate a reasonable possibility that a veteran is unemployable due to service-connected disabilities. See Snider v. McDonough, Vet. App., No. 19-6707, 2021 U.S. App. Vet. Claims LEXIS 2050 (Nov. 19, 2021). As the Veteran does not meet the schedular requirements for TDIU and the Veteran has asserted and the evidence suggests that he is unable to work prior because of his service-connected disabilities, the issue of whether to grant TDIU must first be assessed by the Director, Compensation Service. 38 C.F.R. § 4.16(b). The matters are REMANDED for the following action: Refer the Veteran's claim for TDIU to VA's Director, Compensation Service, for extraschedular consideration. STEVEN D. REISS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Keeley, Brian 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.