Citation Nr: A25041299 Decision Date: 05/07/25 Archive Date: 05/07/25 DOCKET NO. 240905-470557 DATE: May 7, 2025 ORDER Entitlement to a separate 30 percent rating, but no higher, for vertigo, associated with service-connected traumatic brain injury (TBI) is granted. FINDING OF FACT The Veteran's TBI-associated vertigo is manifested by dizziness with staggering. CONCLUSION OF LAW The criteria for a separate 30 percent rating for vertigo, associated with service connected TBI, are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1-4.14, 4.85, 4.124a, Diagnostic Codes (DCs) 6204, 8045. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from December 1990 to September 1994, from May 1999 to July 1999, and October 2014 to December 2014. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in July 2024 by a Regional Office of the Department of Veterans Affairs (VA) under the modernized appeals system known as the Appeals Modernization Act (AMA). In September 2024, the Veteran filed a timely Decision Review Request: Board Appeal (Notice of Disagreement) (VA Form 10182) wherein he requested direct review of the evidence considered by the Agency of Original Jurisdiction (AOJ). Therefore, the Board may only consider the evidence of record at the time of the July 2024 AOJ decision on appeal. 38 C.F.R. § 20.301. Any evidence submitted after the AOJ decision on appeal cannot be considered by the Board. 38 C.F.R. §§ 20.300, 20.301, 20.801. Nonetheless, as discussed herein, the Board finds that, based on the evidence available for review, a separate rating for vertigo associated with the Veteran's TBI is warranted. As a final preliminary matter, in Williams v. McDonough, 37 Vet. App. 305 (2024), the Court held that "because [38 C.F.R. § 20.202 (c)(2)] gives a claimant the later of one year from the date that the agency of original jurisdiction (AOJ) mails notice of the decision or 60 days from when the Board receives the Notice of Disagreement (NOD) to change the NOD and select a different lane, the Board ordinarily may not decide an appeal before this time period is up." In this case, a year has not elapsed since the July 2024 rating decision on appeal. However, as the Board is granting the benefits sought in full, it will not delay adjudication pursuant to Williams, as there is no prejudice to the Veteran in issuing this decision. Entitlement to a separate rating for vertigo, associated with service-connected TBI. As an initial matter, the Board notes that the AOJ has determined vertigo is a subjective symptom of the Veteran's TBI, and the Veteran does not dispute it. See July 2024 Rating Decision. However, he has specifically sought a separate rating for vertigo, as he argues that this physical TBI symptom should be addressed separately from his psychiatric TBI residuals. See September 2024 VA Form 10182. As will be discussed further, the Board agrees. Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.2. All reasonable doubt will be resolved in the claimant's favor. 38 C.F.R. § 4.3. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. Separate ratings can be assigned for separate periods based on the facts found-a practice known as "staged" ratings. Francisco v. Brown, 7 Vet. App. 55, 58 (1994); Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Staged ratings are appropriate whenever the factual findings show distinct periods where the service-connected disability exhibits symptoms that would warrant different ratings. Id. By way of background, the Veteran has been in receipt of a 70 percent rating for "anxiety disorder with primary insomnia with traumatic brain injury with vertigo," since October 24, 2013, under DC 9411-8045. 38 C.F.R. §§ 4.124a, 4.130. In this regard, hyphenated diagnostic codes indicate that the rating is by analogy; here, the rating is by analogy to TBI (Diagnostic Code 8045) and to PTSD (Diagnostic Code 9411). However, diagnostic code 8045 encourages raters to assign separate ratings for residuals with distinct diagnosis under other DCs even if the diagnosis is based on subjective symptoms. 38 C.F.R. § 4.124a. Accordingly, the Board can proceed with assigning a separate rating so long as the Veteran is not already compensated for dizziness and loss of balance. 38 C.F.R. § 4.14 (which provides that the evaluation of the same manifestation under different diagnoses are to be avoided). After reviewing the record, the Board concludes none of the Veteran's vertigo symptoms have not been compensated with a current service-connected disability, to include the separate rating for headaches based on prostrating attacks of pain. Further, he has not been compensated for TBI based on his vertigo symptoms. To date, his TBI disability has been rated with PTSD and compensated based on symptoms attributable to PTSD. See July 2024 Rating Decision. So, the Board concludes that assigning a separate rating for the Veteran's vertigo does not constitute impermissible pyramiding. Esteban v. Brown, 6 Vet. App. 259, 262 (1994) (holding that the critical element in determining whether separate ratings are warranted is that none of the symptomatology for any condition is duplicative of or overlapping with the symptomatology of the other condition). Given the medical evidence of record indicating that the Veteran suffers from frequent vertigo, which is a symptom of his TBI, the Board finds that a separate rating is warranted. With regards to the level of compensation the Veteran should receive for his vertigo, the Board finds the rating criteria under DC 6204 contemplates his disability picture. Stankevich v. Nicholson, 19 Vet. App. 470 (2006) (holding that disabilities rated under analogous code sections will not show all the objective criteria of the analogous rating). Based on the description of his symptoms (dizziness, and loss of balance) the Board finds a 30 percent rating is warranted, as will be discussed. Specifically, under DC 6204 for peripheral vestibular disorders, occasional dizziness warrants a 10 percent rating. Dizziness and occasional staggering, however, warrant a 30 percent rating. The Note to the DC provides that objective findings supporting the diagnosis of vestibular disequilibrium are required before a compensable evaluation can be assigned under this code. Hearing impairment or suppuration shall be separately rated and combined. 38 C.F.R. § 4.87, DC 6204. As discussed by the Veteran's representative in a September 2024 Summary of Claim, the Veteran has been afforded VA examination in September 2020, April 2022, July 2022, August 2022, and May 2022 to evaluate various facets of his TBI symptoms. Further, as discussed by the representative, findings by these VA examiners varied significantly. Accordingly, for the sake of judicial economy, the Board will focus on the evidence of record favorable to the claim, to include the VA ENT Disability Benefits Questionnaire from April 2022 and an August 2022 private examination report submitted by the Veteran. In this regard, both examination reports indicate that the Veteran reported experiencing vertigo more than once per week, with an unsteady gait, staggering, and associated nausea. He further reported episodes lasting for hours at a time and difficulty completing a limb coordination test. Further, the Veteran's Romberg test results were also positive for unsteadiness. Accordingly, the Board awards a separate rating for vertigo. Based on this description of his vertigo disability picture provided in the April 2022 and August 2022 examination reports, a 30 percent rating under DC 6204 is warranted across the entire appeal period, which represents the maximum schedular rating available under the schedular criteria of DC 6204. 38 C.F.R. § 4.87. Additionally, the Board finds no other applicable diagnostic codes that would afford the Veteran a higher disability rating. Marcus N. Fulton Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Breckenridge 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.