Citation Nr: 0007485 Decision Date: 03/20/00 Archive Date: 03/23/00 DOCKET NO. 95-25 453 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to a rating in excess of 10 percent for episodic vertiginous episodes, with dizziness, faintness, and headaches. 2. Entitlement to service connection for a neck disorder, to include as due to an undiagnosed illness. 3. Entitlement to service connection for a back disorder, to include as due to an undiagnosed illness. 4. Entitlement to service connection for a left knee disorder, to include as due to an undiagnosed illness. 5. Entitlement to service connection for a right knee disorder, to include as due to an undiagnosed illness. 6. Entitlement to service connection for multiple joint pain, to include as due to an undiagnosed illness. 7. Entitlement to service connection for a sinus disorder, to include as due to an undiagnosed illness. 8. Entitlement to service connection for bleeding gums, to include as due to an undiagnosed illness. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Edward Walls, Associate Counsel INTRODUCTION The veteran served on active duty from July 1989 to February 1992. He served in Southwest Asia from September 29, 1990 to April 15, 1991. His appeal comes before the Board of Veterans' Appeals (Board) from rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. In a July 1994 rating decision, the RO denied the veteran's claims for service connection for a neck injury; low back pain; right and left knee disorders; joint pain; sinusitis; bleeding gums; and dizziness, faintness and episodic vertigo, as secondary to exposure to environmental agents during service in Southwest Asia. The veteran appealed this decision and was subsequently granted service connection for episodic vertiginous episodes, dizziness, faintness, and headaches as due to an undiagnosed illness in an August 1995 rating decision. The veteran also completed an appeal of this decision. FINDINGS OF FACT 1. The RO has obtained and fully developed all relevant evidence necessary for an equitable disposition of the veteran's claim for an increased rating. 2. The veteran has dizzy spells involving nausea, loss of consciousness, and symptoms analogous to staggering which occur anywhere from three times per day to once per month. 3. The veteran has presented no competent medical evidence either confirming an undiagnosed illness in regard to the veteran's claimed neck disorder, back disorder, left or right knee disorders, multiple joint pain, sinus disorder, or bleeding gums or showing a nexus between any diagnosed disorder and active service. CONCLUSIONS OF LAW 1. The criteria for a 30 percent rating, and no more, for episodic vertiginous episodes, with dizziness, faintness, and headaches have been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.317, 3.321, 4.1, 4.3, 4.7, 4.10, 4.87, Diagnostic Code 6204 (1999). 2. The claim of entitlement to service connection for a neck disorder, to include as due to an undiagnosed illness, is not well grounded. 38 U.S.C.A. § 5107 (West 1991); 38 C.F.R. § 3.371 (1999). 3. The claim of entitlement to service connection for a back disorder, to include as due to an undiagnosed illness, is not well grounded. 38 U.S.C.A. § 5107 (West 1991); 38 C.F.R. § 3.371 (1999). 4. The claim of entitlement to service connection for a left knee disorder, to include as due to an undiagnosed illness, is not well grounded. 38 U.S.C.A. § 5107 (West 1991); 38 C.F.R. § 3.371 (1999). 5. The claim of entitlement to service connection for a right knee disorder, to include as due to an undiagnosed illness, is not well grounded. 38 U.S.C.A. § 5107 (West 1991); 38 C.F.R. § 3.371 (1999). 6. The claim of entitlement to service connection for multiple joint pain, to include as due to an undiagnosed illness, is not well grounded. 38 U.S.C.A. § 5107 (West 1991); 38 C.F.R. § 3.371 (1999). 7. The claim of entitlement to service connection for a sinus disorder, to include as due to an undiagnosed illness, is not well grounded. 38 U.S.C.A. § 5107 (West 1991); 38 C.F.R. § 3.371 (1999). 8. The claim of entitlement to service connection for bleeding gums, to include as due to an undiagnosed illness, is not well grounded. 38 U.S.C.A. § 5107 (West 1991); 38 C.F.R. § 3.371 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Increased evaluation for episodic vertiginous episodes, with dizziness, faintness, and headaches The veteran has claimed that his dizzy spells have caused him to crash his truck and that they are interfering with his employment as a fork lift operator because he may be endangering his co-workers if he passes out when he drives the fork lift. The veteran's representative has asked for a 30 percent evaluation for his dizzy spells with loss of consciousness. The Board acknowledges his contentions; however, the preliminary question is whether the veteran has satisfied his burden of submitting a well-grounded claim, and if so, whether the VA has properly assisted him in the development of that claim. An allegation that a service-connected disability is more severe is sufficient to establish a well- grounded claim for a higher evaluation. See Caffrey v. Brown, 6 Vet.App. 337, 381 (1994); Proscelle v. Derwinski, 2 Vet.App. 629, 632 (1992). Thus, his claim for an increased rating for episodic vertiginous episodes, with dizziness, faintness, and headaches is well grounded. In other words, the Board finds that the veteran has presented a claim that is plausible when his contentions and the evidence of record are viewed in the light most favorable to his claim. The Board is also satisfied that the record contains all relevant evidence necessary for an equitable disposition of this appeal, and no further assistance to the veteran is required. Disability evaluations 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 the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. §§ 4.1, 4.2, 4.10 (1999). In making its determination, the Board bases the assigned rating, as far as practicable, on the average impairment of earning capacity in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.10. Although regulations require that the disability be viewed in relation to its whole recorded history, see 38 C.F.R. §§ 4.1, 4.2, 4.41, where entitlement to compensation has already been established, and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet.App. 55 (1994). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. During the pendency of this appeal, regulatory changes amended the VA Schedule for Rating Disabilities, 38 C.F.R. § Part 4 (1999), including the rating criteria for evaluating ear disorders. This amendment was effective June 10, 1999. See 64 Fed. Reg. 25202 through 25210 (May 11, 1999). When a law or regulation changes after a claim has been filed, but before the administrative appeal process has been concluded, the VA must apply the regulatory version that is more favorable to the veteran. Karnas v. Derwinski, 1 Vet.App. 308, 312-13 (1991). However, where the amended regulations expressly provide an effective date and do not allow for retroactive application, the veteran is not entitled to consideration of the amended regulations prior to the established effective date. Rhodan v. West, 12 Vet.App. 55 (1998); see also 38 U.S.C.A. § 5110(g). Therefore, the Board must evaluate the veteran's claim for an increased rating from June 10, 1999, under both the old criteria in the VA Schedule for Rating Disabilities and the current regulations in order to ascertain which version is most favorable to his claim, if indeed one is more favorable than the other. The new regulations were not in effect when the August 1995 rating decision was made, and the RO has not considered the new regulations. Also, the veteran has not been given notice of the new regulations. However, it is not necessary to remand this claim because he is not prejudiced by the Board's consideration of the new regulations in the first instance. See Bernard v. Brown, 4 Vet.App. 384 (1993). The amended regulations did not result in any substantive changes relevant to this appeal. Essentially, the old and new regulations for evaluating ear disorders are identical. See 64 Fed. Reg. 25202 (May 11, 1999). In this case, neither rating criterion can be more favorable to the veteran's claim because they are identical in this case. The veteran's vertiginous episodes, with dizziness, faintness, and headaches were service connected in August 1995 and the RO assigned a 10 percent evaluation under Diagnostic Code (DC) 6204. Under DC 6204, a 10 percent evaluation is warranted for peripheral vestibular disorders manifest by occasional dizziness. A 30 percent evaluation is warranted for dizziness and occasional staggering. Note: 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. According to a Persian Gulf examination report of October 1993, the veteran would sometimes not experience a dizzy spell all day, but then have up to three dizzy spells in a day that would last for about two to four minutes each. The veteran reported that the dizzy spells began about two months after his return from Southwest Asia. A September 1995 accident report reveals that the veteran "blacked out" while he was driving, and he hit a tree. Outpatient treatment notes from the VA Medical Center Fayetteville from September 1995 to October 1995 generally show that the veteran was experiencing increased bouts of nausea and blackouts. According to the treatment records, he was worried about driving his forklift and he reported experiencing dizzy spells during which he would lose consciousness. According to a November 1995 letter from C. F. Anderson, M.D., the veteran's dizzy spells began with a feeling of nausea and weakness, then progressed to where he felt unsteady and could not control his head. He would break into a cold sweat, yawn deeply, and feel tired and down. These episodes occurred up to three times per day, but did not occur every day. Dr. Anderson diagnosed spells of unconsciousness with an undetermined etiology. According to a VA examination report of September 1996, the veteran's hearing was essentially normal. The examiner reported that the veteran's hearing thresholds and word recognition scores were within normal limits. In connection with the VA general medical examination, an MRI of the veteran's brain was taken which showed that there was no evidence of abnormal mass effect. The ventricular system, sulci, and basilar cisterns were normal and the examiner reported that the MRI was normal. Treatment records from the VA Medical Center Houston from October 1997 to December 1997 collectively show that the veteran's dizzy spells and blackouts continued during that time. The veteran reported that he felt "woozy" and he could not concentrate during the spells. He reported in November 1997 that he had experienced four dizzy spells in the prior four months. He also began to have headaches when the dizzy spells started. As stated above, the veteran has requested a 30 percent evaluation for his episodic vertiginous episodes, with dizziness, faintness, and headaches. Because the frequency of his dizzy spells, nausea, and black outs appears to be more than occasional, the Board agrees that a higher evaluation is warranted under DC 6204. Although the veteran's vestibular disorder does not manifest itself every day, private and VA doctors have indicated that the veteran at times experiences dizzy spells up to three times per day. Thus, the Board finds that a 30 percent evaluation, the maximum under the schedular provisions, is warranted under DC 6204. The 30 percent criteria also require occasional staggering. In this regard, the Board notes that the veteran becomes "woozy" and that he must sit down when he has one of his dizzy spells. The Board finds that this language may be indicative of staggering under the applicable provision. Thus, a 30 percent evaluation, and no more, is granted for the veteran's dizzy spells. On a separate note, DC 6204 requires that hearing impairment should be rated separately, but as the VA examination report of September 1996 shows that his hearing is within normal limits, the Board will not apply another rating for hearing loss. The Board has also considered whether the case should be referred to the Director of Compensation and Pension Service for extraschedular consideration under 38 C.F.R. § 3.321(b)(1) (1999). However, although the veteran has been examined on a number of occasions by the VA, he has not required frequent hospitalization for his vertiginous episodes and the manifestations of the disability are those contemplated by the assigned schedular evaluations. Moreover, although there is evidence in the reports from the VA Medical Center Houston that the veteran has switched occupations, there is no evidence that his dizzy spells prevent him from working or interfere with his job to such an extent that extraschedular consideration is warranted in this case. Therefore, the Board has determined that referral of the case for extraschedular consideration is not in order. Claims for service connection The veteran has reported that he was vaccinated for Anthrax and Botulism. He has also indicated various other exposures during his Gulf War experience, including exposure to intense levels of smoke and soot from oil fires, pesticides in the form of spray and lotion, and exposure to microwave equipment. He also picked up part of a Scud missile, an act which he believes may have exposed him to depleted uranium. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131 (West 1991); 38 C.F.R. § 3.303(a) (1999). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. 38 C.F.R. § 3.303(b). If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. Id. Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Certain chronic diseases, including gastric and duodenal ulcers, may be presumed to have been incurred during service if manifest to a compensable degree within one year of separation from active military service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. In addition, service connection may be established for chronic disability resulting from an undiagnosed illness which became manifest either during active service in the Southwest Asia theater of operations during the Persian Gulf War or to a degree of 10 percent or more not later than December 31, 2001. 38 C.F.R. § 3.317(a)(1)(i). Objective indications of a chronic disability include both "signs," in the medical sense of objective evidence perceptible to an examining physician, and other, non-medical indicators that are capable of independent verification. Disabilities that have existed for six months or more and disabilities that exhibit intermittent episodes of improvement and worsening over a six-month period will be considered chronic. The six-month period of chronicity will be measured from the earliest date on which the pertinent evidence establishes that the signs or symptoms of the disability first became manifest. A chronic disability resulting from an undiagnosed illness referred to in this section shall be rated using evaluation criteria from the VA's Schedule for Rating Disabilities for a disease or injury in which the functions affected, anatomical localization, or symptomatology are similar. A disability referred to in this section shall be considered service-connected for purposes of all laws in the United States. 38 C.F.R. § 3.317(a)(2-5). Signs or symptoms which may be manifestations of an undiagnosed illness include, but are not limited to, fatigue, signs or symptoms involving skin, headache, muscle pain, joint pain, neurologic signs or symptoms, neuropsychological signs or symptoms, signs or symptoms involving the respiratory system (upper or lower), sleep disturbances, gastrointestinal signs or symptoms, cardiovascular signs or symptoms, abnormal weight loss, or menstrual disorders. 38 C.F.R. § 3.317(b). The initial question which must be answered in this case, however, is whether the veteran has presented well grounded claims for service connection. The veteran has "the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual" that a claim is well grounded. 38 U.S.C.A. § 5107(a); Robinette v. Brown, 8 Vet.App. 69, 73 (1995). A well grounded claim is "a plausible claim, one which is meritorious on its own or capable of substantiation. Such a claim need not be conclusive but only possible to satisfy the initial burden of § [5107]." Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990). In the absence of evidence of well grounded claims, there is no duty to assist the claimant in developing the facts pertinent to his claims, and the claims must fail. See Grivois v. Brown, 6 Vet.App. 136, 140 (1994); Grottveit v. Brown, 5 Vet.App. 91, 93 (1993). To establish that a claim for service connection is well grounded, a veteran must demonstrate "medical evidence of a current disability; medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury." Savage v. Gober, 10 Vet.App. 488, 493 (1997); see Epps v. Gober, 126 F.3d 1464, 1468-69 (Fed. Cir. 1997); Caluza v. Brown, 7 Vet.App. 498, 506 (1995); see also Grottveit v. Brown, 5 Vet.App. at 93. The nexus requirement may be satisfied by evidence showing that a chronic disease subject to presumptive service connection was manifested to a compensable degree within the prescribed period. See Traut v. Brown, 6 Vet.App. 495, 497 (1994); Goodsell v. Brown, 5 Vet.App. 36, 43 (1993). The United States Court of Veterans Appeals (Court) has indicated that, alternatively, a claim may be well grounded based on application of the rule for chronicity and continuity of symptomatology, set forth in 38 C.F.R. § 3.303(b). The Court held that the chronicity provision applies where there is evidence, regardless of its date, which shows that a veteran had a chronic condition either in service or during an applicable presumption period and that the veteran still has such a condition. Savage v. Gober, 10 Vet.App. at 495-97. That evidence must be medical, unless it relates to a condition that the Court has indicated may be attested to by lay observation. Id. If the chronicity provision does not apply, a claim may still be well grounded or reopened on the basis of 38 C.F.R. § 3.303(b) "if the condition is observed during service or any applicable presumption period, continuity of symptomatology is demonstrated thereafter, and competent evidence relates the present condition to that symptomatology." Savage v. Gober, 10 Vet.App. at 498. In this case, the veteran did not report to VA examinations scheduled at the VA Medical Center, Kansas City, Missouri on April 5, 1999 and on May 28, 1999. By a letter of July 7, 1999, the RO informed the veteran that his claim could be denied based on his failure to report. The letter was addressed to 4572 E. 26th Street, Joplin, Missouri, 64804. The RO subsequently denied the veteran's claim by Supplemental Statement of the Case in November 1999, and the case was again certified for appellate review by the Board. Parenthetically, the record contains treatment records from the VA Medical Center Houston for a few months, but there is no clinical indication that the current Missouri address is inaccurate and the veteran has not informed the RO of any change in his address. To date, the veteran has not offered a reason as to why he did not report to either examination. With regard to his claims for service connection, the Board notes that applicable VA regulations dictate that when the veteran fails to cooperate, e.g., failure to report for an examination, the claim may be denied as not well grounded. The evidence in the claims file is basically insufficient to well ground the veteran's claim, and he has not cooperated with the VA in obtaining the needed medical evidence for an equitable disposition of his claims for service connection. Currently, there is no competent medical evidence confirming an undiagnosed illness exists, or showing a nexus between any diagnosed disorder and his period of active service. Thus, his claims for service connection must be denied as not well grounded. The Board recognizes that this appeal is being disposed of in a manner that differs from that used by the RO. The RO denied the veteran's claims on the merits, while the Board has concluded that the claims are not well grounded. However, the Court has held that "when an RO does not specifically address the question whether a claim is well grounded but rather, as here, proceeds to adjudication on the merits, there is no prejudice to the veteran solely from the omission of the well-grounded analysis." Meyer v. Brown, 9 Vet. App. 425, 432 (1996). ORDER Subject to the regulations governing the payment of monetary benefits, a rating of 30 percent, and no more, is granted for episodic vertiginous episodes, with dizziness, faintness, and headaches,. Entitlement to service connection for a neck disorder, to include as due to an undiagnosed illness is denied. Entitlement to service connection for a back disorder, to include as due to an undiagnosed illness is denied. Entitlement to service connection for a left knee disorder, to include as due to an undiagnosed illness is denied. Entitlement to service connection for a right knee disorder, to include as due to an undiagnosed illness is denied. Entitlement to service connection for multiple joint pain, to include as due to an undiagnosed illness is denied. Entitlement to service connection for a sinus disorder, to include as due to an undiagnosed illness is denied. Entitlement to service connection for bleeding gums, to include as due to an undiagnosed illness is denied. WARREN W. RICE, JR. Member, Board of Veterans' Appeals