Citation Nr: 1605718 Decision Date: 02/12/16 Archive Date: 02/18/16 DOCKET NO. 09-00 994 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to an initial disability rating in excess of 60 percent for Meniere's disease (which includes left ear hearing loss, tinnitus, and vertigo). REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD J.A. Williams, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1976 to February 1979. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a December 2007 rating decision of the Winston-Salem, North Carolina Department of Veterans Affairs (VA) Regional Office (RO) that, in pertinent part, re-characterized the Veteran's service- connected left ear hearing loss and tinnitus as "left ear hearing loss with tinnitus, vertigo and Meniere's disease," and assigned a 30 percent evaluation effective January 19, 2007. A January 2013 rating decision increased the Veteran's initial 30 percent disability rating for Meniere's disease to 60 percent effective January 19, 2007. In August 2010, the Veteran testified at a Travel Board hearing before a Veterans Law Judge (VLJ) who is no longer employed at the Board. A transcript of the hearing is associated with the claims file. In February 2015, the Veteran was advised that the VLJ who conducted the August 2010 Travel Board hearing was no longer employed by the Board. He was afforded an opportunity to testify at another hearing and advised that if he did not respond within 30 days, the Board would assume he did not want another hearing and proceed accordingly. The Veteran has not responded to the February 2015 letter, and the case has been reassigned to the undersigned VLJ. FINDING OF FACT Resolving all doubt in the Veteran's favor, throughout the appeal period, the Veteran's Meniere's syndrome has been manifested by hearing impairment with attacks of vertigo and cerebellar gait occurring more than once weekly. CONCLUSION OF LAW An initial rating of 100 percent for Meniere's syndrome is warranted. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§3.21(b)(1), 4.1, 4.21, 4.87, Diagnostic Code (DC) 6205 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2015). Regarding the Veteran's claims for an increased rating, as the rating decision on appeal granted service connection and assigned a disability rating and effective date for the award, statutory notice has served its purpose, and its application was no longer required. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd, Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). A November 2008 Statement of the Case (SOC) provided notice to the Veteran on the "downstream" issue of entitlement to an increased rating and July 2011, January 2013, and June 2015 SSOCs readjudicated the matter after the Veteran and his representative responded and further development was completed. Notably, a December 2007 letter provided the Veteran with general disability rating and effective date criteria. VA's duty to notify has been met. 38 U.S.C.A. § 7105; see Mayfield v. Nicholson, 20 Vet. App. 537, 542 (2006). Regarding VA's duty to assist, the Board finds that all relevant facts have been properly developed and that all evidence necessary for equitable resolution of the issue decided herein has been obtained. The Veteran's service treatment records (STRs) were obtained along with all identified and available post-service treatment records. Records related to the Veteran's receipt of Social Security Administration (SSA) benefits have also been associated with the record. Board decisions issued in May 2010, December 2010, October 2012, and April 2015 remanded the case for further development, and the Board finds that the RO substantially complied with the remand instructions. See D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict, compliance with the terms of a Board remand is required pursuant to Stegall v. West, 11 Vet. App. 268 (1998)). The Veteran's statements in support of the claim are also of record. After a careful review of such statements, the Board has concluded that the Veteran has not identified any pertinent evidence that remains outstanding. Also, the Veteran was afforded VA medical examinations in October 2007, January 2011, and June 2015. The Board finds these examinations adequate because, as will be shown below, they were based upon consideration of the Veteran's pertinent medical history, his lay assertions and current complaints, and because they describe the claimed disabilities in sufficient detail to allow the Board to make a fully informed determination. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (noting that VA must provide an examination that is adequate for rating purposes). In addition, the Veteran testified during a Board hearing in August 2010. At the hearing, the presiding VLJ explained the issues on appeal, asked questions focused on the elements necessary to substantiate the claims, and sought to identify any further development that was required. These actions satisfied the Veterans Law Judge's duty to explain fully the issues and to suggest the submission of evidence that may have been overlooked. See Bryant v. Shinseki, 23 Vet. App. 488, 492 (2010). In sum, VA's duty to assist has been met and the Board will address the merits of the claim. Legal Criteria The Board notes that it has reviewed all of the evidence in the Veteran's claim file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence as appropriate and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claims. Disability evaluations are determined by the application of the VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. The assignment of a particular Diagnostic Code depends wholly on the facts of the particular case. Butts v. Brown, 5 Vet. App. 532, 538 (1993). The Veteran is presumed to be seeking the maximum possible evaluation. AB v. Brown, 6 Vet. App. 35 (1993). When a question arises as to which of two ratings applies under a particular code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. At the time of an initial rating, separate ratings can be assigned for separate periods of time based on the facts found-a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999). The evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14. However, § 4.14 does not preclude the assignment of separate evaluations for separate and distinct symptomatology where none of the symptomatology justifying an evaluation under one diagnostic code is duplicative of or overlapping with the symptomatology justifying an evaluation under another diagnostic code. Esteban v. Brown, 6 Vet. App. 259, 262 (1994). The Veteran was assigned a 60 percent disability rating for his Meniere's syndrome under Diagnostic Code (DC) 6205. Under DC 6205, a 30 percent rating is warranted for hearing impairment with vertigo less than once a month, with or without tinnitus. A 60 percent rating is warranted for hearing impairment with attacks of vertigo and cerebellar gait occurring from one to four times a month, with or without tinnitus. A 100 percent rating is warranted for hearing impairment with attacks of vertigo and cerebellar gait occurring more than once weekly, with or without tinnitus. A note to Diagnostic Code 6205 provides that Meniere's syndrome can be evaluated either under these criteria or by separately evaluating vertigo (as a peripheral vestibular disorder (Diagnostic Code 6204), hearing impairment (38 C.F.R. § 4.85 ), and tinnitus (Diagnostic Code 6260), whichever method results in a higher overall evaluation. But a combined evaluation for hearing impairment, tinnitus, or vertigo with an evaluation under Diagnostic Code 6205 is inappropriate. 38 C.F.R. § 4.87. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Analysis The Veteran contends that he is entitled to an initial rating in excess of 60 percent for his Meniere's syndrome. The evidence clearly establishes that the Veteran's Meniere's syndrome manifests as hearing impairment with attacks of vertigo and cerebellar gait, with tinnitus. The issue is how frequent the Veteran experienced these episodes during the appeal period. During the August 2010 hearing, the Veteran described his attacks of vertigo, tinnitus, and loss of balance associated with his Meniere's disorder. The Veteran reported that the attack of symptoms typically comes on suddenly without warning and is sometimes accompanied with nausea. The Veteran reported occasionally noticing pressure building in his ears and ringing intensifying, a change in pitch and then an attack following. The Veteran reported feeling a spinning sensation. He indicated that these attacks typically last for about 5 minutes but afterward he would feel dizzy and exhausted for a couple hours to a couple days. The Veteran reported that these attacks happen between 5 to 6 times per month. He indicated that one week he has had as many as 3 and the following week he may not have any. However, he contends that he has Meniere's -related symptoms at least three times per month. The Veteran further reported that his prescription medications have not provided him any relief from his Meniere's symptoms. The Veteran indicated that during an attack his hearing loss seems greater. The Veteran also reported that the intensified tinnitus associated with his attacks also makes it more difficult for him to hear. The Veteran reported that the symptoms come on at all times, day or night whether he is sitting, standing, walking, or sleeping. The medical evidence of record shows that the Veteran has reported that his Meniere's episodes have come on with different levels of frequency during the appeals period. October and November 2006 VA treatment notes show that the Veteran complained of vertigo described as lightheadness with increase in ringing and ear pressure. The Veteran reported that the vertigo occurred weekly and may last minutes acutely, but the lightheadness would remain for up to 3 days. A May 2007 VA treatment note shows the Veteran complained of rare episodes of blurred vision during vertigo episodes and that he had attacks of vertigo 1 to 2 times per week lasting from 1 minute to 15 minutes. Private treatment records from July 2007 show that the Veteran reported symptoms of pressure in the ear associated with loss of balance. The Veteran reported that he may be dizzy for 10 to 15 minutes or 1 to 2 days and that the episodes occur every 7 to 10 days. The vertigo comes on following the pressure feeling in his ears, and he feels lightheaded, drunk, and has a spinning sensation. The October 2007 VA examination shows that the Veteran complained of hearing loss and tinnitus. The Veteran reported the onset of tinnitus mainly in his left ear but occasionally in his right between 1977 and 1978. The Veteran reported that his symptoms have continued and he now has almost constant tinnitus in both ears. As the intensity of the tinnitus increases in his ears the pressure builds up in both ears and he often develops a lightheaded or drunk feeling and/or true spinning sensation. The Veteran reported occasional nausea with these episodes. The Veteran indicated that the imbalance would last for a few minutes, but then he may have to lie down for 30 to 120 minutes. The Veteran reported that his lightheaded sensation may last between 30 minutes and two days. The Veteran had a mild high-frequency sensorineural hearing loss bilaterally at 4000 Hz, but it is much worse in the left ear. His audiogram was otherwise normal. The Veteran did not have balance problems when he felt the lightheadedness and/or dizziness. The Veteran reported falling while at home and has fallen off a ladder twice. The Veteran had no ear discharge or ear pain. The Veteran had never been on any treatment for dizziness/lightheadedness and has had no hospitalization or surgery for this problem. A physical examination showed the Veteran's external ears and ear canals were normal. Both tympanums were air containing and normal. Both mastoids were normal. Conditions secondary to ear disease are mild bilateral high-frequency sensorineural hearing loss, bilateral almost constant tinnitus, and imbalance problems most likely secondary to an inner ear problem. No active ear disease was present. There were no infections of the middle or inner ear. The examiner indicated that the Veteran did not appear to have a peripheral vestibular disorder, and did not have nystagmus. The Veteran's cranial nerves were intact. His finger to nose test, Romberg, and tandem Romberg were all normal. His gait was also normal. The examiner found that the Veteran did have some symptoms of Meniere's syndrome with the tinnitus and pressure in his ears and recurrent episodes of lightheadedness and vertigo. Complications of ear disease are mild high-frequency bilateral sensorineural hearing loss, bilateral constant tinnitus, and recurrent episodes of imbalance and vertigo. During the January 2011 VA examination, the Veteran reported constant feelings of imbalance and episodes of vertigo. The Veteran reported that during an episode he would feel aural fullness and increased tinnitus. The Veteran showed hearing loss. The Veteran reported imbalance onset in 2004 that occurred sometimes almost every day and not helped by medication. In a June 2011 VA medical center treatment note, the Veteran reported intermittent episodes of vertigo. He stated that his hearing fluctuates during these episodes and he does experience tinnitus. April 2013 and March 2012 treatment notes in the Veteran's VA medical records indicate that the Veteran's symptoms were stable with intermittent worsening of tinnitus, episodic fullness and several episodes of severe vertigo per week lasting 15 minutes to an hour. The Veteran reported no recent change in hearing. However, an April 2014 treatment note in the Veteran's VA medical records shows that the Veteran reported no significant change in his Meniere's symptoms. He reported having 2-5 episodes a month of vertigo lasting 15 to 20 minutes. These episodes are associated with aural fullness and some brief hearing decline and chronic bilateral tinnitus. The Veteran reported that he felt he could manage his episodes. During the June 2015 VA examination, the Veteran reported 2 to 4 episodes a month of vertigo and loss of balance lasting 15-20 minutes. These episodes are associated with aural fullness and some brief hearing decline. The Veteran also reports chronic bilateral tinnitus. The Veteran's treatment plan includes taking continuous medication for his Meniere's syndrome. The Veteran also reported episodes of tinnitus occurring more than once a week and lasting for more than 24 hours. The Veteran showed no signs or symptoms attributable to chronic ear infection, inflammation, or cholesteatoma. The Veteran has no benign neoplasm of the ear causing any impairment of function. The Veteran has not had any surgical treatment for an ear condition and therefore has no residuals of surgery. Under DC 6205, the schedular rating is based on the frequency the Veteran has attacks of vertigo and cerebellar gait. The Veteran is competent to testify to facts or circumstances that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2); Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011). The Veteran has consistently testified that the frequency of his Meniere's episodes vary from week to week. He specifically testified that some weeks he would have up to three episodes and the next week have no episodes. See August 2010 Hearing Transcript. The Board has no reason to find the Veteran's statements incredible. Similarly, when he sought treatment for his symptoms with his primary care physician he reported having symptoms at least weekly. See October 2006 and November 2006 VA Treatment Records. The Board has also considered staged ratings in this case, however, the medical record does not show any decipherable indication of the Veteran's Meniere's symptoms worsening or improving to justify defined stages. Fenderson v. West, 12 Vet. App. 119 (1999). Indeed, the medical evidence of record shows that Veteran's Meniere's episodes occur frequently albeit arbitrarily. Therefore, resolving all doubt in the Veteran's favor, the Board finds that entitlement to an initial disability rating of 100 percent for Meniere's disease (which includes left ear hearing loss, tinnitus, and vertigo) is warranted. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). A total rating for compensation based on individual unemployability (TDIU) is an element of all appeals of an initial rating. Rice v. Shinseki, 22 Vet. App. 447 (2009). Entitlement to TDIU is raised where a Veteran: (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability. Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). However, TDIU is not raised in an increased rating claim unless the Roberson requirements are met. Jackson v. Shinseki, 587 F.3d 1106 (Fed. Cir. 2009). A January 2013 rating decision granted the Veteran TDIU based on his Meniere's syndrome effective July 26, 2010. Therefore, the Board need only consider whether the Veteran was entitled to TDIU prior to July 26, 2010. However, as this decision grants the Veteran a total schedular rating for Meniere's disease for the entire appeal period, a TDIU claim for Meniere's disease is mooted. 38 C.F.R. § 4.16(a); see also Colayong v. West, 12 Vet. App. 524, 537 (1999). (CONTINUED ON NEXT PAGE) ORDER Entitlement to an initial disability rating of 100 percent for Meniere's disease (which includes left ear hearing loss, tinnitus, and vertigo) is granted, subject to the laws and regulations governing payment of monetary awards. ____________________________________________ TANYA SMITH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs