Citation Nr: 0716111 Decision Date: 05/31/07 Archive Date: 06/11/07 DOCKET NO. 05-16 141 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania THE ISSUE Entitlement to an initial rating in excess of 60 percent for Meniere's disease. ATTORNEY FOR THE BOARD K. J. Alibrando, Counsel INTRODUCTION The veteran served on active duty from October 1980 to October 1986. The present matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2003 rating decision in which the RO granted service connection , and assigned an initial rating of 60 percent for Meniere's disease, effective August 15, 2001. In August 2004, the veteran filed a notice of disagreement (NOD) with the initial rating assigned for Meniere's disease; hence, the Board's characterization the claim on appeal. See Fenderson v. West, 12 Vet. App. 119, 126 (1999) (distinguishing claims for ratings assigned at the time service connection is granted from claims for increased ratings for already service-connected disability). A statement of the case (SOC) was issued in February 2005, and the veteran filed a substantive appeal March 2005( in lieu of a VA Form 9, Appeal to the Board of Veterans' Appeals). FINDINGS OF FACT 1. All notification and development action needed to adjudicate the claim for a higher initial rating for Meniere's disease has been accomplished. 2. Since the August 15, 2001 effective date of the grant of service connection, the veteran's service-connected Meniere's disease has been manifested by complaints of vertigo and gait alteration more than once weekly. CONCLUSION OF LAW Affording the veteran the benefit of the doubt, the Board finds that the criteria for an initial 100 percent rating for Meniere's disease, have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.7, 4.10, 4.87, Diagnostic Code (DC) 6205 (2006). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 and Supp. 2006) include enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA have been codified, as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2006). In view of the Board's favorable disposition of the claim for a higher initial rating for Meniere's disease, the Board finds that all notification and development action needed to fairly adjudicate the claim has been accomplished. II. Analysis 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.A. § 1155 (West 2002 & Supp. 2006); 38 C.F.R. Part 4 (2006). When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7 (2006). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3 (2006). A veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1 (2006); Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is or primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However in Fenderson, the United States Court of Appeals for Veterans Claims noted an important distinction between an appeal involving a veteran's disagreement with the initial rating assigned at the time a disability is service connected. Where the question for consideration is the propriety of the initial rating assigned, evaluation of the medical evidence since the effective date of the grant of service connection, and consideration of the appropriateness of "staged rating" (i.e., assignment of different ratings for distinct periods of time, based on the facts found), are both required. See Fenderson, 12 Vet. App. at 126. In this case, the RO assigned an initial 60 percent rating for the veteran's service-connected Meniere's disease, pursuant to 38 C.F.R. § 4.87, DC 6205, under which Meniere's disease is evaluated. DC 6205 provides that hearing impairment with attacks of vertigo and cerebellar gait occurring more than once weekly, with or without tinnitus warrants a 100 percent rating. Hearing impairment with attacks of vertigo and cerebellar gait occurring from one to four times a month, with or without tinnitus warrants a 60 percent rating. 38 C.F.R. § 4.87, DC 6205. Considering the evidence of record in light of the above criteria, and resolving all reasonable doubt in the veteran's favor, the Board finds that the overall record supports the assignment of the maximum 100 percent rating for Meniere's disease since the effective date of the grant of service connection for that disability. An April 2001 private medical statement of Dr. Fornadley indicates that the veteran reported a history of very bothersome hearing loss, tinnitus and disequilibrium since the mid-1980's. The physician noted that the veteran experienced near daily episodes of true spinning vertigo. It was noted that he was not experiencing any disequilibrium at the time of examination. It was indicated that further testing was to be done. On VA examination in January 2002, the veteran reported a history of tinnitus with instability and dizziness dating back to 1985. It was indicated that this was manifested by a tendency to veer to the right with walking. The examiner noted that electronystagmography done in August 2001 revealed a problem involving the right labyrinth. The impression included Meniere's disease on the basis of history with involvement of the right ear. On VA ear disease examination in November 2002, the veteran reported worsening dizziness described as a sensation of veering off to the right when walking. He also reported that three to four times per month he had severe episodes of spinning and a sensation of being pulled backward. On neurological examination, gait was normal. The diagnoses included disequilibrium, that appeared to be peripheral or labyrinthine in origin. The examiner indicated that the pattern was not consistent with Meniere's disease but that the etiology of the vertigo was unclear and neurological consultation would be appropriate. It was noted that a VA physician had attributed the disequilibrium to Meniere's disease. On VA ear disease examination in July 2003, the veteran reported a history of vertigo. The examiner concluded that the veteran had bilateral Meniere's disease, characterized by recurrent episodes of vertigo that could occur as often as 3- 4 times per week. It was noted that he was late for work about 24 times a years because of the vertigo and had to take Benadryl or another medication which was somewhat sedating and made him late for work because he could not drive. On VA neurology examination in July 2005, the examiner indicated that the entire claims file was reviewed, and noted a long history of Meniere's disease. He reported that he continued to experience bilateral ear pressure with high pitched tinnitus, vertigo, and a tendency to veer to the right. It was noted that testing had revealed right vestibular pathology by ENG testing and that MRI testing was normal. The veteran complained of increased daily episodes of vertigo and tinnitus. He indicated that the vertigo may be mild as to only cause a few missteps. On severe days, he reported that he missed work and was vertiginous throughout the day. He indicated that he experienced vomiting and the inability to walk stairs without a bilateral hand rail. He reported that taking Benedryl assisted in relieving symptoms but caused sleepiness and an inability to function. He indicated that he had 55 unexpected absences from work in the past calendar year, with about one half for the complete day of work. Following neurological examination, the examiner stated that it was her impression that the veteran has Meniere's disease with worsening symptoms that are occurring daily and have resulted in prolonged and numerous absences from the veteran's work. It was noted that this was preventing his advancement in his line of work. In July 2005 Compensation and Pension Note, the examiner indicated that he had examined the veteran in November 2002 and had reviewed the claims file at that time. The veteran reported daily vertigo of varying severity and type. He reported nausea occasionally and that he vomited three to five times per month. Examination showed normal tandem and museum gait. The diagnoses included disequilibrium. While the examiner noted the July 2003 VA diagnosis of Meniere's disease, the physician expressed an opinion that the veteran did not have Meniere's disease. In May 2006, the veteran submitted copies of leave and earnings statements dated from March 2005 to January 2007 indicating that he used sick leave during that time period. The overall evidence reflects that, since the August 15, 2001 effective date of the grant of service connection, the veteran has reported that he experiences symptoms of Meniere's disease, including vertigo, more than once weekly and often described as occurring daily. While one VA physician has questioned the diagnosis of Meniere's disease, two other VA physicians have clearly concluded that such diagnosis is appropriate. The July 2005 VA neurology examiner clearly found that the veteran had daily episodes of vertigo that result in missed time from work. The veteran has submitted evidence showing missed time from work due to illness. The medical evidence includes the July 2005 VA examiner's opinion that he had daily symptoms that resulted in prolonged and numerous absences from, which supports his assertions that such symptoms have caused impairment in his ability to work. The Board has carefully reviewed the entire record, including the veteran's statements and the medical opinions of record, and finds that overall level of impairment due to the veteran's service-connected Meniere's disease appears to approximate the criteria for a 100 percent rating. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. By reasonable doubt is meant one that exists because an approximate balance of positive and negative evidence which does satisfactorily prove or disprove the claim. It is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility. 38 C.F.R. § 3.102. See also 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). In view of the foregoing, and with resolution of all reasonable doubt in the veteran's favor, the Board concludes that the criteria for an initial 100 percent rating for service-connected Meniere's disease are met. ORDER An initial 100 percent rating for Meniere's disease, from August 15, 2001, is granted, subject to the pertinent legal authority governing the payment of monetary benefits. ____________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs