Citation Nr: 0719136 Decision Date: 06/26/07 Archive Date: 07/05/07 DOCKET NO. 04-39 711 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines THE ISSUE Entitlement to an increased evaluation for Meniere's Disease, currently rated as 30 percent disabling. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARINGS ON APPEAL Appellant and spouse ATTORNEY FOR THE BOARD T. S. Kelly, Counsel INTRODUCTION The veteran had active military service from April 1951 to January 1961. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2003 rating determination of the Manila, the Republic of the Philippines, Department of Veterans Affairs (VA) Regional Office (RO). The veteran appeared at a hearing before a local hearing officer at the RO in May 2004 and at a Travel Board hearing before the undersigned in July 2006. FINDING OF FACT Resolving reasonable in favor of the veteran, his Meniere's disease results in dizziness and loss of balance more than four times per month and is accompanied by hearing loss and tinnitus. CONCLUSION OF LAW The criteria for the assignment of a 100 percent disability rating for Meniere's syndrome have been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.321(b)(1), 4.1, 4.10, 4.87, Diagnostic Code 6205 (2006). REASONS AND BASES FOR FINDING AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2006); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2006). The Board notes that the VCAA is not applicable where further assistance would not aid the appellant in substantiating his claim. Wensch v. Principi, 15 Vet App 362 (2001); see 38 U.S.C.A. § 5103A(a)(2) (Secretary not required to provide assistance "if no reasonable possibility exists that such assistance would aid in substantiating the claim"); see also VAOPGCPREC 5-2004; 69 Fed. Reg. 59989 (2004) (holding that the notice and duty to assist provisions of the VCAA do not apply to claims that could not be substantiated through such notice and assistance). In view of the Board's favorable decision on this issue, further assistance is unnecessary to aid the appellant in substantiating his claim. Increased Evaluation Disability evaluations are determined by the application of the Schedule for Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. 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. In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21 (2006). In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Diagnostic Code 6205 provides for the following levels of disability. 100 percent. Hearing impairment with attacks of vertigo and cerebellar gait occurring more than once weekly, with or without tinnitus. 60 percent. Hearing impairment with attacks of vertigo and cerebellar gait occurring from one to four times a month, with or without tinnitus. 30 percent. Hearing impairment with vertigo less than once a month, with or without tinnitus. Note: Evaluate Meniere's syndrome either under these criteria or by separately evaluating vertigo (as a peripheral vestibular disorder), hearing impairment, and tinnitus, whichever method results in a higher overall evaluation. But do not combine an evaluation for hearing impairment, tinnitus, or vertigo with an evaluation under diagnostic code 6205. 38 C.F.R. § 4.87, Diagnostic Code 6205 (2006). Service connection is currently in effect for Meniere's Syndrome, which has been assigned a 30 percent disability evaluation. In June 2003, the veteran requested an increased evaluation for his Meniere's syndrome. He noted that he was experiencing daily attacks of vertigo and that Serc tablets relieved his dizziness temporarily. He stated that he did not feel comfortable walking at times because of a loss of balance. In support of his claim, the veteran submitted the results of a May 2003 videonystyagmography (VNG) which showed normal VNG studies. At the time of a September 2003 VA audiological evaluation, the veteran complained of having hearing problems, especially when there was a noisy background. The veteran also reported having bilateral tinnitus. He noted having tinnitus on a daily basis. The examiner indicated that the most likely etiology of the veteran's hearing loss and tinnitus was that of it being noise induced. Audiological evaluation revealed pure tone thresholds, in decibels, as follows: right ear 25, 35, 65, and 100, and left ear 20, 35, 50, and 100, at 1000, 2000, 3000, and 4000 Hertz, respectively. The puretone threshold average was 56 in the right ear and 51 in the left ear. Speech audiometry testing revealed speech recognition ability of 80 percent in the right ear and of 88 percent in the left ear. The veteran complained of pressure and bilateral static. A diagnosis of bilateral mild hearing loss with severe dip at high frequencies with no response at 6000 and 8000 Hertz on the right ear was rendered. At the time of a September 2003 VA ear examination, the veteran reported having the onset of hearing loss and tinnitus in the 1980's. Physical examination revealed no deformity of the external canal. The tympanum and mastoids were normal. There was no active ear disease present. There were also no infections of the middle or inner ear. There were also no vestibular disorders. The examiner further noted that the veteran did not have attacks of vertigo and cerebellar gait. He also stated that the veteran did not have tinnitus. A diagnosis of bilateral mild hearing loss with severe to profound dip at high frequencies was rendered. In a December 2003 letter, the veteran's private physician, R. Castillo, M.D., indicated that he was seeing the veteran for the first time and that he had complaints of tinnitus, hearing loss, and vertigo. He noted that the symptoms had apparently been occurring off and on for the past 10 years, and that for the past six months the veteran was noted to have been having increasing symptoms. Dr. Castillo observed that the veteran had had a normal VNG on May 2003 and that the VA examination performed in September 2003 had revealed bilateral mild hearing loss with severe to profound dip at high frequencies. The veteran indicated that he had been told by his private physicians that he had Meniere's disease. He was prescribed Betahistine 16mg/tab which he took when necessary to control his symptoms. Physical examination performed by Dr. Castillo revealed normal otoscopic findings and no spontaneous or gaze symptoms. Dr. Castillo indicated that he had told the veteran to take the Betahistine for 2-3 months and to have a trial therapy of diuretics. An April 2004 private audiogram revealed bilateral mild hearing loss with severe dip at high frequencies. Speech reception thresholds conformed with puretone averages. Speech discrimination was 84 percent, bilaterally. In a May 2004 statement, the veteran reported that he had been taking Betahistine tablets twice a day, morning and evening, for his vertigo. He stated that these tablets maintained his balance and controlled his vertigo. He noted that the VA did not authorize the use of Serc tablets, which were given to individuals with severe ear problems. The veteran also noted having frequent attacks of tinnitus. At the time of a May 2004 hearing, the veteran requested that he be assigned a 60 percent disability evaluation as a result of his vertigo. The veteran stated that he sometimes walked sideways when walking at home. The veteran testified that he took Serc for his dizziness but reported that it was not a recognized VA drug for the treatment of tinnitus. In June 2004, the veteran was afforded a VA examination. At the time of the examination, the veteran complained of impaired hearing for the past 15 years with an associated diagnosis of Meniere's disease. He reported having tinnitus at least two times per week. Audiological evaluation revealed pure tone thresholds, in decibels, as follows: right ear 45, 45, 65, and 110, and left ear 40, 50, 70, and 105, at 1000, 2000, 3000, and 4000 Hertz, respectively. The puretone threshold average was 66 in the right ear and 66 in the left ear. Speech audiometry testing revealed speech recognition ability of 50 percent in the right ear and of 30 percent in the left ear. Physical examination revealed no deformity of the external canal. The external canal contained no edema and minimal cerumen. There was no tympanic membrane perforation. The tympanum showed no redness or mass. There was no discharge from the mastoids. The examiner noted that the veteran had hearing loss, tinnitus, disturbance of gait, and hyperacusis as a result of his ear disease. There were no infections of the middle or inner ear. The examiner stated that the veteran had Meniere's disease based on his symptoms of vertigo, tinnitus and ear fullness. He noted that the veteran's staggering gait occurred most often in the morning. The veteran was noted to have vertigo twice a day and to have a cerebellar gait on a daily basis. A diagnosis of Meniere's disease was rendered. In August 2004, the veteran was afforded a VA neurological examination. At the time of the examination, the veteran reported that he had had Meniere's disease in the 1990's. He noted that if he arose too quickly from a seated position or if he was in the street people would ask him if he had been drinking because of the way he would walk. He swayed from left to right. He indicated that this occurred every day but that it was temporarily relived by the use of Serc. Neurological examination revealed that the veteran was coherent, cooperative, and ambulatory, and that he had no incoordination. He could do alternate supination testing. His gait was slow but stable and steady. The veteran had no facial asymmetry, EOM was full, and there was no weakness or sensory deficit. A diagnosis of Meniere's syndrome was rendered. In a December 2004 report, A. Salonga, M.D., indicated that the veteran had been referred to her because of episodic loss of balance associated with hearing loss. Neurological examination performed at that time revealed that the veteran was alert and coherent with fluent speech, with occasional difficulty in responding to questions because of impaired hearing. His vision was grossly intact with his glasses on. The pupils were equal and reactive to light. Fundoscopic findings were within normal limits. EOM was full in all directions of gaze, with no nystagmus. The veteran had difficulty hearing at normal voice range, more on the right. Weber's and Rinne's tests showed normal results. Motor strength was normal in all extremities. The veteran's gait was noted to be slightly ataxic with stiffness of the lower extremities when walking. He had difficulty performing tandem gait. Finger to nose testing was normal. He had no tremors and DTRs were normoactive. Dr. Solonga stated that based upon the above findings and a review of the hearing and vertigo tests, the possibility of cerebrovascular insufficiency, i.e., transient ischemic attacks as the cause of the veteran's symptoms was considered. She noted that the possibility of the veteran having transient ischemic attacks as the cause of his episodic symptoms was there. At the time of his July 2006 hearing, the veteran reported having vertigo three to four times per week. The veteran stated that he would lose his balance when the attacks occurred. He reported that he was taking Serc for his dizziness, which was not authorized by VA. He noted that a week did not go by where he would not have an attack. The veteran stated that he would slip once in a while when having these attacks. He reported that his neighbors would think he was drinking. The veteran testified that his ears were constantly full and that he had intermittent ringing in his ears. The veteran's spouse reported that he had vertigo three to four times per week. She noted that during the attacks it was hard for the veteran to maintain his gait. She stated that this would last for several minutes. In a July 2006 note, the veteran's private physician, C. Chiong, M.D., indicated that this was to certify that she saw the veteran for a balance disorder. She noted that he had been previously diagnosed as having Meniere's disease. She stated that the veteran had high frequency bilateral severe loss of hearing. He still had aural fullness and history of Tullio's phenomenon. She noted that the veteran would need to undergo tests for balance function-VEMP and electronystagmography. She also indicated that she had asked the veteran to have an x-ray of the neck. VEMP testing performed on July 12, 2006, suggested intact saccular and inferior vestibular nerve function, and VEMP tracings in both ears were within normal limits. In a July 17, 2006, letter, Dr. Chiong indicated that x-rays showed evidence of cervical spondylosis with neuroforaminal intrusions. She stated that this was responsible for his cervicogenic vertigo. She noted that she had asked him to be maintained on Norgesic TID for two weeks, Serc 16 mg TID for one month, and Nootropil 800 mg BID. In a January 2007 letter, Dr. Chiong indicated that this was to certify that the veteran was still under her care for Meniere's disease. He was presently on Serc, Nootropil, and Duxaril for medical control of this condition. The criteria for a 100 percent disability evaluation for Meniere's disease have been met. The Board notes that the veteran has been diagnosed with Meniere's disease, hearing loss, and tinnitus on numerous occasions. The question which remains is whether the veteran's Meniere's disease causes vertigo and a cerebellar gait, and, if so, how often. The Board notes that VNG testing performed in May 2003 resulted in normal findings and that at the time of a September 2003 VA ear examination, the examiner stated that the veteran did not have attacks of vertigo or a cerebellar gait. However, in a December 2003 letter, Dr. Castillo indicated that he was seeing the veteran for complaints vertigo, tinnitus, and hearing loss and he prescribed the medication Betahistine for treatment of the veteran's symptoms. Moreover, in a May 2004 statement, the veteran reported that he was taking Betahistine tablets twice a day for his vertigo. Furthermore, at the time of his May 2004 hearing, the veteran testified that he would have bouts of dizziness and walking sideways. The veteran also reported having these symptoms at the time of his June 2004 VA examination. Moreover, the June 2004 VA examiner, after conducting a thorough examination of the veteran, indicated that the veteran had Meniere's syndrome based upon his symptoms of vertigo, tinnitus, and ear fullness. He also reported that the veteran's staggering gait occurred most often in the morning and that the veteran had vertigo twice a day and a cerebellar gait on a daily basis. The Board further observes that the veteran was seen by Dr. Salonga in December 2004 because of episodic loss of balance associated with hearing loss. While she did not relate the veteran's balance loss and vertigo to his Meniere's disease, she did not rule out the connection. The veteran also reported having continuing attacks of vertigo and loss of balance on a daily basis at the time of his July 2006 hearing, with his wife testifying that she observed these symptoms on an almost daily basis. Although the Board notes that Dr. Chiong, in her July 17, 2006, letter, indicated that x-rays showed evidence of cervical spondylosis and neuroforaminal intrusions which were responsible for his cervicogenic vertigo, she noted that the veteran was still under her care for Meniere's disease and that he was on Serc, Nootropil, and Duxaril for medical control of this condition in a January 2007 letter. Resolving reasonable doubt in favor of the veteran, the Board finds that the veteran's Meniere's disease causes dizziness and loss of balance more than four times per month, with hearing loss and tinnitus. As such, the criteria for a 100 percent disability have been met. ORDER A 100 percent evaluation for Meniere's disease is granted. ____________________________________________ D. C. Spickler Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs