Citation Nr: 0211262 Decision Date: 09/04/02 Archive Date: 09/09/02 DOCKET NO. 93-19 668 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to a disability rating in excess of 30 percent for Meniere's syndrome. REPRESENTATION Appellant represented by: Joseph R. Moore, Attorney at Law ATTORNEY FOR THE BOARD N. W. Fabian, Counsel INTRODUCTION The veteran served on active duty from October 1973 to November 1986. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a July 1992 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), in which the RO denied entitlement to a disability rating in excess of 30 percent for Meniere's syndrome. The veteran perfected an appeal of that decision. This case was previously before the Board in July 1995 and April 1997, at which times the Board remanded the case to the RO for additional development and re-adjudication. The RO completed the requested development to the extent possible, and returned the appeal to the Board for further consideration. In a July 2000 decision the Board denied entitlement to a disability rating in excess of 30 percent for Meniere's syndrome. The veteran appealed the Board's July 2000 decision to the United States Court of Appeals for Veterans Claims (Court), and in a March 2001 order the Court vacated the Board's July 2000 decision and remanded the case to the Board for consideration of the impact of enactment of 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 et. seq.). Following the Court's remand the Board undertook additional development on the issue on appeal pursuant to authority granted in recent regulatory changes. See Board of Veterans' Appeals: Obtaining Evidence and Curing Procedural Defects without Remanding, 67 Fed. Reg. 3,099, 3,104 (Jan. 23, 2002) (to be codified at 38 C.F.R. § 19.9(a)(2)). That development has been completed to the extent possible, and the case is now ready for adjudication. In multiple statements the veteran has asserted that the RO committed clear and unmistakable error in a February 1991 rating decision (reported by the veteran to have been rendered in April 1991) in not having a typographical error corrected in a January 1991 examination report prior to assigning the 30 percent rating for Meniere's syndrome. Although the RO informed the veteran that any subsequent reference to the January 1991 examination report included the correction, the veteran has continued to assert that the February 1991 decision was clearly and unmistakably erroneous. The RO has not yet addressed this issue, and it is, therefore, being referred to the RO for appropriate action. See Godfrey v. Brown, 7 Vet. App. 398 (1995) (the Board does not have jurisdiction of issues that have not been adjudicated by the RO). FINDINGS OF FACT 1. The RO has notified the veteran of the evidence needed to substantiate his claim, obtained all relevant evidence designated by the veteran, and provided him VA medical examinations in order to assist him in substantiating his claim for VA compensation benefits. 2. Meniere's syndrome is manifested by tinnitus, hearing loss, and complaints of frequent episodes of dizziness, with no objective evidence of vertigo or a cerebellar gait. CONCLUSION OF LAW The criteria for a disability rating in excess of 30 percent for Meniere's syndrome are not met. 38 U.S.C.A. §§ 1155, 5107 (West 1991 & Supp. 2002); 38 C.F.R. § 4.87a, Diagnostic Code 6205 (1992); 38 C.F.R. §§ 3.655, 4.1, 4.3, 4.87, Diagnostic Code 6205 (2001). REASONS AND BASES FOR FINDINGS AND CONCLUSION The veteran contends that the manifestations of Meniere's syndrome result in his total incapacitation, in that he has not been able to maintain employment since his separation from service in 1986. Duty to Assist Pursuant to the requirements of the VCAA, the Board has considered VA's duty to inform the veteran of the evidence needed to substantiate his claim and to assist him in obtaining the relevant evidence, and finds that the provisions of the law and regulation apply to the veteran's claim. The Board further finds that development of the issues on appeal has, to the extent possible, proceeded in accordance with the law and regulations. 38 U.S.C.A. §§ 5103, 5103A (West Supp. 2002); Duty to Assist, 66 Fed. Reg. 45,620 (Aug. 29, 2001) (to be codified as amended at 38 C.F.R. § 3.159). Duty to Notify According to the VCAA, on receipt of a claim for benefits VA will notify the veteran of the evidence that is necessary to substantiate the claim. VA will also inform the veteran which information and evidence, if any, that he is to provide and which information and evidence, if any, VA will attempt to obtain on his behalf. VA will also request that the veteran provide any evidence in his possession that pertains to the claim. Duty to Assist, 66 Fed. Reg. 45,620, 45,630 (Aug. 29, 2001) (to be codified at 38 C.F.R. § 3.159); Quartuccio v. Principi, No. 01-997, slip op. at 13 (U.S. Vet. App. June 19, 2002). The RO informed the veteran of the evidence needed to substantiate his claim in April 1997 by instructing him to provide authorizations for the release of medical information from any source from whom he had obtained treatment for Meniere's syndrome in recent years, so that VA could obtain the records of that treatment. The veteran did not respond to that notice. Following remand of his appeal by the Court, the Board asked the veteran to identify the sources of medical treatment for Meniere's syndrome, and to provide authorizations so that the Board could obtain the records of that treatment, but the veteran failed to respond. The RO provided the veteran a statement of the case in February 1993 and supplemental statements of the case in July 1996, January 1998, and March 2000. In those documents the RO informed the veteran of the regulatory requirements for establishing a higher rating, and the rationale for determining that the evidence he had then submitted did not show that those requirements were met. The RO also provided to the veteran copies of the medical evidence relied upon in adjudicating his appeal, and copies of the relevant regulations. In numerous statements submitted to the RO since initiation of his claim for a higher rating in 1992, the veteran has demonstrated his knowledge of the regulations pertaining to the evaluation of Meniere's syndrome. He has also submitted extensive arguments in which he asserted that the specific criteria for a higher rating were met. In addition, he has submitted medical treatises explaining the manifestations of Meniere's syndrome in support of his contention that the disorder is totally incapacitating. In the July 1995 and April 1997 remands the Board informed the veteran of the conflicts in the available evidence, the evidence required to resolve those conflicts, and the additional evidence needed to substantiate his appeal. Although the Board's July 2000 decision has no adjudicative authority because it was vacated by the Court, in that decision the Board informed the veteran of the evidence that was necessary to show that a higher rating was warranted. The veteran's representative has reviewed the claims file on multiple occasions, and has submitted evidence and argument in support of the veteran's appeal. The veteran's representative was notified of the Court's remand of the case to the Board and the opportunity to submit additional evidence and argument, and additional evidence was submitted. The RO also notified the veteran each time his case was sent to the Board, and informed him that any additional evidence that he had should be submitted to the Board. The Board finds, therefore, that VA has fulfilled its obligation to inform the veteran of the evidence needed to substantiate his claim. Duty to Assist In general, the VCAA provides that VA will also make reasonable efforts to help the veteran obtain evidence necessary to substantiate the claim, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. VA's duty includes making reasonable efforts to obtain his service medical records, if relevant to the claim; other relevant records pertaining to service; VA medical records; and any other relevant records held by any other source. The veteran is also required to provide the information necessary to obtain this evidence, including authorizations for the release of medical information. In a claim for disability compensation, VA will provide a medical examination which includes a review of the evidence of record if VA determines it is necessary to decide the claim. Duty to Assist, 66 Fed. Reg. 45,620, 45,630 (Aug. 29, 2001) (to be codified at 38 C.F.R. § 3.159). Resolution of the veteran's appeal has been delayed since July 1992 to a great extent due to efforts by the RO and the Board to obtain objective evidence of the veteran's claimed impairment, including multiple VA examinations. The RO has obtained the VA treatment records identified by the veteran, and provided him VA examinations in October 1995, June 1997, and July 1997. The RO found that the June and July 1997 examinations were not adequate for rating purposes and requested the VA medical center (MC) to provide the veteran an additional examination in July 1998. The veteran was informed twice of the importance of appearing for the examination, but he failed to report for the examination after having been notified to appear. Following the Court's remand the Board asked the VAMC to provide the veteran a medical examination, pursuant to the authority given by the February 2002 regulatory changes, and informed the veteran of the necessity of cooperating with the examination. The veteran, however, again failed to appear for the examination. The veteran has not provided any explanation for his failure to appear for the examinations. In a lengthy statement that he submitted to the RO in March 1998, he indicated that because his appeal concerned a rating decision made in 1991, none of the subsequent examinations or medical development had any relevance in resolving his appeal. In October 2001 his representative presented a report from a private physician, which will be discussed below, and asserted that the Board's decision should be based on the evidence provided by the private physician and that no further VA examinations are needed. On reviewing the evidence of record, however, the Board finds that the available probative evidence does not provide sufficient information regarding the severity of the manifestations of Meniere's syndrome, and that the examinations to which the veteran failed to appear were necessary in resolving his appeal. The regulations provide that if the veteran has claimed entitlement to an increased rating and entitlement to the increase cannot be established without a current VA examination and the veteran, without good cause, fails to report for such examination, the claim shall be denied. 38 C.F.R. § 3.655. Because the veteran has appeared for prior examinations requested by the RO, however, the Board will adjudicate the veteran's appeal based on the evidence of record. The veteran or his representative has not indicated the existence of any other evidence that is relevant to his appeal. The Board concludes that all relevant data has been obtained for determining the merits of the veteran's claim and that no reasonable possibility exists that any further assistance would aid the veteran in substantiating his claim. Wensch v. Principi, 15 Vet. App. 362, 368 (2001). Laws and Regulations Disability ratings are based on the average impairment of earning capacity resulting from disability. The percentage ratings for each diagnostic code, as set forth in VA's Schedule for Rating Disabilities, codified in 38 C.F.R. Part 4, represent the average impairment of earning capacity resulting from disability. Generally, the degrees of disability specified are considered adequate to compensate for a loss of working time proportionate to the severity of the disability. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Subsequent to the denial of an increased rating in July 1992, the regulations pertaining to the evaluation of hearing loss and diseases of the ear were revised effective June 10, 1999. Schedule for Rating Disabilities; Diseases of the Ear and Other Sense Organs, 64 Fed. Reg. 25,202 (1999) (codified at 38 C.F.R. §§ 4.85-4.87). Because the veteran's appeal was filed prior to the change in the regulations, he is entitled to the application of the version more favorable to him. Karnas v. Derwinski, 1 Vet. App. 308 (1991). He was provided the revised regulations in the March 2000 supplemental statement of the case, and the RO considered the revised regulations in confirming the denial of an increased rating. The veteran was given the opportunity to submit evidence and argument in response to the March 2000 supplemental statement of the case. The Board finds, therefore, that it can consider the revised regulations in evaluating Meniere's syndrome without prejudice to the veteran. Bernard v Brown, 4 Vet. App. 384 (1993). VA's General Counsel has held that where a law or regulation changes during the pendency of an appeal, the Board should first determine which version of the law or regulation is more favorable to the veteran. In making that determination it may be necessary for the Board to apply both the old and the new versions of the regulation. If application of the revised regulation results in a higher rating, the effective date for the higher disability rating can be no earlier than the effective date of the change in the regulation. 38 U.S.C.A. § 5110(g). Prior to the effective date of the change in the regulation, the Board can apply only the original version of the regulation. VAOPGCPREC 3-00. According to the Rating Schedule in effect prior to June 1999, a 100 percent rating applied to Meniere's syndrome that was severe, with frequent and typical attacks, vertigo, deafness, and cerebellar gait. A 60 percent rating applied for moderate impairment, with less frequent attacks, including a cerebellar gait. The disability warranted a 30 percent rating if mild, with aural vertigo and deafness. 38 C.F.R. § 4.87a, Diagnostic Code 6205. The diagnostic code did not specifically prohibit separate ratings for Meniere's syndrome, tinnitus, and hearing loss, even though the tinnitus and hearing loss were considered in determining the appropriate rating for Meniere's syndrome. The diagnostic code was revised effective in June 1999 to show that Meniere's syndrome can be evaluated either under Diagnostic Code 6205, or by separately evaluating vertigo (as a peripheral vestibular disorder), hearing loss, and tinnitus, whichever method results in a higher overall evaluation. Ratings for hearing loss, tinnitus, and vertigo cannot be combined with a rating under Diagnostic Code 6205. The specific rating criteria for Diagnostic Code 6205 were revised as follows: a 100 percent rating applies for hearing impairment with attacks of vertigo and cerebellar gait occurring more than once weekly, with or without tinnitus. A 60 percent rating applies for hearing impairment with attacks of vertigo and cerebellar gait occurring from one to four times a month, with or without tinnitus. The disorder is rated as 30 percent disabling if manifested by hearing impairment with vertigo less than once a month, with or without tinnitus. The evaluation of the level of disability is to be based on review of the entire evidence of record and the application of all pertinent regulations. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 C.F.R. § 4.3. The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that "when the positive and negative evidence relating to a veteran's claim are in 'approximate balance,' thereby creating a 'reasonable doubt' as to the merits of his or her claim, the veteran must prevail." Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001). If the Board determines that the preponderance of the evidence is against the claim, it has necessarily found that the evidence is not in approximate balance, and the benefit of the doubt rule is not applicable. Ortiz, 274 F.3d at 1365. Analysis As an initial matter the Board notes that service connection has been established for bilateral hearing loss and tinnitus, each of which has been separately rated as 10 percent disabling. Service connection was established and the ratings assigned independently of the 30 percent rating assigned for Meniere's syndrome. Because the version of the rating criteria in effect prior to June 1999 does not specifically prohibit the assignment of separate ratings for Meniere's syndrome and hearing loss and/or tinnitus, the Board finds that the version of the rating criteria in effect prior to June 1999 is more favorable to the veteran. The medical evidence indicates that the veteran's Meniere's syndrome is manifested by vertigo, hearing loss, and tinnitus, and that issue is not being debated. The question regarding the rating to be assigned for Meniere's syndrome involves the frequency and severity of the attacks, and whether the Meniere's syndrome results in the veteran having a cerebellar gait. A 60 percent rating is applicable if the evidence shows that manifestations of the disorder are typical attacks that occur less frequently than is required for a 100 percent rating, but include a cerebellar gait. 38 C.F.R. § 4.87a, Diagnostic Code 6205. Analysis of the evidence of record is complicated by the fact that in addition to Meniere's syndrome, the veteran suffers from migraine headaches, an anxiety disorder with panic attacks, and an obsessive-compulsive personality disorder. An examining psychiatrist in October 1995 described the panic attacks as including light-headedness and a sensation of "fading away." The veteran gave up driving due to fear of a panic attack, as well as the Meniere's syndrome. It is not clear from the evidence of record whether the veteran's reported symptoms, which he characterized as vertigo, represent a manifestation of Meniere's syndrome or a panic attack. Service connection has been established for the anxiety disorder, which is currently rated as 50 percent disabling. The veteran has also been granted a total disability rating based on individual unemployability, due to a combination of his service-connected disabilities. The veteran has reported experiencing episodes of vertigo daily, with incapacitating episodes 12 to 18 times a month. A review of the evidence of record discloses, however, that an attack of vertigo or a cerebellar gait have not been objectively demonstrated at any time, although the veteran has undergone treatment and examination for multiple impairments since the initiation of his claim. VA treatment records show that he intermittently received medication for the treatment of Meniere's syndrome beginning in at least December 1991. Although the records indicate that the disorder is manifested by hearing loss, tinnitus, and episodes of vertigo with nausea, any reference to the occurrence of vertigo is based solely on the veteran's reported history. The veteran was noted to be using a cane on different occasions, which he sometimes attributed to a back disorder and at other times to vertigo. None of the VA treatment records or the reports of multiple VA examinations, including examinations pertaining to other disabilities, disclose that the veteran was objectively observed to be suffering from vertigo or to have a cerebellar gait. None of the physical examinations revealed any abnormalities in the ear. Although the veteran asserted in his April 1993 substantive appeal that a January 1991 examination showed him to have a cerebellar gait, the examiner's reference to the veteran's "distorted walking" was based on the veteran's report of such an abnormality, not the examiner's observation. The evidence also indicates that the veteran's subjective reports of experiencing vertigo and a cerebellar gait are not credible. The RO provided him a VA audiometric examination in June 1997, following which the audiologist found that the examination results were invalid because of the veteran's inconsistent responses to test questions. After counseling the veteran on the importance of providing accurate responses the audiologist again administered the test, but the test results continued to be invalid due to the veteran's inconsistent responses. The audiologist recommended that the veteran be given a series of objective diagnostic tests in order to determine any non-organic, or functional, component of his claimed hearing loss. Because the audiometric test results were invalid, she also recommended that the veteran's complaints of vertigo be objectively evaluated. A VA otolaryngology examination was conducted the next day, during which the veteran reported having episodes of pressure in the ears and a sensation of motion daily. He also reported having been given the diagnosis of a "seizure" disorder, which he described as "vertiginous" seizures. Both ears were found to be normal on examination, with no spontaneous nystagmus. The otolaryngologist also recommended a series of tests to objectively evaluate the veteran's claimed symptoms, including an evaluation in the Dizziness Clinic. As shown above, however, the veteran failed to cooperate in obtaining the additional evaluation. Objective testing was conducted in July 1997, when the examiner found marked differences in the objectively demonstrated puretone thresholds and the veteran's voluntary responses, and recommended that the rating for his hearing loss be based only on the objectively demonstrated puretone decibel thresholds. With the exception of hearing loss, the diagnostic testing of the ears was normal. Because the examiners in June and July 1997 found that the veteran's subjective responses differed greatly from the objective test results, and because the veteran failed to cooperate with any further evaluation of his claimed impairment, the Board finds that his complaints regarding vertigo and any gait abnormality are not credible. See Madden v. Gober, 123 F.3d 1477, 1481 (Fed. Cir. 1997) (the Board is entitled to discount the credibility of evidence in light of its own inherent characteristics and its relationship to other items of evidence). The veteran has submitted multiple medical articles describing the history, physiology, and symptoms of Meniere's syndrome. Those articles are not, however, relevant in determining the frequency and severity of the symptoms experienced by the veteran. He also submitted lay statements from two individuals in which they reported that the veteran had complained of dizziness. The lay statements do not, however, provide objective evidence of the frequency or severity of the attacks of vertigo, or the presence of a cerebellar gait. In support of the veteran's appeal his representative submitted a September 1991 medical report from a private physician, Dr. C.N.B. The physician stated in the report that he had reviewed the veteran's claims file, which is questionable in that the file does not reflect that a copy of the entire file, rather than specifically requested medical reports, has been provided to the veteran or his representative. Dr. C.N.B. provided the opinion that the veteran's Meniere's disease was very disabling, causing him to be unemployable since November 1986. The specific records the physician cited in rendering that opinion pertain solely to the veteran's reports of dizziness, and the medical records giving a diagnosis of Meniere's syndrome without any description of observed symptoms. The physician even referred to the veteran on occasion as "doctor" (which he is not). Dr. C.N.B. stated that the veteran's Meniere's syndrome should be rated as totally disabling due to his reported episodes of dizziness occurring 12 times a month. Dr. C.N.B. did not examine the veteran prior to giving his opinion, and did not document any observable signs of vertigo or a cerebellar gait. His conclusion that the veteran is entitled to a 100 percent rating was based solely on the veteran's report of the frequency of episodes of vertigo, none of which have been objectively demonstrated throughout the lengthy processing of the veteran's claim and appeal. Because the opinion of Dr. C.N.B. was based solely on the veteran's reported history, as documented in his claims file, and not supported by any clinical findings, it is of no probative value. See Godfrey v. Brown, 8 Vet. App. 113, 121 (1995) (a medical opinion that is based on the veteran's recitation of medical history and unsupported by clinical findings is not probative). In summary, the available probative evidence does not show that the Meniere's syndrome is manifested by a cerebellar gait, or that the attacks of vertigo are of such frequency and severity for the disorder to be considered moderate, rather than mild. Although a thorough evaluation may have provided evidence that would aid in substantiating the veteran's assertions, he failed to cooperate in obtaining that evaluation. The Board finds, therefore, that the criteria for a disability rating in excess of 30 percent for Meniere's syndrome are not met, and that the preponderance of the evidence is against the claim of entitlement to such a rating. ORDER The claim of entitlement to a disability rating in excess of 30 percent for Meniere's syndrome is denied. Robert E. Sullivan Member, Board of Veterans' Appeals IMPORTANT NOTICE: We have attached a VA Form 4597 that tells you what steps you can take if you disagree with our decision. We are in the process of updating the form to reflect changes in the law effective on December 27, 2001. See the Veterans Education and Benefits Expansion Act of 2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the meanwhile, please note these important corrections to the advice in the form: ? These changes apply to the section entitled "Appeal to the United States Court of Appeals for Veterans Claims." (1) A "Notice of Disagreement filed on or after November 18, 1988" is no longer required to appeal to the Court. (2) You are no longer required to file a copy of your Notice of Appeal with VA's General Counsel. ? In the section entitled "Representation before VA," filing a "Notice of Disagreement with respect to the claim on or after November 18, 1988" is no longer a condition for an attorney-at-law or a VA accredited agent to charge you a fee for representing you.