Citation Nr: 0811437 Decision Date: 04/07/08 Archive Date: 04/23/08 DOCKET NO. 98-14 976 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an evaluation in excess of 40 percent for Meniere's disease, from June 13, 1997, to March 17, 2000. 2. Entitlement to an evaluation in excess of 80 percent for Meniere's disease, from March 18, 2000, to February 28, 2002. 3. Whether it was proper to reduce the veteran's 80 percent disability rating for Meniere's disease, effective March 1, 2002. 4. Entitlement to an evaluation in excess of 50 percent for Meniere's disease, from March 1, 2002, to May 20, 2005. 5. Entitlement to an evaluation in excess of 60 percent for Meniere's disease, from May 21, 2005, to the present. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Appellant and his housekeeper ATTORNEY FOR THE BOARD Elizabeth Jalley, Associate Counsel INTRODUCTION The veteran served on active duty from November 1972 to August 1975. This case comes before the Board of Veterans' Appeals (the Board) on appeal from a March 1998 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. On appeal, the disability ratings for the veteran's service- connected Meniere's disease were adjusted as follows: a June 2000 hearing officer decision increased the veteran's disability rating to 80 percent, effective March 18, 2000; an August 2001 rating decision proposed reducing the veteran's disability rating to 50 percent; a December 2001 hearing officer decision reduced the veteran's disability rating to 50 percent, effective March 1, 2002; a November 2005 rating decision increased the veteran's disability rating to 60 percent, effective May 21, 2005. In December 2003, a Travel Board hearing was held before the undersigned Veterans Law Judge at the St. Petersburg RO. A transcript of the hearing is of record. In April 2004 and May 2006, the Board remanded this case for additional development, and the case has been returned for further appellate review. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND Disability evaluations are determined by comparing a veteran's present symptomatology with criteria set forth in the VA's 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 (2007). An evaluation of the level of disability present also includes consideration of the functional impairment of the appellant's ability to engage in ordinary activities, including employment. 38 C.F.R. § 4.10 (2007). Where VA's Rating Schedule does not list a specific disability, the disability is rated under criteria where the functions affected, anatomical localization, and symptomatology are analogous. 38 C.F.R. § 4.20. The governing regulations provide that the higher of two evaluations will be assigned if the disability more closely approximates the criteria for that rating. Otherwise, the lower rating is assigned. 38 C.F.R. § 4.7 (2007). 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). Because a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made, consideration must be given to assigning different ratings for different time periods. Hart v. Mansfield, No. 05-2424 (U.S. Vet. App. Nov. 19, 2007). The veteran is entitled to be rated under the diagnostic code that allows the highest possible evaluation for the clinical findings shown on objective examination. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). However, the evaluation of the same disability, or the same manifestations of disability, under various diagnoses constitutes pyramiding, which is prohibited under VA regulations. 38 C.F.R. § 4.14 (2007). Finally, when a law or regulation changes after a claim has been filed but before the administrative appeal process has been concluded, VA must apply the regulatory version that is more favorable to the veteran. See VAOPGCPREC 7-2003 (Nov. 19, 2003). The effective date of any increase cannot be earlier than the effective date of the revised criteria. See VAOGCPREC 3-2000; 65 Fed. Reg. 33422 (2000). The regulations pertaining to rating disabilities of the ear were changed effective June 10, 1999. Prior to this date, Meniere's syndrome was rated under 38 C.F.R. § 4.87a, Diagnostic Code 6205. This diagnostic code assigned a 30 percent disability rating for mild Meniere's syndrome, with aural vertigo and deafness. A 60 percent rating was available for moderate Meniere's syndrome, with less frequent attacks, including cerebellar gait. A 100 percent rating was awarded for severe Meniere's syndrome, with frequent and typical attacks, vertigo, deafness, and cerebellar gait. Also of relevance is 38 C.F.R. § 4.87a, Diagnotic Code 6204 (effective prior to June 10, 1999), which compensates for chronic labyrinthitis. This diagnostic code awarded a 10 percent disability rating for moderate disability with tinnitus and occasional dizziness, while a 30 percent disability was assigned for severe disability with tinnitus, dizziness, and occasional staggering. A note to Diagnostic Code 6204 states that this rating was to be combined with ratings for loss or hearing or suppuration. Under 38 C.F.R. § 4.87a, Diagnostic Code 6260, persistent tinnitus as a symptom of head injury, concussion or acoustic trauma warranted a 10 percent disability rating. While the hearing loss regulations of 38 C.F.R. § 4.85 are also relevant to the issue at hand, they need not be discussed at the moment. Effective June 10, 1999, the schedule of ratings of the ear were reclassified under 38 C.F.R. § 4.87. Under the new regulations, Diagnostic Code 6205 assigns a 30 percent rating for Meniere's syndrome with hearing impairment with vertigo less than once a month, with or without tinnitus. A 60 percent evaluation is awarded 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 when there is hearing impairment with attacks of vertigo and cerebellar gait occurring more than once weekly, with or without tinnitus. Diagnostic Code 6205 notes that Meniere's syndrome may be rated 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. It also states that an evaluation for hearing impairment, tinnitus, or vertigo may not be combined with an evaluation under Diagnostic Code 6205. The revised disability ratings reclassified the disability rated under Diagnostic Code 6204 (formerly "chronic labyrinthitis") as "peripheral vestibular disorders." The new Diagnostic Code 6204 awards a 10 percent rating for disability manifested by occasional dizziness and assigns a 30 percent rating when the disability is characterized by dizziness and occasional staggering. The note to Diagnostic Code 6204 states that objective findings supporting the diagnosis of vestibular disequilibrium are required before a compensable evaluation can be assigned under this code. An amendment in effect from June 10, 1999, to June 12, 2003, made recurrent tinnitus a compensable disability under Diagnostic Code 6260 and no longer restricted compensation to tinnitus caused by head injury, concussion, or acoustic trauma. The hearing loss rating criteria of 38 C.F.R. § 4.85, Diagnostic Code 6100, did not change. The claim at hand involves issues of entitlement to increased ratings for Meniere's syndrome and the propriety of a rating reduction from 80 percent to 50 percent for this same disability. While the present appeal only goes back to June 13, 1997, the veteran has been service-connected for Meniere's disease with vertigo and tinnitus since March 29, 1982. Before June 13, 1997, the veteran's disability rating was assigned under the Meniere's syndrome rating criteria of under 38 C.F.R. § 4.87a, Diagnostic Code 6205 (effective prior to June 10, 1999). This disability rating, as well as the August 1982 rating decision that originally granted service connection, expressly contemplated evidence of the veteran's tinnitus and vertigo. From June 13, 1997, forward, the entire period that is under appeal, the veteran's disability has been rated as hearing loss under 38 C.F.R. § 4.85, as the hearing loss diagnostic code allowed for a higher disability rating than was available to the veteran under the Meniere's syndrome criteria. As noted above, the rating schedule for disabilities of the ear changed effective June 10, 1999. Accordingly, the RO re- evaluated the veteran's disabilities and rated them under the new criteria. The Board believes that the RO either misinterpreted or misapplied the applicable regulations in two ways. For these reasons, the Board remands this claim so that the veteran's disability may be evaluated in accordance with the applicable regulations. First, the Board notes that the veteran's disabilities were first evaluated under the new criteria in the June 2000 rating decision. In this decision, the RO stated that "[e]ffective June 10, 1999, the Rating Schedule was revised to provide for separate evaluations for tinnitus, vertigo, and hearing loss secondary to Meniere's Disease if this was to the veteran's advantage." The Board agrees that this principle, as noted above, appears in a notation in the new Diagnostic Code 6205. However, the Board finds no indication that the old rating criteria prohibited evaluating a veteran's disabilities in this manner. In fact, as noted above, the old Diagnostic Code 6204, for chronic labyrinthitis, expressly notes that this rating is to be combined with ratings for loss of hearing or suppuration. The medical evidence of record includes evidence that the veteran complained of and was treated for tinnitus and vertigo. Furthermore, evidence of tinnitus and vertigo was previously relied upon in assigning a disability rating for Meniere's disease. The Board therefore believes that the veteran is entitled to a disability rating, or ratings, if appropriate, for tinnitus and vertigo separate from the disability rating he was assigned for hearing loss. Second, the Board notes that the current claim was filed in June 1997 and has been on appeal since that time. When a law or regulation changes after a claim has been filed but before the administrative appeal process has been concluded, VA must apply the regulatory version that is more favorable to the veteran. In this regard, the veteran is entitled to be rated under the more favorable rating criteria for the entire period that is currently on appeal. The Board believes this is relevant because the requirement that the veteran's vertigo be supported by objective findings does not appear in the old Diagnostic Code 6402, suggesting the possibility that the old rating criteria may be more favorable to the veteran. The Board therefore believes that the veteran's Meniere's disease needs to be re-evaluated under both the old and the new rating criteria. Furthermore, the Board does not believe that the veteran has been adequately informed of both the old and the new evaluation criteria that are potentially applicable to his claim. Given the recent decision in Vazquez-Flores v. Peake, -- Vet. App. --, No. 05-0355, 2008 WL 239951 (Jan. 30, 2008), the Board believes that further notification should be undertaken while this case is on remand. Finally, because it is inextricably intertwined with the increased ratings claims that are being remanded, the issue of whether it was proper to reduce the compensation rating of the veteran's Meniere's disease is held in abeyance pending completion of the development discussed below. See Hoyer v. Derwinski, 1 Vet. App. 208, 209-10 (1991). Accordingly, the case is REMANDED for the following action: 1. The AMC must provide notice as required by Vazquez-Flores v. Peake, -- Vet. App. --, No. 05-0355, 2008 WL 239951 (Jan. 30, 2008). The veteran should specifically be provided with both the old rating criteria for hearing loss and diseases of the ear, under 38 C.F.R. § 4.85 and 4.87a, and the new rating criteria under 38 C.F.R. § 4.85, 4.86, and 4.87, which became effective June 10, 1999. 2. The AMC should re-evaluate the veteran's Meniere's disease in accordance with the instructions listed above. If the AMC disagrees with the Board's interpretation of any of the pertinent regulations, the rating decision should explain the AMC's rationale. If an issue on appeal continues to be denied, the veteran and his representative must be provided a Supplemental Statement of the Case. The veteran must then be given an appropriate opportunity to respond. Thereafter, the case must be returned to the Board for appellate review. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007). _________________________________________________ F. JUDGE FLOWERS Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2007).