Citation Nr: 0812404 Decision Date: 04/15/08 Archive Date: 05/01/08 DOCKET NO. 05-10 485A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUE What rating is warranted for Meniere's syndrome since March 30, 1998? REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Heather M. Gogola, Associate Counsel INTRODUCTION The veteran served on active duty from August 1966 to June 1969. This matter is before the Board of Veterans' Appeals (Board) on appeal from a June 2003 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York. The Board notes that the veteran appears to have stated a claim for a total disability rating based on individual unemployability. As such, this claim should be referred back to the RO for further development. 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 In May 1998, the veteran filed his original claim for service connection for Meniere's syndrome. By a June 2003 rating decision, the RO granted service connection for Meniere's syndrome, and assigned a rating of 30 percent, effective May 30, 1998. The veteran appealed, asserting that his disorder warranted a higher rating. In March 2005, the RO granted the veteran an increased rating of 60 percent for his Meniere's syndrome, effective May 30, 1998. The veteran contends that he is warranted a 100 percent rating for Meniere's syndrome from August 2002. At the outset, the Board also notes that, during the pendency of this appeal, the criteria for rating diseases of the ear, 38 C.F.R. § 4.87, Diagnostic Codes 6200-6260, were revised, effective May 11, 1999. Under 38 C.F.R. § 4.87, Diagnostic Code 6205 (1998), i.e., the old rating criteria, a 60 percent evaluation was warranted for moderate Meniere's syndrome with less frequent attacks, including cerebellar gait. A 100 percent evaluation was warranted for severe Meniere's syndrome, with frequent and typical attacks, vertigo, deafness, and cerebellar gait. Under 38 C.F.R. § 4.87, Diagnostic Code 6205 (2007), a 60 percent evaluation 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. Unfortunately, after reviewing the voluminous record, further development is in order. In conjunction with his claim, the veteran was afforded a VA examination in August 2002. The examiner, in an October 2002 addendum, noted that the veteran had recurrent vertigo, tinnitus, and nerve deafness with feeling of fullness in the ear - the classical quadrate of Meniere's disease - that was related to service. The August 2006 VA examination addressed the veteran's hearing and ear disabilities, but did not address the veteran's Meniere's disease. Unfortunately the VA examinations of record are insufficient for rating purposes as it did not address the criteria set forth in 38 C.F.R. § 4.87, Diagnostic Code 6205. The VA examinations did not discuss whether the veteran experienced hearing impairment with attacks of vertigo and cerebellar gait with or without tinnitus, or severe Meniere's symptoms including frequent and typical attacks, vertigo, deafness, or cerebellar gait. The examinations also did not address the frequency (monthly or weekly) with which the veteran's "attacks' occurred. Additionally, at his March 2008 hearing, as well as in his numerous statements, the veteran has asserted that his disability has worsened. During his March 2008 hearing before the undersigned veterans law judge, the veteran testified that he has a constant risk of falls, frequent feelings of dizziness which caused him to "walk funny" and that during serious attacks he cannot walk at all. He also stated that he lost hearing in his right ear after his last serious attack, and that during previous attacks, falls have caused injuries including rupturing his Achilles tendon. In the March 2008 statement the veteran prepared prior to his hearing, he indicated that instances of vertigo had increased in frequency, causing him anxiety when he walks, as well as feelings of fullness in his ears. Therefore, the veteran should undergo an additional VA examination in order to better assess the severity, symptomatology, and manifestations of his Meniere's syndrome. 38 U.S.C.A. § 5103A(d)(1); 38 C.F.R. § 3.159(c)(4). Additionally, an August 2007 statement indicated that more recent treatment records regarding the veteran's Meniere's syndrome are available at the VA Medical Center in East Orange, New Jersey. The Board notes that copies of these records should be requested. See 38 C.F.R. § 3.159(c)(2) (2007). Accordingly, the case is REMANDED for the following action: 1. After obtaining the necessary authorizations, the RO should attempt to obtain any copies of the veteran's records reflecting treatment since December 2006, from the East Orange VA Medical Center in New Jersey. If the RO is unsuccessful in its efforts to obtain any such evidence, it should so inform the veteran of its inability to obtain the evidence and request the veteran to submit such evidence. 2. After all records are associated with the claims file, the veteran should be scheduled for a VA examination to ascertain the severity and manifestations of his Meniere's syndrome, in accordance with the applicable rating criteria. The claims files must be made available to and reviewed by the examiner prior to the examination. The examiner is to conduct all necessary testing and evaluation needed to evaluate the nature and extent of this disorder, including x-ray studies if clinically appropriate. The examiner should review the results of any testing prior to completion of the report and should detail the veteran's complaints and clinical findings, clinically correlating his complaints and findings to the disorder. In the report the examiner must address the following: a) The frequency with which the veteran experiences the following symptoms: vertigo, cerebellar gait, tinnitus, deafness, and hearing impairment. b) After review of the record, state the periods (if any) in which the veteran's Meniere's syndrome was manifested by symptoms, of frequent and typical attacks, vertigo, deafness and cerebellar gait. c) After review of the record, state the periods (if any) in which the veteran's Meniere's syndrome was manifested by symptoms of hearing impairment with attacks of vertigo and cerebellar gait, occurring more than once weekly. 3. The veteran is hereby notified that it is his responsibility to report for all VA examinations, to cooperate in the development of the claim, and that the consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2007). In the event that the veteran does not report for any ordered examination, documentation should be obtained which shows that notice scheduling the examination was sent to the last known address prior to the date of the examination. It should also be indicated whether any notice that was sent was returned as undeliverable. 4. After the development requested has been completed, the RO should review the examination report to ensure that they it is in complete compliance with the directives of this REMAND. If any report is deficient in any manner, the RO must implement corrective procedures at once. 5. Give the veteran the specific notice required by Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008) under 38 U.S.C.A. § 5103(a). 6. After the foregoing, the RO should review the veteran's claim. If the determination is adverse to the veteran, he and his representative should be provided an appropriate supplemental statement of the case and given an opportunity to respond. 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). _________________________________________________ KELLI A. KORDICH Acting 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).