Citation Nr: 1300871 Decision Date: 01/09/13 Archive Date: 01/16/13 DOCKET NO. 08-00 346A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to an increased evaluation for Meniere's disease in excess of 10 percent prior to July 27, 2007. 2. Entitlement to an increased evaluation for Meniere's disease in excess of 30 percent since July 27, 2007. REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J. Murray, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1992 to November 1992, and from December 2003 to February 2005. This matter comes to the Board of Veterans' Appeal (Board) on appeal from a November 2006 decision of the RO that granted service connection for Meniere's disease evaluated as 10 percent disabling effective February 17, 2005. The Veteran timely appealed for a higher initial rating. In February 2010, the RO increased the disability evaluation to 30 percent for Meniere's disease, effective July 27, 2007. Since higher evaluations are available for Meniere's disease both prior to and since that date, and the Veteran is presumed to seek the maximum available benefit for a disability, the claim remains on appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993). In December 2011, the Veteran testified during a video conference hearing before the undersigned. The matter was remanded to the RO (via the Appeals Management Center (AMC)) for additional development in April 2012. The Board instructed the RO/AMC to provide the Veteran with a VA examination to evaluate the nature and severity of his disability due to Meniere's disease. He underwent a VA ear examination in May 2012 and a VA audiology examination in August 2012. As there has been compliance with the requested development, no further action to ensure compliance with the remand directive is required. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). The Court of Appeals for Veterans' Claims (Court) has recently held that a request for a TDIU, whether expressly raised by the Veteran or reasonably raised by the record, is not a separate "claim" for benefits, but rather, can be part of a claim for increased compensation. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). The Board notes that the Veteran continues to work full time, and has not alleged that his Meniere's disease prevents him from obtaining or maintaining substantially gainful employment. The matter is not raised by the record, and the Board finds it unnecessary to remand the matter for further action. FINDINGS OF FACT 1. Prior to July 27, 2007, the Veteran's Meniere's disease more closely approximates episodes of dizziness with occasional episodes of staggering and imbalance. 2. At no point during the period under appeal has symptomatology associated with the Veteran's Meniere's disease been described as involving a cerebellar gait. 3. The Veteran's bilateral sensorineural hearing loss has not been manifested by findings more severe than a pure-tone average of 14 decibels with 88 percent speech discrimination (Level I) in the right ear, and a pure-tone average of 9 decibels with 88 percent speech discrimination (Level I) in the left ear. 4. The Veteran has already been assigned separate evaluation for tinnitus. CONCLUSIONS OF LAW 1. For period prior to July 27, 2007, the criteria for an initial evaluation of 30 percent, and no higher, for Meniere's disease, have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. § 4.87, Diagnostic Codes 6204 and 6205. 2. Since July 27, 2007, the criteria evaluation in excess of 30 percent for Meniere's disease has not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 4.85, Diagnostic Code 6100 and 4.87, Diagnostic Codes 6204 and 6205. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all the evidence submitted by or on behalf of the Veteran. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). 1. VA's Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented at 38 C.F.R. § 3.159, amended VA's duties to notify and assist a claimant in developing the information and evidence necessary to substantiate a claim. Under 38 U.S.C.A. § 5103, VA must notify the claimant of any information or evidence not of record that is necessary to substantiate the claim, as well as what parts of that information or evidence VA will seek to provide, and what parts VA expects the claimant to provide. 38 C.F.R. § 3.159(b). VA must provide such notice to a claimant prior to an initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (AOJ), even if the adjudication occurred prior to the enactment of the VCAA. See Pelegrini v. Principi, 18 Vet. App. 112, 119-120 (2004). Importantly, the VCAA requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all elements of a claim for service connection, so that VA must specifically provide notice that a disability rating and an effective date will be assigned if service connection is awarded. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); aff'd sub nom., Hartman v. Nicholson, 483 F.3d 1311 (2007). This appeal arises from the Veteran's disagreement with the initial evaluation following the grant of service connection for Meniere's disease. The United States Court of Appeals for the Federal Circuit (Federal Circuit) and the Court of Appeals for Veterans Claims (Court) have held that once service connection is granted the claim is substantiated, additional notice is not required, and any defect in notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App.112 (2007). The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). VA has made reasonable efforts to assist the Veteran in obtaining evidence necessary to substantiate his claims. 38 U.S.C.A. § 5103A. VA obtained the Veteran's service medical records, VA treatment records and other treatment records identified by the Veteran. VA provided the Veteran with compensation examinations dated in August 2005, February 2008, May 2012 and August 2012. In each examination report, the examiner identified the nature and evaluated the severity of the Veteran's disability. These examination reports are adequate for VA adjudication purposes. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Significantly, the Veteran has not identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). 2. Increased Rating The Veteran seeks a higher initial evaluation for his disability due to Meniere's disease. His disability is currently evaluated as 10 percent disabling prior to July 27, 2007, and thereafter as 30 percent disabling. Disability evaluations are determined by the application of the facts presented to a schedule of ratings that is based on the average impairment of earning capacity caused by a given disability. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. When evaluating the severity of a disability, VA will consider the entire history of the disability including records of social impairment. See 38 C.F.R. § 4.126(a); Peyton v. Derwinski, 1 Vet. App. 282 (1991). In cases involving the assignment of a rating following the award of service connection, VA must address all evidence that was of record from the date of the filing of the claim on which service connection was granted (or from other applicable effective date). Fenderson v. West, 12 Vet. App. 119, 126-127 (1999). The analysis in the following decision is undertaken with consideration of the possibility that different ratings may be warranted for different time periods. See id.; Hart v. Mansfield, 21 Vet. App. 505 (2007). This practice is known as "staged" ratings. The Veteran's Meniere's disease is currently evaluated as 10 percent disabling prior to July 27, 2007, and thereafter as 30 percent disabling under Diagnostic Code 6204-6205. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the specific basis for the evaluation assigned. The additional code is shown after a hyphen. 38 C.F.R. § 4.27. The hyphenated diagnostic code in this case indicates that the Veteran's disability has been rated analogously under Diagnostic Code 6204 and with consideration of the criteria under Diagnostic Code 6205 (as directed by the Note following that diagnostic code). Under Diagnostic Code 6204 a 10 percent evaluation is warranted for peripheral vestibular disorders with occasional dizziness. The maximum available rating, a 30 percent evaluation, will be assigned with dizziness and occasional staggering. A note provides that hearing impairment or suppuration shall be separately rated and combined. 38 C.F.R. § 4.87. A note under Diagnostic Code 6260 allows for a separate evaluation for tinnitus to be assigned under various diagnostic codes, including Diagnostic Code 6204, except where tinnitus supports an evaluation under one of the diagnostic codes. 38 C.F.R. § 4.87. In this case, a separate rating for tinnitus disability is in effect. Id. Under Diagnostic Code 6205, Meniere's syndrome (endolymphatic hydrops), a 30 percent rating is warranted for hearing impairment with vertigo less than once a month, with or without tinnitus. A 60 percent rating 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. A Note to Diagnostic Code 6205 provides that Meniere's syndrome can be evaluated either under these criteria or by separately evaluating vertigo (as a peripheral vestibular disorder (Diagnostic Code 6204)), hearing impairment (38 C.F.R. § 4.85), and tinnitus (Diagnostic Code 6260), whichever method results in a higher overall evaluation. But a combined evaluation for hearing impairment, tinnitus, or vertigo with an evaluation under Diagnostic Code 6205 is inappropriate. 38 C.F.R. § 4.87. It is not expected that all cases will show all the findings specified; however, in all instances it is expected that there will be sufficient findings as to identify the disease and the disability there from, and to coordinate the rating with the identified impairment of function. 38 C.F.R. § 4.21. Where there is a question as to which of two rating 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. A review of the evidence of record shows the Veteran underwent four VA examinations during the period under appeal. The record also reflects that during this period, the Veteran has received private treatment for symptomatology associated with his disability and he has provided lay statements and testimony regarding the severity of his disability. The Veteran underwent a VA audiology examination in August 2005 in conjunction with his complaints of ear problems. The Veteran complained of experiencing bilateral hearing loss, ringing in his right ear and dizziness since 2004 when he was exposed to excessive noise from heavy equipment, mortar fire, and other combat noise. He reported that he has difficulty hearing and understanding conservations, but he denied that his symptomatology affected his ability to work. The August 2005 VA audiology examination report reveals pure-tone thresholds at 500, 1,000, 2,000, 3,000 and 4,000 Hertz were as follows: 10, 15, 10, 10 and 20 decibels in the right ear; and 15, 5, 0, 0, and 5 in the left ear. Pure-tone threshold averages were 13 in the right ear and 3 in the left ear. The Maryland CNC speech recognition testing revealed speech recognition abilities were 98 percent in both ears. The Veteran's bilateral hearing impairment did not meet VA criteria for a hearing loss disability. See 38 C.F.R. § 3.385 (2012)(For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies of 500, 1,000, 2,000, 3,000 and 4,000 Hertz is 40 decibels or greater; or when the thresholds for at least three of these frequencies are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent.) Although audiometric findings of record do not demonstrate any hearing loss disability, the VA examiner diagnosed the Veteran with bilateral sensorineural hearing loss as well as tinnitus that was related to the Veteran's period of service. The Veteran submitted a September 2006 private medical statement from his treating physician that shows that the Veteran had experienced episodes of vertigo with associated symptoms of right ear pressure, tinnitus and bilateral hearing loss, nausea and vomiting. These episodes appeared to be trigged by stress and first had an onset in 2004. His treating private physician felt that these symptoms were consistent with a diagnosis of Meniere's disease. The Veteran was afforded a VA ear and audiology examination to evaluate the severity of his service-connected Meniere's disease in February 2008. The Veteran reported symptoms of dizziness described as ear fullness and balance problems occurring intermittently. On physical examination, the VA examiner found no disturbance of balance. There were no signs of staggering or cerebella gait. Recurrent tinnitus was noted. Although auditory threshold testing did not demonstrate hearing loss disability, the Maryland CNC speech recognition testing revealed speech recognition abilities were 88 percent in both ears and demonstrate bilateral hearing loss disability for VA purposes under 38 C.F.R. § 3.385. In December 2011, the Veteran testified that his symptoms included ringing in the ears, headaches, and dizziness. During an episode, he would have to stop what he was doing and take time to get his senses together and relax and quit shaking. The Veteran testified that the symptoms happened at different times, and were not just like once a week. He further testified that his symptoms occurred more often when there was stress in his life; and at times, while working as a State Trooper, he had to pull over to the side of the road and stay in his car a little bit longer to calm himself down and gather his senses. He estimated that symptoms occurred approximately four times a month. In April 2012, the Board remanded the Veteran's claim to the RO/AMC for additional development, to include a new VA examination to identify the severity of the Veteran's disability. Pursuant to the remand directives, the Veteran was provided with two VA examinations dated in May 2012 and in August 2012. The May 2012 VA ear examination report shows that the Veteran reported an onset of a headache with a feeling of unsteadiness, but no vertigo, after he was exposed to excessive noise from mortar fire in 2004. He reported a history of increased frequency of episodes throughout the remainder of his service, but he denied seeking any treatment during service. The Veteran reported that he currently experiences stress-related episodes up to twice a day that are manifested by a vise-like headache and feeling of off-balance, but without any "spinning" sensation. He added that he had two episodes where he lost his balance and fell while working outside within the past year. These episodes generally last between two to five minutes. He also reported that he experiences non-stress related episodes that are less severe approximately once a week when working outside. He denied that his symptomatology affected his ability to work as a State Trooper or to perform his Reserve duties as a combat engineer driving a truck. The May 2012 VA examiner noted that the Veteran complained of intermittent hearing loss and tinnitus. Physical evaluation revealed a normal ear and neurological evaluations. The Veteran's gait was considered steady, Romberg tested was normal, and limb coordination test was normal. The May 2012 VA examiner concluded the following. The Veteran does not describe "cerebellar gait;" the neurological examination is normal and with no cerebellar abnormalities. The Veteran does not describe "occasional staggering;" he reports unsteadiness on his feet with reported daily episodes of feeling off-balance, and two episodes of lost balance and falls while working outside within the past year. In a June 2012 addendum to the May 2012 VA ear examination report, the examiner marked that he had reviewed the Veteran's claims folder in conjunction with the May 2012 clinical findings. He made no changes to his previous findings. The August 2012 VA audiology examination report reveals pure-tone thresholds at 1,000, 2,000, 3,000 and 4,000 Hertz, were as follows: 5, 5, 15 and 30 decibels in the right ear; and 0, 10, 5, and 20 in the left ear. Pure-tone threshold averages were 14 in the right ear and 9 in the left ear. The Maryland CNC speech recognition testing revealed speech recognition abilities were 100 percent in both ears. Here, the Veteran seeks a higher initial evaluation for his disability due Meniere's disease. He asserts that his disability is manifested by symptomatology that is more severe than associated with a 10 percent evaluation prior to July 27, 2007, and more severe than the 30 percent evaluation thereafter. At the onset, the Board notes that while there has been some variation in the severity of the Veteran's symptoms due to his Meniere's disease during the appeal period, the severity of the Veteran's symptomatology has been relatively constant throughout the entire period of this appeal. As such, "staged" ratings are not warranted. 38 C.F.R. § 4.71a; Hart, 21 Vet. App. 505. By this decision, the Board is resolving any doubt in the Veteran's favor to award an increased rating for Meniere's disease to 30 percent over the entire appeal period. The Board finds that the medical evidence of record establishes that the Veteran's symptomatology more closely approximates the criteria for a 30 percent rating for the entire appeal period. Here, the record reflects that the Veteran's Meniere's disease more closely approximates the symptoms of dizziness and occasional staggering associated with a 30 percent evaluation under Diagnostic Code 6204. See 38 C.F.R. § 4.87. Collectively, the aforementioned medical evidence reflects that throughout the appeal period, the Veteran's disability due to Meniere's disease is manifested by episodes of headache and dizziness with ringing in the ears, hearing loss, sensation of feeling off-balance, nausea and vomiting that can occur up to twice a day because of stress-related incidents. He experiences less severe episodes that approximately once a week that are unrelated to incidents of stress. These symptoms more closely approximate the criteria for a 30 percent evaluation for "dizziness and occasional staggering" under Diagnostic Code 6204. See 38 C.F.R. § 4.87. The Board acknowledges that references to imbalance come primarily from the Veteran, and that there is no clinical evidence of staggering. The Veteran has provided competent testimony that he experiences episodes of dizziness with imbalance. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). In the Board's view, the Veteran's assertions are evidence that the condition causes "staggering", as used in the rating criteria under Diagnostic Code 6204. See 38 C.F.R. § 4.87. As 30 percent is the maximum rating available under Diagnostic Code 6204 for peripheral vestibular dysfunction, the Board must consider whether the Veteran's disability warrants a schedular rating higher than 30 percent under any other applicable Diagnostic Code. Here, the evidence of record does not support an evaluation in excess of 30 percent under Diagnostic Code 6205 for Meniere's disease. There is no clinical finding of a cerebellar gait that would warrant the next higher evaluation of 60 percent. See 38 C.F.R. § 4.87, Diagnostic Code 6205. The Board acknowledges the Veteran's representative's argument that the Veteran's description of his feeling of unsteadiness and loss of balance constitutes a cerebellar gait. It was note that medical literature defines cerebellar gait as "a staggering gait with a tendency to fall." The Harper Collins Illustrated Medical Dictionary 423 (1st ed. 1993). However, the May 2012 VA examiner specifically stated that what the Veteran's described is not a "cerebellar gait" or "staggering." Rather, the Veteran only described symptoms of unsteadiness and off-balance. The Veteran's gait was evaluated as steady during each VA examination, and at no point does the clinical evidence suggest a finding of a cerebellar gait. The Board has also considered the assertion raised by the Veteran's representative that the May 2012 VA examination report is inadequate because the examiner failed to give an opinion about why the Veteran's description was not consistent findings of a cerebellar gait. See Appellant's Post-Remand Brief, page 4. In this regard, the Board again points out that the May 2012 VA examiner specifically noted that the Veteran's description of unsteadiness and feeling of imbalance was insufficient to support a finding of "cerebellar gait" or "staggering." While the Board recognizes the absence of more lengthy explanation of the basis for the VA examiner's stated findings, there is sufficient grounds to reach the determination stated. The Veteran's representative's assertion is without merit and in no way imposes an additional burden on VA to provide the Veteran with a new VA examination. See Barr v. Nicholson, 21 Vet. App. 303 (2007). Evaluating the Veteran's complaints of tinnitus, hearing loss, and findings of dizziness with imbalance separately is more favorable to him and results in a higher overall rating. See 38 C.F.R. § 4.87, Diagnostic Code 6205, Note. With regard to the Veteran's tinnitus, Diagnostic Code 6260 authorizes only a single 10-percent rating for tinnitus, whether perceived as unilateral or bilateral. Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006). The record reflects that tinnitus has already been service connected and a 10 percent rating has been established. The Board concludes that a separate rating for a hearing loss disability is not warranted. Prior to the 2008 VA audiology examination report, the audiometric findings of record do not demonstrate any hearing loss disability. See 38 C.F.R. § 3.385. In addition, none of the subsequent audiometric findings from the 2008 and 2012 clinical evaluations shows that the Veteran's hearing loss disability meets the criteria for a compensable evaluation under the application of Table VII pursuant to 38 C.F.R. § 4.85, as the evaluation indicated at the intersection of the column for Roman numeral I for both ears is zero percent (puretone threshold averages of 14 decibels in the right ear and of 9 decibels in the left ear, with speech recognition scores of 100 percent, bilaterally). See 38 C.F.R. § 4.85. A separately compensable rating for hearing loss under Diagnostic Code 6100 is not warranted. See Id. In short, after a review of all the evidence of record, the Board finds that the currently described symptomatology warrants an assignment of 30 percent rating, and no higher, for the Veteran's Meniere's Disease under Diagnostic Code 6204. The Veteran has already been assigned a separate 10 percent evaluation for his tinnitus, and the evidence does not support the assignment of a separate compensable evaluation for his hearing loss. Evaluating the Veteran's disabilities separately is more favorable to him and results in a higher overall rating. See 38 C.F.R. § 4.87. Extraschedular Considerations The Board has also considered whether the case should be referred to the Director of the VA Compensation and Pension Service for extra-schedular consideration under 38 C.F.R. § 3.321(a). In determining whether a case should be referred for extra-schedular consideration, the Board must compare the level of severity and the symptomatology of the claimant's disability with the established criteria provided in the rating schedule for disability. If the criteria reasonably describe the Veteran's disability level and symptomatology, then the disability picture is contemplated by the rating schedule, the assigned evaluation is therefore adequate, and no referral for extra-schedular consideration is required. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). With respect to the first prong of Thun, the evidence in this case does not show such an exceptional disability picture that the available schedular evaluation for the disability at issue is inadequate. A comparison between the level of severity and symptomatology of the Veteran's Meniere's disease with the established criteria shows that the rating criteria reasonably describe the disability levels and symptomatology attributable to the Veteran's service-connected Meniere's disease. In reaching this conclusion, the Veteran's dizziness with sense of unsteadiness, difficulty hearing, and struggle to comprehend verbal conversations is a factor contemplated in the regulations and rating criteria as defined. In short, there is nothing in the record to indicate that the service-connected disability on appeal causes impairment with employment over and above that which is contemplated in the assigned schedular rating. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (noting that the disability rating itself is recognition that industrial capabilities are impaired). The Board, therefore, has determined that referral of this case for extra-schedular consideration pursuant to 38 C.F.R. 3.321(b)(1) is not warranted. ORDER Entitlement to an evaluation of 30 percent, and no higher, for Meniere's disease, prior to July 27, 2007, is granted. Entitlement to an evaluation in excess of 30 percent for Meniere's disease since July 27, 2007, is denied. ____________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs