Citation Nr: 1335251	
Decision Date: 11/01/13    Archive Date: 11/13/13

DOCKET NO.  09-32 965	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Lincoln, Nebraska


THE ISSUES

1. Entitlement to an initial compensable disability rating for Meniere's disease prior to July 12, 2011.

2. Entitlement to an initial disability rating in excess of 10 percent for Meniere's disease from July 12, 2011.


REPRESENTATION

Appellant represented by:	John S. Berry, Attorney at Law


ATTORNEY FOR THE BOARD

H. Yoo, Counsel



INTRODUCTION

The Veteran served on active duty from February 1971 to May 1974.

This matter comes to the Board of Veterans' Appeals (Board) on appeal from an April 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska.

The Board remanded this matter for further development most recently in March 2012.  The Board is satisfied that there has been substantial compliance with the remand directives and the Board may proceed with review.  See Stegall v. West,    11 Vet. App. 268 (1998).

In a July 2011 Supplemental Statement of the Case, the Veteran was awarded a 10 percent disability rating for his Meniere's disease, effective July 12, 2011.  Since this grant did not constitute a full grant of the benefits sought on appeal, the claim remains in appellate status.  AB v. Brown, 6 Vet. App. 35, 39 (1993).

The Veteran is currently service connected for bilateral hearing loss at a 10 percent disability rating, effective June 13, 2007, and tinnitus at a 10 percent disability rating, effective August 15, 2005.

The Board additionally notes that the Veteran's electronic Virtual VA file has been reviewed in conjunction with the adjudication of the claim currently on appeal.


FINDINGS OF FACT

1. For the entire appeal period, the Veteran's Meniere's disease more closely approximates occasional episodes of dizziness but without evidence of 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 or staggering. 

3. The Veteran's bilateral hearing loss has not been manifested by findings more severe than a puretone average of 46.25 decibels with 98 percent speech discrimination (Level I) in the right ear, and a puretone average of 66.25 decibels with 20 percent speech discrimination (Level XI) in the left ear.

4. The Veteran has already been assigned separate evaluations for tinnitus and hearing loss. 


CONCLUSIONS OF LAW

1. For period prior to July 12, 2011, the criteria for a separate initial evaluation of 10 percent under Diagnostic Code 6204, 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 (2013). 

2. From July 12, 2011, the criteria for a separate initial evaluation in excess of 10 percent under Diagnostic Code 6204 for Meniere's disease have not been met.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. § 4.87, Diagnostic Codes 6204 and 6205 (2013).

3. Assignment of a 30 percent initial evaluation under Diagnostic Code 6205 for Meniere's disease, while warranted by the evidence, would not yield a higher evaluation than the 30 percent combined rating under Diagnostic Codes 6204, 6260 and 6100 for vertigo, tinnitus and hearing loss, respectively.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. § 4.87, Diagnostic Codes 6100, 6204, 6205, 6260 (2013).



REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I. The Veterans Claims Assistance Act of 2000 (VCAA)

As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012).

Proper notice from VA must inform the claimant and his representative, if any, prior to the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ) of any information and any medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide.  38 U.S.C.A. § 5103(a);  38 C.F.R. § 3.159(b); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  These notice requirements apply to all five elements of a service connection claim (veteran status, existence of a disability, a connection between the veteran's service and the disability, degree of disability, and effective date of the disability).  Dingess v. Nicholson, 19 Vet. App. 473 (2006).  Information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded must be included.  Id.

Here, neither the Veteran nor his representative has alleged prejudice with respect to notice, as is required.  See Shinseki v. Sanders, 556 U.S. 396 (2009); Goodwin v. Peake, 22 Vet. App. 128 (2008); Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007).  None is found by the Board.   Specifically, the Veteran's claim arises from his disagreement with the initial evaluation following the grant of service connection.  Courts have held that once service connection is granted, the claim is substantiated, additional notice is not required and any defect in the notice is not prejudicial.  Hartman v. Nicholson,     483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007).  Accordingly, no further notice is needed under VCAA for this issue.

Next, VA has a duty to assist a veteran in the development of the claim.  This duty includes assisting him or her in the procurement of service treatment records and other pertinent records, and providing an examination when necessary.  See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2013).  After a careful review of the file, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran.  See Bernard v. Brown, 4 Vet. App. 384 (1993).  First, the RO has obtained the Veteran's service treatment records, as well as the VA and private post-service treatment records.  The Veteran has also submitted statements in support of his claim. 

A VA examination with respect to the issue on appeal was obtained in March 2009.  This appeal was remanded by the Board in May 2011 for further development.  Specifically, the Board instructed the RO to acquire all outstanding post-service treatment records, and to afford the Veteran a VA examination in order to ascertain an adequate opinion and rationale.  New VA examinations were performed in June 2011 and an addendum was obtained in July 2011.  In March 2012, the Board determined that the examinations were again inadequate and instructed the RO to acquire all outstanding post-service treatment records, and to afford the Veteran a VA examination.  New VA examinations were performed in June 2012, September 2012, January 2013, an addendum in March 2013, and in May 2013.  38 C.F.R. § 3.159(c) (4).  

To that end, when VA undertakes to provide a VA examination, it must ensure that the examination is adequate.  Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).  Here, as discussed in detail below, although the primary reason necessitating the remand has not been achieved, the Board finds that the VA examinations obtained in this case are adequate for rating purposes as they are predicated on a full understanding of the Veteran's medical history.  Accordingly, the Board finds that VA's duty to assist with respect to obtaining VA examinations or opinions concerning the issue on appeal has been met.  38 C.F.R. § 3.159(c) (4). 

The Board is now satisfied there was substantial compliance with the March 2012 Remand.  See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999).  Specifically, as stated, VA examinations were performed  which the Board finds adequate for adjudication purposes.  The RO also acquired a large number of records, which are incorporated into the Veteran's claims file and the Virtual VA file.  After the required development was completed, this issue was readjudicated and the Veteran was sent a supplemental statement of the case in May 2013.  Accordingly, the Board finds that the Remand directives were substantially complied with and, thus, there is no Stegall violation in this case.

Hence, no further notice or assistance is required to fulfill VA's duty to assist 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).

II. Merits of the Claims

The Veteran seeks higher initial evaluations for his disability due to Meniere's disease.  His disability is currently evaluated as 10 percent disabling prior to July 12, 2011, and thereafter as 10 percent disabling from July 12, 2011.  Service connection is also in effect for bilateral hearing loss, rated 10 percent disabling, effective June 13, 2007, and for tinnitus, rated at 10 percent, effective August 15, 2007.

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, 126-27 (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.

Under the anti-pyramiding provision of 38 C.F.R. § 4.14, the evaluation of the "same disability" or, more appropriately in this case, the "same manifestation" under various diagnoses is to be avoided.  Indeed, in Esteban v. Brown, 6 Vet. App. 259 (1994), the United States Court of Appeals for Veterans Claims (Court) held that, for purposes of determining whether the veteran is entitled to separate ratings for different problems or residuals of an injury, such that separate evaluations do not violate the prohibition against pyramiding, the critical element is that none of the symptomatology for any one of the conditions is duplicative of or overlapping with the symptomatology of the other two conditions.

The Veteran's Meniere's disease is currently evaluated at a noncompensable rating  prior to July 12, 2011, and as 10 percent disabling therefrom.

The RO has evaluated the Veteran's Meniere's disease under 38 C.F.R. § 4.87, Diagnostic Code 6204 (2012).  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.

The Veteran's Meniere's syndrome may also be rated under 38 C.F.R. § 4.87, Diagnostic Code 6205.  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 therefrom, 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.

In addition, effective October 10, 2006, 38 C.F.R. § 3.310 was amended to implement the holding in Allen v. Brown, 7 Vet. App. 439 (1995) for secondary service connection on the basis of the aggravation of a nonservice-connected disorder by service connected disability.  See 71 Fed. Reg. 52744 (2006).  The amendment essentially codifies Allen with language that requires that a baseline level of severity of the nonservice-connected disease or injury must be established by medical evidence created before the onset of aggravation.  An April 2009 rating granted service connection for Meniere's disease and assigned a noncompensable evaluation, based on findings that the Meniere's disease was aggravated by the service-connected hearing loss and tinnitus.  The Board has attempted to obtain the baseline level of severity of the Veteran's Meniere's disease pursuant to the May 2011 and March 2012 remands.

However, after several attempts, the most recent May 2013 VA examiner determined that a baseline could not be determined "because the medical evidence is not sufficient to support a determination of a baseline."  Regardless, the Board is satisfied that the inquiries necessitated by 38 C.F.R. § 3.310(b) as to any "baseline" disability have been adequately addressed, and any doubt in this instance should be resolved in the Veteran's favor.  See Mittleider v. West, 11 Vet. App. 181, 182 (1998) (when it is not possible to separate the effects of a nonservice-connected condition from those of a service-connected condition, reasonable doubt should be resolved in the claimant's favor with regard to the question of whether certain signs and symptoms can be attributed to the service-connected condition).

The Board has also considered the Veteran's statements that his disability is worse than the current ratings he currently receives.  In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant.  See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57  (1990).

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, the evidence submitted by the Veteran or on his behalf.  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 appellant).

The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence, which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the appellant.  Equal weight is not accorded to each piece of evidence contained in the record; not every item of evidence has the same probative value.  When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied.  See Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

The Board will first address whether the Veteran is entitled to an initial compensable rating under Diagnostic Code 6204 prior to July 12, 2011.  

According to the evidence of record, the Veteran was afforded a VA examination in March 2009.  Here, the Veteran did not report dizziness or staggering.  

On June 11, 2011, the Veteran underwent a VA ear disease examination where he reported improvement in his symptoms of severe vertigo and ringing in his ears since a vestibular nerve section done in 1980.  The Veteran stated he still has some problems but has "gotten significantly better since [the] section."  The Veteran stated he did not have problems with his balance or gait at this time.  There was no pain or ear drainage. 

At a June 20, 2011, VA audiological examination, the Veteran reported his dizziness episodes occurred less than once a month.  The examiner determined the Veteran had mild to severe sensorineural hearing loss in the right ear and a severe sensorineural hearing loss in the left ear. 

The Veteran's post-service treatment records from the VA medical center dated March 2009 to January 2011 do not reflect reports of vertigo or dizziness.

Considering the pertinent evidence in light of the governing legal authority, the Board finds that an initial rating of 10 percent, but no higher, for the Veteran's Meniere's disease is warranted, effective April 4, 2008, the effective date of the date of the grant of service connection, under Diagnostic Code 6204.  See 38 C.F.R. § 4.87.  As detailed in the June 20, 2011, VA examination report, the Veteran described his symptoms as occasional dizziness occurring less than once a month.  In addition, the Veteran stated that since his section in 1980, he still experienced some problems but was significantly improved.  As such, granting the Veteran the benefit of the doubt, the Board finds a 10 percent rating is appropriate since April 4, 2008.  A 30 percent disability rating, however, is not warranted under Diagnostic Code 6204, as the objective evidence and subjective reports do not reflect dizziness and occasional staggering due to his Meniere's disease.

Based on the same reasoning in the Board's determination that the Veteran meets the 10 percent rating criteria under Diagnostic Code 6204, it is arguable that the Veteran experiences attacks of vertigo less than once a month, and thus the criteria for 30 percent under Diagnostic Code 6205 are met.  The Veteran, however, would not meet the criteria for a 60 percent rating, or higher, under Diagnostic Code 6205 as there is no evidence of a cerebellar gait.  As discussed below, there is no benefit to the Veteran in rating his Meniere's disease under Diagnostic Code 6205, rather than combining the separated evaluations under Diagnostic Codes 6204, 6260 and 6100 for vertigo, tinnitus and hearing loss, respectively.

As previously stated, the rating criteria also provide that the manifestations of Meniere's disease (vertigo, hearing impairment, and tinnitus) can be separately rated under the applicable diagnostic codes if this method results in a higher overall evaluation.  See 38 C.F.R. § 4.87, Diagnostic Code 6205, Note.  The Board will therefore determine whether rating the symptoms of the Veteran's disability separately results in a disability rating higher than 30 percent.  Nevertheless, a rating for hearing impairment, tinnitus, or vertigo is not to be combined with a rating under Diagnostic Code 6205.  38 C.F.R. § 4.87.

With regard to tinnitus, the Veteran's tinnitus is currently evaluated as 10 percent disabling.  This is the maximum rating allowed by law.  See 38 C.F.R. § 6260 (2011); Smith v. Nicholson, 451 F.3d 1344, 1350-51 (Fed. Cir. 2006) (affirming VA's long-standing interpretation of DC 6260 that only a single 10 percent rating for tinnitus is assignable, whether or not the tinnitus is perceived unilaterally or bilaterally).

With regard to hearing loss, relevant laws and regulations stipulate that evaluations of defective hearing range from noncompensable to 100 percent based on the organic impairment of hearing acuity.  Hearing impairment is measured by the results of controlled speech discrimination tests together with the average hearing threshold levels (which in turn, are measured by pure tone audiometric tests in the frequencies of 1000, 2000, 3000 and 4000 cycles per second).  See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992) (defective hearing is rated on the basis of a mere mechanical application of the rating criteria).  The provisions of 38 C.F.R. § 4.85 (2013) establish eleven auditory acuity levels from I to XI.  Tables VI and VII as set forth in section 4.85(h) are used to calculate the rating to be assigned. 

In guidance for cases involving exceptional patterns of hearing impairment, the schedular criteria indicate that, when the puretone threshold at each of the four specified frequencies (1000, 2000, 3000 and 4000 Hertz) is 55 decibels or more, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIa, whichever results in the higher numeral.  Each ear is evaluated separately.  38 C.F.R. § 4.86(a) (2013). Additionally, when the puretone threshold is 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIa, whichever results in the higher numeral.  The numeral will then be elevated to the next higher Roman numeral.  Each ear will be evaluated separately.  38 C.F.R.        § 4.86(b).

The record contains only one audiological test results dated in June 20, 2011, during the appeal period.  On the authorized VA audiologic evaluation for rating purposes, puretone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
30
20
40
60
65
LEFT
80
70
65
65
65

The puretone average was 46.25 in the right ear and 66.25 for the left ear.  Speech audiometry revealed speech recognition ability of 98 in the right ear and 20 percent in the left ear.

Under Table VI, a puretone threshold average of 46.25 and a speech recognition score of 98 percent are consistent with Level I hearing impairment of the right ear. The left ear, with a puretone threshold average of 66.25 and speech recognition score of 20 percent, is also consistent with Level XI hearing impairment.  Level I in hearing impairment in the right ear and Level XI in the left ear warrants a 10 percent evaluation under Table VII. 

However, the puretone thresholds on the audiometry reflected that the Veteran had an exceptional pattern of hearing impairment in his left ear (as the puretone threshold in each of the four frequencies for consideration, 1000, 2000, 3000 and 4000 Hertz, is 55 decibels or more), and was entitled to a rating based on puretone thresholds alone (if such was more favorable).  See 38 C.F.R. § 4.86 (a).  When applying the results from the June 20, 2011, VA audiological examination to Table VIA, a Level V hearing in the left ear is obtained; less than the Level XI obtained under 38 C.F.R. § 4.85.  As such, a higher rating under 38 C.F.R. § 4.86 (a) is not warranted.

The separate manifestations of the Veteran's Meniere's disease are rated as 10 percent disabling for vertigo, 10 percent disabling for tinnitus, and 10 percent disabling for bilateral hearing loss.  The combined rating for these disabilities is 30 percent and would be the same as the 30 percent under Diagnostic Code 6205.      38 C.F.R. § 4.25, Combined Ratings Table.  Thus, separately evaluating the Veteran's vertigo, tinnitus, and hearing impairment due to Meniere's disease does not result in a higher rating.  Accordingly, the claim for an initial evaluation in excess of 10 percent for Meniere's syndrome is not warranted.

Regarding the Veteran's claim for an initial increased rating in excess of 10 percent since July 12, 2011, the evidence of record reflects that the Veteran was afforded several VA examinations.  

An addendum opinion, dated July 12, 2011, the VA examiner stated the Veteran reported "occasional [dizziness] associated with increased tinnitus during an attack.  He stated there were no changes to his hearing or any problems with his gait during these episodes.  He stated these attacks were not disabling.

At a June 2012 VA examination the Veteran reported he did not have problems with his balance or gait.  He did not have ear pain or drainage. 

At a September 2012 VA examination, the Veteran reported that following his vestibular nerve section in the early 1980s he has only had 3-4 episodes of vertigo since and occasionally feels light headed.  He denied tinnitus and his main complaint was hearing loss, greater in the left ear than the right ear.

According to the May 2013 VA Disability Benefits Questionnaire, the Veteran's report of symptoms were the same those reported at the September 2012 VA examination.  The Veteran's gait was reported as normal and that the Veteran's ear or peripheral vestibular conditions did not impact his ability to work.  

After a review of the record, the most pertinent of which was discussed above, the Board finds that the claim must be denied.  With regard to Diagnostic Code 6204, the 30 percent rating criteria require dizziness with occasional staggering.  There is no evidence of record that the Veteran's dizziness caused occasional staggering.  The Veteran's gait was reported as normal and he did not have problems with his balance.

Under Diagnostic Code 6205, as previously discussed for the Veteran's claim for a compensable rating prior to July 12, 2011, it is again arguable that the Veteran experiences attacks of vertigo less than once a month, and the criteria for 30 percent under Diagnostic Code 6205 are met.  The Veteran does not meet the criteria for a 60 percent rating, or higher, under Diagnostic Code 6205 as there is no evidence of a cerebellar gait.

Again, Meniere's syndrome may also be rated by separately evaluating vertigo (as a peripheral vestibular disorder under DC 6204), hearing impairment, and tinnitus, if this would result in a higher overall rating.  See Note under 38 C.F.R. § 4.87, Diagnostic Code 6205.  In this case, the RO has assigned separate evaluations.

As previously stated, the Veteran is in receipt of the highest compensable rating for tinnitus at 10 percent.  As for the Veteran's vertigo, as stated above, this is currently evaluated as 10 percent disabling under Diagnostic Code 6204 and a 30 percent rating is not warranted as occasional staggering is not present. 

With regard to hearing loss, the record contains only one audiological test results dated in June 20, 2011.  The Board notes that a September 2012 Disability Benefits Questionnaire (DBQ) referenced the June 20, 2011 VA audiological test results but did not conduct one at that time.  According to the May 2013 DBQ report, the same audiological test results were again referenced.  The Veteran has not claimed that his hearing loss has worsened since this examination.  Therefore, the Board will apply the audiological results from this examination.   

As discussed, under Table VI, a puretone threshold average of 46.25 and a speech recognition score of 98 percent are consistent with Level I hearing impairment of the right ear.  The left ear, with a puretone threshold average of 66.25 and speech recognition score of 20 percent, is also consistent with Level XI hearing impairment.  Level I in hearing impairment in the right ear and Level XI in the left ear in both ears warrants a 10 percent evaluation under Table VII. 

Furthermore, as the Veteran had an exceptional pattern of hearing impairment in his left ear, when applying the results from the June 20, 2011, VA audiological examination to Table VIa, a Level V hearing in the left ear is obtained; again, less than the Level XI obtained under Table VI.  As such, a higher rating under 38 C.F.R. § 4.86 (a) is not warranted.

Thus, the issue is whether separate evaluations for vertigo (as a peripheral vestibular disorder), hearing impairment, and tinnitus, would result in a higher overall rating.  See Diagnostic Code 6205, Note.  In this regard, combining the 10 percent disability rating for vertigo under Diagnostic Code 6204, the 10 percent disability rating for bilateral hearing loss, and the 10 percent disability rating for tinnitus results in a 30 percent combined rating.  See 38 C.F.R. § 4.25 (2013) (stating that combined ratings are not merely the sum of the individual ratings, but determined by consideration of the efficiency of the individual as affected by the most disabling condition, then by less disabling conditions in the order of severity).  This is the same as a 30 percent evaluation under Diagnostic Code 6205.  38 C.F.R. § 4.25, Combined Ratings Table.  As such, separately evaluating the Veteran's vertigo, tinnitus, and hearing impairment due to Meniere's disease does not result in a higher rating.  The Board therefore concludes that the manifestations of the Veteran's Meniere's disease are properly evaluated as a 10 percent evaluation for vertigo under Diagnostic Code 6204, combined with the 10 percent ratings for tinnitus and hearing loss.  Accordingly, the claim for an initial evaluation in excess of 10 percent for Meniere's syndrome under Diagnostic Code 6204 is not warranted.

In reaching the above decision, the potential application of various provisions of Title 38 of the Code of Federal Regulations has been considered, whether or not they were raised by the appellant, as required by the holding of the Court in Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991), including the provisions of 38 C.F.R. § 3.321(b)(1) (2013). 

The Board has also considered whether the Veteran's claim should be referred for an extraschedular rating.  See 38 C.F.R. § 3.321(b) (2013); Thun v. Peake, 22 Vet. App. 111, 114 (2008).  Because the ratings provided under the VA Schedule for Rating Disabilities are averages, it follows that an assigned rating may not completely account for each individual veteran's circumstances, but nevertheless would still be adequate to address the average impairment in earning capacity caused by the disability.  Thun, 22 Vet. App. at 114.  However, in exceptional situations where the rating is inadequate, it may be appropriate to refer the case for extraschedular consideration.  Id.  The governing norm in these exceptional cases is a finding that the disability at issue presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards.  38 C.F.R. § 3.321(b)(1). 

The Board finds that a referral for extraschedular consideration is not warranted.  The Veteran's service-connected Meniere's disease is contemplated and reasonably described by the rating criteria.  See id.  As shown in the above discussion, the Veteran does not have symptoms associated with this disability that have been left uncompensated or unaccounted for by the assignment of schedular ratings.  See Thun, 22 Vet. App. at 115.  The record contains no indication that the Veteran's Meniere's disease causes him greater difficulty than that contemplated by the 10 percent rating assigned in this decision, combined with 10 percent ratings for tinnitus and hearing loss.  Therefore, having reviewed the evidence and the ratings assigned, the Board finds that the evidence does not show such an exceptional disability picture to render the schedular evaluations assigned for the Veteran's Meniere's disease to be inadequate to rate the Veteran's service-connected disability. 

In the absence of evidence that the schedular rating criteria are inadequate to rate the Veteran's disability, the Board is not required to remand this case to the RO for the procedural actions outlined in 38 C.F.R. § 3.321(b)(1).   See Bagwell v. Brown, 9 Vet. App. 237, 238-39 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995).  Consequently, the Board finds that the available schedular evaluations are adequate to rate this disability.  As such, in the absence of this threshold finding, there is no need to consider whether there are "related factors" such as marked interference with employment or frequent periods of hospitalization.  See Thun, 22 Vet. App. at 118-19 (holding that the Board's finding that the rating criteria were adequate to evaluate the claimant's disability was a sufficient basis for denying extraschedular consideration without regard to whether there was marked interference with employment).  Therefore, referral for extraschedular consideration is not warranted.  See id. 

The Board has considered whether to the address the issue of a total disability rating based on individual unemployability (TDIU).  See Rice v. Shinseki, 22 Vet. App. 447, 453-55 (2009) (holding that the issue of entitlement to TDIU is "part and parcel" of the evaluation of a disability when unemployability as a result of such disability has been raised by the claimant or by the record); see also 38 C.F.R. §§ 3.340, 4.16 (2013).  Here, the Veteran has not stated and the evidence of record does not otherwise suggest that his Meniere's disease is sufficiently incapacitating as to prevent him from obtaining and maintaining substantially gainful employment.  Thus, the Board finds that the issue of entitlement to TDIU has not been raised in the present appeal.  See id.


ORDER

An initial rating of 10 percent, but no greater, for Meniere's disease under Diagnostic Code 6204 prior to July 12, 2011, is granted, subject to the laws and regulations governing the payment of VA compensation.

Entitlement to an initial disability rating in excess of 10 percent for Meniere's disease under Diagnostic Code 6204 from July 12, 2011, is denied.



____________________________________________
BARBARA B. COPELAND
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs