Citation Nr: 1645740 Decision Date: 12/07/16 Archive Date: 12/19/16 DOCKET NO. 12-13 501 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUES 1. Entitlement to an evaluation in excess of 10 percent for Meniere's disease prior to July 19, 2013; and an evaluation in excess of 30 percent from July 19, 2013. 2. Entitlement to total disability rating based upon individual unemployability due to service-connected disorders (TDIU), including on an extraschedular basis. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD Shana Z. Siesser, Counsel INTRODUCTION Please note that the case has been advanced on the docket pursuant to 38 C.F.R. § 20.900 (c) (2015). The Veteran had active service in the United States Navy from September 1942 to December 1945. These matters initially came to the Board of Veterans' Appeals (Board) on appeal from a May 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In the May 2011 rating decision, the Agency of Original Jurisdiction (AOJ) granted service connection for hearing loss and assigned a 20 percent evaluation and granted service connection for Meniere's disease and assigned a 10 percent evaluation. The rating decision also denied claims of service connection for tinnitus and an eye condition. The Veteran filed a May 2011 Notice of Disagreement regarding the assigned evaluation for Meniere's disease. In a June 2012 rating decision, the AOJ granted service connection for tinnitus and assigned the maximum 10 percent rating. In an August 2013 rating decision, the AOJ granted an increased evaluation for the Veterans bilateral hearing loss and assigned a 40 percent rating. A July 2014 rating decision continued the 40 percent evaluation. In a September 2015 and April 2016 rating decisions, the AOJ increased the Veteran's rating for his Meniere's disease to 30 percent, effective July 19, 2013. At his request, the Veteran was offered the opportunity to testify before the Board at a hearing scheduled in August 2016, but he failed appear. The Board deems the request for a hearing withdrawn because he did not seek to reschedule the hearing or provide good cause for the failure to appear. 38 C.F.R. § 20.704 (d). The issue of entitlement to a total disability rating based on individual unemployability (TDIU) is part of an increased rating claim when raised by the record or the veteran. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Accordingly, this issue has been added to the title page. This appeal was processed using the Virtual VA and Veterans Benefits Management System (VBMS) paperless claims processing systems. Accordingly, any future consideration of this appellant's case should take into account the existence of these electronic records. FINDINGS OF FACT 1. Prior to July 19, 2013, the Veteran's service-connected Meniere's syndrome was manifested by occasional dizziness. 2. Since July 19, 2013, the impairment from the Veteran's service-connected Meniere's disease most nearly approximates hearing impairment with attacks of vertigo and cerebellar gait occurring more than once weekly, with or without tinnitus. 3. The Veteran is in receipt of service connection for a bilateral hearing loss disorder and tinnitus. 4. In view of the 100 percent schedular rating for Meniere's disease, there is no longer a case or controversy on the question of the Veteran's entitlement to TDIU. CONCLUSIONS OF LAW 1. Prior to July 19, 2013, the criteria for a disability rating of 10 percent for Meniere's disease have not been met. 38 U.S.C.A. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 4.1-4.10, 4.21, 4.87, Diagnostic Code 6100, 6204, 6205, 6260 (2015). 2. From July 19, 2013, the criteria for an evaluation of 100 percent for Meniere's disease are met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.87, Diagnostic Codes 6100, 6204, 6205, 6260 (2015). 3. The question of whether the Veteran is entitled to an award of TDIU is now moot, warranting dismissal of the appeal as to this aspect of the claim. 38 U.S.C.A. § 7105 (West 2002 & Supp. 2013); 38 C.F.R. § 4.16 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (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 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2015). The appeal arises from the Veteran's disagreement with the initial rating evaluation following the grant of service connection. The VCAA requires that in such cases the Secretary need only provide the Veteran with a generic notice after the initial claim for benefits has been filed and before the initial decision. See Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). No additional notice is required in the adjudication process because of other forms of notice, such as notice contained in the rating decision and statement of the case (SOC), have already provided the claimant with the notice of law applicable to the specific claim on appeal. Wilson v. Mansfied, 506 F.3d 1055 (Fed. Cir. 2007). VA has done everything reasonably possible to assist the Veteran with respect to his claim for an increased rating for Meniere's disease in accordance with 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159 (c). His service treatment records (STRs), VA treatment records, and VA medical examination reports have been associated with the claims file. The November 2010, July 2013, and September 2015 VA examinations are adequate for purposes of rendering a decision in the instant appeal because they examined the Veteran's history, conducted a physical examination, and offered opinions supported by rationale. See 38 C.F.R. § 4.2 (2015); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion has been met. 38 C.F.R. § 3.159 5(c)(4) (2015); Barr, 21 Vet. App. at 312. In sum, the Board finds that the Secretary's duties to notify and assist have been satisfied here. Hence, the Board may proceed to consider the merits of the issues on appeal. Law and analysis The Veteran contends that the symptoms of his Meniere's disease are more disabling than contemplated by the currently assigned 10 and 30 percent disability evaluations. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. 38 C.F.R. § 4.7. In considering the severity of a disability, it is essential to trace the medical history of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Consideration of the whole recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). While the regulations require review of the recorded history of a disability by the adjudicator to ensure a more accurate evaluation, the regulations do not give past medical reports precedence over the current medical findings. Where an increase in the disability rating is at issue, the present level of the veteran's disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Where a veteran appeals the initial rating assigned for a disability when a claim for service connection for that disability has been granted, evidence contemporaneous with the claim for service connection and with the rating decision granting service connection would be most probative of the degree of disability existing at the time that the initial rating was assigned and should be the evidence "used to decide whether an [initial] rating on appeal was erroneous . . . ." Fenderson v. West, 12 Vet. App. 119, 126 (1999). If later evidence obtained during the appeal period indicates that the degree of disability increased or decreased following the assignment of the initial rating, "staged" ratings may be assigned for separate periods of time based on facts found. Id.; see also Hart v. Mansfield, 21 Vet. App. 505 (2007) (VA's determination of the "present level" of a disability may result in a conclusion that the disability has undergone varying and distinct levels of severity throughout the entire time period the increased rating claim has been pending). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102 , 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the weight of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). The Veteran's Meniere's disease is evaluated under Diagnostic Code 6204. See 38 C.F.R. § 4.87, Diagnostic Code 6204. The Board notes that Diagnostic Code 6205 indicates that Meniere's disease can be rated by separately rating vertigo under Diagnostic Code 6204 for dizziness and/or staggering, Diagnostic Code 6100 for hearing impairment, and Diagnostic Code 6260 for tinnitus, and applying the method which results in a higher overall evaluation (but ratings for hearing impairment, tinnitus, or vertigo are not to be combined with an evaluation under Diagnostic Code 6205). 38 C.F.R. § 4.87, Diagnostic Code 6205. Therefore, in examining the Veteran's disability, the Board will consider not only Diagnostic Code 6205, but also Diagnostic Code 6204 (peripheral vestibular disorders), Diagnostic Code 6260 (tinnitus, recurrent), and 38 C.F.R. § 3.385, Diagnostic Code 6100 (hearing loss), in order to determine the highest overall evaluation to which the Veteran is entitled. Under Diagnostic Code 6204, peripheral vestibular disorders, a 10 percent disability rating is warranted for occasional dizziness; and a 30 percent rating is appropriate for dizziness and occasional staggering. 38 C.F.R. § 4.87, Diagnostic Code 6204. The note associated with Diagnostic Code 6204 states that objective findings supporting the diagnosis of vestibular disequilibrium are required before a compensable evaluation can be assigned under Diagnostic Code 6204. Under Diagnostic Code 6205, Meniere's disease, a 30 percent disability rating is warranted for hearing impairment with vertigo less than once a month, with or without tinnitus; a 60 percent rating is appropriate for hearing impairment with attacks of vertigo and cerebellar gait occurring from one to four times a month, with or without tinnitus; and a 100 percent rating is appropriate for hearing impairment with attacks of vertigo and cerebellar gait occurring more than once weekly, with or without tinnitus. 38 C.F.R. § 4.87, Diagnostic Code 6205. Under Diagnostic Code 6260, a 10 percent disability rating is warranted for recurrent tinnitus. Under 38 C.F.R. § 3.385, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1,000, 2,000, 3,000 or 4,000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1,000, 2,000, 3,000, or 4,000 hertz are 26 decibels or greater; or when speech recognition scores are less than 94 percent. 38 C.F.R. § 3.385 (2015). Disability ratings are then assigned on the degree of impaired hearing. Diagnostic Code 6100. The United States Court of Appeals for the Federal Circuit has held that VA "is specifically required to assess a disability 'in relation to its history' when making disability ratings determinations[.]" Moore v. Shinseki, 555 F.3d 1369, 1373 (Fed. Cir. 2009) (citing 38 C.F.R. § 4.1 (2009) ("It is thus essential, both in the examination and in the evaluation of disability, that each disability be viewed in relation to its history.")). The Board, therefore, will examine the Veteran's entire history regarding his symptoms of Meniere's disease, peripheral vestibular disorders, tinnitus, and hearing loss. The Veteran filed his claims of service connection for hearing loss, Meniere's disease, and tinnitus in May 2010. A May 2011 rating decision granted service connection and assigned a 20 percent rating for hearing loss and a 10 percent rating for Meniere's disease. A July 2012 rating decision granted service connection for tinnitus and assigned a 10 percent rating. An August 2013 rating decision granted an increased 40 percent rating for bilateral hearing loss, effective July 16, 2012 and the September 2015 rating decision granted an increased 30 percent rating for Meniere's disease, effective July 19, 2013. Therefore, the Veteran's combined rating, with consideration of the ratings for hearing loss, tinnitus, and Meniere's disease was 40 percent prior to July 16, 2012, 50 percent from July 16, 2012 to July 19, 2013, and 60 percent from July 19, 2013. The Veteran was afforded a VA examination in November 2010. He reported ringing in his ears, dizzy episodes, including spinning and vertigo. His severe vertigo attacks occurred once per year and lasted for four days. He also had less severe attacks every six months that lasted only one day. He denied a history of balance or gait problems. In his May 2012 substantive appeal (VA Form 9), the Veteran stated that his symptoms were incorrectly characterized as "occasional dizziness" but rather, he experiences "severe attacks at least once per month" and he requested a 60 percent rating under Diagnostic Code 6205. A VA examination was conducted in July 2013. The examiner noted symptoms of episodic dizziness/vertigo, decreased hearing, and tinnitus. The Veteran reported experiencing "minor" weekly episodes of dizziness with staggering and "bad" attacks every six to eight weeks. The examiner noted hearing impairment with attacks of vertigo and cerebellar gait more than once weekly with a duration of one to 24 hours. Upon physical examination, the Veteran exhibited a slow gait, which the examiner attributed to his age. No objective findings of staggering were observed. A Romberg test was abnormal or positive for unsteadiness. The examiner opined that the Veteran ambulates with a cane but no staggering was seen during the brief observation period. The Veteran has some impairment of finger-to-nose and some swaying on Romberg but it was speculative as to whether this related to his Meniere's or his age or other medical conditions. At an August 2015 VA examination, the Veteran reported symptoms of dizziness at least every other day and worsening balance with staggering and unsteadiness when he walks. The examiner noted symptoms of dizziness and staggering, more than once weekly. He exhibited an unsteady gait during physical examination, and the examiner noted that he staggered while walking. VA medical records did not note any complaints or objective findings of staggering. With resolution of the doubt in favor of the Veteran, the evidence shows the Veteran experienced staggering and unsteadiness as of the July 19, 2013, VA examination. At the November 2010 VA examination, the Veteran denied balance or gait problems and in his May 2012 substantive appeal, he reported dizziness but did not endorse staggering or an cerebellar gait. Therefore, prior to July 19, 2013, a rating in excess of 10 percent is not warranted. From July 19, 2013, the Board finds that a 100 percent rating is warranted under Diagnostic Code 6205. The Veteran endorsed attacks of vertigo and cerebellar gait more than once weekly. Although the examiner could not definitively state whether the Veteran's unsteadiness was due to his age or his Meniere's disease, when it is not possible to separate the effects of the service-connected disability from a nonservice-connected condition, such signs and symptoms must be attributed to the service-connected disability. 38 C.F.R. § 3.102; Mittleider v. West, 11 Vet. App. 181, 182 (1998) (per curiam). Therefore, the Board finds that the Veteran's unsteady gait was due to his Meniere's disease. With that finding, the Board concludes that the Veteran meets the criteria for a 100 percent rating as he has hearing impairment with attacks of vertigo and cerebellar gait occurring more than once weekly with tinnitus. The Veteran's claim for an increased 100 percent rating is granted. The Board acknowledges that pursuant to the note to Diagnostic Code 6205, ratings for hearing impairment, tinnitus, or vertigo are not to be combined with an evaluation under Diagnostic Code 6205. Nevertheless, the Board has a duty to maximize benefits and finds that, here, the assignment of a 100 percent disability rating is the most favorable outcome of the appeal, notwithstanding the fact that this grant of benefits subsumes the separate disability ratings assigned for the Veteran's service-connected hearing loss and tinnitus. See Buie v. Shinseki, 24 Vet.App. 242, 250 (noting "VA's well-established duty to maximize a claimant's benefits"). However, the Board also acknowledges that the future severity of the Veteran's disability picture may, should such a situation arise, require VA to assess all of the Veteran's service-connected disabilities to determine whether any combination of the disabilities establishes eligibility for additional increased benefits. Id. at 243. Extraschedular considerations In exceptional cases, an extraschedular rating may be provided. 38 C.F.R. § 3.321 (2015). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Therefore, initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. Thun v. Peake, 22 Vet. App. 111 (2008). Under the approach prescribed by VA, if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. In the second step of the inquiry, however, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." 38 C.F.R. 3.321 (b)(1) (related factors include "marked interference with employment" and "frequent periods of hospitalization"). When the rating schedule is inadequate to evaluate a claimant's disability picture and that picture has related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for completion of the third step-a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extraschedular rating. Id. Prior to July 29, 2013, the Board finds that the schedular criteria adequately accounted for the Veteran's symptoms of hearing loss, tinnitus, and vertigo. Therefore, an extraschedular rating during that time period is not warranted. Additionally, as the Veteran's Meniere's disease has been rated as 100 percent disabling since July 19, 2013, the Board finds consideration of an extraschedular rating unwarranted. TDIU Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a) (2015). A 100 percent schedular rating is a higher benefit than TDIU; thus, in general, when a 100 percent rating has been granted, a TDIU claim is moot. This is not universally true, however, as recognized by the Court in Bradley v. Peake, 22 Vet. App. 280 (2008). In that case, it was held that where TDIU could be granted based on a disability other than the one rated at 100 percent disabling, there would be no duplicate counting of disabilities for both the TDIU and the schedular total rating to remain in effect. Here, the Veteran is service-connected for disabilities other than Meniere's disease, but those disabilities are rated as noncompensable. Therefore, it is clear from the facts of this particular case that the TDIU is predicated on the disability rated at 100 percent disabling (Meniere's disease). Accordingly, in this instance the 100 percent schedular award moots the TDIU claim. In light of the Board's above decision to grant a 100 percent rating for Meniere's disease, the claim of entitlement to TDIU is now moot for the period from and after July 19, 2013 and must be dismissed as a matter of law. Sabonis v. Brown, 6 Vet App 426 (1994). The Board notes that in Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a claim of entitlement to a TDIU is part and parcel of an increased-rating claim when the claim is expressly raised by the Veteran. Here, the Veteran did not raise entitlement to TDIU until his September 2016 appellate brief. Therefore, TDIU is not for consideration prior to that date. ORDER An increased rating in excess of 10 percent for Meniere's disease prior to July 19, 2013 is denied. An increased rating of 100 percent for Meniere's disease from July 19, 2013 is granted. The issue of entitlement to TDIU from July 19, 2013, is dismissed as moot. ____________________________________________ ANTHONY C. SCIRÉ, JR. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs