Citation Nr: 1739773	
Decision Date: 09/15/17    Archive Date: 09/29/17

DOCKET NO.  00-14 510A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Houston, Texas


THE ISSUE

Entitlement to service connection for Meniere's syndrome.

[Other claims are being addressed in a separate Board decision, as cited below.]


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

The Veteran (Appellant)


ATTORNEY FOR THE BOARD

L. McCabe, Associate Counsel


INTRODUCTION

The Veteran served on active duty from July 1966 to May 1967.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas.  

Procedurally, in June 2012, the Veteran submitted a notice of disagreement (NOD) with a rating decision dated that same month that granted an increased 10 percent rating for his service-connected vertigo and dizziness, effective January 5, 2011, but denied a rating in excess of 10 percent.  See June 2012 Letter from the Veteran's Representative; June 2012 Notice of Disagreement Form; June 2012 Rating Decision.  In particular, the Veteran expressed disagreement with the effective date and rating assigned.  See June 2012 Notice of Disagreement Form.  In a handwritten statement on the NOD form, the Veteran stated that his service-connected vertigo and dizziness was "more like Meniere's syndrome 60-100%."  Id.  

A February 2014 VA memorandum determined that the Veteran's statement on his June 2012 NOD constituted an "[u]nadjudicated [c]laim" for Meniere's syndrome.  See February 2014 VA Memorandum; see also March 2014 Deferred Rating Decision (VA Form 21-6789) (instructing RO personnel to "[s]end VCAA for the SC claim dated 06/29/12 for Meniere's syndrome").

Service connection for Meniere's syndrome was denied in an October 2014 rating decision, and the Veteran perfected his appeal.  See February 2015 Notice of Disagreement (asserting that his "Meniere's disease is the progression of [his] service connected dizziness and vertigo"); June 2016 Statement of the Case (confirming and continuing the denial of service connection for Meniere's syndrome); November 2016 Substantive Appeal (VA Form 9).  See also 38 C.F.R. §§ 20.200, 20.201, 20.202, 20.302 (2016) (setting forth requirements and time limits for initiating and perfecting an appeal to the Board); February 2017 Board Decision (finding that "the issue of service connection for Meniere's syndrome is timely on appeal"); Percy v. Shinseki, 23 Vet. App. 37 (2009) (holding that VA waives objection to timeliness of substantive appeal by taking actions that lead the Veteran to believe that an appeal was perfected).

In June 2016, the Veteran testified at a local hearing before a Decision Review Officer (DRO); a transcript of this hearing is of record.

This appeal was previously before the Board in February 2017, at which time the Board remanded the appeal so that the Veteran could be scheduled for a hearing before a Veterans Law Judge (VLJ) of the Board.  That hearing was held via videoconference in May 2017.  A transcript of that hearing is of record.  Following the hearing, the Veteran submitted additional evidence along with a waiver of initial RO consideration of the evidence; the Board has accepted this additional evidence for inclusion into the record on appeal.  See 38 C.F.R. §§ 20.800, 20.1304 (2016).  Further, because the Veteran's claim is being granted in full, as will be discussed in detail below, there is no prejudice in the Board's review of this evidence in the first instance.  See Vogan v. Shinseki, 24 Vet. App. 159, 163 (2010); Shinseki v. Sanders, 556 U.S. 396, 407, 410 (2009).

Finally, the Board notes that the Veteran has perfected an appeal concerning the evaluation assigned his service-connected vertigo and dizziness.  See Supplemental Statements of the Case dated November 2, 2016 and November 28, 2016 (addressing the issue of "Evaluation of vertigo and dizziness currently evaluated at 10 percent disabling"); March 2016 Substantive Appeal (VA Form 9); January 2016 Statement of the Case); June 2012 Notice of Disagreement Form; June 2012 Rating Decision (granting an increased 10 percent rating for vertigo and dizziness effective January 5, 2011, the date the RO determined that the Veteran's claim for an increase was received).  The Veteran requested a Board videoconference hearing in conjunction with this claim.  See, e.g., December 2016 Statement of Accredited Representative in Appealed Case (noting that the Veteran "elected to have a [Board] Videoconference Hearing at a local VA office" in conjunction with his claim of "[e]ntitlement to an increased evaluation of vertigo and dizziness currently evaluated at 10 percent disabling").  No such hearing has, as yet been scheduled, and, to date, the claim for a higher evaluation for the vertigo and dizziness has not been certified to the Board.  See 38 C.F.R. § 19.35 (2016).  It is thus apparent, in light of the foregoing and based on a review of the record, that the Agency of Original Jurisdiction (AOJ) is still developing this claim.  Therefore, the Board will not accept jurisdiction over it at this time.  However, this issue will be the subject of a subsequent Board decision, if otherwise in order.

The Veteran's claim for service connection for an acquired psychiatric disorder is addressed in a separate Board decision.


FINDING OF FACT

Affording the Veteran the benefit of the doubt, his service-connected hearing loss, tinnitus, and vertigo are manifestations of his currently diagnosed Meniere's syndrome.

CONCLUSION OF LAW

The criteria for service connection for Meniere's syndrome are met.  38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2016).


REASONS AND BASES FOR FINDING AND CONCLUSION

Service connection means that a disability resulting from disease or injury was incurred in or aggravated by active service.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a).  Service connection may be granted for any disease diagnosed after discharge when the evidence shows that the disease was incurred in service.  38 C.F.R. § 3.303(d).  


Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability.  See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).

The Veteran asserts entitlement to service connection for Meniere's syndrome, which is a disease characterized by hearing loss, tinnitus, and vertigo.  See DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 539 (32nd Ed. 2012).  The Veteran essentially maintains that his current complaints including dizziness, vertigo, tinnitus, and hearing loss are attributable to Meniere's syndrome, rather than distinct manifestations.  

Generally, although various manifestations of a single disability may be assigned separate disability evaluations, VA regulations preclude the practice of "pyramiding," which is the evaluation of the same manifestation of a disability under different diagnoses.  See 38 C.F.R. § 4.14 (2016); Esteban v. Brown, 6 Vet. App. 259 (1994).  Indeed, the United States Court of Appeals for Veterans Claims (Court/CAVC) has noted that 38 U.S.C.A. § 1155 implicitly contains the concept that "the rating schedule may not be employed as a vehicle for compensating a claimant twice or more for the same symptomology; such a result would overcompensate the claimant for the actual impairment of his earning capacity" and would constitute pyramiding.  Esteban, 6 Vet. App. at 261, quoting Brady v. Brown, 4 Vet. App. 203 (1993).  

In this regard, the Board notes that service connection is already in effect for bilateral hearing loss, which is in receipt of a noncompensable (0 percent) evaluation from June 15, 2006 under 38 C.F.R. § 4.85, Diagnostic Code (DC) 6100; tinnitus, which is evaluated as 10 percent disabling from September 13, 2004 under 38 C.F.R. § 4.87, DC 6260; and vertigo and dizziness, which have been assigned a noncompensable evaluation from April 30, 1992 to January 4, 2011, and a 10 percent rating since January 5, 2011 under 38 C.F.R. § 4.87, DC 6204.  See, e.g., October 2014 Rating Decision Codesheet.  The criteria under these diagnostic codes contemplate the disabling effects of hearing impairment (DC 6100), ringing in the ears (DC 6260) and disequilibrium (DC 6204).  See also 38 C.F.R. §§ 4.1, 4.10, and 4.21 (reflecting that the purpose of the schedular ratings with their corresponding criteria keyed to graded levels of disability is necessarily to provide compensation for the symptoms and functional impairment caused by the disability in question).  Thus, to the extent that the Veteran asserts that his Meniere's disease is manifested by dizziness, vertigo, tinnitus, and hearing loss, such symptoms were already taken into consideration in the assignment of a rating for the Veteran's bilateral hearing loss, tinnitus, and dizziness and vertigo.  

However, in the instant case, the Board's analysis does not end with this determination.  Rather, the Board notes that the prohibition of pyramiding explicitly aims to prevent "compensating a claimant twice or more for the same symptomology."  See Esteban, 6 Vet. App. at 261.  Here, an award of service connection for Meniere's syndrome does not necessarily equate to duplicative compensation.  Instead, granting service connection for Meniere's disease could potentially result in a higher rating for the Veteran's service connected symptomatology, as such would permit the evaluation of all of his already service-connected symptomatology - including bilateral hearing loss, tinnitus, and vertigo and dizziness - under the single diagnostic code for Meniere's syndrome.  See 38 C.F.R. § 4.88a, DC 6205 (2016) (providing a 30 percent rating for Meniere's syndrome manifested by hearing impairment with vertigo less than once a month, with or without tinnitus; a 60 percent rating 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 for hearing impairment with attacks of vertigo and cerebellar gait occurring more than once weekly, with or without tinnitus).  Importantly, the diagnostic criteria for rating Meniere's syndrome provide that Meniere's syndrome may be evaluated either under these criteria or by separately evaluating vertigo as a peripheral vestibular disorder, hearing impairment, and tinnitus, whichever method results in a higher overall evaluation.  See id., NOTE (further stating that a combined evaluation for hearing impairment, tinnitus, or vertigo with an evaluation under DC 6205 is inappropriate).  

Accordingly, the Board finds that, in the instant case, awarding service connection for Meniere's syndrome does not violate the rule against pyramiding.  See 38 C.F.R. § 4.14.

Nevertheless, in order to establish service connection for Meniere's syndrome, the Veteran must demonstrate that he has been diagnosed with this condition at some point during the pendency of the current claim.  See 38 C.F.R. § 3.303; Davidson, 581 F.3d 1313.  See also McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (finding that the requirement of having a current disability is met 'when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim'); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (noting that service connection presupposes a current diagnosis of the claimed disability); Rabideau v. Derwinski, 2 Vet. App. 141, 143- 44 (1992) (holding that, in the absence of proof of a present disability, there can be no valid claim); Degmetich v. Brown, 104 F. 3d 1328 (1997).  

Here, medical records from the Veteran's private treating otolaryngologist reflect a diagnosis of Meniere's syndrome based on neuro-otologic testing and evaluation.  See, e.g., May 2017 Progress Note from Ear, Nose & Throat Clinics of San Antonio (noting the Veteran's symptoms including "frequent disequilibrium along with significant tinnitus and hearing loss" and reflecting an assessment of "Active Meniere's disease"); November 2016 Progress Note from Ear, Nose & Throat Clinics of San Antonio (reflecting that the Veteran's recent "Neuro-oto [testing] battery is consistent with mild vestibular dysfunction" and providing a diagnostic impression of "atypical Meniere's disease.").  

This diagnosis represents the informed conclusions of a specialist in the relevant medical area, who has a close familiarity with the Veteran based on long-term treatment.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008).  See also White v. Principi, 243 F.3d 1378 (Fed. Cir. 2001); Van Slack v. Brown, 5 Vet. App. 499, 502 (1993); and Chisem v. Brown, 4 Vet. App. 169 (1993) (noting that there is no "treating physician rule" requiring the Board to give additional evidentiary weight to opinions of doctors who have evaluated or treated the Veteran over time, but it is permissible for the Board to bear this length of treatment in mind when considering just how familiar with the Veteran's condition the clinician may be).  The Board thus finds the diagnosis of Meniere's syndrome provided by the Veteran's private treating otolaryngologist to be competent medical evidence.  Accordingly, a current disability has been established.  See 38 C.F.R. § 3.303; Davidson, 581 F.3d 1313.  See also Chelte v. Brown, 10 Vet. App. 268 (1997) (A "current disability" means a disability shown by competent medical evidence to exist.).  

The Board notes that the May 2015 examining VA physician declined to diagnose Meniere's syndrome, finding "no medical evidence of pathology."  See May 2015 Ear Conditions (including Vestibular and Infectious Conditions) Disability Benefits Questionnaire (DBQ).  However, this opinion was based primarily upon the absence of diagnoses of Meniere's disease in the Veteran's previous VA treatment records and examination reports, and did not consider or address the need for any further evaluation.  See id.  As such, on balance, the Board finds that the May 2015 VA examination and opinion is outweighed by the Meniere's syndrome diagnosis rendered by the Veteran's private treating otolaryngologist, as it was based upon the results of neuro-otologic testing and evaluation.  See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) (holding that the Board has the "authority to discount the weight and probity of evidence in the light of its own inherent characteristics in its relationship to other items of evidence").

Given the competent medical evidence of a current diagnosis of Meniere's disease, because the symptomatology attributable to the Veteran's Meniere's disease, namely the hearing loss, tinnitus, and dizziness and vertigo, has already been determined by VA to be directly related to the Veteran's active service, in light of the finding, discussed above, that an award of service connection for Meniere's syndrome in this case would not violate the rule against pyramiding, and in the absence of any probative evidence to the contrary, the Board finds that the evidence for and against the claim is at least in equipoise.  


When the evidence for and against the claim is in relative equipoise, by law, the Board must resolve all reasonable doubt in favor of the Veteran.  See 38 U.S.C.A. §§ 1154(b); 5107 (West 2014); 38 C.F.R. § 3.102 (2016); see also Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990).  Therefore, the benefit of the doubt must be resolved in favor of the Veteran and entitlement to service connection for Meniere's syndrome is warranted.  


ORDER

Service connection for Meniere's syndrome is granted.




____________________________________________
JENNIFER HWA
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs