Citation Nr: 1752299	
Decision Date: 11/15/17    Archive Date: 11/22/17

DOCKET NO.  13-27 267	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Nashville, Tennessee


THE ISSUES

1.  Entitlement to service connection for a cervical and/or lumbar spine disability.

2.  Entitlement a rating in excess of 30 percent for Meniere's syndrome with hearing loss, tinnitus, and vertigo prior to November 17, 2014.


REPRESENTATION

Veteran represented by:	The American Legion


WITNESS AT HEARING ON APPEAL

The Veteran




ATTORNEY FOR THE BOARD

R. R. Watkins, Associate Counsel


INTRODUCTION

The Veteran served on active duty from November 1975 to September 1992.

These matters come before the Board of Veterans' Appeals (Board) on appeal from a July 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee.

The Veteran was originally granted service connection for bilateral hearing loss and tinnitus with a 10 percent evaluation for each, in the July 2011 rating decision on appeal.  A July 2014 rating decision subsequently granted service connection for Meniere's syndrome with hearing loss, tinnitus, and vertigo with a 30 percent evaluation.  

In October 2014, the Veteran testified at a Board videoconference hearing before the undersigned.  A copy of the transcript is associated with the record.

In May 2015, the Board remanded the appeal to the Agency of Original Jurisdiction (AOJ) for additional evidentiary development.  The AOJ has completed the indicated development and returned the case to the Board.

In a December 2015 rating decision, the Veteran was granted a 100 percent evaluation for Meniere's syndrome with hearing loss, tinnitus, and vertigo, effective November 17, 2014.  As this decision does not constitute a total grant of benefits for the entire appeal period, the issue of entitlement a rating in excess of 30 percent for Meniere's syndrome with hearing loss, tinnitus, and vertigo prior to November 17, 2014, remains before Board.



FINDINGS OF FACT

1.  The Veteran's current degenerative joint disease and degenerative disc disease of the lumbar spine and cervical spine were not manifested during his active military service, are not shown to be causally or etiologically related to his active military service, and are not shown to have manifested within one year from the date of his separation from the military.

2.  Prior to November 17, 2014, the Veteran had Level II hearing loss for the right ear and Level XI hearing loss for the left ear.  

3.  Prior to November 17, 2014, the Veteran's Meniere's syndrome with hearing loss, tinnitus, and vertigo was manifested by hearing impairment with vertigo monthly and tinnitus.  There is no indication of attacks of vertigo and cerebellar gait occurring from one to four times a month.  


CONCLUSIONS OF LAW

1.  Service connection for degenerative joint disease and degenerative disc disease of the lumbar spine and cervical spine is not established.  38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107 (2012); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2017).

2.  The criteria for an increased rating in excess of 30 percent for Meniere's syndrome with hearing loss, tinnitus, and vertigo prior to November 17, 2014, have not been met.  38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.1, 4.7, 4.85, 4.86, 4.87, Diagnostic Code (DC) 6205 (2017).  
	

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Duties to Notify and Assist

VA has duties to notify and assist claimants in substantiating their claim.  See 38 U.S.C. §§ 5102, 5103, 5103A (2012); 38 C.F.R. § 3.159 (2017).  There has been no allegation or suggestion of any lapse on VA's part in meeting these duties.  See Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015).

II.  Service Connection

Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby.  38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a).

Service connection may also be granted for any disease diagnosed after the military discharge, when all the evidence, including that pertinent to the period of military service, establishes that the disease was incurred during the active military service.  38 U.S.C. § 1113(b); 38 C.F.R. § 3.303(d).  

The determination as to whether the requirements for service connection are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value.  38 U.S.C. § 7104(a) (2012); Baldwin v. West, 13 Vet. App. 1 (1999); see 38 C.F.R. § 3.303(a). 

When there is an approximate balance of positive and negative evidence regarding a material issue, the benefit of the doubt in resolving each such issue shall be given to the claimant.  38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); see 38 C.F.R. § 3.102.  If the Board determines that the preponderance of the evidence is against the claim, it has necessarily found that the evidence is not in approximate balance, and the benefit of the doubt rule is not applicable.  Ortiz, 274 F.3d at 1365. 

Service connection for certain chronic diseases, including arthritis, will be presumed if they manifest to a compensable degree within one year following the active military service.  This presumption, however, is rebuttable by probative evidence to the contrary.  38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309.  Presumptive periods are not intended to limit service connection to diseases so diagnosed when the evidence warrants direct service connection.  The presumptive provisions of the statute and VA regulations implementing them are intended as liberalizations applicable when the evidence would not warrant service connection without their aid.  38 C.F.R. § 3.303(d).   

For the showing of a chronic disease in service, there must be a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time.  If chronicity in service is not established, evidence of continuity of symptoms after discharge is required to support the claim.  38 C.F.R. § 3.303(b).  However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309(a) and does not apply to other disabilities which might be considered chronic from a medical standpoint.  See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).

The Veteran testified that he injured his back in-service after being involved in a motor vehicle accident.  He elaborated that he was treated by a civilian doctor for a year after his accident.  He indicated that he sought treatment from a chiropractor within a month of his separation from active service.  The Veteran contends that his current back disability is related to his in-service motor vehicle accident.

In May 2015, the Board remanded the appeal to obtain private chiropractic records from 1992.  In September 2015, the AOJ sent the Veteran a release form to obtain the records, but the Veteran did not respond to the letter.

The service treatment records (STRs) reflect that the Veteran was treated for back pain in September 1979, April 1981, May 1981, May 1982, and June 1982. 

In April 2011, Dr. D.A., a private chiropractor, wrote that the Veteran was treated at his office from 2001 to 2003 for lower back pain.  The Veteran was injured in a vehicular collision, which resulted in further injury to the lumbar spine and cervical spine in September 2003.  

In July 2011, the Veteran was afforded a VA spine examination.  The VA examiner diagnosed degenerative joint disease and degenerative disc disease of the lumbar spine and cervical spine.  He opined that it was less likely than not that the Veteran's lumbar spine and cervical spine disabilities were due to or the result of an injury in service.  The VA examiner highlighted that there were no neck injuries noted in service.  The Veteran was seen for his lower back 18 months after the motor vehicle accident and there were no reports of treatment for the lower back at the time of motor vehicle accident.  The Veteran was treated in April 1981 for low back pain associated with a fever and gastroenteritis.  The VA examiner explained that back pain is common with a febrile illness.  The Veteran was treated 3 more times for back pain in service.  The visits only required one visit and resulted in conservative treatment only.  The VA examiner concluded that the current findings on X-ray were consistent with the Veteran's age and his diagnosis of diffuse osteoarthritis.

In October 2015, the VA examiner provided an addendum medical opinion regarding the etiology of the Veteran's back and neck disabilities.  The VA examiner indicated that he reviewed VBMS.  The VA examiner stated that there was no medical evidence that the Veteran's current neck and back conditions were due to his service or injuries in service.  The Veteran had a motor vehicle accident in September 2003.  The car the Veteran was in drove off a cliff and landed in trees.  He sustained neck and back injuries.  The VA examiner cited the April 2011 letter from the Veteran's private chiropractor.  He concluded that it was more likely that the Veteran's current neck and back disabilities were related to his September 2003 accident and/or the normal aging process.  The available treatment records indicate that the Veteran did not seek treatment for back or neck issues until 2001.  The VA examiner cited medical literature that identified age as the strongest risk factor for osteoarthritis.

There are no other nexus opinions of record.

The only evidence of record that links the Veteran's current back and neck disabilities to service is his lay statements.  The Board notes that in adjudicating a claim, the competence and credibility of the Veteran must be considered.  See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005).  The Board acknowledges that the Veteran is competent to give evidence about what he observes or experiences.  For example, he is competent to report that he experiences certain symptoms, such as pain, and he is credible in this regard.  See, e.g., Layno v. Brown, 6 Vet. App. 465 (1994).  However, the Veteran has not asserted that he has had degenerative joint disease or degenerative disc disease since service.  He has maintained that he sought the care of a chiropractor shortly after his separation from service.  Unfortunately, these statements do not establish a diagnosis of arthritis within one year of service.  The Veteran's competent and credible belief that his current back and neck disabilities are related to his active service are outweighed by the competent and credible medical examination and opinions that evaluated the etiology of the Veteran's back and neck disabilities based on objective data coupled with the lay complaints.  The VA examiner has the training and expertise necessary to evaluate the etiology of the back and neck conditions.  The Board finds it very probative that both the VA examiner and the April 2011 letter from the Veteran's private chiropractor attribute the Veteran's disabilities to a post-service automobile accident.  For these reasons, greater evidentiary weight is placed on the VA examiner's medical opinions.

Additionally, the Board finds that the Veteran is not entitled to presumptive service connection for degenerative disc disease or degenerative joint disease.  As stated above, the earliest post-service medical treatment records are dated from 2002, and the Veteran was separated from the active duty in 1992.  No diagnosis of degenerative disc disease or degenerative joint disease was made within one year of the Veteran's military discharge.  Thus, the presumption for service connection for chronic diseases does not apply.  38 U.S.C.A. §§ 1112, 1113, 1137; 38 C.F.R. 
§§ 3.307(a), 3.309(a).

The Board notes that under the provisions of 38 U.S.C.A. § 5107(b), the benefit of the doubt is to be resolved in the claimant's favor in cases where there is an approximate balance of positive and negative evidence in regard to a material issue.  The preponderance of the evidence, however, is against the Veteran's claim, and thus that doctrine is not applicable.  Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  The Veteran's claim of entitlement to service connection for a cervical and/or lumbar spine disability is denied.

III.  Increased Evaluation

Disability evaluations are determined by the application of a schedule of ratings which is based on the average impairment of earning capacity in civil occupations.  Separate DCs identify the various disabilities.  See 38 U.S.C.A. § 1155; 38 C.F.R. § Part 4 (2017).

Where a veteran appeals the initial rating assigned for a disability at the time that service connection for that disability is granted, evidence contemporaneous with the claim and with the initial 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 original rating on appeal was erroneous . . . ."  Fenderson v. West, 12 Vet. App. 119, 126 (1999).  If later evidence 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.

Prior to November 17, 2014, the Veteran's Meniere's syndrome with hearing loss, tinnitus, and vertigo is rated as 30 percent disabling under DC 6205.

DC 6205 provides ratings for Meniere's syndrome (endolymphatic hydrops).  Meniere's syndrome manifesting hearing impairment with vertigo less than once a month, with or without tinnitus, is rated 30 percent disabling.  Meniere's syndrome manifesting hearing impairment with attacks of vertigo and cerebellar gait occurring from one to four times a month, with or without tinnitus is rated 60 percent disabling.  Meniere's syndrome manifesting hearing impairment with attacks of vertigo and cerebellar gait occurring more than once weekly, with or without tinnitus, is rated 100 percent disabling.  A Note to DC 6205 provides that Meniere's syndrome is to be rated either under these criteria or by separately rating vertigo (as a peripheral vestibular disorder), hearing impairment, and tinnitus, whichever method results in a higher overall rating.  The Note also provides that a rating for hearing impairment, tinnitus, or vertigo is not to be combined with a rating under DC 6205.  38 C.F.R. § 4.87.

DC 6204 provides rating for peripheral vestibular disorders.  Peripheral vestibular disorders manifesting occasional dizziness are rated 10 percent disabling.  Peripheral vestibular disorders manifesting dizziness and occasional staggering are rated 30 percent disabling.  A Note to DC 6204 provides that objective findings supporting the diagnosis of vestibular disequilibrium are required before a compensable rating can be assigned under DC 6204.  Hearing impairment or suppuration shall be separately rated and combined.  38 C.F.R. § 4.87.

DC 6260 provides a 10 percent disability rating for recurrent tinnitus.  Note 1 to Diagnostic Code 6260 provides that a separate rating for tinnitus may be combined with a rating under DC 6100, 6200, 6204, or other DC, except when tinnitus supports a rating under one of those Diagnostic Codes.  Note 2 provides that only a single rating for recurrent tinnitus may be assigned, whether the sound is perceived in one ear, both ears, or in the head.  Note 3 provides that objective tinnitus (in which the sound is audible to other people and has a definable cause that may or may not be pathologic) should not be rated under DC 6260, but should be rated as part of any underlying condition causing the tinnitus.  38 C.F.R. § 4.87.

With regard to hearing loss, under the applicable criteria disability ratings are determined by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are performed.  See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992).  Hearing loss disability evaluations range from 0 percent to 100 percent based on organic impairment of hearing acuity, as measured by controlled speech discrimination tests in conjunction with the average hearing threshold, as measured by puretone audiometric tests in the frequencies 1000, 2000, 3000 and 4000 Hertz.

The rating schedule establishes 11 auditory acuity levels designated from Level I for essentially normal hearing acuity, through Level XI for profound deafness.  VA audiometric examinations are conducted using a controlled speech discrimination test together with the results of a puretone audiometry test.  The vertical lines in Table VI represent nine categories of the percentage of discrimination based on the controlled speech discrimination test.  38 C.F.R. § 4.85.  The horizontal columns in Table VI represent nine categories of decibel loss based on the puretone audiometry test.  The numeric designation of impaired hearing (Levels I through XI) is determined for each ear by intersecting the vertical row appropriate for the percentage of discrimination and the horizontal column appropriate to the puretone decibel loss.  The percentage evaluation is found from Table VII by intersecting the vertical column appropriate for the numeric designation for the ear having the better hearing acuity and the horizontal row appropriate to the numeric designation level for the ear having the poorer hearing acuity.  For example, if the better ear has a numeric designation Level V and the poorer ear has a numeric designation Level VII, the percentage evaluation is 30 percent.  38 C.F.R. § 4.85.

Where there is an exceptional pattern of hearing impairment as defined in 38 C.F.R. § 4.86, the rating may be based solely on puretone threshold testing.  An exceptional pattern of hearing impairment occurs when the puretone thresholds in each of the four frequencies: 1000, 2000, 3000, and 4000 Hertz are 55 decibels or greater or when the puretone threshold at 1000 Hertz is 30 decibels or less, and the threshold at 2000 Hertz is 70 decibels or more.  38 C.F.R. § 4.86(a), (b) 

The Veteran was afforded an audiometric examination in March 2011, at which time his puretone thresholds, in decibels, were as follows:




HERTZ



1000
2000
3000
4000
Average
RIGHT
30
30
70
70
50
LEFT
105
95
90
90
95

The Maryland CNC controlled speech discrimination test revealed speech recognition of 90 percent in the right ear and 0 percent in the left ear. 

These results demonstrate an exceptional pattern of hearing in the left ear, as the Veteran exhibited puretone thresholds of 55 decibels or more at each of the frequencies of 1,000, 2,000, 3,000 and 4,000 hertz.  Based on Table VI, a hearing level acuity of Level XI is assigned to the left ear and a hearing level acuity of Level II is assigned to the right ear.  The Veteran is assigned a hearing acuity of Level IX for the left ear based upon Table VIA.  See 38 C.F.R. § 4.86(a).  As the value for the left ear derived from Table VI results in a higher numerical evaluation, the Board will use this value to rate the Veteran's bilateral hearing loss disability.  A 10 percent evaluation is derived from Table VII by intersecting row II, the right ear, with column XI, the left ear.  Id.

The Board acknowledges that the Veteran has submitted a private audiogram performed in January 2011.  The audiogram is inadequate for rating purposes as the does not specify whether controlled speech discrimination testing was conducted in accordance with Maryland CNC standards.  38 C.F.R. § 4.85(a) provides that an examination for hearing impairment for VA purposes "must include a controlled speech discrimination test (Maryland CNC)."  As this regulation indicates a preference for Maryland CNC discrimination tests, the Board will not consider the audiometric results contained in the January 2011 private audiogram in its analysis.  The Board notes that this is not a case in which clarification of the audiological report is required.  Rather, the report reflects that it did not comply with 38 C.F.R. 
§ 4.85(a).  

In March 2011, the Veteran was also afforded a VA ear disease examination.  The Veteran endorsed a history of vertigo and indicated that he experienced vertigo on a monthly basis that lasted for days.  Upon examination, the Veteran did not have a staggering gait or imbalance.

The Veteran's treatment records are silent regarding staggering or cerebellar gait prior to November 17, 2014.

Based upon the forgoing the Board finds that the Veteran is not entitled to an evaluation higher than 30 percent for Meniere's syndrome with hearing loss, tinnitus, and vertigo prior to November 17, 2014.

A Note to DC 6205 provides that Meniere's syndrome is to be rated either under these criteria or by separately rating vertigo (as a peripheral vestibular disorder), hearing impairment, and tinnitus, whichever method results in a higher overall rating.  38 C.F.R. § 4.87.  The Note also provides that a rating for hearing impairment, tinnitus, or vertigo is not to be combined with a rating under DC 6205.  Id.  When evaluated separately, the Veteran's hearing impairment only warrants a 10 percent evaluation based upon the objective findings of the March 2011 VA examination.  See 38 C.F.R. § 4.85, DC 6100.  Tinnitus has a maximum schedular rating of 10 percent; thus, a higher rating is not warranted under DC 6260.  38 C.F.R. § 4.87.  Lastly, upon examination, the Veteran endorsed occasional dizziness without occasional staggering, which is evaluated as 10 percent disabling.  See 38 C.F.R. § 4.87, DC 6204.  

The highest rating available to the Veteran is when his Meniere's syndrome with hearing loss, tinnitus, and vertigo is rated under DC 6205.  38 C.F.R. § 4.87. Meniere's syndrome manifesting hearing impairment with vertigo less than once a month, with or without tinnitus, is rated 30 percent disabling.  See 38 C.F.R. § 4.87, DC 6205.  Meniere's syndrome manifesting hearing impairment with attacks of vertigo and cerebellar gait occurring from one to four times a month, with or without tinnitus, is rated 60 percent.  38 C.F.R. § 4.87.  The Veteran is not entitled to a 60 percent evaluation under DC 6205, as the evidence is against a finding that his Meniere's syndrome with hearing loss, tinnitus, and vertigo resulted in cerebellar gait prior to November 17, 2014.  38 C.F.R. § 4.87.

The Board notes that in adjudicating a claim, the competence and credibility of the Veteran must be considered.  See Buchanan, 451 F.3d at 1331; Washington, 19 Vet. App. at 362, 368-69.  The Board acknowledges that the Veteran is competent to give evidence about what he observes or experiences.  For example, he is competent to report that he experiences certain symptoms, such as dizziness, and he is credible in this regard.  See, e.g., Layno, 6 Vet. App. at 465.  The Veteran's competent and credible belief that his disability is worse than the assigned rating, however, is outweighed by the competent and credible medical examination that evaluated the true extent of impairment based on objective data coupled with the lay complaints.  The VA examiner has the training and expertise necessary to administer the appropriate tests for a determination on the type and degree of the impairment associated with the Veteran's complaints.  For these reasons, greater evidentiary weight is placed on the physical examination findings.  The Board acknowledges the Veteran's testimony at his Board hearing that he had an altered gait, which established the effective date for the award of the 100 percent evaluation for his Meniere's syndrome with hearing loss, tinnitus, and vertigo after November 17, 2014.  However, prior to this effective date, the evidence is against a finding that the Veteran had a cerebellar gait as a result of his Meniere's syndrome with hearing loss, tinnitus, and vertigo because this symptomatology was denied at his March 2011 VA examination.  

In sum, the preponderance of the evidence is against the assignment of a rating in excess of 30 percent for the service-connected Meniere's syndrome with hearing loss, tinnitus, and vertigo prior to November 17, 2014.  Therefore, the claim is denied.  See Gilbert, 1 Vet. App. at 53.


ORDER

Entitlement to service connection for a cervical and/or lumbar spine disability is denied.

Entitlement a rating in excess of 30 percent for Meniere's syndrome with hearing loss, tinnitus, and vertigo prior to November 17, 2014, is denied.




____________________________________________
DAVID L. WIGHT 
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs