Citation Nr: 1756896 Decision Date: 12/08/17 Archive Date: 12/15/17 DOCKET NO. 10-26 926 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to an initial compensable rating for labyrinthitis prior to October 7, 2014. REPRESENTATION Appellant represented by: Joseph P. Records, Attorney WITNESSES AT HEARING ON APPEAL Appellant and his wife ATTORNEY FOR THE BOARD D. Drucker, Counsel INTRODUCTION The Veteran had active military service from May 1977 to January 1984 and served in the United States Army Reserve from January 1984 to June 2005. This case initially came to the Board of Veterans' Appeals (Board) on appeal from an April 2009 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) that granted service connection for labyrinthitis (claimed as inner ear imbalance) and assigned an initial noncompensable rating from April 23, 2003. The Veteran appealed the assigned rating. In March 2012, the Board remanded the Veteran's case to the RO to comply with his request to schedule him for a hearing before a Veterans Law Judge. In March 2013, the Veteran and his wife testified during a hearing at the RO before the undersigned Veterans Law Judge. A transcript of the hearing is of record. In May 2014, the Board remanded the Veteran's case to the Agency of Original Jurisdiction (AOJ) for further development. A March 2015 rating decision granted a 30 rating for labyrinthitis from October 7, 2014. In a July 2015 decision, the Board denied an initial compensable rating for labyrinthitis prior to October 7, 2014, and a rating higher than 30 percent for that disability thereafter. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In its April 2017 Memorandum Decision, the Court vacated that part of the Board's decision that denied an initial compensable rating for labyrinthitis prior to October 7, 2014 and remanded the matter to the Board for a better statement of the reasons and bases as to what constitutes objective evidence and why abnormal test results prior to October 2014 did not qualify as objective evidence of vestibular disequilibrium to meet the criteria for a compensable rating. The Court noted that the Veteran did not challenge the Board's denial of a rating higher than 30 percent from October 7, 2014 and considered the appeal of that rating abandoned. As such, the Board will not address it in this decision. The Board notes that an unappealed October 2013 rating decision denied entitlement to service connection for posttraumatic stress disorder (PTSD). In a June 2015 substantive appeal, the Veteran stated that his PTSD was due to military service and requested a hearing before the Board conducted by videoconference. See 6/19/15 Form 9. It is unclear if, by this statement, the Veteran seeks to reopen his previously denied claim of entitlement to service connection for PTSD. The matter is referred to the AOJ to clarify the Veteran's intent and provide him with the appropriate form to file a new claim for VA benefits. FINDINGS OF FACT 1. From April 23, 2003 to March 23, 2009, the Veteran's service-connected labyrinthitis was manifested by dizziness without evidence of occasional staggering 2. Since March 24, 2009, there is objective evidence of dizziness and occasional staggering. CONCLUSIONS OF LAW 1. The criteria for an initial 10 percent rating, but no higher, for labyrinthitis are met from April 23, 2003 to March 23, 2009. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.87, Diagnostic Code 6204 (2017). 2. The criteria for a 30 percent rating for labyrinthitis are met from March 24, 2009. 38 U.S.C. § 1155; 38 C.F.R. § 4.87, Diagnostic Code 6204. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to Notify and Assist VA is to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). This appeal arises from disagreement with the initial rating following the grant of service connection. The 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). VA has obtained all available records, including service treatment records and VA and non-VA medical records. The Veteran underwent VA examinations in April 2009, August 2013, and September 2014, and the examination reports are of record. The purpose of the Court's April 2017 Memorandum Decision was to afford the Board the opportunity to provide a clearer statement of its reasons and bases for why abnormal tests results prior to October 7, 2014 did not qualify as objective evidence of vestibular disequilibrium and what is objective evidence. This decision responds to the Court's 2017 decision. II. Facts and Analysis Contentions The Veteran contends, in written statements and oral testimony, that an initial compensable rating is warranted for his service-connected labyrinthitis since April 23, 2003. His attorney argues that the Veteran's and his wife's testimony, during the March 2013 Board hearing, provides objective evidence of the Veteran's staggering and dizziness prior to October 7, 2014. See 10/7/17 Correspondence, page 4. It is also contended that an October 7, 2014 VA report provides retrospective findings, and audiology examinations prior to that date show abnormal hearing and balance, that support the grant of a compensable rating prior to October 7, 2014. Laws and Regulations Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes. 38 C.F.R. § 4.27 (2017). An unlisted disability will be rated under a disease or injury closely related by functions affected, symptomatology, and anatomical location. 38 C.F.R. § 4.20 (2017). In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). However, where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). In Fenderson v. West, 12 Vet. App. 119, 126 (1999), the Court noted that where, as here, the question for consideration is propriety of the initial evaluation assigned, evaluation of the medical evidence since the grant of service connection and consideration of the appropriateness of a "staged rating" is required. 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. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 53-54 (1990). Where there is a question as to which of two evaluations is to 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 (2017). In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21 (2017). The Board must also assess the competence and credibility of lay statements and testimony. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also mean statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of the facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). If credible, lay testimony may consist of a veteran's own statements to the extent that the statements describe symptoms capable of lay observation. Petitti v. MacDonald, 27 Vet. App. 415, 427 (2015) (stating that observations from a lay person who witnesses a veteran's painful motion satisfies the requirement of objective and independent verification of a veteran's painful motion (citing Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007)). See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence."). The Veteran's statements describing the symptoms of his service-connected labyrinthitis disability are deemed competent. However, these statements must be considered with the clinical evidence of record and in conjunction with the pertinent rating criteria. The Veteran's labyrinthitis is rated under 38 C.F.R. § 4.87, Diagnostic Code 6204, applicable to peripheral vestibular disorders. Under Diagnostic Code 6204, a 10 percent rating is warranted for occasional dizziness and the maximum schedular rating of 30 percent is warranted for dizziness and occasional staggering. Id. Where, as here, the Rating Schedule does not provide a 0 percent or noncompensable rating for a particular diagnostic code, such a rating is to be assigned when the requirements for a compensable rating are not met. 38 C.F.R. § 4.31 (2017). A Note following Diagnostic Code 6204 provides that: "Objective findings supporting the diagnosis of vestibular disequilibrium are required before a compensable evaluation can be assigned under this code." Under Diagnostic Code 6205, that rates 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 (2017). The Board notes that Diagnostic Code 6204, that rates peripheral vestibular disorders, references dizziness and vestibular disequilibrium, whereas Diagnostic Code 6205, that rates Meniere's syndrome, references vertigo. Vertigo is defined as "an illusory sense that either the environment or one's own body is revolving . . . [t]he term is sometimes erroneously used to mean any form of dizziness." DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 2051 (32nd ed. 2012). Dizziness is defined as "a disturbed sense of relationship to space; a sensation of unsteadiness with a feeling of movement within the head." Id. at 559. More generally, vertigo is a type of dizziness but, as DORLAND'S ILLUSTRATED MEDICAL DICTIONARY states, dizziness and vertigo are not synonymous. Specifically, a veteran can suffer dizziness without experiencing vertigo. Vestibular, in the context of 38 C.F.R. § 4.87, refers to the canal of the ear, and disequilibrium is defined as "any derangement of the sense of equilibrium." See 38 C.F.R. § 4.87, Diagnostic Code 6204; DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 577 (32nd ed. 2012). Facts The record shows that, prior to the appeal period, a November 1995 Family Practice chart note prepared by Dr. R.U. includes the Veteran's complaints of dizzy spells. See 10/15/08 Medical Treatment Records Furnished by SSA, page 104. Examination was normal including clear tympanic membranes. The diagnosis was vertigo intermittent probably from intermittent Meniere's. A June 2003 VA physician treatment note reflects the Veteran's subjective report of having positional dizziness a few times per week, that lasted a few seconds, and that he "had learned to live with it." See 8/20/10 Medical Treatment Record Government Facility, page 66. There were no objective findings or assessment relating to these symptoms. A February 2004 VA physician note reflects the Veteran's subjective report of having some chronic intermittent positional dizziness that was unchanged. See 8/20/10 Medical Treatment Record Government Facility, page 54. There were no objective findings or assessment relating to these symptoms. A May 2006 private audiology record indicates that the Veteran gave a history of having labyrinthitis for two years and feeling as if he was going to fall over or out of a chair. See 9/24/08 Medical Treatment Record Non-Government Facility, page 1. Vertigo was noted in an April 2007 private Austin Heart treatment note, with no abnormal examination findings in this regard. See 10/15/08 Medical Treatment Records Furnished by SSA, page 74. A March 24, 2009 VA audiological examination report reflects the Veteran's in-service hospitalization in 1980 for acute labyrinthitis/vestibular neuronotis. The examiner noted the Veteran's complaints of balance problems since 1980. He reported random occurrences of dizziness and occasional falling since around 1980 when he was hospitalized and diagnosed with vestibular neuronitis / labyrinthitis. See March 24, 2009 VA examination report, page 3. The examiner observed that a report of that hospitalization mentions the presence of nystagmus and right-sided weakness on electronystagmography. The Veteran currently reported occasional feelings of fullness in his right ear but was unsure if this was associated with dizziness. He stated that he learned to deal with the dizzy spells and they had no major effect on occupational functioning at that time. Otoscopic inspection revealed clear ear canals and unremarkable tympanic membranes. Tympanometry revealed normal middle ear air pressure and mobility bilaterally. Ipsilateral and contralateral acoustic reflexes were present, bilaterally, at reduced sensation levels suggesting cochlear site of lesion and preventing acoustic reflex testing. The diagnosis included right ear sensorineural hearing loss. The audiologist-examiner noted that the requested opinion regarding whether the Veteran's current hearing loss and inner ear condition were related to his military service was outside the scope of the practice of audiology and an ear, nose, and throat (ENT) examination was required for this purpose. An April 2009 VA ear disease examination report reveals that the examiner, based upon examination findings, indicated, that the Veteran's auricles external canals tympanic membranes, and tympanums mastoids were all normal. The examiner stated that he did "not think this patient has active ear disease present but I think he has the residuals of labyrinthitis. The patient continues to have some disequilibrium." There was no infection of the middle or inner ear. The examiner stated that "peripheral vestibular disorder is only exemplified in a subjective fashion." The Veteran's gait appeared to be normal and he stated that he compensated well for the episodes of dizziness which were minimal compared to in the beginning. The examiner performed a complete cranial nerve neurological evaluation on the Veteran and considered it to be normal. The examiner indicated that he did "not feel this patient has Meniere's disease." The complications of ear disease were hearing loss that was sensorineural on the right. The examiner stated that "I think it is likely that this patient had labyrinthitis according to the medical- records and that he has some residual disequilibrium and hearing loss." In his May 2009 notice of disagreement, the Veteran stated that he had "daily episodes of dizziness" that were reported during the VA examination. The Veteran said that the examiner "chose to only listen to the statement that dizziness had been happening so frequently and so long that I have learned to [recognize] when dizziness is going to occur and deal with it appropriately. Also [the examiner] tested my gait and noted some disequilibrium which equates to [staggering] that I deal with it when it occurs by steadying myself [and] does not mean that it is not affecting me." During the March 20, 2013 Board hearing, the Veteran and his wife testified to his frequent stumbling, staggering, and vertigo. See 5/13/13 Legacy Content Manager Documents (LCMD). He such balance problems on a near-daily basis, approximately 28-30 times a month, when he staggered or lost his balance, drifted while driving without realizing it, experienced loss of energy, and lucidity, and needed help steadying himself while standing still. Id. at 3-4. The Veteran's wife testified that she had to grab the car steering wheel from the passenger seat to keep the car on the road and often now drove because the Veteran was unable to due to dizziness. Id. at 4. She confirmed his testimony that he staggered when he walked and had frequent episodes when he "drifts off". Id. at 7, 9, 13. An August 2013 VA audiology examination report, see 7/20/13 VA Examination, shows the Veteran had abnormal ipsilateral and contralateral acoustic reflexes in the right ear, and abnormal contralateral acoustic reflexes in his left ear. A September 2014 VA audiology examination report indicates that the Veteran had abnormal ipsilateral and contralateral acoustic reflexes in his right ear, and normal acoustic reflexes in his left ear. The examiner reported that otoscopy was unremarkable and tympanometry was within normal limits (Type A), bilaterally. It was noted that ipsilateral and contralateral acoustic reflexes were absent probe right and mostly present probe left. Contralateral acoustic reflex decay could not be tested due to elevated or absent reflex thresholds. An October 7, 2014 ear disease examination report, prepared by the April 2009 VA examiner, shows a diagnosis of peripheral vestibular disorder with "other diagnosis" of labyrinthitis and vestibular neuronitis, and no diagnosis of Meniere's disease. The examiner noted the Veteran's diagnosis in service of labyrinthitis or vestibular neuronitis and that the Veteran "[s]till" had dizziness. The Veteran's current symptoms attributable to his disability included tinnitus, episodes of vertigo, and staggering approximately one to four times a month that lasted about an hour. On examination, the Veteran's gait was normal and there was no vertigo or nystagmus during testing. An electronystagmography (ENG) was performed and the results were "A" (normal?). Analysis The minimum 10 percent rating under Diagnostic Code 6204 requires findings of dizziness. In the aggregate, the Board finds objective evidence in the record that dizziness is shown since the initial grant of service connection on April 23, 2003 through March 23, 2009. Notably, while, in November 1995, the Veteran reported having dizzy spells and positional vertigo from intermittent Meniere's was diagnosed, the April 2009 VA examiner concluded that the Veteran did not have Meniere's. In June 2003, the Veteran complained of positional dizziness several times a week and, in February 2004, he reported chronic intermittent positional dizziness. The May 2006 private audiology record notes the Veteran's complaint of feeling as if he was going to fall over or out of a chair and, in April 2007, vertigo was noted. There is no medical evidence to contradict the Veteran's reports. The October 7, 2014 ear disease examiner noted the Veteran's diagnosis in service of labyrinthitis or vestibular neuronitis and that the Veteran "[s]till" had dizziness, essentially confirming the earlier medical reports. The examiner further stated that the Veteran's "current" symptoms attributable to his disability included tinnitus, and episodes of vertigo and staggering approximately one to four times a month that lasted about an hour. Thus, to the extent that this report offers a retrospective view of the Veteran's disability, the examiner clearly delineated earlier symptoms of dizziness from current findings of vertigo and staggering. Here, the Veteran has consistently and credibly described his symptoms of dizziness to treating clinicians. His lay statements are considered to be competent. Layno v. Brown, 6 Vet. App. 465, 470 (1994). The Board has no reason to doubt the credibility of the Veteran's reports to his treating physicians. These reports, as detailed in the objective medical evidence, do not describe occasional staggering associated with the labyrinthitis disorder prior to March 24, 2009. Accordingly, an initial 10 percent rating, but no higher, is warranted for the Veteran's service-connected labyrinthitis disability prior to March 24, 2009. 38 C.F.R. § 4.87, Diagnostic Code 6204. However, during the March 24, 2009 VA audiology examination, the Veteran reported both occasional dizziness and occasional falling since approximately 1980. This is the first report of symptoms that the Board finds more nearly approximate dizziness and occasional staggering, as per Diagnostic Code 6204, although the April 2009 examiner only noted disequilibrium and dizziness episodes. In May 2009, the Veteran argued that his disequilibrium equated to staggering but provided no objective medical evidence to support this contention. In March 2013, the Veteran and his wife provided credible testimony regarding his dizziness and staggering. See Petitti v. McDonald, 27 Vet. App. at 424-30. The Veteran's labyrinthitis manifests with symptoms readily observable by a lay person, such as staggering. Accordingly, the lay evidence is competent evidence. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Petitti, 27 Vet. App. at 427-28. Resolving all doubt in the Veteran's favor, the Board concludes that the criteria for a 30 percent rating for labyrinthitis were met or approximated on March 24, 2009, but not earlier. 38 C.F.R. § 4.87, Diagnostic Code 6204. While a higher rating is available under Diagnostic Code 6205, that rates Meniere's disease, as noted above, the April 2009 examiner clearly opined that he did not think the Veteran had that disorder. Thus, Diagnostic Code 6205 is inapplicable in the Veteran's case. The Board finds that at no time since the Veteran filed his most recent claim for service connection, has the disability on appeal been more disabling than as currently rated under the present decision of the Board. ORDER An initial 10 percent rating, but not higher, for labyrinthitis from April 23, 2003 to March 23, 2009 is granted. A 30 percent rating for labyrinthitis from March 24, 2009 is granted. ____________________________________________ Paul Sorisio Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs