Citation Nr: 1757056 Decision Date: 12/11/17 Archive Date: 12/20/17 DOCKET NO. 14-10 411 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUES 1. Entitlement to an initial rating for Meniere's disease, currently assigned a 10 percent rating from March 31, 1999 to September 8, 2010 and a 30 percent rating from September 9, 2010 to April 25, 2014. 2. Entitlement to an initial rating for disequilibrium and acute vertigo, currently assigned a 30 percent rating from April 26, 2014. 3. Entitlement to an initial rating for asymmetric sensorineural hearing loss, currently assigned a 10 percent rating from April 26, 2014. 4. Entitlement to an initial rating for tinnitus, currently assigned a 10 percent rating from April 26, 2014. REPRESENTATION Veteran represented by: National Association of County Veterans Service Officers WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD S. Sorathia, Counsel INTRODUCTION The Veteran served on active duty from May 1982 to June 1987. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. The Veteran testified before the undersigned Veterans Law Judge in August 2017. A transcript of this hearing is associated with the claims file. Subsequent to the August 2014 Supplemental Statement of the Case, the Veteran submitted additional evidence that the RO has not reviewed. As the Veteran's substantive appeal was received in March 2014, the Board can review the additional evidence and proceed with the claim. Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012, Pub. L. no. 112-154 (2012). FINDINGS OF FACT 1. From March 31, 1999, the Veteran has had Meniere's disease with symptoms that at times have included hearing impairment, tinnitus, and vertigo. There is no indication of attacks of vertigo and cerebellar gait. 2. The Veteran does not have hearing impairment more severe than level I impairment in the right ear and level XI impairment in the left ear. 3. Effective April 26, 2014, the maximum schedular rating is in effect for tinnitus. 4. Effective April 26, 2014, the maximum schedular rating is in effect for vertigo. CONCLUSIONS OF LAW 1. The criteria for a 30 percent rating from March 31, 1999 to April 25, 2014, but no higher, have been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.1, 4.7, 4.85, 4.86, 4.87, Diagnostic Code 6205 (2017). 2. A rating in excess of 10 percent for bilateral hearing loss effective April 26, 2014 have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.1, 4.7, 4.85, Diagnostic Code 6100, 4.86, 4.87 (2017). 3. A rating in excess of 10 percent for tinnitus effective April 26, 2014 have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.87, Diagnostic Code 6260 (2017). 4. A rating in excess of 30 percent for vertigo effective April 26, 2014 have not been met. 38 U.S.C.A. § 1155 (2012); 38 C.F.R. § 4.87, Diagnostic Code 6204 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Initial Matters After review of the procedural history in the instant case, the Board finds that the issue currently on appeal is entitlement to an initial rating for Meniere's disease stemming from an effective date of March 31, 1999. By way of background, the Veteran filed a service connection claim for chronic ear infection on March 31, 1999. A March 2000 rating decision granted service connection for otitis media and assigned a 10 percent rating effective March 31, 1999. A decision regarding entitlement to service connection for Meniere's disease was not rendered at this time. In September 9, 2010, the Veteran submitted a claim for Meniere's disease. A June 2011 VA medical opinion obtained in connection with the claim stated that the old diagnosis of otitis media is replaced by the diagnosis of Meniere's disease. The RO, in a September 2011 rating decision, changed the rating from otitis media (diagnostic code 6200) to Meniere's disease (diagnostic code 6205). The corresponding September 2011 code sheet revealed that a 10 percent rating for Meniere's disease was assigned effective March 31, 1999 and a 30 percent rating for Meniere's disease was assigned effective September 9, 2010. New and material evidence was received within one year of this rating decision and an October 2012 rating decision continued the assigned rating. The Veteran then submitted timely lay statements disagreeing with the assigned rating for Meniere's disease. Thus, this appeal stems from the September 2011 rating decision. As this appeal stems from the September 2011 rating decision, the pertinent question is whether the appeal of the assigned disability rating begins on March 31, 1999. In regards to this question, it is important to note that even though the Veteran submitted a service connection claim for chronic ear infection on March 31, 1999, the scope of the claim includes any disability that reasonably may be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record. Clemons v. Shinseki, 23 Vet. App. 1 (2009). In connection with the service connection claim, a June 1999 VA examiner diagnosed chronic otitis media with central blockage, but also stated that there was a diagnosis of Meniere's disease. Thus, the Board construes the service connection claim for chronic ear infection to properly include a claim for Meniere's disease. See also EF v. Derwinski, 1 Vet. App. 324, 326 (1991) (stating that "VA's 'duty to assist' must extend [a] liberal reading to include issues raised in all documents or oral testimony submitted prior to the BVA decision"). Therefore, with the benefit of the doubt resolved in the Veteran's favor, the Board finds that a service connection claim for Meniere's disease was filed on March 31, 1999. A claim for VA benefits, whether formal or informal, remains pending until finally adjudicated. Here, the RO adjudicated the service connection claim for chronic ear infection and granted service connection for otitis media. 38 C.F.R. § 3.160(c), see also Ingram v. Nicholson, 21 Vet. App. 232, 253 (2007) (explaining that a reasonably raised claim remains pending until there is either a recognition of the substance of the claim in an RO decision from which a claimant could deduce that the claim was adjudicated or an explicit adjudication of a subsequent 'claim' for the same disability). The service connection claim for Meniere's disease was not explicitly or implicitly denied in the March 2000 rating decision granting service connection for otitis media and the claim remained pending until it was addressed in the September 2011 rating decision. See e.g., Cogburn v. Shinseki, 24 Vet. App. 205, 212-214 (2010); see also Ingram, 21 Vet. App. at 240. The U.S. Court of Appeals for the Federal Circuit has held that "a subsequent final adjudication of a claim which is identical to a pending claim that had not been finally adjudicated terminates the pending status of the earlier claim," Williams v. Peake, 521 F.3d 1348, 1351 (Fed. Cir. 2008). A claim will not become final if VA has failed to act upon the claim or has failed to notify the claimant of the denial of his claim or of his right to appeal an adverse decision. Cook v. Principi, 318 F.3d 1334, 1340 (Fed. Cir. 2002) (en banc). Here, there was no intervening final denial of the Veteran's claim prior to the September 2011 rating decision. After consideration of all the applicable regulations and laws, the Board finds that the March 1999 claim encompassed a claim for Meniere's disease that remained pending until the September 2011 rating decision, which changed the Veteran's disability from otitis media to Meniere's disease. As the Veteran appealed the disability rating assigned in the September 2011, the appeal before the Board is an initial rating for Meniere's disease beginning on March 31, 1999. Moreover, the Board finds it significant that the September 2011 code sheet changed the Veteran's disability from otitis media to Meniere's disease and stated that a 10 percent rating for Meniere's disease was in effect since March 31, 1999. Since the September 2011 code sheet encompassed the period since March 31, 1999, the Board finds that the appeal of the assigned disability rating for Meniere's disease begins in March 1999. See Baughman v. Derwinski, 1 Vet. App. 563, 566 (1991) (when the RO has listed a condition as service-connected on a rating sheet, it has effectively granted service connection). Accordingly, the issue on appeal before the Board is entitlement to a higher initial rating for Meniere's disease since March 31, 1999. Applicable Laws and Regulations Disability ratings are based upon VA's Schedule for Rating Disabilities as set forth in 38 C.F.R. Part 4. The percentage ratings represent, as far as can practicably be determined, the average impairment in earning capacity in civil occupations. 38 U.S.C.A. § 1155. The disability must be viewed in relation to its history. 38 C.F.R. § 4.1. A higher evaluation shall be assigned where the disability picture more nearly approximates the criteria for the next higher evaluation. 38 C.F.R. § 4.7. Diagnostic code (DC) 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 DC 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 DCs. 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) Initial Rating Claim By way of background, the Veteran's Meniere's disease is currently assigned a 10 percent rating from March 31, 1999 to September 8, 2009 and a 30 percent rating from September 9, 2009 to April 25, 2014. An August 2014 rating decision then assigned separate ratings for disequilibrium and acute vertigo (30 percent effective April 26, 2014), asymmetric sensorineural hearing loss (10 percent effective April 26, 2014), and tinnitus (10 percent effective April 26, 2014). The Veteran contends that he is entitled to a higher rating as his symptoms are more severe than the currently assigned ratings. DC 6205 Initially, the Board finds that a 30 percent rating for Meniere's disease pursuant to DC 6205 should be assigned for the entire period prior to September 9, 2009. A 30 percent rating is the minimum percentage provided under DC 6205 for Meniere's disease. Accordingly, the Veteran is entitled to a 30 percent rating effective March 31, 1999. However, a rating in excess of 30 percent under DC 6205 is not warranted at any time during the appeal period. A rating in excess of 30 percent under DC 6205 requires the finding of cerebellar gait. Although at times the Veteran's private treatment records state that he has a mildly unstable gait, the medical evidence at no point during the appeal period renders a diagnosis of cerebellar gait. In fact, the June 1999 and February 2013 VA examination reports specifically state that the Veteran has a normal gait. In April 2014 and July 2017, the Veteran's private physician completed disability benefits questionnaire forms. Even though the private physician in April 2014 and July 2017 stated that the Veteran had an unsteady gait, the physician did not provide a diagnosis of cerebellar gait when prompted in the examination report. The Board acknowledges the Veteran's lay statements regarding dizziness, imbalance, and unsteadiness. Although the Veteran is competent to describe the symptoms he can observe, he is not competent to render a medical diagnosis of cerebellar gait as he does not have the required medical expertise. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (noting that a lay claimant is not competent to provide evidence as to complex medical questions). Accordingly, a higher rating under DC 6205 cannot be provided as the Veteran does not have a medical diagnosis of cerebellar gait. Note 1 Considerations The Board must consider whether a higher rating is available to the Veteran by assigning separate evaluations for tinnitus, hearing loss, and vertigo. As noted above, separate ratings for tinnitus, hearing loss, and vertigo are in effect from April 26, 2014. Here, the Board must consider whether, prior to April 26, 2014, separate ratings for tinnitus, hearing loss, and vertigo would result in a higher rating than the currently assigned 30 percent rating under DC 6205. Hearing Loss The Board notes that although the claims file contains several private audiograms, the audiograms are not adequate for VA purposes pursuant to 38 C.F.R. § 4.85 as they do not include Maryland CNC results. An audiogram adequate to rate the Veteran's hearing loss is not associated with the claims file until 2011. From 2011, the Veteran's audiogram shows that he has a pure tone threshold average of 6 in the right ear and 105+ in the left ear, with Maryland CNC scores of 100 percent in the right ear. The Maryland CNC could not be tested in the Veteran's left ear. This audiometry test result equates to at most a level I impairment in the right ear and at most a level XI impairment in the left ear, even after consideration of 38 C.F.R. § 4.86(a). Applying the percentage ratings for hearing impairment found in Table VII, the Veteran would be assigned at most a 10 percent rating for his hearing loss. There are no additional audiograms associated with the claims file that are adequate for VA purposes pursuant to 38 C.F.R. § 4.85 that would provide for a rating in excess of 10 percent for bilateral hearing loss. Tinnitus DC 6260 provides for a 10 percent rating for tinnitus. A higher schedular rating is not available under DC 6260. Vertigo DC 6204 provides a 10 percent rating for occasional dizziness and a 30 percent rating for dizziness and occasional staggering. A 30 percent is the maximum schedular rating provided under DC 6204. Given that the evidence of record allows for a maximum 10 percent rating for hearing loss and a maximum separate 10 percent rating for tinnitus, separate evaluations for vertigo, hearing loss, and tinnitus pursuant to DC 6205 are only applicable if a 30 percent rating rather than a 10 percent rating is warranted for vertigo under DC 6204. See 38 C.F.R. § 4.25. In the instant case, the evidence does not consistently show that a 30 percent rating under DC 6204 is warranted prior to April 26, 2014; and thus, separate ratings for vertigo, hearing loss, and tinnitus are not appropriate prior April 26, 2014. The Board notes that the Veteran reports that he has symptoms of dizziness and unsteadiness. However, the medical evidence has not consistently showed symptoms of dizziness and unsteadiness throughout the appeal period. Although a June 1999 VA examination report references vertigo, a February 2011 VA examiner stated that the symptoms of dizziness had resolved. A June 2011 VA medical opinion further stated that the Veteran had resolution of his vertigo. A January 2013 private medical letter states that the Veteran experiences vertigo, but makes no reference to staggering. Even though private treatment records show reports of unsteady gait, the February 2013 VA examination report found that the Veteran did not have vertigo or staggering. The report states that it is less likely than not that the symptoms of "movement" are related to the history of left sided Meniere's disease. An April 26, 2014 private examination report noted that the Veteran had vertigo and staggering. This examination report is the first time that the medical evidence shows that the Veteran had vertigo that warranted a 30 percent rating at the same time hearing loss warranted a separate 10 percent rating since adequate audiograms were not associated with the claims file prior to 2011. As the medical evidence of record prior to April 26, 2014 does not show that a 10 percent rating for hearing loss was warranted at the same time vertigo warranted a 30 percent rating, separate evaluations prior to April 26, 2014 for hearing loss, tinnitus, and vertigo are not warranted. In reaching this decision, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER An initial rating of 30 percent, but no higher, for Meniere's disease is granted, effective March 31, 1999, subject to the rules and regulations governing the payment of VA monetary benefits. An initial rating for disequilibrium and acute vertigo in excess of 30 percent from April 26, 2014 is denied. An initial rating for asymmetric sensorineural hearing loss in excess of 10 percent from April 26, 2014 is denied. An initial rating for tinnitus in excess of 10 percent from April 26, 2014 is denied. ____________________________________________ Cynthia M. Bruce Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs