Citation Nr: 1806124 Decision Date: 01/31/18 Archive Date: 02/07/18 DOCKET NO. 06-08 862 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUES 1. Entitlement to a rating in excess of 30 percent for the residuals of tympanoplasty to include positional dizziness and vertigo. 2. Entitlement to a compensable rating for left ear hearing loss. 3. Entitlement to a rating in excess of 10 percent for chronic otitis media. 4. Entitlement to special monthly compensation (SMC) based on the need for regular aid and attendance and/or housebound status. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD J.L. Ivey, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Navy from December 1947 to July 1948. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions dated March 2006 and March 2007 by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran provided testimony at a hearing before the undersigned Veterans Law Judge (VLJ) in August 2007. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). The issue of entitlement to SMC based on the need for regular aid and attendance and/or housebound status is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The Veteran's tympanoplasty and left ear hearing loss disabilities more closely approximate the criteria for a 100 percent rating to Meniere's syndrome by analogy. 2. The Veteran's otitis media resulted in no more than symptoms contemplated and appropriately compensated by the assigned 10 percent schedular rating. CONCLUSIONS OF LAW 1. The criteria for a rating of 100 percent for Meniere's syndrome have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.7, 4.87, Diagnostic Code 6205 (2017). 2. The criteria for a rating in excess of 10 percent for otitis media have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.31, 4.85, 4.86, 4.87, Diagnostic Code 6200 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Principles for Rating Disabilities Disability ratings are determined by applying a schedule of ratings (Rating Schedule) that is based on average impairment of earning capacity. Separate diagnostic codes (DCs) identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history, and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of a veteran working or seeking work. 38 C.F.R. § 4.2. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. 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). Assignment of "staged" ratings is appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Facts and Analysis - Tympanoplasty and Hearing Loss The Veteran received a left ear injury in 1947 when serving as a gunner aboard a ship when he was exposed to a nearby blast within a confined area. This caused him to have an eardrum perforation requiring hospitalization and later surgical repair of the eardrum perforation. Currently, the Veteran is in receipt of three separate ratings related to this in-service injury, as noted on the title page above. Treatment notes in the claims file show the Veteran suffers from significant dizziness and vertigo. In recent years, he has experienced falls on a near daily basis. In April 2016, the Board requested an expert medical opinion as to whether the Veteran's condition was actually Meniere's syndrome or whether his symptoms more closely approximated the symptoms of Meniere's syndrome. After unfortunate delays, the resultant medical opinion was received by the Board in January 2018. The provider reviewed the Veteran's claims file and provided robust rationale for the opinions provided. Ultimately, the provider noted that the Veteran suffered from hearing loss and recurring episodes of vertigo which have occurred so often as to have been debilitating. Although the provider opined that the Veteran did not have a current diagnosis of Meniere's disease, as this was a catch-all diagnosis of exclusion, the Veteran's disability was manifested by all the symptoms of Meniere's disease. The criteria for rating Meniere's syndrome is below: 6205 Meniere's syndrome (endolymphatic hydrops): Rating Hearing impairment with attacks of vertigo and cerebellar gait occurring more than once weekly, with or without tinnitus 100 Hearing impairment with attacks of vertigo and cerebellar gait occurring from one to four times a month, with or without tinnitus 60 Hearing impairment with vertigo less than once a month, with or without tinnitus 30 Note: Evaluate Meniere's syndrome 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. But do not combine an evaluation for hearing impairment, tinnitus, or vertigo with an evaluation under diagnostic code 6205. Given that the Veteran's symptoms are debilitating and that a combined rating under DC 6205 is both more favorable to the Veteran and more adequately describes his symptoms, the Board finds that a 100 percent rating under DC 6205 is warranted. This rating aggregates his currently separate ratings for the residuals of tympanoplasty and hearing loss. The Veteran's otitis media is not contemplated under the rating criteria for Meniere's disease and is discussed below. Facts and Analysis - Otitis Media The Veteran is currently in receipt of a 10 percent rating for otitis media under 38 C.F.R. § 4.87, DC 6200. The Board notes that this is the maximum rating available under this Diagnostic Code as it contemplates otitis media that is productive of suppuration. In a May 2005 VA treatment note, the Veteran reported that his left ear had chronic drainage for many years after leaving service until he had surgery in St. Louis many years prior. He reported that his current primary problem was balance - quick movements caused momentary imbalance, dizziness, and nausea. The Board finds that the evidence of record does not show findings that would warrant a rating in excess of 10 percent for otitis media. The Veteran's ear disease is manifested by Meniere's symptomatology and he is currently in receipt of a separate rating for that disability as discussed above. In sum, the Board finds that the preponderance of the evidence is against assigning a rating in excess of 10 percent for otitis media. Hence, the appeal as to this issue must be denied and there is no reasonable doubt to be resolved. 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102, 4.3. ORDER Entitlement to a 100 percent rating for Meniere's syndrome (to subsume the Veteran's separate ratings for residuals of tympanoplasty and hearing loss) is granted. Entitlement to a rating in excess of 10 percent for otitis media is denied. REMAND The last supplemental statement of the case regarding the Veteran's claim for entitlement to SMC based on the need for regular aid and attendance and/or housebound status was issued in March 2016. Since that time, the Veteran has submitted two VA DBQs dated December 2016 and October 2017 entitled "examination for housebound status or permanent need for regular aid and attendance" prepared by his providers. Given this new evidence and the grant of a 100 percent rating for Meniere's disease, above, the AOJ must conduct development and readjudicate the issue on remand. Any updated treatment records should be obtained and all appropriate development should be conducted. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Obtain any missing VA treatment notes and associate them with the claims file. 2. Notify the Veteran that he may submit lay statements from himself and others with personal knowledge regarding the impact of his service-connected disabilities on his ability perform activities of daily living. The Veteran should be provided an appropriate amount of time to submit this lay evidence. 3. If the evidence of record is not adequate to adjudicate the Veteran's claim of entitlement to SMC based on the need for regular aid and attendance and/or housebound status, schedule the Veteran for a VA examination to assess the nature and severity of his service-connected disabilities. 4. After completing the above development and any other additional development deemed appropriate, readjudicate the appeal. If the benefit sought on appeal remains denied, the Veteran should be furnished with a supplemental statement of the case and given the opportunity to respond. Thereafter, the case should then be returned to the Board for further appellate consideration, if otherwise in order. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). ______________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs