Citation Nr: 18145024 Decision Date: 10/26/18 Archive Date: 10/25/18 DOCKET NO. 16-37 858 DATE: October 26, 2018 ORDER Entitlement to an initial evaluation greater than 30 percent for the service-connected Meniere's Disease is denied. Entitlement to an evaluation greater than 30 percent for the service-connected migraine headaches is denied. FINDINGS OF FACT 1. The medical evidence demonstrates that episodes of the service-connected Meniere's Disease are manifested, at most, by hearing impairment with attacks of vertigo but not cerebellar gait, throughout the period of time on appeal. 2. The medical evidence demonstrates that the service-connected migraine headaches are manifested by no more than characteristic prostrating attacks occurring on an average once a month during the period of time on appeal. CONCLUSIONS OF LAW 1. The criteria for an initial evaluation greater than 30 percent for the service-connected Meniere's Disease have not been satisfied. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.87, Diagnostic Code 6205 (2017). 2. The criteria for an evaluation greater than 30 percent for the service-connected migraine headaches have not been satisfied. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.124a, Diagnostic Code 8100 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active service in the U.S. Air Force from August 1993 to September 2005. In August 2016 the Veteran’s representative submitted the Veteran’s substantive appeal and stated in the transmittal letter that another attachment indicated the Veteran had requested to testify before the Board. However, the referenced attachment was not included, and there was no indication on the VA Form 9 that the Veteran requested a Board hearing. In August 2016, VA returned the August 2016 VA9 to the Veteran and asked the Veteran to fill out the appropriate section indicating which type of hearing he wished. A copy was sent to the Veteran’s representative and they were given 30 days from the date of the letter to respond. No response from the Veteran or his representative was received concerning a Board hearing. The Board’s responsibility to afford the Veteran the opportunity to testify before it has been met. The Board will continue in its adjudication of the Veteran’s claim. See 38 C.F.R. § 20.700. Increased Ratings Disability ratings are assigned in accordance with the VA’s Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from disability. See 38 U.S.C. § 1155; 38 C.F.R. § 3.321(a), 4.1. Separate diagnostic codes (DCs) identify the various disabilities. See 38 U.S.C. Part 4. Where there is a question as to which of two evaluations shall 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. See 38 C.F.R. § 4.7. The evaluation of the same disability under several DCs, known as pyramiding, must be avoided. 38 C.F.R. § 4.14. “Staged” ratings are appropriate for any rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119 (1999). Meniere’s Disease is evaluated under DC 6205. A 30 percent evaluation is assigned where hearing impairment with vertigo less than once a month, with or without tinnitus. A 60 percent evaluation is assigned where hearing impairment with attacks of vertigo and cerebellar gait occur from one to four times a month, with or without tinnitus. A 100 percent evaluation is assigned where hearing impairment with attacks of vertigo and cerebellar gait occurs more than once weekly, with or without tinnitus. A Note following the DC directs that Meniere’s syndrome is to be evaluated either under the criteria above, or by separately evaluating vertigo (as a peripheral vestibular disorder), hearing impairment, and tinnitus, whichever method results in a higher overall evaluation. But, one is not to combine an evaluation for hearing impairment, tinnitus, or vertigo with an evaluation under DC 6205. See 38 C.F.R. § 4.76, DC 6205. Peripheral vestibular disorders are evaluated under DC 6204. A 10 percent evaluation is warranted for occasional dizziness. A 30 percent evaluation is warranted for dizziness and occasional staggering. A Note following DC 6204 directs that objective findings supporting the diagnosis of vestibular disequilibrium are required before a compensable evaluation can be assigned under this code. Hearing impairment or suppuration shall be separately rated and combined. See 38 C.F.R. § 4.76, DC 6204. Recurrent tinnitus is evaluated under DC 6260 as 10 percent disabling. Note (1) following DC 6260 directs that a separate evaluation for tinnitus may be combined with an evaluation under DCs 6100, 6200, 6204, or other DC, except when tinnitus supports an evaluation under one of those DCs. Note (2) directs that a single evaluation for recurrent tinnitus is to be assigned whether the sound is perceived in one ear, both ears, or in the head. See 38 C.F.R. § 4.76, DC 6260. Hearing loss is evaluated under DC 6100. In this case, the Veteran is service-connected for hearing loss in the right ear alone. The medical evidence demonstrates his right ear hearing loss is calculated at Level VIII impairment. Together with Level I impairment in his left ear, as directed by See 38 C.F.R. § 4.85((f), the Veteran’s right ear hearing loss is productive of a noncompensable evaluation. See 38 C.F.R. § 4.85, DC 6100; see also 38 C.F.R. §§ 3.383. Migraine headaches are evaluated pursuant to Diagnostic Code 8100. A 30 percent evaluation is warranted for migraine headaches with characteristic prostrating attacks occurring on an average of once a month over the last several months. A 50 percent evaluation is warranted for migraine headaches with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. See 38 C.F.R. § 4.124a, Diagnostic Code 8100.   1. Entitlement to an initial evaluation greater than 30 percent for Meniere’s Disease In this case, the Veteran was service-connected for Meniere’s Disease in an April 2014 rating decision. Meniere’s Disease was evaluated as 30 percent disabling, effective in January 2013. The Veteran appealed the evaluation initially assigned. The Veteran argues that he experiences severe hearing impairment and frequent tinnitus with frequent attacks of vertigo, manifested by difficulty standing or remaining upright almost every day, and attacks of vertigo occurring suddenly three to four times per month so severe that he falls. Three to four times a week, he experiences attacks in which he does not fall. See May 2016 Notice of Disagreement (NOD). There is no dispute that VA treatment records show treatment for Meniere’s Disease with hearing impairment and episodes of dizziness occurring at varying frequencies from January 2013. Nonetheless, there are no findings that the Veteran exhibits the frequency of vertigo attacks with manifestations of cerebellar gait required to warrant an initial evaluation greater than 30 percent at any time during the pendency of this appeal. VA examination conducted in January 2014 reflects a diagnosis of Meniere’s syndrome requiring prescribed medications to be taken daily. The Veteran reported a history of acute onset of peripheral vestibular symptoms in 2011, which required medical intervention leading to evaluation and diagnosis in 2012. He reported his condition has stabilized with medications. The VA examiner described the service-connected Meniere’s Disease as hearing impairment with vertigo, tinnitus, and vertigo occurring more than once weekly. Hearing impairment and vertigo was described as lasting one to 24 hours; and tinnitus, more than 24 hours. But, the VA examiner made no findings of associated abnormal gait or limb coordination. See January 2014 VA Examination for Ear Conditions. VA treatment entries do reveal findings of an antalgic gait, and of the need to normalize and improve gait deviations. In addition, these records show the Veteran participated in an inpatient pain rehabilitation program in 2013 where among other things, the Veteran worked on normalizing his gait. However, the gait abnormalities referenced by VA health care providers are not described or associated with a cerebellar imbalance or vestibular disequilibrium. Moreover, with the exception of a notation in 2013 that physical therapy may help with the Veteran’s vestibular condition, there is no indication that the inpatient pain treatment program was necessitated by the service-connected Meniere’s Disease. Rather, VA treatment records show the Veteran was admitted to the inpatient pain treatment program for a primary diagnoses of chronic pain syndrome including his neck, back and lower extremity as well as his headache condition. See CAPRI Treatment Records (rec’d 1/21/2014), p. 62 of 148 and generally; see also generally, CAPRI Treatment Records (rec’d 6/9/2016 and 12/14/2013). Furthermore, neither the Veteran nor his representative have argued or presented evidence tending to show that the Veteran was diagnosed with, experienced, or more closely approximated episodes of cerebellar gait associated with attacks of vertigo one to four times a month with or without tinnitus, as required for an initial evaluation greater than 30 percent, at any time during the pendency of this appeal. The Board has considered with a higher evaluation could be warranted by separately evaluating and combining the evaluations individually for vertigo as a peripheral vestibular disorder, hearing impairment, and tinnitus. However, as just discussed, objective evidence of gait abnormality due solely to the Veteran’s Meniere’s Disease or vestibular disequilibrium have not been shown by the medical evidence of record. Hence, an evaluation greater than 10 percent under DC 6204 would not be warranted. The service connected tinnitus is evaluated as 10 percent disabling, the highest evaluation afforded under the DC. In addition, the Veteran is service-connected for right ear hearing loss only. VA examinations conducted in 2014 and 2011 reflect findings of hearing impairment puretone threshold averages of 89 and 78 decibels, respectively. According to 38 C.F.R. § 4.86 (f), Tables VI and VIA, the Veteran’s right ear hearing loss measures a Level VIII at its worst. Notwithstanding, when hearing impairment is calculated using the Level VIII in the right ear as calculated and Level I for the left ear as directed by 38 C.F.R. § 4.85(f), the Veteran’s right ear hearing loss warrants a zero percent evaluation. See 38 C.F.R. §§ 3.4.85, 3.383, DC 6100. The combined evaluation of 10 percent for peripheral vestibular disorder under DC 6204, 10 percent for tinnitus under 6260, and zero percent for right ear hearing loss under DC 6100, calculates to 20 percent. See 38 C.F.R. § 4.25. This is less than the 30 percent evaluation already assigned under DC 6205. See March 2014 and August 2011 VA Examinations for Hearing Loss and Tinnitus. Accordingly, the preponderance of the evidence is against an initial evaluation greater than 30 percent for the service-connected Meniere’s Disease at any time during the pendency of this appeal. An initial evaluation greater than 30 percent for Meniere’s Disease is not warranted. See 38 C.F.R. § 4.87, DC 6205. 2. Entitlement to an initial evaluation greater than 30 percent for migraine headaches. In this case, the Veteran was service-connected for migraine headaches in a February 2010 rating decision. The migraine headache disorder was evaluated as 10 percent disabling, effective in September 2009. In April 2012, the evaluation was increased to 30 percent, effective in May 2011. In January 2013, the Veteran filed a claim for an increased evaluation for his service-connected headache disorder. In an April 2014 rating decision, an evaluation greater than 30 percent evaluation was denied. The Veteran appealed this denial. The Veteran argues that his headaches are completely incapacitating and seriously affect his ability to earn money. He reported experiencing 12 headaches a month, and that his headaches were increasing in both frequency and severity. See May 2016 NOD. He also pointed to a period of hospitalization during which his headaches were charted. See February 2014 Statement (filed as “Correspondence,” rec’d 2/26/2014). There is no dispute that the Veteran experiences characteristic prostrating migraine headache attacks of migraine on an average of once a month. Nonetheless, the medical evidence does not establish that the Veteran exhibits very frequent completely prostrating and prolonged migraine headache attacks that are productive severe economic inadaptability as required to warrant an evaluation greater than 30 percent at any time during the pendency of this appeal. VA treatment records and private medical records (PMR) show treatment for migraine headaches including six emergency room admissions for same-day treatment in 2012-2013. In addition, VA treatment records show the Veteran participated in an inpatient pain rehabilitation program for headaches as well as a primary diagnosis of chronic pain syndrome including pain in his knees, neck, back and lower extremity. See CAPRI Treatment Records (rec’d 1/21/2014), p. 62 of 148 and generally; see also generally, CAPRI Treatment Records (rec’d 6/9/2016 and 12/14/2013). In addition, VA examination conducted in April 2014 reflects findings of migraine headaches with symptoms of nausea, vomiting, light and sound sensitivity. The Veteran reported that symptoms last more than two days, and prescribed medication was required to treat the headaches. The VA examiner found that the Veteran experienced characteristic prostrating attacks of migraine pain once per month that caused functional impact in the form of increased absenteeism. However, the VA examiner found that the Veteran did not experience very prostrating and prolonged attacks of migraines productive of severe economic inadaptability. See April 2014 VA Examination for Headaches. Similarly, VA treatment records show that the Veteran reported improvement with prescribed medications, the inpatient pain treatment, and participation in headache therapies designed to reduce arousal. See CAPRI Treatment Records (rec’d 1/21/2014), pp. 102, 122, 124 of 148, and generally; CAPRI Treatment Records (rec’d 6/9/2016), p. 1 of 26, and generally; see also, generally, CAPRI Treatment Records (rec’d 12/14/2013). The Veteran has argued that his headaches are more frequent than shown by the record, and that he experiences serious economic inadaptability as a result. The Veteran is capable of attesting to his own observations of his headaches, including their severity and frequency. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). But in this case, as discussed immediately above, the medical evidence does not reflect that the Veteran’s headache disorder is productive of the frequency and severe economic inadaptability required by the diagnostic code to warrant an evaluation greater than 30 percent. Accordingly, the preponderance of the evidence is against an evaluation greater than 30 percent for the service-connected migraine headaches. An evaluation greater than 30 percent for the service-connected migraine headaches is not warranted. See 38 C.F.R. § 4.124a, Diagnostic Code 8100. WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD L.J. Bakke, Counsel