Citation Nr: 18147139 Decision Date: 11/02/18 Archive Date: 11/02/18 DOCKET NO. 11-12 073A DATE: November 2, 2018 ORDER Service connection for otitis media is granted. Prior to March 20, 2018, an initial rating higher than 30 percent for Meniere’s disease is denied. FINDINGS OF FACT 1. Resolving reasonable doubt in the Veteran’s favor, his otitis media is at least as likely as not related to service. 2. For the entire appeal period, the Veteran’s Meniere’s disease and vertigo was not manifested by cerebellar gait occurring more than once weekly. CONCLUSIONS OF LAW 1. The criteria for service connection for otitis media have been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2017). 2. Prior to March 20, 2018, the criteria for initial rating higher rating for Meniere’s disease (which has an effective combined rating of 60 percent when including his bilateral hearing loss and tinnitus) have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.3, 4.7, 4.87, Diagnostic Code 6205 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from April 1979 to April 1982, and from June 1982 to June 1984. In September 2017, the Veteran had a hearing before the undersigned Veterans Law Judge. In January 2018, the Board remanded the issues addressed herein for additional development. The Board notes that the Veteran is in receipt of a total disability rating based on individual unemployability (TDIU), effective from July 18, 2008. He is also currently in receipt of special monthly compensation. 1. Service connection for otitis media. The Veteran contends that his in-service otitis media caused his currently recurring otitis media. Giving the Veteran the benefit of the doubt, the Board concludes that the Veteran has a current diagnosis of otitis media that began during active service. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). VA examinations have been unclear as to whether the Veteran has had otitis media during the appeal period. Generally, the multiple VA examinations, such as the March 2018 VA examination, have found that the Veteran did not have otitis media at the time of the examination, but did not provide opinions during the appeal period. However, the April 2014 VA examination indicates that the Veteran has recurrent, infrequent otitis media. VA medical records also list otitis media on his problem list and a May 2008 VA medical record (a few months prior to his July 2008 claim). Due to the inadequate findings of the VA examiners, the medical evidence available, and the Veteran’s lay statements, and giving the Veteran the benefit of the doubt, the Board finds that he has had otitis media during the appeal period. In an October 2008 letter, the Veteran’s VA medical provider reported that the Veteran’s multiple conditions, including otitis media, had a related etiology to the Veteran’s other service-connected disabilities (also including psychiatric, hearing loss, and vertigo disabilities). In a March 2018 addendum to a May 2017 VA examination, the examiner noted the Veteran’s in-service treatment for otitis media and noted that it was recurrent in nature. Another March 2018 VA examiner found that the Veteran’s otitis media was not due to service. Giving the Veteran the benefit of the doubt, as to the conflicting medical evidence of record, the Board finds that service connection for otitis media is warranted. 2. Prior to March 20, 2018, entitlement to an initial rating greater than 30 percent for Meniere’s disease and vertigo. The Veteran contends that his Meniere’s disease and vertigo is more severe than indicated by his prior rating, prior to March 20, 2018. During his September 2017 Board hearing, he claimed to have a cerebellar gait and that his medical evidence reflected such a gait. In a September 2018 rating decision, the RO granted a 100 percent disability rating for Meniere’s disease and vertigo, under Diagnostic Code 6205 and effective March 20, 2018. As such, only the period prior to when the Veteran was in receipt of a 100 percent disability rating is before the Board. The Board notes that in a March 2017 rating decision, the RO granted an effective date for service connection for Meniere’s disease and vertigo of June 28, 2001. Diagnostic Code 6205 provides that Meniere’s disease can either be rated under that code (Diagnostic Code 6205) or by separately rating vertigo (under Diagnostic Code 6204), hearing impairment (under Diagnostic Code 6100), and tinnitus (under Diagnostic Code 6260), using whichever method which results in a higher overall evaluation. Provided, however, that ratings for hearing impairment, tinnitus, or vertigo are not to be combined with an evaluation under Diagnostic Code 6205. 38 C.F.R. § 4.87, Diagnostic Code 6205. Effectively, the Veteran can be rated under Diagnostic Code 6205 or based on a combination of the separate disabilities of vertigo, hearing impairment, and tinnitus. However, if he is rated under Diagnostic Code 6205, he cannot also be rated separately for hearing loss, tinnitus, and vertigo. Prior to March 20, 2018, the Veteran’s Meniere’s disease was rated under multiple disabilities, including Diagnostic Code 6204 for vertigo (at the maximum 30 percent disability rating), Diagnostic Code 6100 for hearing loss (at 30 percent), and Diagnostic Code 6260 for tinnitus (at the maximum 10 percent disability rating). When such ratings are combined, using the combined ratings table of 38 C.F.R. § 4.25, he effectively has a 60 percent disability rating for Meniere’s disease. Given that the Veteran is effectively in receipt of a 60 percent disability rating for the period prior to March 20, 2018, the only possible higher rating would be if the Veteran were rated at the maximum 100 percent disability rating under Diagnostic Code 6205 for Meniere’s syndrome (at which point he can no longer receive separate ratings for hearing loss, tinnitus, and vertigo to be combined). Under Diagnostic Code 6205, 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. As such, the question before the Board is whether, prior to March 20, 2018, the Veteran had a cerebellar gait occurring more than once weekly. “[C]erebellar gait” is “a staggering ataxic gait, sometimes with a tendency to fall to one side, indicative of cerebellar lesions.” DORLAND’S ILLUSTRATED MEDICAL DICTIONARY 747 (30th ed. 2003). An “ataxic gait” is “an unsteady, uncoordinated walk, with a wide base and the feet thrown out, due to some form of ataxia.” Id. The Board notes that in its January 2018 remand, the Board found that the two most recent VA examinations (May 2017 and April 2014) did not address whether the Veteran had a cerebellar gait. However, the Board finds that although the VA examinations did not address cerebellar gait specifically, there were findings regarding gait in general. In conjunction with the other evidence of record, the Board finds that sufficient evidence is associated with the claims file to decide in this case. Although the Veteran has claimed to have had a cerebellar gait prior to March 20, 2018, the Board finds that the most probative evidence of record does not support such a finding. Until the March 20, 2018 VA examination, VA medical records and VA examinations are consistent in not finding that the Veteran had a cerebellar gait or in making findings inconsistent with finding a cerebellar gait. The Board notes that Diagnostic Code 6204 for peripheral vestibular disorders makes clear that vertigo includes dizziness. Additionally, “dizziness” is defined as a disturbed sense of relationship to space; a sensation of unsteadiness with a feeling of movement within the head. DORLAND’S ILLUSTRATED MEDICAL DICTIONARY 557 (30th ed. 2003). Furthermore, Diagnostic Code 6205 for Meniere’s disease separates vertigo and cerebellar gait. As such, to the extent the Veteran has symptoms such as dizziness related to vertigo, they are separate from the requirement of a cerebellar gait. The findings of VA medical providers are generally inconsistent with finding a cerebellar gait or find no such gait. A June 2001 VA medical provider provided a complete evaluation and noted that the Veteran reported that his main problem was hearing loss. The VA medical provider specifically found that cerebellar signs were intact and gait was normal. In a November 2007 VA medical record, the Veteran reported that though he was limited in heavy chores he could perform, he could perform light chores and personal activities of daily living. A December 2007 VA medical record similarly found that the Veteran was independent in mobility. A May 2008 VA medical record noted positional vertigo. A May 2008 VA examination noted that cerebellar tests were not performed due to gait instability, but also found no staggering or cerebellar gait, though the examiner noted reports of intermittent leg weakness a couple of times a week. In a June 2008 VA falls clinic consult, the Veteran reported falling 2 times in the past 3 months, with the most recent one being 2.5 months previously, from out of bed. The VA medical provider found a slow, but normal gait. In an addendum, the VA medical provider noted that the Veteran complained of general instability and loss of balance, with falls to the left and deviating left when walking. The VA medical provider observed his gait and specifically did not find ataxic gait pattern or widened base of support, which would be indicative of a cerebellar gait. The examiner noted a decreased gait speed. A July 11, 2008, VA physical therapy note indicated gait training with gaze stabilization, but made no findings regarding staggering or cerebellar gait. Other VA medical records similarly did not indicate cerebellar gait. An August 2008 VA medical record noted that the Veteran walked with a cane with a somewhat hesitant gait. An August 2008 VA physical therapy note showed that the Veteran walked on the treadmill while performing gaze stabilization activities for a mile, with no indication of gait problems in performing such exercise. The December 2008 VA examiner, for miscellaneous neurological disorders, found a normal cerebellar examination. An April 2011 VA physical therapy noted poor balance and history of falls, but found a gait pattern of ambulation leaning to the right on cane, with no findings of a cerebellar or staggering ataxic gait despite specific consideration of the Veteran’s gait. A December 2011 VA medical record documented that the Veteran walked with cane on a normal basis. In an April 2014 VA examination, the Veteran reported walking with a cane at all times due to difficulty walking in a straight line, but denied falling with ambulation. The examiner found a normal gait, and indicated that the gait was steady that day with aid of a walking cane. The May 2017 VA examiner specifically found that the Veteran had a normal gait. Prior to March 20, 2018, the only evidence supportive of the Veteran’s claim that he has a cerebellar gait are his own statements. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, whether the Veteran has cerebellar gait defined as a staggering ataxic gait, sometimes with a tendency to fall to one side, indicative of cerebellar lesions, falls outside the realm of common knowledge of a lay person. As the preponderance of the probative evidence is against finding that the Veteran has a cerebellar gait occurring more than once weekly, the benefit of the doubt rule does not apply. The Veteran’s claim for a 100 percent disability rating for Meniere’s disease and vertigo is denied. H.M. WALKER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Lindio