Citation Nr: 18148206 Decision Date: 11/08/18 Archive Date: 11/07/18 DOCKET NO. 10-02 197 DATE: November 8, 2018 ORDER Entitlement to a higher initial rating in excess of 30 percent for Meniere’s disease, with hearing loss, and tinnitus, from April 26, 2007 through May 22, 2013 is denied. Entitlement to a rating in excess of 50 percent for bilateral hearing loss is denied. Entitlement to a rating in excess of 10 percent for Meniere’s disease, for the period since May 22, 2013, is denied. Entitlement to a higher initial rating for tinnitus is denied. Entitlement to a TDIU prior to May 22, 2013, is denied. REMANDED Entitlement to special monthly compensation (SMC) based on aid and attendance and/or housebound rate under is remanded. FINDINGS OF FACT 1. For the period on appeal, the Veteran’s service-connected Meniere’s disease was manifested by hearing loss, tinnitus, and vertigo; he does not suffer from staggering or a cerebellar gait and separate evaluations for vertigo, tinnitus, and hearing loss would not have resulted in a higher evaluation for the Veteran. 2. Throughout the period of the claim, the Veteran’s hearing impairment has been no worse than Level XI in the right ear and Level VI in the left ear. 3. The Veteran’s service-connected tinnitus has been assigned a 10 percent rating, which is the maximum schedular rating authorized under 38 C.F.R. § 4.87, Diagnostic Code 6260. 4. For the period since May 22, 2013, the Veteran’s Meniere’s disease has been manifested by occasional dizziness, without evidence of an occasional staggering. 5. For the period prior to May 22, 2013, the Veteran had a combined disability rating of 30 percent for service connected disabilities that did not prevent him from securing and following substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for an initial evaluation in excess of 30 percent for Meniere’s disease, from April 26, 2007, through May 22, 2013, have not been met. 38 U.S.C. §§ 1155, 5107(b) (2012); 38 C.F.R. §§ 3.102, 4.1-4.10, 4.21, 4.87, Diagnostic Codes 6100, 6204, 6205, 6260 (2017). 2. The criteria rating in excess of 50 percent for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.85, Diagnostic Code 6100 (2017). 3. The criteria for a rating in excess of 10 percent for Meniere’s disease, since May 22, 2013, have not been met. 38 U.S.C. § 1155, 5107 (2012); C.F.R. § 4.85, Diagnostic Code 6204. 4. There is no legal basis for the assignment of an initial rating in excess of 10 percent for tinnitus. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.10, 4.87, Diagnostic Code 6260 (2017); Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006). 5. The criteria for entitlement to TDIU have not been met for the period prior to May 22, 2013. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.3, 4.16 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service with the US Air Force from January 1959 to November 1962. In April 2015, the Board remanded the issues on appeal for further development. The development has been accomplished and adjudication over the matter can proceed. As the Veteran is requesting increased rating claims for many service-connected conditions, the Board has inferred a claim for SMC housebound as well as for aid and attendance. See Akles v. Derwinski, 1 Vet. App. 118, 121 (1991); see also Bradley v. Peake, 22 Vet. App. 280 (2008) (finding that SMC “benefits are to be accorded when a Veteran becomes eligible without need for a separate claim”); Buie v. Shinseki, 24 Vet. App. 242, 250-51 (2011) (requiring the Board to consider awarding SMC at the housebound rate if a veteran meets the requisite schedular or extraschedular criteria). Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. 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 for that rating. 38 C.F.R. § 4.7. In considering the severity of a disability, it is essential to trace the medical history of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Consideration of the whole recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). While the regulations require review of the recorded history of a disability by the adjudicator to ensure a more accurate evaluation, the regulations do not give past medical reports precedence over the current medical findings. Where an increase in the disability rating is at issue, the present level of the veteran’s disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, where, as here, a veteran appeals the initial rating assigned for a disability when a claim for service connection for that disability has been granted, evidence contemporaneous with the claim for service connection and with the rating decision granting service connection would be most probative of the degree of disability existing at the time that the initial rating was assigned and should be the evidence “used to decide whether an [initial] rating on appeal was erroneous....” Fenderson v. West, 12 Vet. App. 119, 126 (1999). If later evidence obtained during the appeal period indicates that the degree of disability increased or decreased following the assignment of the initial rating, “staged” ratings may be assigned for separate periods of time based on facts found. Id.; see also Hart v. Mansfield, 21 Vet. App. 505 (2007) (VA’s determination of the “present level” of a disability may result in a conclusion that the disability has undergone varying and distinct levels of severity throughout the entire time period the increased rating claim has been pending). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the weight of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). 1. Entitlement to a higher initial rating for Meniere’s disease, hearing loss, and tinnitus, rated as 30 percent disabling from April 26, 2007, through May 22, 2013. The Veteran’s Meniere’s disease was evaluated under Diagnostic Code 6205. See 38 C.F.R. § 4.87, Diagnostic Code 6205. The Board notes that Diagnostic Code 6205 provides that Meniere’s disease can either be rated under that code or by separately rating vertigo (under Diagnostic Code 6204), hearing impairment (under Diagnostic Code 6100) and tinnitus (under Diagnostic Code 6260); 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. For the period on appeal, the Board will consider whether the Veteran would be entitled to a higher rating under Diagnostic Code 6205. The Board will also consider whether during this period the Veteran would have received a higher rating if each disability to include hearing loss, vertigo and tinnitus, had been compensated separately. The highest evaluation for tinnitus is 10 percent under Diagnostic Code 6260. The highest rating for hearing loss under DC 6100 is 100 percent and the highest rating for vertigo under Diagnostic Code 6204 is 30 percent. First, the Board will evaluate whether a higher rating is warranted under Diagnostic Code 6205. The Veteran has asserted entitlement to a rating in excess of 30 percent for Meniere’s disease, hearing loss, and tinnitus for the period from April 26, 2007, through May 22, 2013. During this period the Veteran’s disability was rated as 30 percent disabling under 38 C.F.R. § 4.86, Diagnostic Code 6205. Under this Diagnostic Code, the Veteran is entitled to receive a 60 percent rating if there is evidence of hearing impairment with attacks of vertigo and cerebellar gait occurring more than once weekly, 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. A review of the Veteran’s records reveals results from a VA Audio examination dated March 2008, noting that the Veteran has attacks of vertigo three to four times a week, with nausea and vomiting at least once a week, with bad spells. The examiner went on to note that the Veteran has severe bilateral hearing that is worse in the right ear and bilateral daily tinnitus. The examiner also noted that when the Veteran is dizzy he has significant balance and gait problems and is unable to drive. The Veteran also had a VA examination in May 2013. At this time the Veteran told the examiner that her experiences intermittent tinnitus described variously as “roaring”, “ringing”, or “bells” occurring 2-3 times per day lasting for 5-30 minutes each episode except when associated with an episode of vertigo when the roaring may last for a much longer time. The Veteran indicated that the tinnitus that occurs with episodes of vertigo are very difficult to deal with. While there is evidence that the Veteran has vertigo, there is also evidence that the Veteran had an unsteady gait from a January 2009 treatment note. But a June 2009 VA treatment note states that no gait abnormalities were present. In April 2010, a steady gait was noted. In March 2011, it was noted that the Veteran’s gait was stable, but he has difficulty with turning and prefers to hold on to something, and it was noted that he has impaired balance on Romberg testing. As such, the Board finds that there is only one indication in January 2009 that the Veteran has an unsteady gait, but every other evaluation since that time has noted that the Veteran’s gait is steady. As such, the Board finds that entitlement to a rating of 60 percent under Diagnostic Code 6205 is not warranted, as the evidence does not show that the Veteran has hearing impairment with attacks of vertigo and cerebellar gain occurring more than once weekly. Therefore, the Board finds that an increased evaluation is not warranted under Diagnostic Code 6405, is not warranted. The Board will now evaluate whether the Veteran would be entitled to a higher rating during this period if he were evaluated separately. Under Diagnostic Code the Veteran would have received a 10 percent rating for tinnitus. In regards to the Veteran’s hearing loss during this period. The Veteran’s hearing was not tested by VA at his examination in March 2008, the VA examiner noted that the Veteran’s audiological results were incomplete. However, initial testing indicated bilateral hearing loss that was worse in the left ear. As evidence to support his claim, the Veteran submitted private audiological testing results dated November 2007. A note from Dr. J.M. notes that the Veteran has bilateral hearing loss that is more severe on the left than the right. Dr. J.M notes do not provide numerical audiological testing results, but state that the Veteran’s word recognition was higher on the left than the right. In an March 2008, the RO granted left ear hearing loss and granted the Veteran a non-compensable rating for hearing loss. During this period, the Veteran was only service connected for left ear hearing loss. Where, as here, impaired hearing is service-connected in only one ear, in order to determine the percentage evaluation from Table VII, the non-service-connected ear will be assigned a Roman Numeral designation for hearing impairment of I, subject to the provisions of 38 C.F.R. § 3.383. 38 C.F.R. § 4.85(f). Special consideration is given to paired organs. Compensation is payable as if both disabilities were service-connected where there is hearing impairment in one ear compensable to a degree of 10 percent or more as a result of service-connected disability, and hearing impairment as a result of nonservice-connected disability that meets the provisions of 38 C.F.R. § 3.385 in the other ear, provided the nonservice-connected disability is not the result of the veteran’s own willful misconduct. 38 C.F.R. § 3.383 (a)(3). As such, in order for the Veteran to receive a compensable evaluation of 10 percent, at the most, under this DC, it would have to be shown the Veteran’s hearing acuity in his left ear is a level X. In order for the Veteran’s to have a level X in his left ear, it would have to be shown that his speech discrimination score is 50 or less with a puretone average of 98 or above. The Veteran’s submitted private treatments from dated March 2006 note that speech discrimination in the left ear was 92 percent. As such a compensable hearing evaluation during this period was not warranted. In regards to a separate rating for vertigo under Diagnostic Code 6204, the highest evaluation possible is 30, if it is shown that the Veteran has dizziness and occasional staggering. There is one treatment note from January 2009, that mentions the Veteran has an unsteady gait. However, a June 2009 VA treatment note states that no gait abnormalities were present. In April 2010, a steady gait was noted. In March 2011, it was noted that the Veteran’s gait was stable, but he has difficulty with turning and prefers to hold on to something, and it was noted that he has impaired balance on Romberg testing. As such, the Board finds that there is only one indication in January 2009 that the Veteran has a steady gait, but every other evaluation since that time has noted that the Veteran’s gait is steady. As such, the Board finds that a 30 percent evaluation under this diagnostic code is not warranted, and the Veteran’s condition during this period more closely approximated a 10 percent rating for occasional dizziness. After careful consideration, the evidence does not a higher evaluation for Meniere’s disease with tinnitus and hearing loss. The evidence does show that the Veteran was entitled to receive a higher rating under DC 6205, that if all three disabilities were rated separately. As such, the Board finds that the evidence does not show that a higher evaluation for Meniere’s disease with vertigo, hearing loss, and tinnitus, rated as 30 percent disabling from April 26, 2007, through May 22, 2013 is warranted. Further, the Board finds that separate compensable ratings for vertigo, hearing loss, and tinnitus during this period, would not have been more favorable to the Veteran, during this period on appeal. Entitlement to a higher initial rating for bilateral hearing loss rated as 50 percent disabling from May 22, 2013. The Veteran asserts entitlement to a rating in excess of 50 percent for his service connected hearing loss since May 22, 2013. Disability ratings for a hearing loss disability are derived from the mechanical application of the rating schedule to the numeric designations resulting from audiometric testing. See Lendenmann v. Principi, 3 Vet. App. 345 (1992). The rating schedule establishes 11 auditory hearing acuity levels based upon average pure-tone thresholds and speech discrimination. See 38 C.F.R. § 4.85 (2017). An examination for hearing impairment for VA purposes must be conducted by a state-licensed audiologist and must include a controlled speech discrimination test (Maryland CNC) and a pure tone audiometry test. Examinations will be conducted without the use of hearing aids. 38 C.F.R. § 4.85 (a) (2017). Table VI, “Numeric Designation of Hearing Impairment Based on Puretone Threshold Average and Speech Discrimination,” is used to determine a Roman numeral designation (I through XI) for hearing impairment based on a combination of the percent of speech discrimination (horizontal rows) and the pure tone threshold average (vertical columns). The Roman numeral designation is located at the point where the row and column intersect. 38 C.F.R. § 4.85 (b) (2017). Table VIa, “Numeric Designation of Hearing Impairment Based Only on Puretone Threshold Average,” is used to determine a Roman numeral designation (I through XI) for hearing impairment based only on pure tone threshold average. Table VIa is used when the examiner certifies that the use of the speech discrimination test is not appropriate due to language difficulties, inconsistent speech discrimination scores, etc., or when indicated under the provisions of § 4.86. 38 C.F.R. § 4.85 (c) (2017). “Pure-tone threshold average” as used in Tables VI and VIa is the sum of the pure tone thresholds at 1000, 2000, 3000 and 4000 Hertz and divided by four. This average is used in all cases (including those under § 4.86) to determine a Roman numeral designation from Tables VI and VIa. 38 C.F.R. § 4.85 (d) (2017). Table VII, “Percentage Evaluations of Hearing Impairment,” is used to determine the percentage evaluation by combining the Roman numeral designations for hearing impairment in each ear. The horizontal rows represent the ear having the better hearing and the vertical columns represent the ear having the poorer hearing. The percentage evaluation is located at the point where the row and the column intersect. 38 C.F.R. § 4.85 (e) (2017). Provisions for evaluating exceptional patterns of hearing impairment are as follows: (a) When the pure-tone thresholds at each of the four specified frequencies (1000, 2000, 3000 and 4000 Hertz) are 55 decibels or more, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIa, whichever results in the higher numeral. Each ear will be evaluated separately; (b) When the pure-tone thresholds are 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIa, whichever results in the higher numeral; the numeral will then be elevated to the next higher Roman numeral. Each ear will be evaluated separately. 38 C.F.R. § 4.86 (2017). The record shows the Veteran underwent audiological testing in May 2013. On examination, pure-tone thresholds were as follows: Hertz 1000 2000 3000 4000 Avg. Right 85 75 85 105 88 Left 60 60 75 80 69 Speech discrimination was 8 percent in the right ear and 68 percent in the left ear. Applying the values above to Table VI results in a Level XI Roman numeral designation for the right ear and a Level VI Roman numeral designation for the left ear. Application of these Roman numeral designations to Table VII again results in a 50 percent rating. See 38 C.F.R. § 4.86 (2017). The Board acknowledges that the Veteran’s most recent hearing examination was in 2013; however, there is no indication in the record that the May 2013 examination report is too remote to accurately reflect the current severity of the Veteran’s bilateral hearing loss because there is no report of worsening since that time. In reaching its decision, the Board has duly considered the benefit-of-the-doubt doctrine. However, the Board has determined a preponderance of the evidence weighs against the Veteran’s claim. Accordingly, the doctrine is inapplicable and the claim must be denied. 2. Meniere’s Disease since May 22, 2013. The Veteran has asserted entitlement to a disability rating in excess of 10 percent for Meniere’s disease. Under Diagnostic Code 6204, the Veteran could receive a higher rating if it is shown that he has dizziness with occasional staggering. At the Veteran’s hearing examination in May 2013, it was noted that he had dizziness. A review of his VA treatment notes from February 2011 to May 2015 note several complaints for dizziness. However, there is no mention of an unsteady gait. A mental health examiner noted a steady gait in March and May 2011. A mental health evaluation in May 2013 noted a steady gait. In January 2015, the Veteran told a VA physician that he no longer experienced headaches, dizziness or “brain zaps”, as described by the Veteran. The Board finds that the evidence does not support an evaluation in excess of 10 for Meniere’s disease for the period since May 22, 2013, as there is no evidence of occasional staggering. 3. Tinnitus The Veteran has asserted entitlement to a higher initial rating for his service-connected tinnitus. However, in August 2016, the RO granted service connection for tinnitus and assigned it the maximum schedular rating available for tinnitus under 38 C.F.R. § 4.87, Diagnostic Code 6260. Moreover, in Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006), the United States Court of Appeals for the Federal Circuit (Federal Circuit) concluded that the Court erred in not deferring to the VA’s interpretation of its own regulations, 38 C.F.R. § 4.25 (b) and 38 C.F.R. § 4.87, Diagnostic Code 6260, which limits a veteran to a single disability rating for tinnitus, regardless whether the tinnitus is unilateral or bilateral. 4. Extra Schedular In exceptional cases, an extraschedular rating may be provided. 38 C.F.R. § 3.321 (2017). The Court has set out a three-part test, based on the language of 38 C.F.R. § 3.321 (b)(1), for determining whether a Veteran is entitled to an extraschedular rating: (1) the established schedular criteria must be inadequate to describe the severity and symptoms of the claimant’s disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extraschedular disability rating must be in the interest of justice. Thun v. Peake, 22 Vet. App. 111 (2008), aff’d, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). However, the Board finds that the evidence does not show such an exceptional disability picture that the available schedular evaluation for the Veteran’s bilateral hearing loss and tinnitus is inadequate. A comparison between the level of severity and symptoms of the Veteran’s tinnitus with the established criteria shows that the rating criteria reasonably describe his disability levels and symptomatology. In short, there is nothing in the record to indicate that the Veteran’s tinnitus causes impairment with employment over and above that contemplated in the assigned schedular ratings. The Board, therefore, has determined that referral of these issues for extraschedular consideration pursuant to 38 C.F.R. 3.321 (b)(1) is not warranted at any time during the pendency of the appeal. The Veteran’s claim was sent to the Director, Compensation Service, for extraschedular consideration based on the collective impact of multiple service-connected disabilities. In May 2013, the Veteran’s claim was sent for an advisory opinion on whether extra-schedular was warranted under 38 C.F.R. § 4.16 (b) and 3.321(b)(1) prior to May 22, 2013. It was noted in the advisory opinion that prior to May 22, 2013, the Veteran was service connected for Meniere’s syndrome at 30 percent; tinnitus at 10 percent; left ear hearing loss at 0 percent; and commuted left malar fracture at 0 percent. The combined evaluation at this time was 40 percent. The claimed TDIU having stopped working in August 2007 as a truck driver due to the impact of his Meniere’s disease and hearing loss. The Director concluded, after reviewing the totality of the evidence, that extra-schedular entitlement to TDIU due to the rating schedule being impractical or that the overall collective impact of the Veteran’s service-connected disabilities warrants entitlement to TDIU prior to May 2013. The advisory opinion specifically noted the presence of Meniere’s syndrome, left ear hearing loss, and tinnitus. Hearing loss was noted to be mild. It was found that the Veteran’s ear condition hearing loss, does not pose a unique set of circumstances that renders the rating schedule impractical. Lastly, it was found that there were no service-connected disabilities individually or collectively, as the sole reason for the Veteran’s unemployability, as such, entitlement to extra-schedular TDIU is not warranted prior to May 22, 2013. The Board does not that the Veteran stated at his March 2008 hearing that he had not worked since 1991 due to his service-connected disabilities. In May 2013, the Veteran stated that his difficulty understanding speech and his dizziness forced him to retire from his job as a truck driver. The Board also notes that the Veteran was service connected in March 2008 for left ear hearing loss, rated as non-compensable and tinnitus, rated as 10 percent disabling. Accordingly, even though the Veteran stated that he would not be able to continue his work as a truck driver due to his ear disability; there is no evidence, either medical or lay, that the Veteran was unable to obtain sedentary employment during this period. The Board finds no evidence upon which to grant an extra-schedular evaluation for the period prior to May 22, 2013. In reaching the above conclusions, the Board also considered the doctrine of reasonable doubt. 38 U.S.C. § 5107 (b). However, as the preponderance of the evidence is against the claim, the doctrine is not for application. REASONS FOR REMAND As to the Veteran’s claim for special monthly compensation the Board notes that the Veteran was provided an examination for housebound status, but not for SMC based on the need for regular aid and attendance of another person. As such, the Board is remanding this claim to obtain an examination and opinion regarding the Veteran’s need for regular aid and attendance. The matters are REMANDED for the following action: 1. Notify the Veteran that he may submit lay statements from himself and from other individuals regarding his need for regular aid and attendance and/or housebound status. The Veteran is invited to submit statements regarding the impact of his service-connected disabilities on his activities of daily living and whether he is confined to his home due to his service-connected conditions. 2. Additionally, notify the Veteran that he may submit a VA DBQ filled out by a private provider or other care-giver addressing the nature and severity of the Veteran’s service-connected disabilities and his need for regular aid and attendance and/or housebound status. 3. Schedule the Veteran for a VA examination to assess the nature and severity of his service-connected disabilities and the impact of these disabilities on his   activities of daily living and whether he can leave his home. STEVEN D. REISS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. Anderson