Citation Nr: 20076516 Decision Date: 12/02/20 Archive Date: 12/02/20 DOCKET NO. 16-21 365 DATE: December 2, 2020 ORDER Entitlement to a compensable disability rating for bilateral hearing loss for the period prior to May 28, 2019 is denied. Entitlement to a disability rating in excess of 10 percent for vertigo for the period prior to May 28, 2019 is denied. Entitlement to a disability rating in excess of 30 percent for Meniere’s syndrome starting May 28, 2019 is denied. FINDINGS OF FACT 1. For the period prior to May 28, 2019, the Veteran’s bilateral hearing loss has manifested with no greater than Level I in the right ear and Level II in the left ear. 2. For the period prior to May 28, 2019, the Veteran’s vertigo was manifest by occasional episodes of dizziness treated with rest and medication with no evidence of staggering. 3. The Veteran’s Meniere’s syndrome is not manifested by the presence of cerebellar gait. CONCLUSIONS OF LAW 1. The criteria for a compensable disability rating for service-connected bilateral hearing loss for the period prior to May 28, 2019 have not been satisfied. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.85, 4.86, Diagnostic Code 6100. 2. The criteria for a disability rating in excess of 10 percent for service-connected vertigo for the period prior to May 28, 2019 have not been satisfied. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.87, Diagnostic Code 6204. 3. The criteria for a disability rating in excess of 30 percent for service-connected Meniere’s syndrome have not been satisfied. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.87, Diagnostic Code 6205. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1962 to August 1966. This appeal is from a November 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In June 2019, the Veteran testified at a hearing before the undersigned Veterans Law Judge. In November 2019 the Board remanded the appeal for additional examination. The Veteran is service connected for a variety of disabilities related to his ears and hearing. Service connection for bilateral hearing loss at a noncompensable (0%) disability rate has been in effect since October 1976. Service connection for vertigo being associated with chronic otitis media of the left ear at a 10 percent disability rating has been in effect since December 2009. The Veteran initiated the current claim for increased ratings for these disabilities in November 2012. During the development of the appeal for increased ratings for his hearing loss and vertigo, these disability ratings were combined, along with his 10 percent rating for tinnitus into a single 30 percent rating for Meniere’s syndrome effective May 28, 2019. The Board will address all three ratings below. Disability ratings are determined by evaluating the extent to which a Veteran’s service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Different ratings may be assigned for different periods of time for the same disorder if the facts show distinct time periods with different levels of disability. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). If two ratings are potentially applicable, the higher rating will be assigned if the disability more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. See 38 C.F.R. § 4.3. Bilateral Hearing Loss Ratings of defective hearing are based on organic impairment of hearing acuity as measured by the results of controlled speech discrimination testing together with the average hearing threshold level as measured by pure tone audiometry tests in the frequencies 1000, 2000, 3000 and 4000 Hertz. 38 C.F.R. § 4.85. Under 38 C.F.R. § 4.85, 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 and the pure tone threshold average. The Roman numeral designation is located at the point where the percentage of speech discrimination and pure tone average intersect. 38 C.F.R. § 4.85(b). The pure tone threshold average is the sum of the pure tone thresholds at 1000, 2000, 3000, and 4000 Hertz, divided by 4. Table VII, Percentage Evaluation for Hearing Impairment, is used to determine the rating by combining the Roman numeral designations for hearing impairment of each ear. The horizontal rows represent the ear having the better hearing and the vertical columns the ear having the poor hearing. The disability rating is located at the point where the rows and column intersect. 38 C.F.R. § 4.85(e). When the pure tone threshold at each of the four specified frequencies of 1000, 2000, 3000 and 4000 Hertz is 55 decibels or more, the Roman numeral designation for hearing impairment will be determined from either Table VI or Table VIA, whichever results in the higher numeral. When the pure tone threshold is 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz, the Roman numeral designation for hearing impairment will be determined from either Table VI or Table VIA, whichever results in the higher numeral. That numeral will then be elevated to the next higher Roman numeral. Each ear will be evaluated separately. 38 C.F.R. § 4.86. Table VIA can also be used when the examiner certifies that use of the speech discrimination test is not appropriate because of language difficulties, inconsistent speech discrimination scores, etc. 38 C.F.R. § 4.85(c). In August and November 2012, the Veteran filed claims for an increased rating for his bilateral hearing loss. Prior to the appeal period, a July 2010 letter from a private primary care physician described the Veteran as being “deaf.” An August 2010 letter from a plastic surgeon indicated that the Veteran had “total hearing impairment.” However, the most recent valid VA audiology Compensation and Pension examination conducted in August 2009 revealed hearing loss at a noncompensable disability level. In February 2010 a VA audiology examination of the Veteran was attempted. Results were not reported due to poor reliability because pure tone averages were not in agreement with speech reception thresholds; final speech reception thresholds were in the normal range while the pure tone averages were in the mild hearing loss range and were about 10 to 15 dB poorer than those obtained in the prior examination in August 2009. With this pre-appeal period background showing the Veteran’s service-connected hearing loss at a noncompensable disability level the Veteran filed his current claim for an increased rating for hearing loss in August 2012. The Veteran submitted a private audiogram report dated July 2012. This report contains pure tone findings which do not reveal a pattern of exceptional hearing impairment which would permit rating on the pure tone findings alone under 38 C.F.R. § 4.86. Speech discrimination testing was performed using a test other than the Maryland CNC. As a result, the findings cannot be used. 38 C.F.R. § 4.85(a). The Board does note that the pure tone findings indicated on this report are consistent with those on the most recent valid VA examination report in August 2009. In September 2013, a VA audiological evaluation was conducted. Pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 30 40 70 75 54 LEFT 40 35 55 65 46 Speech audiometry revealed speech recognition ability of 96 percent in the right ear and of 88 percent in the left ear. These audiometric results translate into level I for the right ear and level II for the left ear. The Veteran reported that he has difficulty in general conversation, and turns the TV up loud, even with his hearing aids. He has difficulty hearing and localizing sounds when he is at work. This level of hearing warrants the assignment of a noncompensable disability rating. In February 2020, the most recent VA audiological evaluation was conducted. Pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 45 55 85 80 66 LEFT 55 55 65 70 61 These results show an exceptional hearing loss in the left ear, however rating on the regular table, Table VI, still results in a higher numeral for the left ear. See 38 C.F.R. § 4.86. Speech audiometry revealed speech recognition ability of 80 percent in the right ear and of 80 percent in the left ear. These audiometric results translate into level IV for the right ear and level IV for the left ear. The preponderance of the evidence is against the assignment of a compensable disability rating for the Veteran’s bilateral hearing loss for the period prior to May 28, 2019. The findings from the September 2013 VA audiology examination reveal that the Veteran had hearing loss levels which did not meet the criteria for the assignment of a compensable disability rating. Accordingly, entitlement to a compensable disability rating for bilateral hearing loss for the period prior to May 28, 2019 is not warranted and the appeal is denied. The Board understands that the findings of the 2020 VA audiology examination do show results warranting the assignment of a 10 percent disability rating. See 38 C.F.R. §§ 4.85, Diagnostic Code 6100. However, that is after May 28, 2019 when the Veteran’s hearing loss was considered in rating of his Meniere’s syndrome, and is addressed in that section below. Vertigo The Veteran is service connected for vertigo associated with chronic left ear otitis media at a 10 percent disability rating for the period from December 2009 to May 28, 2019 at which time his symptoms of dizziness and vertigo were considered under his newly assigned rating for Meniere’s syndrome. For the period in question the Veteran’s vertigo was rated under Diagnostic Code 6204 for peripheral vestibular disorders. A 10 percent rating is warranted for occasional dizziness. A 30 percent rating contemplates dizziness and occasional staggering. 38 C.F.R. § 4.87, Diagnostic Code 6204. 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. 38 C.F.R. § 4.87, Diagnostic Code 6204, Note. In September 2013 a VA examination of the Veteran was conducted. The Veteran was noted to have a diagnosis of vertigo associated with left ear otitis media and to be prescribed medication to treat his vertigo. The Veteran reported taking his medication “once in a while.” He reported when he got symptoms of dizziness he would “lay down and it kind of dissipates, lasts sometimes hours, sometimes little more than a minute. I think I’ve had episodes about 2 or 3 times a month.” Physical examination was essentially normal with no abnormal cerebellar or vestibular signs. The Veteran’s gait was normal, and no staggering was present. While the Veteran testified to feeling off balanced, he did not endorse a staggering gait. For the period prior to May 28, 2019 the Veteran’s vertigo was manifested by occasional episodes of dizziness which were treated with rest and medication. There is no evidence of staggering, warranting the assignment of a higher rating. The preponderance of the evidence is against the claim for a disability rating in excess of 10 percent for vertigo for the period prior to May 28, 2019, and the appeal is denied. Meniere’s Syndrome Effective May 28, 2019 the RO assigned a 30 percent disability rating for Meniere’s syndrome under Diagnostic Code 6205; at the same time separate disability ratings for the Veteran’s tinnitus (10%), hearing loss (0%), and vertigo (10%) were discontinued as those disabilities were considered in the rating assigned for Meniere’s syndrome. Meniere’s syndrome (endolymphatic hydrops) is rated under Diagnostic Code 6205. A 30 percent rating is assigned for hearing impairment with vertigo less than once a month, with or without tinnitus. A 60 percent rating contemplates hearing impairment with attacks of vertigo and cerebellar gait occurring from one to four times a month, with or without tinnitus. A 100 percent rating is warranted 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. The rating code instructs to 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. 38 C.F.R. § 4.87, Diagnostic Code 6205, Note. A private medical report dated May 28, 2019 reveals that the Veteran reported experiencing intermittent vertigo spells since 2012, which were moderate to severe and typically associated with nausea and imbalance. Vestibular testing revealed significant left-sided peripheral vestibular deficit consistent with left-sided vestibular Meniere’s syndrome. This is the initial diagnosis of Meniere’s syndrome. In February 2020 the most recent VA examination of the Veteran was conducted. The Veteran reported episodes of spinning sensation in the head (vertigo) associated with feeling of fullness in the right ear and associated sometimes with worsening of the already existing chronic tinnitus. He reported the frequency of vertigo episodes being 6-7 episodes per month which vertigo last about 15-30 minutes and feels better by not moving his head or by sitting down. No evidence of loss of consciousness, motor impairment, headache, diplopia, or dysarthria were reported. Physical examination of the Veteran’s ears was normal. Gait was normal and as was limb coordination and Romberg testing. The Veteran reported during his episodes of vertigo he had an inability to drive, cook, or do yard work. Effective May 28, 2019, the date of private medical report first indicating a diagnosis of Meniere’s syndrome, the RO assigned a 30 percent disability rating for Meniere’s disease and at the same time discontinued separate disability ratings for the Veteran’s tinnitus (10%), hearing loss (0%), and vertigo (10%) because they were now considered in the rating assigned for Meniere’s syndrome. The RO indicated that the assigment of a 30 percent for Meniere’s disease was more than the combined ratings for the three disabilities individually. The Board notes that the findings of the February 2020 VA audiology examination would warrant the assigment of a 10 percent disability rating. However even if the Veteran’s tinnitus, hearing loss, and vertigo were all rated at 10 percent each they would not result in a combined disability rating greater than the 30 percent assigned as a single rating for Meniere’s syndrome. See 38 C.F.R. § 4.25, Table I – Combined Ratings Table. The preponderance of the evidence is against the assignment of a disability rating in excess of 30 percent for the Veteran’s Meniere’s syndrome. While the Veteran reports having episodes of vertigo or dizziness up to 7 times a month, these are short and transient episode and there is no evidence that he has cerebellar gait occurring with the attacks. Accordingly, the appeal is denied. Nathan Kroes Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Havelka, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.