Citation Nr: 21004655 Decision Date: 01/27/21 Archive Date: 01/27/21 DOCKET NO. 17-63 010 DATE: January 27, 2021 ORDER Entitlement to an initial disability rating in excess of 40 percent for bilateral hearing loss from March 23, 2016 to June 28, 2016 is denied. Entitlement to a disability rating of 100 percent for vertigo with impaired balance with hearing loss and tinnitus from June 28, 2016 through December 13, 2017 is granted. FINDINGS OF FACT 1. The May 2015 decision by the regional office became final in May 2016. 2. Affording the Veteran the benefit of the doubt, the Veteran’s vertigo with impaired balance with hearing loss and tinnitus was present prior to June 28, 2015. 3. The Veteran’s vertigo with impaired balance with hearing loss and tinnitus produced attacks of vertigo and cerebellar gait occurring more than once weekly with tinnitus. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 40 percent for bilateral hearing loss from March 23, 2016 to June 28, 2016 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.85, 4.86, Diagnostic Code 6100. 2. The criteria for a disability rating of 100 percent for vertigo with impaired balance with hearing loss and tinnitus from June 28, 2016 through December 13, 2017 have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.85, 4.86, Diagnostic Code 6100, Diagnostic Code 6204, Diagnostic Code 6205. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from November 1954 until his honorable discharge in November 1958. This appeal has been advanced on the Board of Veterans’ Appeals (Board) docket pursuant to 38 U.S.C. § 7107(a)(2); 38 C.F.R. § 20.900(c). These matters come before the Board on appeal from a September 2016 rating decision by the Denver, Colorado Regional Office (RO) of the United States Department of Veterans Affairs (VA). In March 2018, the Veteran testified at a videoconference Board hearing before the undersigned Veterans Law Judge (VLJ), sitting at the RO in Denver, Colorado. A transcript of the hearing has been associated with the record on appeal. In a May 2018 decision, the Board denied the Veteran’s claims for entitlement to an initial disability rating greater than 40 percent for bilateral hearing loss prior to June 28, 2016 and entitlement to a disability rating greater than 60 percent for bilateral hearing loss from June 28, 2016. The Veteran subsequently appealed the Board’s decision to the United States Cort of Appeals for Veterans Claims (Court). In a May 2019 Joint Motion Partial Remand (Motion), the parties to the appeal, found that the Board did not provide adequate discussion concerning the Veteran’s contention that vertigo was part of his hearing loss disability. While this matter was on appeal, specifically in December 2017, the Veteran applied for entitlement to service connection for vertigo and impaired balance. Thereafter, in a September 2018 rating decision, the RO granted the Veteran’s claim for entitlement to service connection for vertigo with impaired balance with hearing loss and tinnitus. A 100 percent disability rating was assigned, effective December 13, 2017. The matter, however, of the appropriate rating for hearing loss for the periods from March 23, 2016 to December 12, 2017 remain on appeal. In March 2020, the Board remanded the case to the RO for further development. Specifically, the Board directed the RO to provide an appropriate examination to determine the severity of the service-connected bilateral hearing loss during the period on appeal, specifically from March 23, 2016 to December 12, 2017 and to opine on the July 2012 and June 2016 private treatment notes in offering a retrospective opinion. In response, in July 2020, the RO obtained a VA examination that did not include the requested opinion(s). In October 2020, the RO obtained a retrospective opinion from the VA examiner. The Board finds that there has been substantial compliance with the Board’s previous remand directives regarding the issue(s) on appeal. Stegall v. West, 11 Vet. App. 268, 271 (1998). Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Schedule), found in 38 C.F.R. Part 4. The 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. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran’s favor. 38 C.F.R. § 4.3. 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. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of any disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Although the regulations do not give past medical reports precedence over current findings, the Board is to consider the Veteran’s medical history in determining the applicability of a higher rating for the entire period in which the appeal has been pending. Powell v. West, 13 Vet. App. 31, 34 (1999). Where entitlement to compensation has been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Where an appeal is based on an initial rating for a disability, however, evidence contemporaneous with the claim and the initial rating decision are most probative of the degree of disability existing when the initial rating was assigned and should be the evidence “used to decide whether an original rating on appeal was erroneous.” Fenderson v. West, 12 Vet. App. 119, 126 (1999). In either case, if later evidence 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. Fenderson, 12 Vet. App. at 126; Hart v. Mansfield, 21 Vet. App. 505 (2007) (noting that staged ratings are appropriate whenever the factual findings show distinct time periods in which a disability exhibits symptoms that warrant different ratings). When adjudicating a claim for an increased initial evaluation, the relevant time period is from the date of the claim. Moore v. Nicholson, 21 Vet. App. 211, 215 (2007), rev’d in irrelevant part, Moore v. Shinseki, 555 F.3d 1369 (2009). When adjudicating an increased rating claim, the relevant time period for consideration is the time period one year before the claim was filed. Hart, 21 Vet. App. at 509. Generally, the effective date of compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be on the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400. Under 38 U.S.C. § 5110(a), the effective date for awards in a Veteran’s disability compensation shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor. 38 U.S.C. § 5110(b)(2) provides an exception to this general rule: “The effective date of an award of increased compensation shall be the earliest date as of which it is ascertainable that an increase in disability had occurred, if application is received within one year from such date.” Thus, “the plain language of [section] 5110(b)(2) …only permits an earlier effective date for an increased disability compensation if that disability increased during the one-year period before the filing of the claim.” Thus, three possible dates may be assigned depending on the facts of an increased rating earlier effective date case: (1) If an increase in disability occurs after the claim is filed, the date that the increase is shown to have occurred (date entitlement arose) (38 C.F.R. § 3.400 (o)(1)); (2) If an increase in disability precedes the claim by a year or less, the date that the increase is shown to have occurred (factually ascertainable) (38 C.F.R. § 3.400 (o)(2)); or (3) If an increase in disability precedes the claim by more than a year, the date that the claim is received (date of claim) (38 C.F.R. § 3.400(o)(2)). See Gaston v. Shinseki, 605 F.3d 979, 982-84 (Fed. Cir. 2010); Harper v. Brown, 10 Vet. App. 125, 126 (1997). Prior to March 24, 2015, when VA amended its rules as to what constitutes a claim, a claim was a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 U.S.C. § 101 (30); 38 C.F.R. § 3.1 (p). The date of receipt shall be the date on which a claim, information or evidence was received by VA. 38 U.S.C. § 101 (30); 38 C.F.R. § 3.1 (r). Any communication or action, indicating intent to apply for one or more benefits under the laws administered by VA, from a claimant, his or her duly authorized representative, a Member of Congress, or some person acting as next friend of a claimant who is not sui juris may be considered an informal claim. Such informal claims must identify the benefit sought. 38 C.F.R. § 3.155. 1. Entitlement to an initial disability rating in excess of 40 percent for bilateral hearing loss from March 23, 2016 to June 28, 2016 The Veteran applied for service connection for bilateral hearing loss and tinnitus in September 2013. See September 24, 2013 Correspondence. This claim was denied in the May 2014 rating decision. The Veteran timely filed a notice of disagreement in April 2014. See April 2014 Notice of Disagreement (VA Form 21-0958). In May 2015, a Decision Review Officer granted the Veteran’s claims. The Veteran did not file a notice of disagreement and this decision became final in May 2016. Because the Veteran’s initial rating decision is final, the Veteran’s claim for a disability rating in excess of 40 percent prior to June 28, 2016 is denied. 2. Entitlement to a disability rating of 100 percent for vertigo with impaired balance with hearing loss and tinnitus from June 28, 2016 through December 13, 2017 The Veteran asserts that he is entitled to a disability rating in excess of 60 percent for his vertigo with impaired balance with hearing loss and tinnitus. The Board notes that during the period on appeal, the Veteran has applied for and was granted service connection with a 100 percent disability rating from December 13, 2017 for vertigo with impaired balance with hearing loss and tinnitus due to hearing impairment with attacks of vertigo and cerebellar gait occurring more than once weekly. The Board will not disturb this decision. As will be addressed in greater detail below, for this period on appeal, the Board has changed the Veteran’s diagnostic code from 6100 (hearing loss) to 6205 (Meniere’s syndrome). The Board notes that, as will be addressed in greater detail below, this change in Diagnostic Code also requires the RO to adjust the termination date for Diagnostic Code 6260 (Tinnitus) to June 27, 2016. The Veteran was afforded a VA examination in September 2018 concerning his claim for vertigo. The September 2018 VA examiner opined that the Veteran’s Vertigo is at least as likely as not (50 percent probability or greater) proximately due to or the result of the Veteran’s bilateral hearing loss noting that episodic vertigo arises in a person who has preexisting unilateral severe-to-profound sensorineural hearing loss in which vertigo arises from the poorer hearing ear and a contralateral form in which the aural symptoms arise from the better hearing ear. The September 2018 VA examiner noted that the record indicates a diagnosis of Meniere’s disease with symptoms that are not classic for Meniere’s disease. The Veteran was afforded a VA examination in July 2020 with a retrospective opinion provided in October 2020. The July 2020 VA examiner opined that the Veteran’s diagnoses have varied, including Meniere’s disease, benign paroxysmal positional vertigo, and labyrinthitis and that upon review of the Veteran’s prior records did not include a nexus opinion but did cite concomitant diagnoses and symptoms without specifying hearing loss and tinnitus as a cause for the condition(s). The July 2020 examiner noted that there was discussion that included an imbalance due to dramatic differences in hearing and that the Veteran presented with an acute change in 2012, which suggested a diagnosis of Meniere’s syndrome that involved significant decrease in the left hearing and associated dizziness occurring simultaneously with reports of dizziness when rolling to his left, while in bed. The Veteran was provided a magnetic resonance imaging (MRI) examination, which was negative for any lesion responsible for the change and that accepted medical knowledge provides that hearing loss and tinnitus do not cause dizziness. Finally, the July 2020 VA examiner opined that the acute change, with left sided physical symptoms strongly suggests acute onset of Meniere’s syndrome. The Board notes that although the Veteran was provided two VA examinations, the two examiners provided opposite nexus opinions. Affording the Veteran the benefit of the doubt, the Board will find that the positive nexus opinion is more probative. Evaluation of Meniere’s syndrome (endolymphatic hydrops) is provided for in Diagnostic Code 6205. 38 C.F.R. § 4.87A. Diagnostic Code 6205 provides that a 100 percent disability rating is warranted for hearing impairment with attacks of vertigo and cerebellar gait occurring more than once weekly, with or without tinnitus. A 60 percent disability rating is warranted for hearing impairment with attacks of vertigo and cerebellar gait occurring from one to four times a month, with or without tinnitus. A 30 percent disability rating is warranted for hearing impairment with vertigo less than once a month, with or without tinnitus. A Note for Diagnostic Code 6205 provides 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. The record indicates that the Veteran reports daily vertigo and that he must obtain assistance from his spouse for many activities, including but not limited to putting on and removing shoes; and getting into and out of bed. For the above reasons, affording the Veteran the benefit of the doubt, the Board finds that the Veteran is entitled to a 100 percent disability rating June 28, 2016 for vertigo with impaired balance with hearing loss and tinnitus. Because the Board has granted a 100 percent disability rating for the period on appeal due to his vertigo; an analysis in accordance of the Note for Diagnostic Code 6205 of his disability as a peripheral vestibular disorder), hearing impairment, and tinnitus is not warranted. The Board notes that the effective date of June 28, 2016 is the appropriate effective date for the increased disability rating because the Veteran’s increase in disability precedes the claim by more than a year, and therefore the date that the claim is received (date of claim) is the appropriate effective date. 38 C.F.R. § 3.400(o)(2). Although the Veteran did apply for an increase prior to the May 2015 rating decision becoming final, the Veteran did not appeal the May 2015 rating decision and it became final in May 2016 and was not appealed. M. Tenner Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G. Deemer, Associate 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.