Citation Nr: 21064396 Decision Date: 10/20/21 Archive Date: 10/20/21 DOCKET NO. 08-36 673 DATE: October 20, 2021 ORDER Throughout the appeal, a disability rating of 60 percent, and no higher, prior to June 13, 2020 for bilateral hearing loss with tinnitus and Meniere's disease is granted. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) as of July 22, 2007 is granted. New and material evidence has been received and the claim of service connection for bilateral ruptured tympanic membranes, previously claimed as bilateral ruptured eardrums, is reopened. REMANDED Entitlement to service connection for bilateral ruptured eardrums is remanded. FINDINGS OF FACT 1. Throughout the appeal prior to June 13, 2020, the Veteran's bilateral hearing loss with tinnitus and Meniere's disease was manifest by impaired hearing, tinnitus, and attacks of vertigo at least once per month. 2. It is reasonably shown that the Veteran's service-connected disability precludes him from securing or following a substantially gainful occupation. 3. The Veteran did not perfect an appeal of the January 2000 rating decision and as such it became final. 4. New and material evidence has been received to reopen the matter of service connection for bilateral ruptured tympanic membranes, previously claimed as bilateral ruptured eardrums. CONCLUSIONS OF LAW 1. The criteria for a disability rating of 60 percent, and no higher, prior to June 13, 2020 for bilateral hearing loss with tinnitus and Meniere's disease have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.87 Diagnostic Code 6205. 2. The criteria for a TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16, 4.19. 3. New and material evidence having been received, the criteria to reopen the claim for service connection for bilateral ruptured tympanic membranes, previously claimed as bilateral ruptured eardrums, have been met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from November 1990 to June 1991, to include service in Southwest Asia. These matters come before the Board of Veterans' Appeals (Board) on appeal from July 2009, August 2009, and July 2016 ratings decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana. The Veteran presented sworn testimony at a hearing before the undersigned Veterans Law Judge in October 2015 and in July 2021. The Veteran previously submitted a claim of entitlement to service connection for bilateral ruptured eardrums which was denied in a January 2000 rating decision on the basis that there was no evidence of an in-service rupture of his eardrums. The January 2000 rating decision became final because the Veteran did not submit a Notice of Disagreement or new evidence in connection with the claims within the appeal period. See 38 C.F.R. § 3.156(b). The Veteran was afforded a VA ear disease examination in June 2011. The Veteran reported that in 1968 or 1968 he was seen for perforated ear drums that occurred due to barotrauma from artillery at National Guard summer camp at Fort Chaffee. He reported persistent hearing loss for 6 months after which he had tinnitus that is constant. Bilateral tympanosclerosis and monomeric eardrum were noted as being "consistent with previous perforation". Thus, the Board finds that new and material evidence has been received sufficient to reopen his previously denied claim. 38 C.F.R. § 3.156(a); Shade v. Shinseki, 24 Vet. App. 110, 117-18 (2010); Justus v. Principi, 3 Vet. App. 510, 513 (1992). 1. Entitlement to a disability rating in excess of 30 percent prior to June 13, 2020 for bilateral hearing loss with tinnitus and Meniere's disease. The Veteran contends that he is entitled to a disability rating in excess of 30 percent prior to June 13, 2020 for his bilateral hearing loss with Meniere's disease. The Veteran's bilateral hearing loss with Meniere's disease is evaluated under Diagnostic Code 6205 for Meniere's syndrome. Under Diagnostic Code 6205, a 30 percent evaluation is warranted for hearing impairment with vertigo less than once a month, with or without tinnitus; a 60 percent evaluation is warranted for hearing impairment with attacks of vertigo and cerebellar gait occurring from one to four times a month, with or without tinnitus; and a maximum 100 percent evaluation 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 (2020). Meniere's syndrome may be evaluated under Diagnostic Code 6025 or receive separate evaluations for vertigo (as a peripheral vestibular disorder), hearing impairment, and tinnitus, whichever method results in a higher overall evaluation. Id., at Note 1. However, an evaluation for hearing impairment, tinnitus, or vertigo with an evaluation under Diagnostic Code 6205 cannot be combined. Id. A January 2007 private audiological examination notes the Veteran has vertigo. A June 2008 VA treatment record notes the Veteran reported vertigo that is variable in frequency and duration that can last from 8 hours to 10 days. He further reported feeling as though he has "weights" in his ears. The Veteran was afforded a VA ear disease examination in June 2011. The Veteran reported having periodical episodes of vertigo that would last a few hours. He reported having aural fullness for which he had been treated with antihistamines. He stated the problem became worse after Desert Storm after which he was again diagnosed with Meniere's disease and eventually prescribed valium for treatment, as well as diet restriction and diuretics. Neither balance nor gait problems were noted. Upon examination, the external canal was normal. A diagnosis of Meniere's disease noted and that it had moderate to severe effects on the Veteran's activities of daily life. A December 2012 VA audiology treatment record notes the Veteran reported having difficulty hearing and understanding speech since 1968. He further reported chronic dizziness and having Meniere's disease. The Veteran was afforded a VA ear conditions examination in December 2015. The Veteran reported having vertigo 2 to 3 times per month and requires him to take valium. Constant bilateral tinnitus vertigo 1 to 4 times per month were noted vestibular conditions. Upon examination, normal ear canals and tympanic membranes were noted bilaterally. Normal gait was noted, but Romberg testing was positive for unsteadiness. A February 2018 VA treatment record notes the Veteran reported that he was diagnosed with Meniere's disease 1 to 2 years prior and that his symptoms have decreased in frequency and intensity since his initial episode roughly 25 years prior. The Veteran reported having an episode of dizziness the prior month, and that his episodes are not as severe as they used to be. He reported episodes happen every 3 months and last about 10 minutes with true spinning vertigo. He further reported having imbalance with falling 3 days prior. He reported veering mostly to the left. The Veteran was afforded a VA ear conditions examination in July 2020. A diagnosis of Meniere's disease was noted. The Veteran reported having a problem with hearing and attacks of dizziness that started after both eardrums were ruptured due to artillery. He further reported the condition has worsened and that his dizziness hits him at times and will really upset his balance. He reported 2 to 3 episodes per week. Hearing impairment with attacks of vertigo and cerebellar gait and tinnitus were noted. Ear canal examinations were normal. The Veteran's gait was normal, but Romberg testing was positive for unsteadiness. The Veteran testified at the July 2021 Board hearing that he retired in 2007 because he kept getting dizzy when he would climb up ladders, requiring him to go back to his truck and go to sleep. He further stated that this would occur twice a week "when it was really bad". He elaborated that he would have these attacks twice a week during warm weather and once a week or every other week when the weather was cool. The Board notes that the Veteran is competent to report the symptoms he experiences and finds his statements to be credible. Layno v. Brown, 6 Vet. App. 465 (1994). Here, the evidence clearly shows that the Veteran's symptoms have waxed and waned throughout the entire period on appeal, but the Board finds that the evidence throughout the entire period on appeal shows that his hearing loss with Meniere's has manifested in impaired hearing, tinnitus, and attacks of vertigo at least once per month. As such, the Board finds that throughout the period on appeal, the Veteran's bilateral hearing loss more closely resembles the criteria for a 60 percent disability rating. 2. Entitlement to a TDIU. On September 9, 2017, VA received a VA Form 21-8940 in which the Veteran asserted that his Meniere's disease renders him unemployable. It is the established policy of the VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. A total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. Entitlement to a TDIU is based on an individual's particular circumstances. 38 C.F.R. § 4.16; Todd v. McDonald, 27 Vet. App. 79, 85-86 (2014). Thus, in adjudicating a TDIU claim, VA must take into account the individual veteran's education, training, and work history, but not his or her age or the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; see also, Todd, 27 Vet. App. at 85-86. The ultimate question of whether a Veteran is capable of substantial gainful employment is an adjudicatory determination, not a medical one. See, Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). A TDIU may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more service-connected disabilities, provided that one of those disabilities is ratable at 40 percent or more, and there is sufficient additional service-connected disabilities to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). In determining whether a veteran can secure and follow a substantially gainful occupation, attention must be given to: The veteran's history, education, skill, and training; Whether the veteran has the physical ability (both exertional and non-exertional) to perform the type of activities (e.g., sedentary, light, medium, heavy, or very heavy) required by the occupation at issue. Factors that may be relevant include, but are not limited to, the veteran's limitations, if any, concerning lifting, bending, sitting, standing, walking, climbing, grasping, typing, and reaching, as well as auditory and visual limitations; and Whether the veteran has the mental ability to perform the activities required by the occupation at issue. Factors that may be relevant include, but are not limited to, the veteran's limitations, if any, concerning memory, concentration, ability to adapt to change, handle workplace stress, get along with coworkers, and demonstrate reliability and productivity. Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). Due to the above decision, as of December 29, 2005, the Veteran has been service connected for bilateral hearing loss with tinnitus and Meniere's disease at 60 percent. As such, the Veteran has met the schedular requirement for TDIU at all times relevant to this appeal. The evidence of record shows the Veteran has 2 years of college education and worked as a service technician for a phone company from January 1972 until his retirement on July 21, 2007 and that he retired due to the effects of his Meniere's disease. Specifically, the Veteran testified and the July 2021 Board hearing that he stopped working because he had been working on ladders and was falling due to experiencing dizziness. He stated that he would have to go to his truck and usually fell asleep and was afraid he would get caught. He further stated that while his dizziness would only occur once every other week during the cold weather, in warm weather they could occur twice per week. Based on the above, the Board finds that the Veteran has been unable to secure and maintain substantially gainful employment due to the effects of his service-connected Meniere's disease. The evidence shows that he was a service technician and would need to work with ladders to be able to perform his job, and that his dizziness attacks would lead to hi falling from ladders, an obvious safety concern. The Board notes that the Veteran does not appear to have any job skills that would transfer to a sedentary position. In light of the evidence, the Board finds that the Veteran is unemployable due to his service-connected disabilities, and that a grant of TDIU is warranted as of July 22, 2007. Geib. REASONS FOR REMAND 1. Entitlement to service connection for bilateral ruptured eardrums is remanded. The Board notes that it is not clear from the evidence of record whether the Veteran's ruptured tympanic membranes are related to his service. Thus, the Veteran should be afforded a VA examination to determine the nature and etiology of his ruptured tympanic membranes. McClendon v. Nicholson, 20 Vet. App. 79, 81 (2006). The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination for his ruptured tympanic membranes, or residuals thereof. The examiner must review the claims file. 2. If a diagnosis cannot be provided but the Veteran's condition manifests in symptoms that cause functional impairment, then the examiner should consider them a "disability" for the purpose of providing the requested opinion below. The examiner is asked to provide a response to the following: Are ruptured tympanic membranes, or residuals thereof, at least as likely as not related to service, including barotrauma from artillery fire? It is not sufficient to base an opinion on a mere lack of documentation of complaints in the service or post-service treatment records. STEVEN D. REISS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Keeley, Brian 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.