Citation Nr: 21070044 Decision Date: 11/22/21 Archive Date: 11/22/21 DOCKET NO. 17-34 101 DATE: November 22, 2021 ORDER Entitlement to an increased rating, in excess of 60 percent, for Meniere's Disease, from October 22, 2012, is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) is granted. FINDINGS OF FACT 1. The Veteran has not exhibited cerebellar gait; his Meniere's disease has manifested with symptoms of hearing impairment with attacks of vertigo occurring more than once a week, at worst, with tinnitus. 2. The Veteran's service-connected disabilities have rendered him unable to secure and follow a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for an entitlement to an increased rating in excess of 60 percent for Meniere's disease, from October 22, 2012, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.87, Diagnostic Codes 6205. 2. The criteria for an entitlement to a total disability rating based on individual unemployability (TDIU) have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1999 to October 2005. These matters come before the Board of Veterans' Appeals (Board) on appeal from rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). With regards to TDIU, although the March 2019 Board remand indicated that the Veteran's TDIU claim was not before the Board, it has been reasonably raised as part of his for increased rating for Meniere's disease. See Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). It was subsequently considered by the RO and adjudicated in the most recent 2020 Supplemental Statement of the Case. Thus, the Board finds the issue of TDIU is properly before the Board and will address it further in detail below. The Veteran opted out from a Board hearing, as evidenced by his June 2017 substantive appeal. Having reviewed the record, the Board finds that there has been substantial compliance with the March 2019 Board remand directives, as an adequate VA examination has been obtained. Stegall v. West, Vet. App. 268, 270-71 (1998). Although additional relevant evidence has been associated with the claims file since the issuance of the most recent Supplemental Statement of the Case, the Veteran has recently submitted a written waiver of initial consideration by the Agency of Original Jurisdiction (AOJ). See October 2021 correspondence. Thus, the Board may proceed to adjudicate at this time. Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board"); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). Thus, the Board need not discuss any potential issues in this regard. The Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive and provide the reasons for its rejection of any material favorable to the claimant, when rendering a decision on appeal. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. See Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Board has thoroughly reviewed all the evidence in the Veteran's VA files. In every decision, the Board must provide a statement of the reasons or bases for its determination, adequate to enable the Veteran to understand the precise basis for the Board's decision, as well as to facilitate review by the United States Court of Appeals for Veterans Claims (Court). 38 U.S.C. § 7104 (d)(1) (2012); see Allday v. Brown, 7 Vet. App. 517, 527 (1995). Although the entire record must be reviewed by the Board, the Court has repeatedly found that the Board is not required to discuss, in detail, every piece of evidence. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001) (rejecting the notion that the Veterans Claims Assistance Act mandates that the Board discuss all evidence). Rather, the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran. See Timberlake v. Gober, 14 Vet. App. 122 (2000). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. 1. Entitlement to an increased rating in excess of 60 percent for Meniere's disease, from October 22, 2012 The Veteran seeks a higher rating for his Meniere's disease. He claims experiencing vertigo 4-5 times per month, which renders him disabled, with each episode accompanying symptoms of disorientation, loss of balance, repeated vomiting, and profuse sweating. The Veteran is currently in receipt of a 60 percent for his Meniere's disease under Diagnostic Code (DC) 6205, effective October 22, 2012. Under Diagnostic Code 6205, a 60 percent 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 100 percent rating is warranted for hearing impairment with attacks of vertigo and cerebellar gait occurring more than once weekly, with or without tinnitus. A Note to Diagnostic Code 6205 provides that Meniere's disease can be evaluated either under the preceding criteria or by separately evaluating vertigo (as a peripheral vestibular disorder (Diagnostic Code 6204)), hearing impairment (Diagnostic Code 6100), and tinnitus (Diagnostic Code 6260), whichever method warranted a higher overall evaluation. But a combined evaluation for hearing impairment, tinnitus, or vertigo with an evaluation under Diagnostic Code 6205 is inappropriate. 38 C.F.R. § 4.87. Cerebellar gait is defined as "a staggering ataxic gait, sometimes with a tendency to fall to one side, indicative of cerebellar lesions." Dorland's Illustrated Medical Dictionary at 753 (32d. ed. 2012). Ataxic gait is defined as "an unsteady, uncoordinated walk, with a wide base and the feet thrown out, coming down first on the heel and then on the toes with a double tap." Miller-Keane Encyclopedia and Dictionary of Medicine, Nursing, and Allied Health, Seventh Edition. 2003. Saunders, an imprint of Elsevier, Inc 11 May. 2020 https://medical-dictionary.thefreedictionary.com/ataxic+gait; see also McGraw-Hill Concise Dictionary of Modern Medicine. 2002. The McGraw-Hill Companies, Inc. 11 May. 2020 https://medical-dictionary.thefreedictionary.com/ataxic+gait; and see also Segen's Medical Dictionary. 2011. Farlex, Inc. 11 May. 2020 https://medical-dictionary.thefreedictionary.com/ataxic+gait. During a September 2013 VA examination, the Veteran was noted to have vertigo and staggering occurring one to four times a month, but his gait was found to be normal. As for functional impact, the examiner indicated that he has to lie down and close his eyes during episodes, which happen about 4-5 times a month, with each episode lasting about 2-4 hours. However, the examiner also underscored the Veteran's response of relating most of his problems of working to his stress/anxiety and less to Meniere's disease when asked why he could not work. His Romberg testing was negative. During a November 2019 VA examination, the Veteran described his Meniere's disease attacks as presenting symptoms of profuse sweating, vertigo ("less intense now"), and sweating, with each episode lasting about half a day, worse with certain head movement. He reported "usually just sweat[ing]" and minimizing head motion to mitigate vertigo. The examiner identified the vestibular condition of vertigo (occurring 1-4 times/month, each episode lasting for less than 24 hours) and tinnitus (occurring more than once weekly, with each episode lasting for less than 24 hours). His gait was found normal, with no other abnormality ("transfers well, no nystagmus, symptoms not provoked with basic transfers and ambulation, reports not having symptoms today"). Romberg test was also normal, and the examiner stated that no recent treatment notes relating to vestibular physical therapy were found. As for functional impact, the examiner indicated likely decreased productivity during attacks; preclusion from activities involving working at heights, work requiring significant movements of the head, driving, flying or fine balance motor skills; and requiring hearing protection if exposed to loud noises. A March 2020 VA contracted DBQ examination documents the Veteran's report of episodes occurring at least once weekly, where it typically starts with tinnitus, and progresses to sweating/dizziness that "[feels as though] he has been drinking" and to moderate to severe nausea, with head/eye movements in certain direction seemingly triggering symptoms. He was noted to have symptoms of vertigo and staggering occurring more than once a week (1-24 hours/episode), tinnitus (more than once weekly, 1-24 hours/episode), and hearing impairment. He was found to have normal gait, and while he did not undergo Romberg test, the examiner noted that such was due to the Veteran being "relatively uncooperative with the exam and interview, stating "they know all this already" and his declining to perform Romberg test. His functional impact was noted to be "unpredictable episodes of nausea, vertigo, staggering and sweating that can be triggered by head motion," and the examiner added that "he should not be working at any job requiring driving, use of ladders/heights, or use of heavy machinery. He would likely have unpredictable absences due to severe symptoms and decreased productivity during episodes." A July 2021 VA examination (although conducted for hearing loss/tinnitus) also contains information relevant to Meniere's disease. The examiner indicated that the Veteran has symptoms of episodic vertigo, fluctuating low frequency hearing loss, and tinnitus, due to Meniere's disease. Although the examiner described his functional impact as "he must lie [sic] down with his head immobile until the episode passes. If the episode begins while he is standing or must move from one location to another, he must "wall walk" in order to maintain his balance. He would need to have an easy access to that space to reduce the risk of falling [due to] imbalance. Given the unpredictable timing of the episodes of vertigo, he would not be able to operate a vehicle, machinery, or equipment, work at heights or where the work demands good balance. A work setting would need to be flexible in allowing for 1 or more days a week when he is unable to work due to episodes of vertigo. Fluctuations in his hearing could make telephone work difficult." After reviewing all pertinent records, the Board finds that the Veteran does not warrant a rating in excess of 60 percent. In doing so, the Board points out that the Veteran was not shown to have cerebellar gait required for a 100 percent schedular rating. Despite the findings of staggering (see September 2013 VA examination, staggering one to four times a month; see March 2020 VA contracted DBQ examination, showing staggering more than once a week for 1-24 hours/episode), the Board underlines that his gait was consistently noted to be normal throughout the VA examinations, and also the available Romberg testing consistently showed normal/negative results. Moreover, it appears that the Veteran consistently reported during the VA examinations only the symptoms of tinnitus, profuse sweating, vertigo/dizziness that tend to be triggered by head/eye movements in certain direction, without any mention of loss of balance/cerebellar gait. Even taking into consideration the July 2021 VA examination (conducted for hearing loss/tinnitus) documenting the Veteran having to "wall walk to maintain balance if the episode happens while he is standing or must move from one location to another," and "requiring an easy access to space to reduce the risk of falling due to imbalance," the Board underlines that the Veteran has not shown or alleged to have a tendency to fall to one side, or has presented an unsteady gait with a wide stance, or slow and shuffling gait (ie. cerebellar gait/ataxic gait) anytime during the appeal period, to include during the July 2021 VA examination. Additionally, even taking into consideration his contention in his NOD regarding the loss of balance during his Meniere's attack, the preponderance of the evidence seems to suggest otherwise, as evidenced by his multiple examinations and treatment records throughout the appeal period, which are silent as to any indication of cerebellar gait, but show normal Romberg testing and normal gait. The Board acknowledges the Veteran's contention that he experiences vertigo 4-5 times per month, which renders him disabled, and that each episode includes symptoms of disorientation, loss of balance, repeated vomiting, and profuse sweating. While the Board recognizes that the Veteran is competent to describe his symptomatology, he is not competent to provide an opinion regarding the severity of his symptomatology in accordance with the rating criteria. Ultimately, the Board finds the medical evidence in which professionals with specialized expertise examined the Veteran, acknowledged his reported symptoms, and described the manifestations of such disabilities in light of the rating criteria to be more persuasive than his own reports regarding the severity of his disability. The Board has also considered whether the Veteran would warrant a higher evaluation by separately evaluating vertigo, hearing impairment, and tinnitus, but finds such not the case (here, even assuming that the Veteran warrants the highest schedular rating available under DC 6204 (30 percent) and under 6260 (10 percent), because the Veteran's hearing impairment under DC 6100 warrants only a non-compensable rating (0 percent), a combined evaluation would still result in a rating less than 60 percent. [Notably, the Veteran only has a hearing impairment that would be non-compensable (ie. see July 2021 and September 2013 VA examinations, applying the result of each VA examination to Table VI showing a level I hearing acuity in the right ear and the left ear, respectively, warranting a 0 percent rating under Table VII; the findings do not reflect an exceptional pattern of hearing loss, nor did the examiner indicate that speech recognition scores were unreliable; therefore, Table VIA is not for application for a higher disability rating)]. Thus, his claim for a higher rating under this basis is also denied. In reaching the foregoing determinations, the Board has applied the benefit of the doubt doctrine and resolved all doubt in the Veteran's favor. However, the preponderance of the evidence is against such aspects of the Veteran's claim. Therefore, the benefit of the doubt doctrine is not applicable and such increased rating claims must otherwise be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). 2. Entitlement to a total disability rating based on individual unemployability (TDIU) The Veteran seeks TDIU as due to his service-connected Meniere's disease. Specifically, he alleges he has not been able to work due to Meniere's disease since January 2013 and relays symptoms of vertigo (4-5 times a day that renders him disabled much of the day) as well as reduced ability to maintain attention and concentration. He also claims that he has not been able to find someone willing to hire him, as he cannot reliably adhere to a work schedule. The Veteran has multiple service-connected disabilities, with at least one disability rated 40 percent or more, with a combined rating of 80 percent, during the appeal period. He met the schedular TDIU criteria under 38 C.F.R. § 4.16(a). Therefore, TDIU is warranted if the evidence shows that he was unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities, considering his specific educational and employment background, but without regard to age, non-service-connected disabilities, or previous unemployability status. See 38 C.F.R. §§ 4.16 (a), 4.19. After a full review of the record, the Board finds entitlement to a TDIU is warranted. In determining unemployability for VA purposes, consideration may be given to the Veteran's level of education, special training, and previous work experience, but not to age or any impairment caused by nonservice-connected disabilities. 38U.S.C. §1155; 38C.F.R. §§3.340, 3.341, 4.16, 4.19. The central inquiry is "whether the veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). The sole fact that a Veteran is unemployed or has difficulty obtaining employment is not enough. The question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (citing 38 C.F.R. §§ 4.1, 4.15, 4.16(a)). Whether the veteran can actually find employment is not determinative, as the focus of the inquiry is on "whether the veteran is capable of performing the physical and mental acts required by employment." Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Recently, in Ray v. Wilkie, the court interpreted and defined the phrase "unable to secure and follow a substantially gainful occupation" in § 4.16(b) to encompass two components: one economic and one noneconomic. The court defined the economic component as an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person. As for the noneconomic component, the court provided that the inquiry should center on the individual claimant's "ability to secure or follow that type of employment." In determining whether a veteran can secure and follow a substantially gainful occupation, attention must be given to (1) the veteran's history, education, skill, and training; (2) 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. See Ray v. Wilkie, No. 17-0781, 16, 25 (Fed. Cir. 2019). 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. It appears that the Veteran last worked as a health technician at a VA Medical Center from April 2011 to January 2013 (see also December 2020 private vocational assessment, a private vocational expert noting that while the Veteran resigned in January 2013 due to his inability to perform his job duties, he had last worked in the fall of 2012, as a peer support specialist at a VAMC, which he described as entailing "teaching classes to residents, taking them to recreational activities in the community, assisting them in securing housing"). As for the reason for termination, the Veteran indicated that he quit because he missed multiple days of work over many months and was told by his supervisor to quit or [that the supervisor will] find a way to fire him. See October 2019 VA 21-8940 form; see also December 2020 private vocational assessment, the Veteran also stated having applied for FMLA due to his inability to maintain adequate attendance, but also relayed having been told by his supervisor "to quit" or "would be fired from the position". During the December 2020 private vocational assessment, the Veteran further reported difficulty interacting with co-workers, frequently engaging in verbal alterations, and difficulty maintaining attention/concentration or keeping a regular work schedule, due to his service-connected disabilities. He has a bachelor's degree in psychology (See October 2019 VA 21-8940 form; see also December 2020 private vocational assessment, noting that the Veteran was accepted to law school, but dropped out in the first semester as he was unable to keep up with his courses), and he further noted that having attended a master's degree program from January 2016 to May 2016, but was unable to complete this program. See October 2019 VA 21-8940 form. Turning to the medical evidence of record, it appears that the functional impact as associated with his service-connected physical disabilities include vertigo/staggering interfering with ability to sustain focus during episodes and requiring him to lie down and rest with eyes closed (up to half a day), inability to sustain adequate pace/productivity due to distracting vertigo pain, need for unscheduled breaks to stop working and immobilize his head from movement in attempt to achieve comfort and alleviate instability. As for his mental capacity, a July 2020 VA psychiatric DBQ examination shows his symptoms included depressed mood, anxiety, suspiciousness, chronic sleep impairment, impaired judgment, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, among others. See July 2020 VA psychiatric DBQ examination. Although his symptoms alone were noted to not likely result in total occupational impairment, his service-connected psychiatric condition was found to likely result in reduced reliability and productivity (difficulty concentrating, anxiety and difficulty getting along with others). The December 2020 private vocational assessment further confirmed symptoms of anxiety, irritability, difficulty concentrating, low energy, depressed mood, and impaired judgment, among others. See December 2020 private vocational assessment. Despite the Veteran's advanced level of education (bachelor's degree in psychology, as well as some pursuit of a master's degree), in light of the combined effects of the Veteran's service-connected disabilities and his past work experience, the Board finds that the Veteran warrants a TDIU. Although the Veteran's education and the positions similar to that to those he has held in the past (health technician, peer support specialist) likely offers a wide range of at least some aspect of sedentary work environment (ie. community worker, case worker, psychiatric technician, conducting administrative tasks, such as answering phones, scheduling appointments, adding notes to patient files), the Board acknowledges the effects of his service-connected disabilities would prevent him from engaging in even such sedentary type of work, especially in light of the nature of the duties that would be required of work similar to those he has held in the past and the types of symptoms he manifests. Notably, although the Board acknowledges the frequency of the episodes of service-connected Meniere's disease, perhaps more than once weekly, the Board notes that it occurs unpredictably with each episode requiring him to lie down and completely rest with eyes closed for a couple hours to half a day. While the Meniere's disease alone might not be sufficient to find unemployability, the effects of his mental health condition combined with the effects of his Meniere's disease reasonably would preclude him from working. Considering that the types of jobs similar to those he has held in the past tend to require continuous interaction with others, ability to focus and concentrate, walk/stand, have sound judgment, and carry out assigned tasks with little to no flexibility to schedule his own work/tasks, the symptoms he presents as associated with his service-connected mental health disability (ie. irritability, difficulty concentrating, impaired judgment, difficulty in establishing and maintaining effective relationships) would greatly impact his ability to be successful at such a job. Then, there is also the need for unscheduled breaks to stop working and immobilize his head from movement in attempt to achieve comfort and alleviate instability and inability to sustain adequate pace/productivity due to distracting pain, dizziness, vertigo, nausea, vomiting during Meniere's attacks. Thus, in light of his past work experience/education/service-connected disabilities, and resolving reasonable doubt in favor of the Veteran, the Board finds that the Veteran warrants a TDIU. While neither the Meniere's disease nor the mental health condition alone would result in total occupational impairment, all the symptoms and functional limitations from these service-connected disabilities, in their totality, prevent the Veteran from securing any substantially gainful occupation. Thus, the claim is granted. MICHELLE L. KANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Lee, Catherine 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.