Citation Nr: 21071110 Decision Date: 11/29/21 Archive Date: 11/29/21 DOCKET NO. 14-05 053 DATE: November 29, 2021 ORDER A rating of at least 60 percent for Meniere's disease is granted. REMANDED Entitlement to a rating in excess of 60 percent for Meniere's disease is remanded. Entitlement to a separate compensable rating for pain and crusting around the Veteran's hearing aid mount is remanded. FINDING OF FACT Throughout the period on appeal, the Veteran's Meniere's disease has been manifested by disability more nearly approximating hearing loss, tinnitus, and attacks of vertigo and cerebellar gait occurring at least one to four times a month. CONCLUSION OF LAW The criteria for a rating of at least 60 percent for Meniere's disease have been more nearly approximated. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.3, 4.7, 4.87 Diagnostic Code 6205 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1981 to December 1992. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2011 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In November 2016, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. In September 2019, the Board denied the Veteran's claim for a rating in excess of 30 percent for Meniere's disease, and the Veteran appealed that decision to the Court of Appeals for Veterans Claims (Court). In a March 2021 Memorandum Decision, the Court vacated the Board's September 2019 decision and remanded it to the Board for readjudication. Disability Ratings Disability ratings are determined by applying the criteria set forth in the VA Schedule of Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1 (2020). 1. Entitlement to a rating in excess of 30 percent for Meniere's disease Meniere's syndrome (or endolymphatic hydrops) is rated either under the criteria set forth in Diagnostic Code 6205 or by separately rating vertigo as a peripheral vestibular disorder, hearing impairment, and tinnitus, whichever method results in a higher overall rating. 38 C.F.R. § 4.87, Diagnostic Code 6205. A rating for hearing impairment, tinnitus, or vertigo is not to be combined with a rating under Diagnostic Code 6205. Id. 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 is assigned 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 assigned 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 cerebellar gait is "a staggering ataxic gait, sometimes with a tendency to fall to one side." Dorland's Illustrated Medical Dictionary 753 (32nd ed. 2012). Upon review of the record, the Board finds that the criteria for a rating of at least 60 percent for Meniere's disease have been more nearly approximated. The Veteran initially underwent a VA examination in November 2010, during which it was noted that she had a right mastoidectomy and tympanoplasty in 1993 due to a cholesteatoma, followed by several additional tympanoplasties and reconstruction surgeries. She reported current symptoms of hearing loss, itching in the auricles and the external auditory canals, and intermittent increased moisture in the ear canals with ear infections and drainage, followed by mild vertigo. She also reported taking Antivert (meclizine) as needed for longer periods of vertigo and imbalance. The Veteran stated that her vertigo limited her ability to drive and walk. In a May 2011 written statement, the Veteran indicated that she experiences slight dizziness most of the time with some periods of severe vertigo, during which she cannot drive or perform any tasks that require much movement. She stated that the severe attacks of vertigo do not happen very often, but they have lasted as long as five days at a time. A January 2013 VA audiology treatment record notes that the Veteran had a long history of right middle ear disease, for which she underwent five surgeries. That record shows that the Veteran reported episodes of dizziness and imbalance occurring every few days, which could last for hours at a time. She also reported imbalance with movement, such as riding a bike, and noted that she attended vestibular rehabilitation therapy. In January 2016, the Veteran submitted written statements from her father, sister, nephew, and co-worker regarding their observations of the Veteran's symptoms. The Veteran's father, sister, and nephew indicated that the Veteran's attacks of vertigo affected her balance and ability to do things, such as play golf, and it occasionally caused her to be late or miss work. The Veteran's co-worker described an incident in which the Veteran's vertigo rendered her unable to leave her office when the fire alarm went off, and she had to hold the Veteran's hand and help her exit the building. In February 2016, the Veteran had a bone-anchored hearing aid (BAHA) implanted in her right ear due to persistent conductive hearing loss. In March 2016, the Veteran reported severe vertigo during the first day or two after surgery, which had since subsided. Later in March 2016, the Veteran reported persistent otalgia and fullness in the right ear, and she was advised to continue local wound care with soap and water. The Veteran also reported experiencing one to two attacks of vertigo per week. The assessment included Meniere's disease symptom exacerbation, and it was noted that the Veteran would consider vestibular rehabilitation. In July 2016, the Veteran reported that her scalp was red and swollen around the BAHA with yellow discharge after going snorkeling. The treatment provider prescribed two weeks of doxycycline. In August 2016, it was noted that the Veteran was previously treated with a 10-day course of doxycycline for a skin infection around the BAHA; however, it was now healing well without any signs of persistent infection. During the November 2016 Board hearing, the Veteran testified that she felt like she was in a constant state of imbalance and sometimes used a cane for ambulation. An October 2017 VA treatment record shows that the Veteran presented to the emergency room the day before due to an acute attack of vertigo accompanied by loud ringing and decreased hearing in the left ear. It was noted that the Veteran had Meniere's disease and a BAHA implant in the right ear, and she took a fluid pill on a regular basis. The treatment provider prescribed diazepam as needed for severe attacks of vertigo and advised the Veteran to return if her symptoms persisted or did not improve. A February 2018 VA treatment record shows that the Veteran reported that her hearing in the left ear had not improved since the October 2017 Meniere's flair, and she felt a sensation of bilateral ear fullness, which was worse on the right. She stated that her vertigo symptoms were well controlled, but she described minor balance issues occurring about three to four times a week, which did not impair her daily activities. The Veteran indicated that she had not taken any medications for vertigo since the October 2017 attack, and the treatment provider advised her to continue meclizine and diazepam for acute attacks of vertigo as needed. The Veteran underwent another VA examination in January 2019, during which she reported hearing loss and vertigo, which was reportedly improving as of late. The Veteran reported treating her Meniere's disease with meclizine, hydrochlorothiazide, and loratadine. The examiner indicated that the Veteran's Meniere's disease was manifested by hearing impairment, tinnitus, and attacks of vertigo occurring between one and four times a month and lasting about an hour or two at a time. It was noted that the Veteran's vertigo was now stable with appropriate medicine, and her episodes of vertigo no longer lasted all day. A December 2019 VA treatment record indicates that the Veteran's Meniere's disease has been active, and she experienced regularly occurring mild to moderate episodes of dizziness, as well as one or two fairly severe ones. It was noted that the Veteran was taking diazepam and meclizine on an as-needed basis for severe episodes of dizziness. In an October 2021 written statement, the Veteran indicated that when she has attacks of vertigo, her gait is affected in that she is unable to walk and must hold on to something or lie down until the dizziness subsides. She also indicated that she has fallen on multiple occasions during an attack of vertigo. In summary, although the medical evidence of record does not show that a treatment provider or VA examiner has observed the Veteran exhibit a cerebellar gait, the Veteran has reported experiencing imbalance during her attacks of vertigo, which affect her ability to walk, require her to hold on to something or lie down, and have resulted in falls. The Veteran's assertions are supported by the statements of her relatives and co-worker, who witnessed her inability to walk during episodes of severe vertigo. After resolving reasonable doubt in the Veteran's favor, the Board finds that the Veteran's overall disability picture more nearly approximates hearing impairment with attacks of vertigo and cerebellar gait occurring at least one to four times a month. 38 C.F.R. § 4.7. Accordingly, a rating of at least 60 percent is granted. The issue of entitlement to a rating in excess 60 percent is addressed in the remand section below. REASONS FOR REMAND 1. Entitlement to a rating in excess of 60 percent for Meniere's disease is remanded. In the March 2021 Memorandum Decision, the Court determined that the Board's September 2019 decision: (1) failed to discuss favorable evidence appearing to address cerebellar gait, (2) failed to address the impact of the Veteran's medication on her symptoms, and (3) failed to address entitlement to a separate compensable rating under Diagnostic Code 7804 for pain and crusting around the Veteran's hearing aid mount. Accordingly, the Board finds that the Veteran should be given a new VA examination, which addresses the favorable evidence regarding cerebellar gait, the impact of the Veteran's medications, and any claimed symptoms of pain and crusting around the hearing aid mount. Additionally, it appears that there may be outstanding relevant VA treatment records. A January 2013 VA treatment record shows that the Veteran reported attending vestibular rehabilitation therapy at a VA clinic in Pennsylvania. A review of the record reveals a few pages of treatment records from the VA Medical Centers (VAMCs) in Coatesville and Philadelphia from 2008 through 2010; however, it does not appear that any records pertaining to vestibular rehabilitation therapy have been obtained. Accordingly, on remand, the agency of original jurisdiction (AOJ) should attempt to obtain those records. The matters are REMANDED for the following action: 1. Ask the Veteran to identify the name of the VA facility where she underwent vestibular rehabilitation therapy. Based on her response, VA should request all treatment records from that facility. Additionally, obtain and associated with the claims file all records of treatment from the VAMCs in Coatesville, Pennsylvania and Philadelphia, Pennsylvania. 2. After records development has been completed and available records have been associated with the claims file, schedule the Veteran for a VA ear examination. The claims file must be reviewed by the examiner. All indicated testing must be conducted, and all pertinent symptomatology must be reported. The examiner should address/answer the following: (a.) Comment on the nature and severity of any pain, crusting, or infections around the Veteran's hearing aid mount throughout the period under review (September 2009 to the present). (b.) Is it at least as likely as not (50 percent probability or greater) that the Veteran's Meniere's disease has been manifested by attacks of vertigo and cerebellar gait occurring more than once weekly at any time during the period on appeal (September 2009 to the present)? Please explain why or why not. The examiner's opinion should reflect consideration of the Veteran's claimed imbalance during her attacks of vertigo, which affects her ability to walk and sometimes results in falls. (c.) Comment on the ameliorative effects the Veteran's medications (including, but not limited to, diazepam, meclizine, hydrochlorothiazide, loratadine, and fluid pill) have on her symptoms of Meniere's disease throughout the period on appeal (September 2009 to the present). Is it at least as likely ast not (50 percent probability or greater) that the Veteran's Meniere's disease would be manifested by attacks of vertigo and cerebellar gait occurring more than once weekly without the use of any medications? Please explain why or why not. K. A. BANFIELD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Banister, 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.