Citation Nr: A21020347 Decision Date: 12/21/21 Archive Date: 12/21/21 DOCKET NO. 210806-177974 DATE: December 21, 2021 ORDER Entitlement to an initial rating in excess of 30 percent for Meniere's disease is denied. FINDINGS OF FACT 1. The Veteran's Meniere's disease is not manifest by hearing impairment with attacks of vertigo and cerebellar gait occurring from one to four times a month, with or without tinnitus. 2. The Veteran's peripheral vestibular disorder is manifest by dizziness and occasional staggering. CONCLUSION OF LAW The criteria for an initial rating in excess of 30 percent for Meniere's disease have not been met. 38 U.S.C. §§ 1155, 5017; 38 C.F.R. §§ 3.102, 4.1-4.14, 4.21, 4.87, Diagnostic Codes 6100, 6204, 6260. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served in the United States Navy from February 2008 to December 2009. This matter comes before the Board of Veterans' Appeals (Board) on appeal of an April 2021 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before a Veterans Law Judge in a March 2020 Board hearing held via videoconference, and a transcript of this hearing was associated with the claims file. The Veteran filed a VA Form 10182, Decision Review Request, Board Appeal (Notice of Disagreement) in August 2021 and selected the Direct Docket. As such, the Board may only review the evidence of record as of the date of the April 2021 rating decision. 38 C.F.R. § 20.301. 1. Entitlement to an initial rating in excess of 30 percent for Meniere's disease is denied. Disability ratings are determined by applying a schedule of ratings that is based on the average impairment of earning capacity. Separate Diagnostic Codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Each disability must be viewed in the relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. "Staged" ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Given the nature of the present claim for an increased rating for Meniere's disease, the Board has considered all evidence of severity since the effective date for the award of service connection for this claim. Fenderson v. West, 12 Vet. App. 119 (1999). Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. The Veteran underwent VA examinations in May 2016, December 2018, and July 2020. In the May 2016 examination, the examiner noted the Veteran was diagnosed with Meniere's disease and tinnitus. Additionally, the examiner noted the Veteran had hearing impairment with vertigo for between 1 and 24 hours more than once a week; tinnitus more than 24 hours more than once a week; and vertigo between 1 and 24 hours more than once a week. The Veteran's external ear, ear canal, tympanic membrane, gait, Romberg test, Dix Hallpike test, and limb coordination were all normal. In the December 2018 examination, the Veteran reported that her condition had worsened since her previous examination. She also reported she feels like she is spinning, and the room is spinning, her right ear feels muffled, and both ears have tinnitus, with her right ear being worse. She further stated that the only thing that seem to help with these symptoms is sweating. The examiner noted the Veteran had hearing impairment with vertigo, tinnitus, and staggering with occurrences of more than 24 hours more than once a week. The examiner also noted the Veteran had hearing impairment, severe headaches, nausea, and vomiting. The Veteran's external ear, ear canal, tympanic membrane, gait, Romberg test, Dix Hallpike test, and limb coordination were all noted as normal. The examiner found the Veteran's Meniere's disease impacted her ability to work, explaining that she has left work early and missed work due to her vertigo symptoms because these symptoms rendered her unable to perform her duties as an LPN. In the July 2020 examination, the Veteran reported experiencing current symptoms of vertigo, tinnitus, and fatigue. She also reported that her episodes of vertigo and dizziness occurred with temperature changes, fast moving visual images, air movement, and light fluctuation. She explained that she could not ride in the backseat of a car and had difficulty looking at computer screens. Her vertigo episodes can come on spontaneously, can last from an hour to several hours, are followed by fatigue, and occur two times a week. The Veteran was previously prescribed HCTZ, a medication which helped but also dropped her blood pressure too low. She was then prescribed meclizine, but it is not as effective as HCTZ. She experiences tinnitus in both ears all of the time, with the intensity varying. The Veteran also reported that her treating physician advised her to limit her salt intake, avoid stress, and avoid jobs that require her to work in unsecured settings or that require rapid response. Her physician also suggested considering a hearing aid for her left ear hearing loss. The examiner noted the Veteran experienced tinnitus between 1 to 24 hours more than once a week; vertigo between 1 to 24 hours more than once a week; and staggering less than 1 hour more than once a week. The examiner also found the Veteran's external ear, ear canal, tympanic membrane, gait, and Dix Hallpike test to be normal. The Veteran's Romberg test was noted as being abnormal or positive for unsteadiness, while her limb coordination test was noted as being abnormal with slight past-pointing noted. The examiner also noted the Veteran's Meniere's disease impacts her ability to work because it would make it difficult for her to work in elevated or unsecured settings. In her March 2020 hearing testimony, the Veteran stated that she experiences balance issues and gets really dizzy frequently, so she has to be careful when maneuvering around in her daily life. She cannot be in closed-in areas because she needs to be able to get outside due to air and changes of air pressure, which makes her dizzy and causes her to lose her balance. She also reported that she cannot get out of bed due to being constantly dizzy, which also leads to her vomiting until her dizzy episode passes. She also explained that she has to be mindful of activities she does due to her vertigo episodes, explaining she cannot do things like hiking because elevation changes negatively affect her. Seasonal changes and associated weather changes also impact her condition. After reviewing the evidence of record, the Board finds that the preponderance of the evidence is against a rating in excess of 30 percent for the Veteran's Meniere's disease. Under 38 C.F.R. § 4.87, Diagnostic Code (DC) 6205, a 30 percent rating is warranted for Meniere's disease that exhibits hearing impairment with vertigo less than once a month, with or without tinnitus. A 60 percent rating is warranted when there is 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. Under DC 6205, in order to fulfill the criteria for a 60 percent rating, the Veteran must exhibit hearing impairment with attacks of vertigo and cerebellar gait occurring from one to four times a month, with or without tinnitus. While the Veteran has been shown to have hearing impairment with vertigo attacks that occur at least once a month and also has tinnitus, she has not been shown to have a cerebellar gait in any of her VA examinations, nor in her VA treatment records. Although the Veteran has reported experiencing some staggering, and the July 2020 examiner found the Veteran's Romberg test was abnormal, indicating potential issues with unsteadiness, the examiner found her gait to be normal. Therefore, a rating in excess of 30 percent under DC 6205 is not warranted. The Board also notes that Meniere's syndrome may be evaluated either under DC 6205 or by separately evaluating vertigo (as a peripheral vestibular disorder), hearing impairment, and tinnitus, whichever method results in a higher rating. The Board notes that a 30 percent rating is the highest rating available under DC 6204, governing peripheral vestibular disorders. However, evaluations for hearing impairment, tinnitus, or vertigo may not be combined with a rating under DC 6205, whereas there is no such limitation under DC 6204. 38 C.F.R. § 4.87, DCs 6204, 6205. Here, the Veteran is separately service connected for tinnitus, rated at 10 percent, and hearing loss, rated at 0 percent. Thus, rating the Veteran's vertigo under DC 6204 for peripheral vestibular disorders is more favorable. As noted above, the maximum 30 percent rating is warranted under DC 6204 when there is dizziness and occasional staggering. The Veteran has reported staggering, and her VA examinations do show that she experiences staggering. Thus, a 30 percent rating is warranted under DC 6204 for the Veteran's Meniere's symptoms. Further, separately evaluating the Veteran's hearing impairment, tinnitus, and vertigo under DCs 6100, 6260, and 6204 provides a combined 40 percent disability rating for her Meniere's symptoms. As noted above, her hearing impairment is rated as noncompensable, her tinnitus is evaluated at 10 percent, and her vertigo is evaluated at 30 percent; this provides for a combined total of 40 percent for her Meniere's symptomatology. 38 C.F.R. § 4.25. Therefore, rating the Veteran's Meniere's symptoms under DC 6204 for peripheral vestibular disorders manifested by dizziness and occasional staggering is more favorable for the Veteran, providing a higher overall evaluation for her Meniere's symptoms. Reviewing the evidence, the Board finds that the overall disability picture for the Veteran's Meniere's disease is most closely approximated by the combination of a 30 percent rating under DC 6204, a 10 percent rating for tinnitus, and a noncompensable rating for hearing loss, as provided for under 38 C.F.R. § 4.87. However, a rating higher than 30 percent for the Veteran's Meniere's disease, whether rated under DC 6204 or 6205, is not warranted. Thus, the claim for increase must be denied. Caroline B. Fleming Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Gabrielle Ongies, 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.