Citation Nr: 21005526 Decision Date: 02/01/21 Archive Date: 02/01/21 DOCKET NO. 18-18 877 DATE: February 1, 2021 ORDER Entitlement to a disability rating in excess of 30 percent for service-connected Meniere's disease is denied. FINDING OF FACT The Veteran’s service-connected Meniere’s disease is manifested by tinnitus and vertigo; he does not suffer from a cerebellar gait. CONCLUSION OF LAW The criteria for a disability rating in excess of 30 percent for service-connected Meniere's disease are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1-4.10, 4.21, 4.87, Diagnostic Code (DC) 6205. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty for training (ACDUTRA) from May 1964 to December 1964. This case comes before the Board of Veterans' Appeals (Board) from Department of Veterans Affairs (VA) Regional Office (RO) rating decisions issued in August 2017. In July 2019, the Board denied this claim. The Veteran appealed to the Court of Appeals for Veterans Claims. In a June 2020 Joint Motion for Partial Remand (JMPR), the parties agreed to vacate the portion of the Board’s 2019 decision on the Meniere’s disease rating, finding that the Board failed to discuss certain pieces of evidence. The record contains evidence not yet considered by the agency of original jurisdiction (AOJ); however, the Veteran has waived consideration of that evidence by the AOJ prior to a decision on the merits. See January 2021 AOJ Waiver. Therefore, the Board may proceed to the merits. See 38 C.F.R. § 20.1305(c). The Veteran's representative has raised various boilerplate, generalized duty to assist and due process arguments without citing specific issues or deficiencies. See September 2017 Notice of Disagreement (NOD). The Board rejects those arguments as vague and conclusory and affirmatively finds that VA satisfied the duty to assist in the development of the claims being decided for the following reasons. First, the Veteran's representative suggested that unspecified VA examinations were inadequate. See September 2017 NOD. Neither the Veteran nor his representative identified specific VA examinations when making these assertions. Accordingly, the Board will assume that he contends all of the VA examinations relied upon in the decision on appeal were inadequate. As for the medical examination pertaining to assessing the severity of service-connected Meniere's disease, the Board rejects his contention and affirmatively finds that the July 2017 VA examination was adequate for rating purposes. The VA examiner conducted a thorough in-person examination of the Veteran, reviewed the Veteran's pertinent medical history, and provided adequate remarks on objective findings. See Stefl v. Nicholson, 21 Vet. App. 120, 123-124 (2007). Contrary to the representative's generic boilerplate contentions, the Board finds that the VA examination contained thorough, clear, and supported findings pertinent to rating his service-connected Meniere's disease. Accordingly, the Board finds that there is no duty to provide another VA examination for service-connected Meniere's disease. Additionally, the record contains the Veteran's representative's multiple boilerplate allegations of constitutional due process deficiencies. See September 2017 NOD. The Board rejects these generalized arguments as vague and conclusory because they failed to specify any particular procedural due process issues. The Board also affirmatively finds that VA satisfied all relevant due process requirements as to the claims being decided herein. No further arguments as to the adequacy of the medical evidence – or any other point – were raised after the JMPR. Neither the Veteran nor his representative has raised any other specific issues with the duty to notify or duty to assist. It must be noted that although the last VA examination for this condition was done in 2017, there have been no allegations of worsening (or suggestion of such in the VA outpatient records) such that remand for another examination is needed, nor has the Veteran or his attorney indicated there is any relevant medical evidence outstanding. In deciding the Veteran's claim, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event; or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. In determining whether statements submitted by a veteran are credible, the Board may consider internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 511 (1995). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). 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). 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. 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. See Timberlake, infra. The Veteran seeks an increased rating for his service-connected Meniere's disease. He contends that he has vertigo at least twice a week. See September 2017 Notice of Disagreement (NOD). The Veteran's service-connected Meniere's disease is currently evaluated as 30 percent disabling under Diagnostic Code (DC) 6205, from March 31, 2017. Under DC 6205, a 30 percent disability rating is warranted for hearing impairment with vertigo less than once a month, with or without tinnitus. A 60 percent disability 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. Id. A 100 percent disability rating is assigned for hearing impairment with attacks of vertigo and cerebellar gait occurring more than once weekly, with or without tinnitus. Id. 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). A Note indicates that the Meniere's syndrome can also be evaluated either under these criteria or by separately evaluating vertigo (as a peripheral vestibular disorder) under DC 6204, hearing impairment under DC 6100, and tinnitus under DC 6260, whichever method results in a higher overall evaluation. However, the note indicates not to combine an evaluation for hearing impairment, tinnitus, or vertigo with an evaluation under DC 6205 for Meniere's syndrome. 38 C.F.R. § 4.87, DC 6205. Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.2. If two disability ratings are potentially applicable, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.1. After careful consideration of the evidence, any reasonable doubt remaining will be resolved in favor of the veteran. 38 C.F.R. § 4.3. Where, as here, the appeal arises from the original assignment of a disability evaluation following an award of service connection, the severity of the disability at issue is to be considered during the entire period from the initial assignment of the disability rating to the present time. Where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibits symptoms that would warrant different evaluations during the course of the appeal, the assignment of staged ratings is appropriate. Fenderson v. West, 12 Vet. App. 119, 126 (1999) (distinguishing initial rating claims from claims for increased ratings for already service-connected disability). The Veteran underwent a VA examination in July 2017 to assess his Meniere's disease. The Veteran reported vertigo with tinnitus with attacks. Upon review of all records, the examiner diagnosed him with Meniere's syndrome. Tinnitus and vertigo were identified as symptoms attributable to Meniere's syndrome, but they were both found to occur less than once a month. There were also negative findings for a typical hearing loss pattern that is consistent with Meniere's disease, hearing impairment with attacks of vertigo and cerebellar gait, and hearing impairment with vertigo and staggering. No other medical conditions related to Meniere's disease was found during the examination. See July 2017 VA examination. His VA treatment records show “sporadic but manageable Meniere's vertigo.” See November 2016 VA treatment records; November 2018 VA Primary Care Note (“Meniere’s vertigo. Symptoms controlled with diazepam. Has been on it for years.”); November 2019 VA Primary Care Note (“Meniere’s vertigo: long term use of regular diazepam. Uses for generalized anxiety as well.”). However, there is no evidence of cerebellar gait at all (not to mention such occurring one to four times a month) in his treatment records. The June 2020 JMPR noted that the Veteran submitted a Meniere’s diary documenting multiple instances of dizziness with having to sit down about two times a week from July 3, 2017, to September 30, 2017. The June 2020 JMPR also emphasized the definition for “cerebellar ataxic gait” set forth above in directing the Board to discuss the Meniere’s diary. Importantly, the diary documents episodes of dizziness between one and two times per week (19 episodes of dizziness over roughly 90 days, about 6-7 per month). The Veteran provided subjective rating of the severity on a scale of 1 to 10 for each of the 19 episodes with the two episodes rated 9, one rated 7, and the rest 4-6. The Veteran reported dizziness and needing to sit down, but did not describe any altered gait. Rather, he reported dizziness that prevented him from attempting to walk. The Board interprets these as episodes of vertigo, which are contemplated in the rating criteria, and not evidence of a cerebellar gait (which, as the name and definition establish, is different from an inability to walk and includes a tendency to fall which is not noted at all in this diary). The notations in this diary of dizziness and needing to sit down are not relevant at all to determining whether he has had a cerebellar gait. Notably, the diary covers the period from the beginning of July 2017 through September 2017. The Veteran had a VA examination in July 2017 that found that the Veteran did not have a cerebellar ataxic gait. And, again, contemporaneous treatment records do not indicate the Veteran had any gait issues, much less cerebellar gait, whether on examination or by the Veteran’s subjective report. To the contrary, the records indicate that the Veteran has good control of his Meniere’s with medication. None of the VA records obtained after the Board’s prior decision establish cerebellar gait either. These records show he has vertigo due to Meniere’s, but records dated in November 2018 and November 2019 show he denied having any falls during the prior 12 months. The greater weight of the evidence is against finding that the Veteran had hearing impairment with attacks of vertigo and cerebellar gait occurring from one to four times a month. In making this finding, the Board notes that the criteria requires “attacks of vertigo and cerebellar gait”. See Camacho v. Nicholson, 21 Vet. App. 360, 366 (2007) (use of conjunctive "and" indicates all criteria must be met). Moreover, as discussed above, the Note to DC 6205 directs that VA should evaluate Meniere’s syndrome either under these criteria or by separately evaluating vertigo (peripheral vestibular disorder), hearing impairment, and tinnitus, whichever method results in a higher overall evaluation, but an evaluation for hearing impairment, tinnitus, or vertigo must not be combined with an evaluation under DC 6205. Under DC 6204 (peripheral vestibular disorders), a 10 percent rating is warranted for occasional dizziness. A 30 percent rating is warranted for dizziness and occasional staggering. The Veteran’s symptoms, including as recorded in his Meniere’s diary, meet and are well-described by the criteria for a 30 percent rating under DC 6204. The Veteran has a 10 percent rating for tinnitus as well. The rating schedule specifically provides that the 30 percent rating under DC 6204 may be combined with the rating for tinnitus, but that ratings under DC 6205 may not be combined with ratings for tinnitus or hearing loss. While the Veteran is currently rated 30 percent under DC 6205 for Meniere’s syndrome and 10 percent under 6260 for tinnitus, which is a technical violation of the rating schedule, the effect is the same as if the Veteran’s rating was 30 percent under DC 6204 (for vertigo) and 10 percent under DC 6260 (for tinnitus). The Board points this out because the rating schedule contemplates a situation like this one, where the Veteran has vertigo (dizziness) once a month or more as well as hearing impairment and tinnitus (which exceeds the base criteria for a 30 percent rating under DC 6205), but does not have a cerebellar gait. In those cases, the Veteran can obtain a rating in excess of 30 percent, though he does not meet the criteria for a 60 percent rating. In particular, the Veteran meets the criteria under DC 6204 for a 30 percent rating (dizziness and occasional staggering) plus may obtain ratings for tinnitus and his hearing impairment. In short, the Veteran may obtain, as he has here, an effective rating between 30 percent and 60 percent by combining ratings under DCs 6100, 6204, and/or 6260. The Veteran’s Meniere’s diary does support finding the Veteran had up to twice weekly spells of dizziness and, perhaps, giving the benefit of every possible doubt, occasional staggering (as opposed to the more technical and specific “cerebellar gait”) implied by the need to sit down, which symptoms would support the 30 percent rating and, again, he has separately rated tinnitus for an effective combined rate of 37 percent (which would round to 40 percent) for his Meniere’s disease. While this is less than the 60 percent rating he seeks, he does not meet the criteria for a 60 percent rating under DC 6205 and his overall level of disability more closely approximates the combined 30 percent and 10 percent ratings. Those rating criteria (under DCs 6204 and 6260) very closely describe his symptoms. In conclusion, after review of all the evidence, lay and medical, the Board finds that an initial rating higher than 30 percent under DC 6205 is not warranted. The evidence does not show that the Veteran had a cerebellar gait during the appeal period, which would be necessary for the next highest rating of 60 percent. While the Veteran has consistently endorsed experiencing vertigo on a weekly basis during the appeal, a cerebellar gait was denied during the July 2017 VA examination and there is no other medical or lay evidence that shows otherwise. See VA treatment records cited above; Meniere’s diary. Therefore, an increased evaluation is not warranted under DC 6205. Furthermore, the Board notes that rating pursuant to any other DCs, to include 6100 for hearing loss, 6204 for vertigo, and 6260 for tinnitus do not support the assignment of a rating higher than 30 percent. In fact, the Veteran's service-connected bilateral hearing loss is currently granted a noncompensable rating. The available audiometric testing results/VA examinations from the time of the appeal period do not show a compensable rating could be assigned (see e.g, December 2012 VA examination (the average decibel loss of 46 Hz and 28 Hz, and Maryland CNC of 80 percent and 96 percent, for right and left ears respectively ); August 2011 VA outpatient treatment records (documenting average decibel loss of 48 for service connected right ear hearing loss). His service-connected tinnitus is currently rated as 10 percent disabling, which is the maximum available rating for tinnitus. As for his vertigo, Diagnostic Code 6204, allows for, at most, a 30 percent rating which, as noted above, would be the maximum allowable for the vertigo alone. Accordingly, the currently assigned ratings under DCs 6205 (30 percent), 6260 (10 percent), and 6100 (noncompensable) represent the most beneficial combination of ratings available given the current evidence. As the preponderance of the evidence is against assignment of any higher ratings for any time period, the benefit-of-the doubt doctrine is not applicable. See 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). MICHELLE L. KANE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Kerry Hubers 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.