Citation Nr: 21013080 Decision Date: 03/08/21 Archive Date: 03/08/21 DOCKET NO. 14-37 434 DATE: March 8, 2021 ORDER Entitlement to a rating of 100 percent for Meniere's syndrome prior to October 4, 2018, is granted. REMANDED Entitlement to a rating greater than 20 percent for status post meniscectomy of the right knee is remanded. Entitlement to a compensable rating for limitation of flexion in the right knee is remanded. Entitlement to a total disability rating for compensation based on individual unemployability (TDIU) due to service connected disabilities prior to September 4, 2018, is remanded. FINDING OF FACT Prior to October 4, 2018, the Veteran’s Meniere’s syndrome was manifested by hearing impairment with attacks of vertigo and cerebellar gait occurring more than once weekly with tinnitus. CONCLUSION OF LAW Beginning August 31, 2012, the criteria for a rating of 100 percent for Meniere’s syndrome have been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 4.88a (Diagnostic Code 6205). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active military service from March 1972 to May 1993. This matter comes before the Board of Veterans’ Appeals (Board) from the June 2013 and May 2014 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). This matter was previously before the Board in August 2018 and was remanded for further development. Entitlement to a rating in excess of 30 percent for Meniere's syndrome prior to October 4, 2018 The Veteran is currently in receipt of service connection for Meniere’s syndrome evaluated as 30 percent disabling prior to October 4, 2018 and 100 percent thereafter. 38 C.F.R. § 4.88a, Diagnostic Code 6205. As an initial matter, the Board notes that in an August 2020 rating decision, the Veteran’s Meniere’s syndrome was increased from 30 to 100 percent disabling with an effective date of October 4, 2018, the date the Veteran completed a disability benefit questionnaire for his condition. Under Diagnostic Code 6205, a 30 percent rating is warranted for hearing impairment with vertigo less than once a month, with or without tinnitus; 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; and, 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. § 4.88a. In January 2013, the Veteran underwent a VA ear conditions examination. The examiner noted that the Veteran’s vertigo occurs more than once weekly and lasts 1 to 24 hours. The examiner also reported that the Veteran experiences hearing impairment and/or tinnitus. At the examination, the Veteran could not complete balance testing because of his dizziness. Additionally, the Veteran reported that he has extreme dizzy spells, extreme loss of balance, and constant motion sickness. The Veteran stated that his current symptoms are episodes of dizziness with vomiting that happen three plus times a week and last 20 to 25 minutes, including several hours to “get back to normal.” Furthermore, the Veteran stated that because of his vertigo he does very little or no driving, cannot climb, has trouble with steps, passes out frequently, and cannot go over a high bridge while driving. A private April 2013 treatment record notes that the Veteran was assessed for Meniere disease and reported frequently being dizzy. Additionally, a July 2014 private treatment note states that the Veteran’s vertigo occurs 2-3 times during the week, which each episode lasting 25 to 60 minutes. The Veteran also reported that his vertigo and dizziness have become more chronic and persistent. In July 2013, the Veteran told his VA treatment providers that his dizzy spells have increased and intensified. Additionally, the Veteran stated that when he attempts to pick up items, he drops them due to the dizziness and that things begin to move. The Veteran also reported frequent loss of consciousness after experiencing dizziness. A July 2015 VA treatment note reports that the Veteran is dizzy most of the time, experiences constant ringing in his ears, and has had a couple of near falls, but was able to catch himself. The Veteran stated that he experiences “excruciating dizzy crisis” as well as nausea. Furthermore, an August 2015 VA treatment note states that the Veteran uses a cane and walker to ambulate. In June 2017, the Veteran underwent another VA ear conditions examination. The Veteran reported buzzing/ringing, vertigo with nausea and vomiting that lasts 1 to 7 hours and that his condition has become worse. The examiner noted that the Veterans tinnitus and vertigo occur more than once weekly and last 1 to 24 hours. Additionally, the examiner reported that the Veteran lost his job as a teacher in 2014 because of staggering. In October 2018, the Veteran underwent a private ear conditions examination. The physician stated that the Veteran experiences hearing impairment with vertigo and cerebellar gait, tinnitus, and staggering more than once weekly. The Veteran’s gait was noted as unbalanced and that he requires assistance devices as he is at an increased fall risk. The physician concluded that the Veteran is unable to perform any job duties due to the severity his Meniere’s syndrome and need for rest/safety. As a result of the October 2018 examination, the Veteran’s Meniere’s syndrome was increased from 30 to 100 percent disabling with an effective date of October 4, 2018. Based on the medical and lay evidence of record, the Board finds that the Veteran’s Meniere’s syndrome warrants a 100 percent rating beginning August 31, 2012, the date the Veteran submitted his claim for service connection for Meniere’s syndrome. The evidence of record demonstrates that the Veteran’s condition has resulted in hearing impairment with attacks of vertigo and cerebellar gait occurring more than once weekly, with or without tinnitus, for the entire period on appeal. 38 C.F.R. § 4.88a, Diagnostic Code 6205. This is the highest schedular rating for this Diagnostic Code. Therefore, entitlement to a 100 percent rating for Meniere’s syndrome beginning August 21, 2012 is warranted. REASONS FOR REMAND Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran’s claim so that he is afforded every possible consideration. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. 1. Entitlement to a rating greater than 20 percent for status post meniscectomy of the right knee is remanded. 2. Entitlement to a compensable rating for limitation of flexion in the right knee is remanded. As noted above, this matter was previously before the Board in August 2018 and was remanded for further development. Specifically, the Board directed the Agency of Original Jurisdiction to obtain clarification as to whether the range of motion testing noted in the Veteran’s May 2017 knee examination report remained the same upon active motion, passive motion, weight-bearing, and without weight-bearing testing. If not, the specific ranges of motion were to be provided, or a new examination was to be performed. In October 2019, the Veteran underwent a VA knee examination, however, these examinations do not provide the range of motion testing requested in the Board’s August 2018 remand. As a matter of law, a remand by the Board confers upon the Veteran the right to compliance with the Board’s remand order. Stegall v. West, 11 Vet. App. 268, 270-71 (1998). As such, in accordance with Stegall, remand for full compliance with the Board’s prior remand is warranted. 3. Entitlement to a total disability rating for compensation based on individual unemployability (TDIU) due to service connected disabilities prior to September 4, 2018 is granted. As the resolution of the claim for increased ratings for the Veteran’s right knee conditions might be determinative of the TDIU claim, the issues are inextricably intertwined, and the TDIU issue must also be remanded. See Henderson v. West, 12 Vet. App. 11, 20 (1998); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The matters are REMANDED for the following action: 1. The October 2019 VA examiner is asked to clarify whether the ranges of motion noted in the examination report remained the same upon active motion, passive motion, weight-bearing, and without weight-bearing testing. If not, then the examiner is asked to provide the specific ranges of motion in each state. If the examiner is unable to answer this question, a new examination should be performed. 2. If, and only if, an addendum opinion clarifying the ranges of motion testing cannot be obtained, schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected right knee disabilities. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. In so doing, the examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). In so doing, the examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran’s statements. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). 3. Following completion of the above, and a review of any additional evidence received, the RO should also undertake any other development it deems to be necessary, to include, if warranted, an addendum medical opinion which considers any newly received evidence. 4. After the above development, and any additionally indicated development, has been completed, readjudicate the issues on appeal, including the inextricably intertwined issue of entitlement to TDIU. If the benefit sought is not granted to the Veteran’s satisfaction, send the Veteran and his representative a Supplemental Statement of the Case and provide an opportunity to respond. If necessary, return the case to the Board for further appellate review. MICHAEL MARTIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Mountford, 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.