Citation Nr: 21023054 Decision Date: 04/20/21 Archive Date: 04/20/21 DOCKET NO. 12-33 964A DATE: April 20, 2021 ORDER Entitlement to a 100 percent rating for persistent disequilibrium with tinnitus is granted, subject to the laws and regulations governing the payment of monetary benefits. FINDING OF FACT Throughout the entire period on appeal, the Veteran’s persistent disequilibrium with tinnitus manifested with hearing impairments with attacks of vertigo and cerebellar gait occurring more than once weekly. CONCLUSION OF LAW The criteria for a 100 percent evaluation for persistent disequilibrium with tinnitus have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.3, 4.87, Diagnostic Code (Code) 6205. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1991 to April 1995.       The appeal was most recently before the Board in  March 2018  when it was remanded for further development.  The Board finds there has been substantial compliance with the remand directives and the Board will proceed to adjudication.  Stegall v. West, 11 Vet. App. 268 (1998).    Entitlement to a rating in excess of 30 percent for persistent disequilibrium with tinnitus The Veteran seeks a higher rating for his service-connected persistent disequilibrium with tinnitus. The disability is evaluated as 30 percent disabling from April 2, 1995 under 38 C.F.R. § 4.87 Code 6204. The Veteran is separately service-connected for bilateral hearing loss, rated as noncompensable (0 percent) under 38 C.F.R. § 4.85 Code 6100. He filed his claim for a higher rating in May 2008 Disability ratings are determined by comparing the Veteran’s symptoms with criteria listed in VA’s Schedule for Rating Disabilities, which is based, as far as practically can be determined, on average impairment in earning capacity. Separate Codes identify the various disabilities.  38 C.F.R. Part 4. When rating a service-connected disability, the entire history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two ratings shall be applied, 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. § 4.7.   Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994).  Staged ratings are appropriate in any increased-rating claim in which distinct time periods with different ratable symptoms can be identified.  Hart v. Mansfield, 21 Vet. App. 505 (2007).   Code 6204 provides for ratings of peripheral vestibular disorders. A 10 percent rating is warranted for peripheral vestibular disorder manifested by occasional dizziness. A maximum 30 percent rating is warranted for dizziness and occasional staggering. A note following the code provides that hearing impairment or suppuration shall be separately rated and combined. Code 6205 provides for ratings for Meniere’s disease (endolymphatic hydrops). A 30 percent rating is warranted for hearing impairment and vertigo less than once monthly, 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 monthly, 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 38 C.F.R. § 4.87, Code 6205. A note following the code provides that Meniere’s syndrome is evaluated either under the criteria under Code 6205 or by separately evaluating vertigo (as a peripheral vestibular disorder), hearing impairment, and tinnitus, whichever method results in a higher overall evaluation. But ratings for hearing impairment, tinnitus, or vertigo are not combined with an evaluation under diagnostic Code 6205. On July 2008 VA examination, the Veteran was diagnosed with persistent dysequilibrium dating back to service in 1993, and he underwent a surgery during service to replace a prosthesis and repair his tympanic membrane with a graft. He reported that following this procedure he noticed that he was feeling as if his head was tipping back and to the right, and that the feeling persisted to that day. The examiner noted he had hearing loss and tinnitus. The examiner noted the Veteran had a history of vertigo or dizziness since 1993, occurring daily and lasting minutes or less. The examiner also noted that the Veteran had a history of balance or gait problems since 1993, occurring daily and lasting minutes or less. On January 2021 VA examination, benign paroxysmal positional vertigo and cholesteatoma were diagnosed and the Veteran was noted to have a prosthetic incus. The Veteran reported that his condition began during service and had begun with mild symptoms of dizzy spells and tinnitus of the left ear. He reported he had severe episodes beginning in the 2015 to 2016 time-frame. He reported that his current symptoms were disequilibrium occurring several times a month varying between moderate, lasting for a few minutes, to severe, lasting from a few minutes to a few days. His mild episodes included dizziness where he would place his hand on the wall or hold onto a table, but for stronger more severe episodes he could see normally, but would be completely disoriented to where he could barely stand. He also reported queasiness with severe and bilateral tinnitus. The examiner found that the Veteran had hearing impairment with attacks of vertigo and cerebellar gait occurring more than once weekly and lasting for less than an hour at a time, and tinnitus occurring more than once weekly and lasting for less than an hour at a time. The examiner opined that the Veteran’s peripheral vestibular condition impacted his ability to work his dizziness, nausea, and disorientation required him to be in bed. Based on review of the record, the Board concludes that the Veteran’s persistent disequilibrium with tinnitus more nearly approximates a 100 percent rating under Code 6205 for the entire period on appeal. While the reflects that the Veteran has not been diagnosed with Meniere’s syndrome at any point, the Board finds the that the manifestations of his diagnosed peripheral vestibular disorder resulted in hearing impairment with attacks of vertigo and cerebellar gait occurring more than once weekly throughout the period on appeal, which meets the 100 percent criteria for Meniere’s syndrome. Therefore his disability is analogous to Meniere’s syndrome because the effects are the same as to the symptoms addressed by the rating criteria for Meniere’s syndrome. Therefore, in providing the Veteran with the benefit of the doubt, a 100 rating is warranted under Code 6205. See 38 C.F.R. § 4.20; Mauerhan v. Principi, 16 Vet. App. 436 (2002). The Board specifically finds that evaluating the Veteran’s disability under Code 6205 results in the higher overall evaluation. This evaluation should not be combined with the evaluation for hearing impairment. See Note following Code 6205. M.E. Larkin Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Eric Struening 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.