Citation Nr: 21025367 Decision Date: 04/28/21 Archive Date: 04/28/21 DOCKET NO. 17-31 739 DATE: April 28, 2021 ORDER Entitlement to a rating of 100 percent for ear disability, which encompasses hearing impairment, vertigo, and tinnitus for the period on appeal, is granted subject to the laws and regulations governing the payment of monetary benefits. FINDING OF FACT The Veteran’s ear disability manifests with hearing impairment, attacks of vertigo, cerebellar gait, and tinnitus, occurring more than once weekly. CONCLUSION OF LAW The criteria for a rating of 100 percent for ear disability, which encompasses hearing impairment, vertigo, and tinnitus, have been met for the period on appeal. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.85, 4.87, Diagnostic Code (DC) 6205. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1976 to July 1978. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a rating decision issued in October 2013 by a Department of Veterans Affairs (VA) Regional Office. In February 2019, the Board denied the Veteran’s claim for an increased rating. The Veteran appealed this decision to the United States Court of Appeals for Veterans Claims (Court). Pursuant to a March 2020 Joint Motion for Partial Remand (JMPR), the Court vacated the February 2019 Board decision and remanded it to the Board. Consistent with the findings in the JMPR, the Board remanded the case for additional development in July 2020, and it now returns for further appellate review. Entitlement to a rating in excess of 30 percent for Meniere’s syndrome. Disability ratings are determined by applying a schedule of ratings that is based on 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 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. All reasonable doubt will be resolved in the claimant’s favor. 38 C.F.R. § 4.3. 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 required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. Separate ratings can be assigned for separate periods based on the facts found—a practice known as “staged” ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Staged ratings are appropriate whenever the factual findings show distinct periods where the service-connected disability exhibits symptoms that would warrant different ratings. Id. As an initial matter, the Board notes that the period on appeal begins July 18, 2012, the date VA received the Veteran’s claim for an increased rating for her Meniere’s syndrome, plus the one-year look-back period. See Gaston v. Shinseki, 605 F.3d 979, 982 (Fed. Cir. 2010). The Veteran’s Meniere’s syndrome has been rated as 30 percent disabling pursuant to DC 6205 for the period on appeal. Under DC 6205, a 30 percent 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, DC 6205. VA is to evaluate Meniere’s disease under Diagnostic Code 6205 or by separately evaluating vertigo (as a peripheral vestibular disorder), hearing impairment, and tinnitus, whichever method results in a higher overall evaluation. However, VA is not to combine an evaluation for hearing impairment, tinnitus, or vertigo with an evaluation under DC 6205. Id., Note. 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). The Board notes that, in the instant case, there has been considerable discussion regarding whether the Veteran’s frequently reported episodes of vertigo, dizziness, instability, and difficulty maintaining balance constitute a cerebellar gait, as is required for the assignment of a rating higher than 30 percent. As will be explained below, based on the findings of the new VA examination and also with application of the benefit of the doubt rule, the Board finds that the Veteran’s incapacitating symptoms of frequent vertigo with instability most closely approximate a hearing impairment with attacks of vertigo and cerebellar gait occurring more than once weekly, with tinnitus. Accordingly, a one hundred percent rating is granted for the period on appeal. In this regard, for the period on appeal, the Veteran has consistently reported balance problems along with daily vertigo, with more severe attacks of vertigo, dizziness, and ataxic gait. In August 2012, just after filing her increased rating claim, the Veteran reported what she believed was a cerebellar gait, stating that walking in normal situations felt like she was walking down the aisle of an airplane while in flight, with varying degrees of turbulence. In a January 2013 notice of disagreement, the Veteran described her tendency to stagger and falter while walking and reported that it takes an exorbitant amount of energy to maintain balance, thereby resulting in constant fatigue. In January 2014, a counselor who had worked with the Veteran for several years commented on the Veteran’s anxiety caused by such symptoms, stating that the Veteran struggled with daily vertigo that often prevented her from driving and caused balance problems. In March 2017 correspondence, the Veteran described even more severe attacks of vertigo, as opposed to her daily feelings of dizziness and instability, occurring on average six times per month, with associated tinnitus in both ears. The Board notes that the initial denials of the Veteran’s increased rating claims were based on a lack of notation of cerebellar gait, specifically, in the Veteran’s first VA examination afforded to evaluate the severity of her Meniere’s symptoms. In this regard, on the day of the October 2012 VA examination, the Veteran initially exhibited a normal gait. However, the Board notes that on administration of a Romberg test, she also demonstrated unsteadiness and an exaggerated movement of the body. The examiner went on to state that the functional impact of the Veteran’s Meniere’s syndrome included being off balance on a daily basis, with up to five severe episodes of vertigo and associated balance problems occurring per month. In a June 2020 informal hearing presentation, the Veteran’s representative argued that she is entitled to an increased rating due to her experience of cerebellar-like gait, on average, more than once per week. In this regard, the representative discussed the lack of scientific consensus regarding whether an altered gait due to Meniere’s disease should be precisely labeled as a “cerebellar gait,” as opposed to simply a cerebellar-like disruption of normal balance when associated with other Meniere’s symptomatology. In this regard, an addendum medical opinion was obtained in March 2021, and the VA examiner noted that the exact etiology and correct medical term to describe the Veteran’s staggering ataxic gait was not perfectly clear from the record. However, the examiner also noted that the Veteran still experiences the severe attacks of vertigo four to five times per month. The examiner specifically referred to such attacks of vertigo and unsteadiness, as being of the type typically seen in Meniere’s syndrome and “incapacitating.” Accordingly, based on the evidence described herein, the Board resolves all doubt in favor of the Veteran and finds that the Veteran’s Meniere’s disability more closely approximates the symptoms that correspond to a 100 percent rating under DC 6205. The Board notes that, in the instant case, assigning separate ratings for tinnitus and sensorineural hearing loss would be inconsistent with the Note under DC 6205. The Veteran is either allowed one rating under Meniere’s disease that encompasses hearing loss, vertigo, and tinnitus, or separate ratings for hearing loss, vertigo, and tinnitus without an additional rating for Meniere’s disease. Assigning the Veteran a 100 percent rating for Meniere’s disease along with a separate rating for tinnitus or sensorineural hearing loss rating would violate this rule, and the larger premise of pyramiding. See Esteban v. Brown, 6 Vet. App. 259 (1994); 38 C.F.R. § 4.14. Based on the foregoing, the Board grants a 100 percent rating for ear disability under DC 6205 that encompasses the Veteran’s hearing impairment, vertigo, and tinnitus, effective July 18, 2012. Z. SAHRAIE Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Breckenridge, 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.