Citation Nr: 21026622 Decision Date: 05/03/21 Archive Date: 05/03/21 DOCKET NO. 11-02 458 DATE: May 3, 2021 ORDER Entitlement to an initial rating in excess of 30 percent for Meniere's disease with vertigo, tinnitus, and hearing loss is denied. FINDING OF FACT For the entire period on appeal, the Veteran's service-connected Meniere's disease was manifested by dizziness, hearing impairment with vertigo, and tinnitus; the weight of the evidence demonstrated that the disability does not cause staggering or a cerebellar gait and the Veteran's auditory acuity was no worse than Level II in the right ear and Level XI in the left ear. CONCLUSION OF LAW The criteria for an initial rating in excess of 30 percent for Meniere's disease with vertigo, tinnitus, and hearing loss are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.6, 4.7, 4.10, 4.85, 4.86, Diagnostic Codes (DCs) 6100, 6204, 6205, 6260. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1956 to July 1960. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2009 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). This matter was previously remanded by the Board in April 2017 to afford the Veteran an opportunity to have a Board hearing should he wish. To date, the Veteran has not indicated a further desire to request a hearing. The claim came before the Board again in August 2020. Specifically, the Board remanded the issue to afford the Veteran an opportunity to develop support for his claim for an increased rating by affording the Veteran with a VA examination to assess the current nature and severity of his Meniere's disease. The Board directed that this Veteran's advanced age, poor health, and difficulties traveling the long distance to the closest VA examination be taken into consideration when scheduling the examination. The record shows that due to the Veteran's circumstances, he did not attend the scheduled VA examination and thereafter specifically requested that no more exams be scheduled due to the difficulty it causes him to attend. See April 2021 Appellate Brief and Veteran correspondence received by VA in January, February, and March 2021. Thus, while the examination was not performed, the Board finds that there was substantial compliance with the August 2020 remand directives. See Stegall v. West, 11 Vet. App. 268, 270-71 (1998) (holding that remand by the Board confers upon a veteran, as a matter of law, the right to compliance with the Board's remand order). This appeal has been advanced on the Board's docket. 38 U.S.C. § 7107(b). Entitlement to an initial rating in excess of 30 percent for Meniere's disease with vertigo, tinnitus, and hearing loss The Veteran contends that his Meniere's syndrome with vertigo, tinnitus, and hearing loss warrants a higher initial evaluation than the currently assigned 30 percent. Disability evaluations (ratings) are determined by the application of the VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. § Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual disorders in civil occupations. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Separate ratings may be assigned for separate periods of time based on the facts found; this practice is known as staged ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran's Meniere's syndrome with vertigo, tinnitus, and hearing loss is evaluated under DC 6205. See 38 C.F.R. § 4.87, DC 6205. DC 6205 provides that Meniere's disease can either be rated under DC 6205, or by separately rating vertigo (under DC 6204), tinnitus (under DC 6260), and hearing impairment (under DC 6100); whichever method which results in a higher overall evaluation. However, ratings for hearing impairment, tinnitus, or vertigo are not to be combined with an evaluation under DC 6205. 38 C.F.R. § 4.87, DC 6205. Therefore, in examining the Veteran's disability, the Board will consider not only DC 6205, but also DCs 6100, 6204, and 6260. Under DC 6205, pertaining to Meniere's disease, a 30 percent disability 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 warranted for hearing impairment with attacks of vertigo and cerebellar gait occurring more than once weekly, with or without tinnitus. Id. Under DC 6100, ratings of hearing loss range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of speech discrimination tests combined with the average hearing threshold levels as measured by puretone audiometry tests in the frequencies 1000, 2000, 3000, and 4000 cycles per second. To rate the degree of disability for service-connected hearing loss, the Rating Schedule has established eleven auditory acuity levels, designated from level I, for essentially normal acuity, through level XI, for profound deafness. 38 C.F.R. § 4.85(h), Table VI, VIA, and VII. The assignment of disability ratings for hearing impairment is derived by a mechanical application of the Rating Schedule to the numeric designations assigned after audiometric evaluations are rendered. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). A hearing impairment examination for VA purposes must be conducted by a state-licensed audiologist and must include a controlled speech discrimination test (Maryland CNC) and a puretone audiometry test. 38 C.F.R. § 4.85(a). These results are then charted on Table VI, or Table VIA in exceptional cases as described in 38 C.F.R. § 4.86, and Table VII, as set out in the Rating Schedule. 38 C.F.R. § 4.85. An exceptional pattern of hearing loss occurs when the puretone threshold at 1000, 2000, 3000, and 4000 Hertz is 55 decibels or more, or when the puretone threshold is 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz. 38 C.F.R. § 4.86. Under DC 6204, pertaining to peripheral vestibular disorders, a 10 percent rating is warranted for occasional dizziness, and a maximum 30 percent rating is warranted for dizziness and occasional staggering. 38 C.F.R. § 4.87, DC 6204. Under DC 6260, a maximum 10 percent disability rating is warranted for recurrent tinnitus. In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the Veteran is not entitled to a rating in excess of 30 percent for Meniere's syndrome with vertigo, tinnitus, and hearing loss at any point during the appeal period. A December 2009 VA audio examination report shows that the Veteran reported his vertigo as "spinning" lasting 20 minutes to an hour at a time, with the most recent episode in May 2008, and no vertigo for 10 years prior to that. He reported constant tinnitus described as "hissing" that sometimes wakes him up at night. In the April 2014 VA Form 9, the Veteran reported that his dizziness has increased and worsened. During December 2009 and September 2018 VA audio examinations, the Veteran reported that he cannot hear if any background noise is present, that he has become much less sociable because he cannot hear what is going on even if only 2 or 3 people are present, and that he isolates himself because of his hearing loss. During an October 2018 VA examination, the Veteran reported that he sometimes thinks his neighbors make a lot of noise or play music, and even called the police once, but it was his tinnitus. He also reported listening difficulties in groups and on the telephone despite wearing hearing aids, and that he does not always hear the alarm clock or smoke detector alarm when he is lying on his good ear. The Veteran underwent a VA ear conditions examination in February 2015. At that time, he reported that for many years, his vertigo arises with his tinnitus with progressive hearing loss. The examination report reveals symptoms of hearing impairment with vertigo lasting less than an hour, vertigo more than once weekly lasting less than an hour and hearing loss and/or tinnitus. The Veteran also submitted a diary from June to December 2014 which describes 17 self-reported episodes of vertigo and hearing loss and while the Veteran did not note the duration for every episode, the longest episode for which he did not a duration was approximately 4-5 minutes. Here, while the evidence shows that the frequency of vertigo episodes increased from occurring rarely prior to December 2009 to occurring one to four times per month by June 2014, the Board finds no evidence of record that indicates that the Veteran had a cerebellar gait at any time during the appeal period, nor does he contend that his Meniere's disease symptomatology causes a cerebellar gait. Because a cerebellar gait is a required criterion for a rating in excess of 30 percent under DC 6205, the Board finds that a higher rating under DC 6205 is not warranted. Nor is a higher overall evaluation for symptoms of Meniere's disease warranted under DCs 6100, 6204, and 6260. The Veteran was first afforded a VA audio examination in December 2009. At such time, the Veteran's puretone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 25 20 30 35 28 LEFT 80 85 115 110 98 The Veteran's speech recognition ability was 94 percent in his right ear but the examiner noted that a left-ear word recognition score could not be obtained due to the severity of hearing loss. Under 38 C.F.R. § 4.85, this would result in a hearing level of I for the Veteran's right ear. Acknowledging the severity of the Veteran's left-ear hearing loss and using a 0 percent left ear speech recognition score would result in a hearing level of XI for his left ear using Table VI. Under Table VII, hearing levels I and XI correspond to a 10 percent rating. However, as noted above, 38 C.F.R. § 4.86(a) provides that when the puretone threshold at each of 1000, 2000, 3000 and 4000 Hertz is 55 decibels or more, the hearing level designation may be determined from either Table VI or Table VIA, whichever results in the higher numeral. As shown above, the Veteran meets this requirement in his left ear, Table VIA is therefore applicable, and results in a hearing level of X for the Veteran's left ear. Under Table VII, hearing levels I and X also correspond to a 10 percent rating. The Veteran was next afforded a VA audio examination in September 2018. The Veteran's puretone thresholds, in decibels, were recorded as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 30 35 35 40 35 LEFT 75 85 105 105+ 93 Puretone test results were deemed valid. The Veteran's speech recognition ability was 94 percent in his right ear and 0 percent in his left ear and the examiner determined the use of the speech discrimination score is appropriate for this Veteran. Under 38 C.F.R. § 4.85, this would result in a hearing level of I for the Veteran's right ear and a hearing level of XI for his left ear using Table VI. Under Table VII, hearing levels I and XI correspond to a 10 percent rating. Table VIA is applicable for the Veteran's left ear hearing loss and results in a hearing level of IX for the Veteran's left ear and under Table VII, hearing levels I and IX correspond to a noncompensable rating. The Veteran was most recently afforded a VA audio examination in October 2018. The Veteran's puretone thresholds, in decibels, were recorded as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 40 40 45 45 43 LEFT 85 105+ 105+ 105+ 83 Puretone test results were deemed valid. The Veteran's speech recognition ability was 84 percent in his right ear and 0 percent in his left ear and the examiner determined the use of the speech discrimination score is appropriate for this Veteran. Under 38 C.F.R. § 4.85, this would result in a hearing level of II for the Veteran's right ear and a hearing level of XI for his left ear using Table VI. Under Table VII, hearing levels II and XI correspond to a 10 percent rating. Table VIA is applicable for the Veteran's left ear hearing loss and results in a hearing level of VII for the Veteran's left ear and under Table VII, hearing levels II and VII correspond to a 10 percent rating. Based on the foregoing, none of the audiology examinations demonstrate that the Veteran is entitled to an evaluation in excess of 10 percent under DC 6100. The Board has considered the Veteran's lay assertions regarding his diminished hearing. However, the assignment of disability ratings for hearing impairment are derived by a mechanical application of the Rating Schedule to the numeric designations based on the audiology examination results. See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). It is clear from the Rating Schedule that a higher rating can be awarded only when loss of hearing has reached a specified measurable level. As to vertigo, the Veteran's condition was not shown to be manifested by staggering at any point during the period on appeal. As noted above, there is no evidence that the Veteran exhibited a cerebellar gait at any time during the appeal period, nor has the Veteran reported staggering during any of the VA examinations. There are no reports of staggering in the private and VA post-service treatment records and a July 2012 VA treatment record notes that the Veteran is not a fall risk. As such, no more than a 10 percent rating is warranted under DC 6204 for vertigo. Further, as previously noted, 10 percent is the maximum available rating for tinnitus. As such, the 30 percent rating currently assigned under DC 6205 is as beneficial to the Veteran as separate ratings for hearing loss (10 percent), vertigo (10 percent), and tinnitus (10 percent) under DC 6100, 6204, and 6260, combined under 38 C.F.R. § 4.25. Inasmuch as the evidence demonstrates that the Veteran's Meniere's disease was manifested by hearing impairment with vertigo and tinnitus, the Board finds that his disability most closely approximates the criteria for an initial 30 percent rating under DC 6205. As the preponderance of evidence is against the claim, the appeal must be denied. C. CRAWFORD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Battaile 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.