Citation Nr: A25019752 Decision Date: 03/04/25 Archive Date: 03/04/25 DOCKET NO. 201005-112134 DATE: March 4, 2025 ORDER Entitlement to 100 rating percent for residuals of perforated right eardrum with related right ear hearing loss, tinnitus, vertigo, cerebellar gait, imbalance, and gait disturbances from June 12, 2006, is granted. The separate ratings for right ear hearing loss, rated as zero percent disabling; tinnitus, rated as 10 percent disabling; and perforated right ear drum with related vertigo, rated as 30 percent; are discontinued effective June 12, 2006. FINDING OF FACT 1. From June 12, 2006, the Veteran's residuals of perforated right eardrum have been manifested by right ear hearing loss, tinnitus, vertigo, cerebellar gait, imbalance, and gait disturbances. 2. The 100 percent disability rating for residuals of perforated right eardrum with related right ear hearing loss, tinnitus, vertigo, cerebellar gait, imbalance, and gait disturbances is greater than the 40 percent rating that results from combining the zero percent rating currently assigned for right ear hearing loss, the 10 percent rating for tinnitus, and the 30 percent rating that was previously assigned for peripheral vestibular disorder. CONCLUSION OF LAW 1. The criteria for a 100 percent rating for residuals of perforated right eardrum with related right ear hearing loss, tinnitus, vertigo, cerebellar gait, imbalance, and gait disturbances have been met, effective June 12, 2006. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.20, 4.87, Diagnostic Code 6205. 2. The criteria for discontinuation of the previously assigned separate ratings for right ear hearing loss, tinnitus, and perforated right ear drum with related vertigo have been met, effective June 12, 2006. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.14, 4.25, 4.85, 4.87, Diagnostic Codes 6204, 6205, 6260, 6100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from April 1976 to September 1976. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2020 higher-level review decision, following a December 2019 rating decision by the Department of Veterans Affairs (VA) regional office, which is the Agency of Original Jurisdiction (AOJ). The Veteran elected the Board's Direct Review docket. See October 2020 VA Form 10182. This restricts the Board's review to the evidence of record at the time of the December 2019 rating decision. 38 C.F.R. § 20.301. In an April 2023 decision, the Board denied a rating in excess of 30 percent prior to February 18, 2017, to include on an extraschedular basis, for residuals of perforated right eardrum with related vertigo. The Veteran appealed the Board's April 2023 decision to the United States Court of Appeals for Veterans Claims (Court), which in an October 2024 order, granted the parties' joint motions for partial remand (JMPR), vacating in part the Board's April 2023 decision and remanding the claim for compliance with the terms of the JMPR. As of this decision, the Veteran will be rated at 100 percent for a single disability throughout the entire period of his appeal, with no separately rated service-connected disabilities. Although VA has a duty to maximize a claimant's benefits, the Veteran is in receipt of the maximum benefits available during the entire period on appeal before the Board at this time. Accordingly, entitlement to a TDIU is moot and not before the Board. See 38 C.F.R. § 4.16(a). Entitlement to a rating in excess of 30 percent for residuals of perforated right eardrum with related vertigo, to include on an extraschedular basis, prior to February 18, 2017. The Veteran contends that, prior to February 18, 2017, he is entitled to an extraschedular rating under Diagnostic Code 6204 for his residuals of perforated right eardrum prior to February 18, 2017. In the alternative, the Veteran contends that he is entitled to a 100 percent rating under Diagnostic Code 6205. VA received an informal claim for increased ratings for his service connected perforated right ear drum and right ear hearing loss on June 12, 2006. The Board notes that the Veteran has continuously pursued this claim since that time. In Morgan v. Wilkie, 31 Vet. App. 162, 167-68 (2019), the United States Court of Appeals for Veterans Claims (Court) held that VA's duty to maximize benefits requires it to first exhaust all schedular alternatives for rating a disability before an extraschedular analysis is triggered, including inter alia, secondary service connection (38 C.F.R. § 3.310), analogous ratings (38 C.F.R. § 4.20), and rating under multiple diagnostic codes without pyramiding (38 C.F.R. § 4.14). See also Bailey v. Wilkie, 33 Vet. App. 188, 203 (2021); Long v. Wilkie, 33 Vet. App. 167, 174 (2020) (en banc), vacated on other grounds sub nom. Long v. McDonough, 38 F.4th 1063 (Fed. Cir. 2022). As of February 18, 2017, the Veteran is in receipt of a 100 percent rating for residuals of perforated right eardrum with related right ear hearing loss, tinnitus, vertigo, cerebellar gait, imbalance, and gait disturbances associated with perforated right ear drum with related vertigo pursuant to 38 C.F.R. § 4.87, Diagnostic Code 6299 - 6205. Prior to February 18, 2017, the Veteran was in receipt of a 30 percent rating, pursuant to 38 C.F.R. § 4.87, Diagnostic Code 6204. Under Diagnostic Code 6204, contemplating peripheral vestibular disorders, a 10 percent rating is warranted for manifestation of occasional dizziness. A 30 percent (maximum) rating is warranted when there is dizziness and occasional staggering. A note provides that objective findings supporting the diagnosis of vestibular disequilibrium are required before a compensable rating can be assigned under the diagnostic code. Hearing impairment or suppuration shall be separately rated and combined. Under diagnostic Code 6205, contemplating Meniere's syndrome (endolymphatic hydrops), 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. 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, DC 6205. A note provides that Meniere's syndrome can be rated either under the criteria or by separately evaluating vertigo as a peripheral vestibular disorder, hearing impairment, and tinnitus, whichever method results in a higher overall rating. However, a combined rating for hearing impairment, tinnitus, or vertigo with a rating under Diagnostic Code 6205 is inappropriate. 38 C.F.R. § 4.87, DC 6205. Cerebellar gait is a staggering ataxic gait, sometimes with a tendency to fall to one side, indicative of cerebellar lesions. Dorland's Illustrated Medical Dictionary 753 (32nd ed. 2012). An ataxic gait is an unsteady, uncoordinated walk, with a wide base and the feet thrown out, due to some form of ataxia. Dorland's Illustrated Medical Dictionary 764 (31st ed. 2007); Camp v. Shinseki, 12-1559, 2013 U.S. App. Vet. Claims LEXIS 697. A cerebellar gait is more than mere unsteadiness, or even staggering. It is a very specific, and more severe, level of gait impairment. The rating schedule makes that clear. In the criteria for Diagnostic Code 6204, occasional staggering is one symptom of a peripheral vestibular disorder rated 30 percent disabling. Had the authors of the schedule meant the same level of impairment for both conditions, the same plain language would have been used and the same disability rating would have been assigned. Instead, the authors used occasional staggering to describe symptoms warranting a 30 percent disability under Diagnostic Code 6204 and cerebellar gait to describe one of the more severe symptoms that form the disability constellation warranting a total schedular rating under Diagnostic Code 6205. The Board may not assign an extraschedular rating in the first instance but must specifically adjudicate whether to refer a case for extraschedular evaluation when the issue either is raised by the claimant or reasonably raised by the evidence of record. Barringer v. Peake, 22 Vet. App. 242 (2008). The Board previously remanded the issue of an extraschedular rating for the perforated right eardrum with related vertigo for referral to the Director for an opinion as to whether an extraschedular rating was warranted. In a November 2019 opinion, the Director denied an extraschedular rating. The Director reasoned that while Diagnostic Code 6204 does not specifically list the Veteran's perforated right eardrum with related vertigo symptoms, to include vertigo, cerebellar gait, and loss of balance, the Code nonetheless contemplates such symptoms. The Board is not bound by the Director's decision, and it is not considered evidence. See Kuppamala v. McDonald, 27 Vet. App. 233, 236 (2015). The Board will thus decide this issue de novo. See Wages v. McDonald, 27 Vet. App. 233, 238-39 (2015) (holding that the Board conducts de novo review of the Director's decision denying extraschedular consideration). The Veteran was afforded a VA examination in March 2007. He reported having no hearing in his right ear and an onset of vertigo in 1989 when his right tympanic membrane was perforated. A visible perforation was noted in his right eardrum. He reported a history of vertigo, described as being true syncope persisting on occasions for several hours, and that he used a cane and had been falling into things. A July 2008 VA treatment record notes the Veteran presented with an unsteady gait for which he uses a cane. The Veteran reported a longstanding history of dizziness and vertigo and stated that "generally when he gets up to walk, that will induce dizziness and staggering" with bumping into walls and many falls. He reported frequent episodes of dizziness and vertigo on a daily basis. No use of any vestibular medication was noted. The examining audiologist provided an impression of "CNS [central nervous system] pathology involving cerebellum and ocular motor pathways" and "Probable VOR [vestibular-ocular reflex] deficit." Follow up was recommended for vestibular rehabilitation that emphasized fall prevention, gait assessment, habituation/compensation strategies, and strengthening VOR. A March 2009 VA treatment record notes the Veteran has a weak gait. The Veteran was afforded a VA ear disease examination in May 2010. The Veteran reported continuing daily episodes of dizziness that has progressively worsened and is associated with movement or position changes. He further reported that his symptoms are occasionally accompanied by nausea/vomiting. It was noted that the Veteran's balance is disturbed so that gait is altered initially with position changes and then resolves after brief holding to large, stationary objects. A small amount of drainage, once per week, from the right ear was noted. Moderate right ear aching discomfort in conjunction with ear infections was noted. Constant moderate, right ear itching was noted. In an August 2011 statement, the Veteran reported that he is "unable to maintain [his] balance." A June 2013 VA treatment record notes the Veteran has limitations on how far he can walk due to chronic back pain, chronic obstructive pulmonary disease (COPD), and vertigo. It was noted that he has poor balance and vertigo and has had falls. The Veteran was afforded a VA ear conditions examination in March 2015. A diagnosis of perforation of the right tympanic membrane was noted. He reported experiencing constant dizziness that he can adjust to when he is driving. He reported being able to do light carpentry which he described and being "a handy man" who "drywalled [his] house, put siding on it, and need to build a new deck". He reported being able to drive 2.5 hours one-way hours to St. Louis. He then reported having frequent falls due to impaired balance from dizziness and having to hold on to walls or objects if he is not using a cane. He further reported experiencing nausea 4 days out of 7 with dry heaves related to dizziness. Hearing impairment with vertigo and tinnitus, more than once weekly, lasting 1 to 24 hours, were noted. Unsteady, guarded but balanced gait with transfer from scooter to exam room and to chair was noted. Unsteady gait when trying to tandem walk was noted. No functional impact was noted. An August 2016 VA treatment record notes the Veteran ambulated with the assistance of a cane and had a steady gait. A September 2016 VA treatment record notes the Veteran's gait was unsteady and that he ambulated with a cane. A November 2016 VA treatment record notes the Veteran ambulates with a cane and has a steady gait. A February 2017 VA treatment record notes the Veteran walks with a cane and his gait is "slow and somewhat unsteady." The Veteran was afforded a VA ear conditions examination in February 2017. A diagnosis of perforated right ear drum with related vertigo, cerebellar gait, imbalance, and gait disturbances was noted. Treatment with Meclizine was noted. Hearing impairment with vertigo and hearing impairment with attacks of vertigo and cerebellar gait, more than once weekly and lasting 1 to 24 hours, were noted. Hearing impairment and tinnitus were noted. Upon examination, perforated right tympanic membrane was noted, as was unsteady gait. Nystagmus and an inability to perform finger to nose were noted. The examiner noted that the Veteran is unable to walk or stand for prolonged periods of time due to his conditions and is unable to work with heights, with loud noise, or standing up. In a September 2017 addendum opinion, the VA examiner opined that Veteran's vertigo and gait disturbances, including cerebellar gait, are due solely to the service connected perforated ear drum with related vertigo, and not his back or cardiac disabilities, noting a July 2008 VA treatment record notes the Veteran had vertigo and problems with gait for roughly 30 years. It was further noted that a May 2007 VA compensation and pension examination report noted the Veteran sustained a perforated tympanic membrane with vertigo in 1976. Here, the Board finds that the Veteran's attacks of vertigo with symptoms of dizziness, unsteadiness of gait, staggering, bumping into walls, and falling, and for which he must use a cane or hold onto objects, more closely approximate cerebellar gait occurring more than once weekly. As such, the Board finds that, while the Veteran has not been diagnosed with Meniere's syndrome, his residuals of ruptured right eardrum with related right ear hearing loss, tinnitus, vertigo, cerebellar gait, imbalance, and gait disturbances more closely approximates the level of disability contemplated by a 100 percent rating under Diagnostic Code 6205. The 100 percent disability rating under Diagnostic Code 6205, encompassing hearing impairment, tinnitus, and vertigo, is greater than the 40 percent rating that results from combining the zero percent rating currently assigned for right ear hearing loss, 10 percent rating currently assigned for tinnitus, and the 30 percent rating that was previously assigned for peripheral vestibular disorder. See 38 C.F.R. § 4.25. That is to say, the 100 percent rating under Diagnostic Code 6205 is the greater benefit. In light of the award of a 100 percent rating under Diagnostic Code 6205, it is necessary to discontinue the separate zero percent rating assigned for right ear hearing loss as well as the 10 percent rating assigned for tinnitus. Doing so does not constitute a "reduction" in benefits because the different manifestations of his ear disability are being combined, re-characterized, and increased under Diagnostic Code 6205, with a greater benefit awarded. The Board's action in that regard constitutes neither a reduction in rating nor a severance of service connection, but rather a change in the diagnostic codes (from 3 separate ratings under Diagnostic Codes 6204, 6260, and 6100 to a single rating under Diagnostic Code 6205) to reflect his current diagnosis more accurately and to maximize benefits. Murray v. Shinseki, 24 Vet. App. 420, 428 (2011); Read v. Shinseki, 651 F.3d 1296, 1302 (Fed. Cir. 2011). In addition, maintaining the separate rating for dizziness/vertigo under Diagnostic Code 6204 would be inconsistent with the Note under Diagnostic Code 6205. Pursuant to that Note, the Veteran is allowed either a single rating under Diagnostic Code 6205 that encompasses attacks of vertigo, hearing impairment, and tinnitus, or separate ratings for vertigo (rated as peripheral vestibular disorder under Diagnostic Code 6204), hearing impairment, and tinnitus without an additional rating under Diagnostic Code 6205. Assigning the Veteran a 100 percent rating under Diagnostic Code 6205 without discontinuing the 30 percent rating for dizziness under Diagnostic Code 6204 would also violate the rule against pyramiding. See Esteban v. Brown, 6 Vet. App. 259 (1994); 38 C.F.R. § 4.14. In sum, a 100 percent rating is granted for residuals of perforated right eardrum with related right ear hearing loss, tinnitus, vertigo, cerebellar gait, imbalance, and gait disturbances, effective June 12, 2006; and the separate ratings for right ear hearing loss, tinnitus, and related vertigo are discontinued from the same date. T. V. Casey Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Keeley, Brian 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.