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Rating Analogous To Meniere's


aviator3
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Question

VA has rated me at 30% analogous to Meniere's for attacks of Vertigo 2-3 times per week. VA claims it would have been higher had I mentioned stumbling (or an inability to ambulate) in my prior complaints to VA or the C&P examiner.

I claim I have been mentioning it at each visit, but I just found in my C-file that when I describe Vertigo and inability to walk during attacks most of the time they just enter Vertigo into my record, and sometimes they just note it as dizziness. First the VA, and then the C&P Dr. ordered a VNG, which in each case was found to be abnormal (greater than 25%). Along with my personal letter and my employer's letter stating the inability to walk without falling occurs with the vertigo.

My question is whether the Abnormal VNG is sufficient proof of a condition of cerebellar gait?

Service Medical Records Show:

1983 - Head Trauma, sensation of violent rotation, nausea, vomiting, inability to walk unassisted, ringing in the ears, hearing loss. Lasting up to a week

1983-1986 Repeat of the above every six months or so. X-ray discovered fractured ossicle in chain of bones for hearing. Told to have VA operate.

VA Records Show:

1989 Claim with VA hearing loss granted SC at 0%. Operation did not take. Intermittent and week long episodes of Vertigo, nausea.

1999 Complained of hearing loss, ringing in the ears. Intermittent and week long episodes of Vertigo, nausea.

2006 Complained of hearing loss, ringing in the ears episodes of Vertigo and nausea. Given a hearing aid for each ear.

2007 Claim for tinnitus and it was granted.

2008 Hearing loss, tinnitus, and episodes of vertigo, nausea and inability to walk during the episodes increased to 2 to three times per week. VA ENT ordered a VNG which included caloric testing. Found a unilateral weakness 33% with 56 DP to right. Abnormal VNG

Claim for Vertigo, stumbling and ordered a copy of C-file on 21-526. C&P Dr. did not ask about stumbling, although it was listed in records to him, and I wrote it on form given to him. He left it out of his report. Noted my gait was normal (I was not having an attack.). He ordered another VNG which agreed with the first.

Decision found SC for Vertigo attacks 2-3 times per week, in addition to those SC'd already. Rated separately under Peripheral vestibular disorders and as analogous to Meniere's. Granted 30% for the higher of the latter. It stated I did not have record of stumbling and had I mentioned stumbling it would have been a 60% rating.

Had I received a copy of the C-file before the decision, I could have provided letters with my lay testimony and that of my employer (an attorney- but does not handle VA) as to the vertigo attacks occurring with an inability to walk without falling. (I know - it is my fault for not getting on the ball and submitting them.)

I did provide the letters in a Request for Reconsideration on the issue of an inability to walk during the attacks.

I also pointed out that they had found all elements for 100% analogous to Meniere's, except for "cerebellar gait."

They sent another VCAA notice and I returned it with a letter reiterating that I believed the VNG's were sufficient objective evidence, along with the letter from me and the one from my employer, to support my claim without the need for further development. I forgot to check the box to make the determination as soon as possible, but the letter did tell them I had no further evidence. I also said that I would be happy to submit to further evaluation if needed.

Normally, I have been scheduled for a C&P withing 30 days of my claim. Earlier this week, I used iris to make an inquiry as to the status of my claim since I had sent the VCAA more than 40 days earlier.

They said it was still in the initial development of the claim and they explained the stages to me. They said that in the current stage the file was being organized in a meaningful order. Actually, since I file the request within 6 weeks of the decision, it should still be in a meaningful order. They also said that no exam was scheduled and that sometimes it is not needed.

I feel that at this point I have a well grounded claim and that they have enough objective and subjective evidence of the inability to walk during the attacks that would warrant granting the claim. If the evidence is not considered to be a preponderance of the evidence, then it is at least equipoise, as there is no negative evidence, and should be given the benefit of doubt. Short of either of those, the claim should at least warrant further development with another C&P exam, as the original Dr. did not ask about stumbling.

I had the hope that since it was one issue of cerebellar gait during the attacks, then it would be an easy issue to determine one way or another. I guess I was wrong there also.

Any thoughts?

Thanks

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