Citation Nr: 0007512 Decision Date: 03/21/00 Archive Date: 09/08/00 DOCKET NO. 98-04 133 DATE MAR 21, 2000 On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to a disability evaluation in excess of 10 percent for chronic, suppurative otitis media. 2. Entitlement to a compensable disability evaluation for bilateral hearing loss. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and his brother, V.M. ATTORNEY FOR THE BOARD R. Acosta, Counsel INTRODUCTION The veteran served on active duty from February 1943 to March 1946. The above matters come before the Board of Veterans' Appeals (Board) on appeal from a September 1997 rating decision of the Department of Veterans Affairs (VA) St. Petersburg, Florida, Regional Office (RO), which denied a claim for a disability evaluation in excess of 10 percent for chronic, suppurative otitis media, and granted service connection for bilateral hearing loss, assigning a noncompensable rating for this disability, effective from March 20, 1997. A travel board hearing was held on December 10, 1999, in St. Petersburg, Florida, before the undersigned Member of the Board, who has been assigned by the Chairman to conduct that hearing and decide the appeal, pursuant to 38 U.S.C.A. 7102(b) (West 1991). A transcript of the hearing is of record. The Board notes that, at the above travel board hearing, the veteran submitted new and pertinent evidence, in the form of photocopies of medical records reflecting VA outpatient medical treatment between May 1997 and June 1999. At that time, he also waived, in writing, his right to have the RO review this evidence in the first instance, thus eliminating the need to remand this case for such action. FINDINGS OF FACT 1. All evidence necessary for an equitable disposition of the matters on appeal has been obtained and developed by the agency of original jurisdiction. 2 - 2. The veteran' chronic, suppurative otitis media is currently inactive. It is not shown that during the pendancy of this claim that this disability has been manifested by more than occasional supparation. Aural polyps have not been shown. No complications of this disability, other than hearing loss, are shown. 3. The veteran's bilateral hearing loss disability is currently manifested by level III and level II hearing acuity in the right and left ears, respectively. CONCLUSIONS OF LAW 1. The criteria for a disability evaluation in excess of 10 percent for the service- connected chronic, suppurative otitis media have not been met. 38 U.S.C.A. 1155 (West 1991); 38 C.F.R. 4.87, Part 4, Diagnostic Code 6200 (1999). 2. The schedular criteria for a compensable disability evaluation for the service- connected bilateral hearing loss have not been met, and such a higher schedular rating is not warranted. 38 U.S.C.A. 1155 (West 1991); 38 C.F.R. 4.1, 4.2, 4.7, 4.10, 4.85, Part 4, Diagnostic Code 6100 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Disability evaluations are based upon the average impairment of earning capacity as determined by VA's Schedule for Rating Disabilities. 38 U.S.C.A. 1155 (West 1991); 38 C.F.R. 4.1, Part 4 (1999) (hereinafter, "the Schedule"). Separate rating codes identify the various disabilities. In determining the current level of impairment, the disability must be considered in the context of the whole recorded history. 38 C.F.R. 4.2 (1999). An evaluation of the level of disability present also includes consideration of the functional impairment of the veteran's ability to engage in ordinary activities, including employment. 38 C.F.R. 4.10 (1999). 3 - 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. 38 C.F.R. 4.7 (1999). First Issue Entitlement to a disability evaluation in excess of 10 percent for chronic, suppurative otitis media: A review of the evidentiary record reveals that the veteran has been service- connected for chronic, suppurative otitis media since October 1949, and that the disability has been rated as 10 percent disabling under the provisions of Diagnostic Code 6200 of the Schedule since August 1955, that is, for more than 20 years. 38 C.F.R. 4.87, Part 4, Diagnostic Code 6200 (1999). Insofar as the 10 percent rating has been in effect for more than 20 years, the rating is protected and cannot be reduced, except upon a showing that such rating was based on fraud. See, in this regard, 38 C.F.R. 3.951(b) (1999). The Board notes that the version of Diagnostic Code 6200 of the Schedule that was in effect when the veteran filed his claim for an increased rating for this disability in March 1997 provided for a single, maximum rating of 10 percent during the continuance of the suppurative process of a service-connected chronic, suppurative otitis media, and also mandated that this rating was to be combined with ratings for loss of hearing. See, 38 C.F.R. 4.87a, Part 4, Diagnostic Code 6200, and its "Note" (1997). Currently, Diagnostic Code 6200 provides for a maximum rating of 10 percent when a service-connected chronic suppurative otitis media, mastoiditis or cholesteatoma (or any combination) is productive of suppuration, or is manifested by aural polyps. This diagnostic code also mandates that the rating of hearing impairment, and any complications such as labyrinthitis, tinnitus, facial nerve paralysis, and bone loss of skull, are to be evaluated separately. See, 38 C.F.R. 4.87, Part 4, Diagnostic Code 6200, and its "Note" (1999). - 4 - As shown above, the changes to Diagnostic Code 6200 have resulted in essentially no substantive changes affecting the present claim for an increased rating. Therefore, the Board sees no reason to remand this issue for additional review and re-adjudication by the RO, as such action would serve no useful purpose, but would instead unnecessarily delay a final decision on the veteran's claim for an increased rating. On appeal, the veteran contends that he is entitled to a disability rating in excess of 10 percent for the service-connected chronic, suppurative otitis media. However, the Board notes that the medical evidence in the record, which includes the report of a May 1997 VA audio-ear disease examination and the reports of VA audiological evaluations that were conducted in May 1997, June 1998 and June 1999, reveals that the schedular criteria for a compensable rating are not met. There is no evidence that the service-connected otitis media is currently productive of suppuration, or that it is manifested by aural polyps. The veteran himself has acknowledged not having suffered from an ear infection lately and has reported no ear problems other than hearing loss. See, in this regard, the transcript of the December 1999 travel board hearing, at pages four and six. The 10 percent rating for the veteran's service-connected chronic, suppurative otitis media is protected at the that level and, in essence, may not be reduced even if the schedular requirements for that rating disability are not presently met. This disability is rated under Diagnostic Code 6200, which provides a maximum evaluation of 10 percent. Given the apparent quiescence of this disability, no other Diagnostic Code would provide for a schedular evaluation for a pertinent analogous disability in excess of that now in effect. 38 C.F.R. 4.20 (1999). The Board further notes that the record appears to show that the RO has not yet considered the question of whether the above matter should be referred to the Chief Benefits Director or the Director, Compensation and Pension Service, for the assignment of an extra- schedular rating under 38 C.F.R. 3.321(b)(1) (1999). This regulation provides that, to accord justice in an exceptional case where the schedular standards are found to be inadequate, the field station is authorized to 5 - refer the case to the Chief Benefits Director or the Director, Compensation and Pension Service, for assignment of an extra- schedular evaluation commensurate with the average earning capacity impairment. The governing criteria for such an award is a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. 38 C.F.R. 3.321(b)(1) (1999). The United States Court of Appeals for Veterans Claims (known as the United States Court of Veterans Appeals prior to March 1, 1999, hereinafter referred to as "the Court") has held that, while the Board is precluded by regulation from assigning an extra-schedular rating under 38 C.F.R. 3.321(b)(1) in the first instance, the Board is not precluded from raising this question on its own, and in fact is obligated to liberally read all documents and oral testimony of record and identify all potential theories of entitlement to a benefit under the law and regulations. Floyd v. Brown, 9 Vet. App. 88 (1996). The Court has further held that the Board must address referral under 38 C.F.R. 3.321(b)(1) only where circumstances are presented which the Director of VA's Compensation and Pension Service might consider exceptional or unusual. Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). Having reviewed the evidentiary record with the above mandates in mind, the Board is of the opinion that a referral for extra- schedular consideration at the RO level is not warranted in the present case, due to the lack of a reasonable basis for further action on this question. In particular, it is noted that the record does not reveal that the service-connected chronic, suppurative otitis media is currently productive of an exceptional or unusual disability picture with factors including marked interference with employment or frequent periods of hospitalization, rendering impractical the application of the regular schedular standards. To the contrary, the record reveals that this disability is currently inactive and that the only ear difficulties currently reported by the veteran are those related to his hearing impairment, for which he is service-connected and receives adequate compensation, as thoroughly discussed in the next section. 6 - Second Issue Entitlement to a compensable disability evaluation for bilateral hearing loss: Initially, the Board finds that, in accordance with 38 U.S.C.A. 5107(a) (West 1991), and Murphy v. Derwinski, 1 Vet. App. 78 (1990), the veteran has presented a well-grounded claim for a compensable rating for the service-connected bilateral hearing loss. The facts relevant to this appeal have been properly developed and VA's obligation to assist the veteran in the development of his claim (not to be construed, however, as shifting from the claimant to VA the responsibility to produce necessary evidence, per 38 C.F.R. 3.159(a) (1999)), has been satisfied. Id. For VA purposes, a disability due to impaired hearing can be assigned ratings that range from noncompensable to 100 percent, based on organic impairment of hearing acuity, as measured by the results of controlled speech recognition tests, together with the puretone threshold average, which is defined as the sum of the puretone thresholds at 1000, 2000, 3000 and 4000 Hertz, or cycles per second, divided by four. This average is used in all cases to determine the Roman numeral designation for hearing impairment from Table VI or Vla. See, 38 C.F.R. 4.85(d) and 4.85(h), Tables VI and Vla (1999). Table VI, "Numeric Designation of Hearing Impairment Based on Puretone Threshold Average and Speech Discrimination," is used to determine a Roman numeral designation (I through XI) for hearing impairment based on a combination of the percent of speech discrimination (horizontal rows) and the puretone threshold average (vertical columns). The Roman numeral designation is located at the point where the percentage of speech discrimination and puretone threshold average intersect. See, 38 C.F.R. 4.85(b) (1999). Table VII, "Percentage Evaluations for Hearing Impairment," is used to determine the percentage evaluation by combining the Roman numeral designations for hearing impairment of each ear. The horizontal rows represent the ear having the - 7 - better hearing and the vertical columns the ear having the poorer hearing. The percentage evaluation is located at the point where the row and column intersect. See, 38 C.F.R. 4.85(e) (1999). A review of the figures in Table VII shows that ratings of 10 percent or more would be warranted only if it were shown that the better ear has at least level I hearing acuity, with the poorer ear having at least level X hearing acuity, and also if it were shown that the poorer ear has at least level IV hearing acuity, with the better ear having at least level III acuity. Higher combinations of bilateral hearing impairment would also warrant higher schedular ratings ranging between 20 and 100 percent. See, in this regard, 38 C.F.R. 4.85(h), Part 4, Table VII (1999). On appeal, the veteran essentially contends that he is entitled to a compensable disability evaluation for the service-connected bilateral hearing loss, as this disability has worsened with the passage of time. According to the report of a March 1997 private audiogram that the veteran submitted when he filed his claim for service connection for bilateral hearing loss, the veteran had a speech discrimination level of 100 percent, bilaterally, and the following puretone thresholds, in decibels: HERTZ 500 1000 2000 3000 4000 RIGHT 55 50 40 50 85 LEFT 35 25 30 40 50 The puretone threshold averages obtained from the above table, as calculated by the Board, in accordance with the aforementioned instructions set forth in 4.85(d), are 56.25db and 36.25db for the right and left ears, respectively. The above data, when applied to Table VI of 4.85(h), reveal level I hearing loss for both ears, and this level, when applied to Table VII of 4.85(h), warrants a noncompensable rating. 38 C.F.R. 4.85(h), Part 4, Diagnostic Code 6100, Tables VI and VII (1999). -8- According to the report of a May 1997 VA audiological evaluation, the veteran reported a long history of middle ear problems since he served on active duty, essentially manifested by bilateral hearing loss, which was worse on the right ear. The subscribing. audiologist noted that pure tone testing had revealed a bilateral mixed hearing loss, in the moderate range through 3 kHz, falling from severe to profound in the higher frequencies in the right ear, and mild to moderate through 4 kHz, falling to severe in the higher frequencies in the left ear, but with excellent word recognition ability, bilaterally. It was noted that the mixed hearing loss was consistent with the history/information as provided by the veteran, and the following puretone thresholds were reported, in decibels: HERTZ 500 1000 2000 3000 4000 RIGHT 50 45 40 50 80 LEFT 30 25 30 35 45 Also according to the above report, the veteran had speech discrimination levels of 96 and 94 percent in the right and left ears, respectively. The puretone threshold averages calculated from the figures in the above table are 53.75db and 33.75db for the right and left ears, respectively. The above data, when applied to Table VI of 4.85(h), again reveal level I hearing loss for both ears, and this level, when applied to Table VII of 4.85(h), warrants a noncompensable rating. 38 C.F.R. 4.85 (h), Part 4, Diagnostic Code 6100, Tables VI and VII (1999). The report of a May 1997 VA audio-ear disease examination reveals complaints of bilateral hearing loss, worse on the right ear, and a diagnosis of bilateral sensorineural hearing loss. According to the report of a June 1998 VA audiological evaluation, the veteran had recently been issued a set of hearing aids that he wore daily, with no complaints, and did not report any change in his hearing thresholds. The subscribing audiologist again noted that pure tone testing had revealed a bilateral mixed hearing loss in the moderate range through 3 kHz, falling from severe to profound in the -9- higher frequencies in the right ear, and mild to moderate through 4 kHz, falling to severe in the higher frequencies in the left ear. She also noted that there was a conductive component present in both ears and that word recognition ability remained excellent. The pertinent diagnosis was listed as stable mixed hearing loss, bilaterally. The audiologist noted that the veteran had been evaluated by an ear specialist and should continue to seek medical attention as needed for any signs of infections with his ears. The following puretone thresholds were reported, in decibels: HERTZ 500 1000 2000 3000 4000 RIGHT 60 45 40 50 80 LEFT 35 25 30 35 50 Also according to the above report, the veteran had speech discrimination levels of 94 and 96 percent in the right and left ears, respectively. The puretone threshold averages calculated from the figures in the above table are 53.75db and 35db for the right and left ears, respectively. The above data, when applied to Table VI of 4.85(h), again reveal level I hearing loss for both ears, and this level, when applied to Table VII of 4.85(h), warrants a noncompensable rating. 38 C.F.R. 4.85(h), Part 4, Diagnostic Code 6100, Tables VI and VII (1999). VA outpatient medical records dated between May 1997 and June 1999 reveal complaints of hearing loss and the fact that the veteran was fitted with a hearing aid and received orientation regarding its use. The most recent of the above VA outpatient medical records, dated in June 1999, reveals the results of yet another VA audiological evaluation in the file, which was conducted "to resubmit [a] claim for an increase in [the rating assigned for] service connection for hearing loss." This record reveals that the veteran expressed worsening of his hearing capabilities, bilaterally. On examination, it was noted that the veteran had "[m]oderate-severe rising to mild hearing loss at 20OOHz, sloping to a profound loss," and "[s]evere rising to moderate hearing loss at 10OOHz, sloping - 10- to a profound loss." Air-bone gaps were noted for at least one ear, most likely the left, due to the tympanic perforation. Speech recognition ability was good, bilaterally, and a tympanogram was within normal limits for the right ear, with stiff compliance with large "earcanal" volume for the left ear. The assessment in the above record reflecting the June 1999 VA audiological evaluation was listed as asymmetric hearing loss, worse on the right ear, and the subscribing audiologist expressed his opinion to the effect that the right ear was more likely than not a sensorineural hearing loss, that the left ear was more likely than not a mixed hearing loss, and that the results were worse than those found in June 1998. The following puretone air conduction thresholds were reported, in decibels: HERTZ 500 1000 2000 3000 4000 RIGHT 80 50 55 60 85 LEFT 50 45 35 40 55 Also according to the above report, the veteran had speech discrimination levels of 88 percent in both ears. The puretone threshold averages calculated from the figures in the above table are 62.50db and 43.75db for the right and left ears, respectively. The above data, when applied to Table VI of 4.85(h), reveal level III and level 11 hearing loss for the right and left ears, respectively, and these levels, when applied to Table VII of 4.85(h), still warrant a noncompensable rating. 38 C.F.R. 4.85(h), Part 4, Diagnostic Code 6100, Tables VI and VII (1999). As shown above, the evidence in the record reveals that, while the veteran's hearing impairment has indeed worsened between the time when he filed his claim for service connection for bilateral hearing loss in March 1997 and the most recent VA audiological evaluation of record, the impairment still does not meet the schedular criteria for a compensable rating, as it has not been shown that the better ear has at least level I hearing acuity, with the poorer ear having at least level X hearing -11- acuity, or that the poorer ear has at least level IV hearing acuity, with the better ear having at least level III acuity. In view of the above, the Board concludes that the schedular criteria for a compensable disability evaluation for the service- connected bilateral hearing loss have not been met, and that such a higher schedular rating is thus not warranted. The Board also notes that, according to a recent decision of the Court, because this appeal ensues from the veteran's disagreement with the rating assigned in connection with his original claim for service connection, the potential for the assignment of separate, or "staged," ratings for separate periods of time, based on the facts found, must be considered. Fenderson v. West, 12 Vet. App. 119 (1999). In this case, the RO has not assigned, nor considered the potential for, separate staged ratings for the veteran's service-connected hearing loss. A remand to have the RO consider the question of the potential entitlement to "staged" ratings is not necessary because, as thoroughly shown and discussed above, the record does not show that the service-connected bilateral hearing loss has been severe enough as to warrant a compensable rating at any time between the date when the veteran filed his original claim for service connection and the present time, which essentially means that the veteran was not prejudiced by the RO's failure to consider this particular aspect of the appealed claim for an increased rating. The Board also notes that, in addition to the aforementioned changes to the provisions of Diagnostic Code 6200 of the Schedule, the entire section of the Schedule addressing the evaluation of service-connected hearing impairment, which are codified at 38 C.F.R. 4.85 through 4.87, was amended after the veteran submitted his claim for service connection for bilateral hearing loss and an increased rating for chronic, suppurative otitis media in March 1997. Insofar as these amendments resulted in essentially no substantive changes affecting the present claim for an increased rating for the service-connected bilateral hearing loss, the Board sees no reason to remand this issue for additional review and re- adjudication by the RO, as such action would serve no useful purpose, but would - 12 - instead unnecessarily delay a final decision on the veteran's claim for an increased rating. Finally, the Board notes that the record appears to show that the RO has not yet considered the question of whether this matter should be referred to the Chief Benefits Director or the Director, Compensation and Pension Service, for the assignment of an extra- schedular rating under 38 C.F.R. 3.321(b)(1) (1999), the criteria for which were explained earlier in this decision. The Board has carefully reviewed the evidentiary record and is again of the opinion that a referral for extra- schedular consideration is not warranted in the present case, due to the lack of a reasonable basis for further action on this question. In particular, it is noted that the record does not reveal that the service-connected bilateral hearing loss is currently productive of an exceptional or unusual disability picture with related factors as marked interference with employment or frequent periods of hospitalization, rendering impractical the application of the regular schedular standards. To the contrary, the record reveals that the disability is currently being satisfactorily treated with hearing aids and with counseling on the appropriate use of such devices. ORDER A disability evaluation in excess of 10 percent for the service- connected chronic, suppurative otitis media is denied. A compensable disability evaluation for the service-connected bilateral hearing loss is denied. STEVEN L. KELLER Member, Board of Veterans' Appeals 13 -