Citation Nr: 0006979 Decision Date: 03/15/00 Archive Date: 03/23/00 DOCKET NO. 98-09 652 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to an initial compensable disability rating for the postoperative residuals of bilateral otitis media, with bilateral hearing loss. 2. Entitlement to an initial compensable disability rating for the residuals of a right knee strain. 3. Entitlement to an initial compensable rating for the residuals of an AC joint separation and strain of the right shoulder. ATTORNEY FOR THE BOARD Joseph P. Gervasio, Counsel INTRODUCTION The veteran served on active duty from August 1992 to August 1996. This case comes to the Board of Veterans' Appeals (Board) on appeal of a January 1997 rating decision of the Roanoke, Virginia, Regional Office (RO) of the Department of Veterans Affairs (VA), which granted service connection and assigned noncompensable evaluations for the disabilities at issue. The Board will examine the propriety of each of these ratings. Fenderson v. West, 12 Vet. App. 119 (1999). The issues involving the ratings of the veteran's right knee and right shoulder disorders will be addressed in the remand portion of this decision. In his substantive appeal, the veteran raises the issue of service connection for tinnitus. That issue has not been developed for appellate review, is not inextricably intertwined with the issues before the Board, and is referred to the RO for initial consideration. See Kellar v. Brown, 6 Vet. App. 157 (1994). FINDINGS OF FACT 1. VA examination found no active disease in either ear. 2. The veteran's organic hearing acuity was currently manifested by average pure tone thresholds at 1,000, 2,000, 3,000, and 4,000 hertz of 35 decibels in the right ear and 25 decibels in the left ear with speech recognition ability 96 percent correct in the right ear and 96 percent correct in the left ear. CONCLUSION OF LAW The criteria for a compensable rating for bilateral otitis media, with hearing loss have not been met. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. §§ 4.85, 4.87, Codes 6100, 6200, 6201 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION The veteran has presented a well grounded claim for increased disability evaluation for his service-connected disabilities within the meaning of 38 U.S.C.A. § 5107(a) (West 1991). When a claimant is awarded service connection for a disability and subsequently appeals the RO's initial assignment of a rating for that disability the claim continues to be well grounded as long as the rating schedule provides for a higher rating and the claim remains open. Shipwash v. Brown, 8 Vet. App. 218 (1995). The facts relevant to these issue addressed on the merits have been properly developed and the statutory obligation of the VA to assist the veteran in the development of his claim has been satisfied. 38 U.S.C.A. § 5107(a). Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. An examination was conducted by VA in December 1996. At that time, it was noted that the veteran had a history of multiple ear infections, bilaterally. He stated that the had had a cholesteatoma on the left and that a tympanoplasty has failed. He complained of bilateral decreased hearing. Objective findings included status post bilateral ear surgeries, a right ear graft, and anterior retraction pocket. The external ear canals were within normal limits. The tympanic membranes were retracted, bilaterally. There was thickening of the right tympanic membrane, with graft material. There was no fluid in the tympanum. The residuals of a left mastoidectomy were noted, but there was no fluid in the mastoid. No active ear disease or infectious disease process of the middle or inner ear was found to be present. The diagnoses were eustachian tube dysfunction, status post right tympanoplasty, times two, and status post left mastoidectomy; and conductive hearing loss. The veteran has been service connected for ear disease, including hearing loss. Chronic suppurative otitis media, mastoiditis, a cholesteatoma or any combination thereof, will be rated as 10 percent disabling during suppuration or with aural polyps. 38 C.F.R. § 4.87, Code 6200. Chronic, nonsuppurative otitis media, with effusion, will be rated as hearing impairment. 38 C.F.R. § 4.87, Code 6201. The VA examination report shows that there is no active ear disease present. Although the veteran has a history of repeated surgeries, a compensable rating for the ear disorders alone is not warranted without findings of active disease. However, the veteran may still be awarded a compensable rating on the basis of his bilateral hearing loss. For evaluation of hearing impairment, examinations are conducted using the controlled speech discrimination test together with the results of pure tone audiometry testing. A numeric designation of impaired efficiency is then assigned based upon the results of these tests and a percentage evaluation is reached by correlating the results for each ear. 38 C.F.R. § 4.85 and Tables VI and VII. An audiometric evaluation was conducted for compensation purposes for the VA in December 1996. At that time, the veteran's organic hearing acuity was currently manifested by average pure tone thresholds at 1,000, 2,000, 3,000, and 4,000 hertz of 35 decibels in the right ear and 25 decibels in the left ear with speech recognition ability 96 percent correct in the right ear and 96 percent correct in the left ear. The assignment of a disability rating 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 (1992). In the instant case, the application of the rating schedule to the pertinent facts demonstrates that a compensable evaluation is not warranted for a bilateral hearing loss. Neither does the evidence show that the disability more closely approximates the criteria for the next higher evaluation, see 38 C.F.R. § 4.7, or is so exceptional or unusual as to render the application of the regular rating standards impractical. 38 C.F.R. § 3.321(b)(1). ORDER A compensable rating for the postoperative residuals of bilateral otitis media, with hearing loss, is denied. REMAND The VA has a duty to assist the veteran in developing facts pertinent to his well-grounded claim (i.e., a claim which is not inherently implausible). 38 U.S.C.A. § 5107(a)(West 1991); 38 C.F.R. §§ 3.103(a), 3.159 (1993). This duty includes ordering a medical examination when indicated by the circumstances of the case. Littke v. Derwinski, 1 Vet. App. 90 (1990). Regarding the issue of an increased rating for the postoperative residuals of a right knee injury, it is noted that, in rating musculoskeletal disabilities, 38 C.F.R. § 4.40 (regarding functional loss) must be considered apart from and in addition to the appropriate Diagnostic Code(s) in the VA Schedule for Rating Disabilities. See DeLuca v. Brown, 8 Vet. App. 202, at 204-206, 208 (1995). Although the veteran did not complain of joint pain during his recent VA compensation examination, he did so in his substantive appeal. The Board notes that the veteran has not been afforded an orthopedic examination, but that only a general medical examination was performed by VA in January 1997. The examiner did not comment on any possible disability due to functional loss due to pain. In light of this the Board finds that the appellant's most recent VA physical examination is inadequate for evaluation purposes and that further development of the evidence is necessary in this case. Hyder v. Derwinski, 1 Vet. App. 22 (1991). Accordingly, an orthopedic examination of the appellant should be scheduled. Under these circumstances, the case must be remanded for the following. The appellant should be scheduled for a VA orthopedic examination to determine the current extent of his service- connected right knee and right shoulder disorders. His medical records should be made available to the VA orthopedic examiner for review prior to the examination. X-rays and/or other diagnostic studies should be done, as deemed appropriate by the examiner. The examiner must provide a thorough description of the appellant's service- connected disabilities, including complete range of motion studies. In addition, the examiner must render objective clinical findings concerning observations of pain on motion, deformity, excess fatigability, incoordination, weakened movement and other functional limitations, if any. The examiner must then render an opinion concerning the effect of the appellant's service-connected disabilities on his ordinary activity and his ability to procure and maintain employment. The report of the orthopedic examination should reconcile the appellant's subjective complaints of pain with the objective findings on examination. It should then be associated with the appellant's claims folder. When this action is completed, the claims, including a claim for a compensable evaluation under 38 C.F.R. § 3.324, should be reviewed by the RO. The veteran must, and here by is, informed that to perfect the appeal as to the claim for a compensable evaluation under 38 C.F.R. § 3.324 (multiple service-connected disorders which clearly interfere with employability) he must file a substantive appeal. Should the decision remain adverse, the veteran should be furnished a supplemental statement of the case and afforded a reasonable opportunity to respond. He must be provided a substantive appeal, VA Form 9, Appeal to the Board, by which he can perfect the appeal as to the claim for a compensable evaluation under 38 C.F.R. § 3.324. Thereafter, the case should be returned to this Board for further appellate consideration. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 1999) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44- 8.45 and 38.02-38.03. JOHN FUSSELL Acting Member, Board of Veterans' Appeals