Citation Nr: 0005432 Decision Date: 02/29/00 Archive Date: 03/07/00 DOCKET NO. 98-13 264 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in No. Little Rock, Arkansas THE ISSUES 1. Entitlement to a compensable disability rating for otitis media, left ear, with perforated tympanic membrane. 2. Entitlement to a compensable disability rating for tinnitus. 3. Entitlement to an increased rating for bilateral hearing loss, currently evaluated as 10 percent disabling. REPRESENTATION Appellant represented by: AMVETS WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD V. Marletta, Associate Counsel INTRODUCTION The veteran served on active duty from June 1951 to March 1953. This case comes before the Board of Veterans' Appeals (Board) from a rating decision rendered in March 1998 by the North Little Rock, Arkansas, Regional Office (RO) of the Department of Veterans Affairs (VA). Initially, the Board notes that the issue in this case was defined by the veteran's service representative at the October 1999 Travel Board hearing solely as entitlement to a compensable rating for otitis media, left ear, with perforated tympanic membrane and tinnitus. However, at that Travel Board hearing and at the October 1998 hearing before the RO, as well as in VA Form 9's (Appeal to Board of Veterans' Appeals) filed in May and August 1998, the veteran indicates he continues to disagree with the 10 percent disability rating assigned for bilateral hearing loss. The Board will therefore consider the veteran's claim for an increased rating for bilateral hearing loss as part of this appeal. In addition, the Board has severed the consolidated issue of otitis media, left ear, with perforated tympanic membrane and tinnitus into two distinct issues and will consider each separately, as warranted by the Schedule of Ratings set forth at 38 C.F.R. § 4.87 (1999). FINDINGS OF FACT 1. The veteran has claimed that his otitis media, left ear, tinnitus, and bilateral hearing loss disabilities have increased in severity. 2. With regard to the veteran's claim for entitlement to a compensable disability rating for otitis media, left ear, with perforated tympanic membrane and for entitlement to a compensable disability rating for tinnitus, all relevant facts have been properly developed. 3. There is no evidence of current suppuration or aural polyps in the veteran's left ear. 4. The evidence is not at least in equipoise with respect to assigning an acoustic trauma etiology to the veteran's tinnitus and there is no evidence showing a head injury or concussion. 5. The veteran's tinnitus is recurrent. CONCLUSIONS OF LAW 1. The veteran's claim for compensable disability ratings for otitis media, left ear, with perforated tympanic membrane and tinnitus and for an increased rating for bilateral hearing loss is well grounded. 38 U.S.C.A. § 5107(a) (West 1991); Proscelle v. Derwinski, 2 Vet. App 629 (1992). 2. The criteria for a compensable disability rating for otitis media, left ear, with perforated tympanic membrane are not met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. Part 4, § 4.87a, Diagnostic Code 6200 (1998); 38 C.F.R. Part 4, § 4.87, Diagnostic Code 6200; 64 Fed. Reg. 25,510 (1999). 3. The criteria for a compensable disability rating for tinnitus are not met prior to June 10, 1999. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.31, and 4.87a, Diagnostic Code 6260 (1998). 4. The criteria for a compensable disability rating for tinnitus are met from June 10, 1999. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.31, and 4.87, Diagnostic Code 6260, as amended by 64 Fed. Reg. 25202 through 25210 (May 11, 1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The veteran has presented a well-grounded claim for a compensable disability evaluation for his service-connected otitis media, left ear, with perforated tympanic membrane and for his service-connected tinnitus and for an increased rating for his service-connected bilateral hearing disability within the meaning of 38 U.S.C.A. § 5107(a) (West 1991). A claim that a condition has become more severe is well grounded where the condition was previously service connected and rated, and the claimant subsequently asserts that a higher rating is justified due to an increase in severity since the original rating. See Proscelle v. Derwinski, 2 Vet. App 629 (1992). Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. Part 4 (1999). The percentage ratings in the VA Schedule for Rating Disabilities (Schedule) represent as far as can practicably be determined the average impairment in earning capacity resulting from such disabilities and their residual conditions in civil occupations. 38 C.F.R. § 4.1 (1999). Moreover, each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.2 (1999). 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). During the pendency of this appeal, regulatory changes amended the Schedule, including the rating criteria for evaluating diseases of the ear. This amendment was effective June 10, 1999. See 64 Fed. Reg. 25202 through 25210 (May 11, 1999). When a law or regulation changes after a claim has been filed but before the administrative appeal process has been concluded, VA must apply the regulatory version that is more favorable to the appellant. Karnas v. Derwinski, 1 Vet. App. 308, 312-13 (1991). Therefore, the Board must evaluate the appellant's claim for compensable ratings for otitis media, left ear, with perforated tympanic membrane and tinnitus under both the old criteria in the Schedule and the current regulations in order to ascertain which version is most favorable to his claim, if indeed one is more favorable than the other. With regard to the veteran's claim for an increased rating for his bilateral hearing disability, the schedular criteria for determining hearing impairment under 38 C.F.R. § 4.85 remain, in relevant part, unchanged by the amendment; this claim is addressed in the REMAND portion of this decision. The veteran has been accorded VA examinations and several hearings and his treatment records have been associated with the file. With regard to the veteran's claim for entitlement to a compensable rating for otitis media, left ear, with perforated tympanic membrane and for entitlement to a compensable rating for tinnitus, the Board is satisfied that all relevant facts have been properly developed. No further assistance to the veteran is required to comply with the duty to assist mandated by 38 U.S.C.A. § 5107(a). Murphy v. Derwinski, 1 Vet. App. 78 (1990); Littke v. Derwinski, 1 Vet. App. 90 (1990). I. Entitlement to a compensable rating for otitis media, left ear, with perforated tympanic membrane The veteran established service connection for otitis media, left ear by means of a March 1998 rating decision, in which this disorder was consolidated with his perforated tympanic membrane and tinnitus and evaluated as zero percent disabling from November 1960 under Diagnostic Code 6200 of the Schedule. The veteran now contends that his otitis media of the left ear is more severe than currently evaluated, warranting a compensable rating. As stated above, the criteria for evaluation of diseases of the ear were amended during the pendency of the veteran's appeal, effective June 10, 1999. See 64 Fed. Reg. 24,210 (1999). Pursuant to the criteria in effect prior to June 10, 1999 (old criteria), a 10 percent rating is available for chronic otitis media, suppurative, during the continuance of the suppurative process. 38 C.F.R. § 4.87a (1998). Under the criteria effective June 10, 1999 (new criteria), a 10 percent rating is assigned for chronic otitis media during suppuration, or with aural polyps. 38 C.F.R. § 4.87 (1999). A December 1998 VA compensation and pension (C&P) examination report indicates a diagnosis of residual repeated otitis media, left ear, with perforated tympanic membrane. The examination report further states that "there is no drainage in the ear" and makes no mention of aural polyps. In his October 1999 Travel Board hearing, the veteran testified that he presently has no observable drainage in his left ear but that he regularly uses ear drops for his condition. Inspection of the record also reveals that the veteran has never complained of or been treated for aural polyps. As there is no evidence of current suppuration or aural polyps, the Board finds that the evidence does not show that a compensable evaluation is warranted under either the old or new criteria. Accordingly, the Board finds that the criteria for a compensable rating for otitis media, left ear are not met, and the veteran's claim therefore is denied. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. Part 4, § 4.87a, Diagnostic Code 6200 (1998); 38 C.F.R. Part 4, § 4.87, Diagnostic Code 6200; 64 Fed. Reg. 25,510 (1999). The Board notes that perforation of the tympanic membrane is technically rated under Diagnostic Code 6211 of the Schedule, but it assigns a maximum zero percent evaluation under both the old and new criteria for rating that disorder. Therefore, the veteran cannot receive a compensable rating for a perforated tympanic membrane under any circumstances and consolidating it with otitis media, left ear does not prejudice the veteran. II. Entitlement to a compensable rating for tinnitus The veteran established service connection for tinnitus in the March 1998 rating decision, but has never specifically been assigned a rating under the Schedule because of its consolidation with otitis media, left ear. As the June 10, 1999 amendment to the regulations had a significant impact on this disorder, the Board has severed this issue and will rate the veteran's tinnitus under Diagnostic Code 6260 of the Schedule. Although the new regulations were not in effect when the March 1998 rating decision was made and the veteran has not been given notice of the new regulations, the new rating criteria are more favorable to his claim and, as discussed below, this decision awards him the highest schedular rating available for tinnitus. It is therefore not necessary to remand this claim because the veteran is not prejudiced by the Board's consideration of the new regulations in the first instance since this decision is favorable to him. Under the rating criteria for diseases of the ear in effect prior to June 10, 1999 (old criteria), Diagnostic Code 6260 provided a single 10 percent disability rating when tinnitus was persistent as a symptom of head injury, concussion, or acoustic trauma. The amended regulations (new criteria) continue to provide a single 10 percent disability rating for tinnitus, but the only requirement is that the tinnitus be recurrent. 38 C.F.R. § 4.87, Diagnostic Code 6260, as amended by 64 Fed. Reg. 25202 through 25210 (May 11, 1999). The proposed amendment to the regulations indicated that tinnitus is a subjective sensation which, under certain circumstances, comes and goes. 59 Fed. Reg. 17297 (April 12, 1994). The requirement that the tinnitus be "recurrent" means that it might not always be present, but that it returns at regular intervals. Id. It was also noted that tinnitus can be caused by a number of conditions, including injuries, acute diseases and drug reactions. Id. The restriction that tinnitus result from trauma was eliminated since the severity of disability from tinnitus does not depend on its origin. Id. A. Compensable rating for tinnitus under old criteria The evidence indicates that the veteran first incurred left ear tinnitus in March 1953 after a swim that also apparently caused his otitis media and perforated tympanic membrane. The veteran's service medical records indicate that he was hospitalized from March to May 1953 at the Hines VA Medical Center (VAMC) in Illinois and was diagnosed with, inter alia, otitis media, left. The clinical record shows that the veteran at that time also complained of ringing in his left ear. A May 1995 VA audiology consultation report states the following: "In 1953 [the veteran] began having intermittent problems with his left ear and stated that he was told he had a large perforation in the left tympanic membrane. History is also positive for constant tinnitus, [left ear], for the past 40 years, occasional dizzy spells, high blood pressure and noise exposure." A July 1995 audiological evaluation report comments as follows: "Veteran reported constant ringing tinnitus [left ear], persistent for more than forty years, fluctuating in tone quality, believed to be secondary to ear infection that reportedly resulted in a tympanic membrane perforation. Moderately distracting." Similarly, a September 1997 examination for organic hearing loss summary report states that the "veteran reported a constant high-pitched swishing tinnitus [left ear] only, which has persisted at least since 1953. He stated it started so long ago that he is unsure of the etiology, but thought maybe it was related to ear infections." At his March 1998 hearing before the RO, the veteran testified that he first noticed his tinnitus in 1953 during audiological tests conducted while he was hospitalized at the Hines VAMC. Transcript of Hearing at p. 3. Finally, at his October 1999 hearing before the Travel Board, the veteran, when asked if he was exposed to loud explosions at Fort Belvoir or at any time during his service, stated that he was exposed to the "rifle range and mortars and bazookas and things like that." Transcript of Hearing (Transcript) at p. 7. During a line of questioning seeking to determine whether the veteran's tinnitus may have had its onset as a result of acoustic trauma, the veteran stated, "I can't say for sure. The first time I ever noticed the tinnitus was when I was having these auditory tests, you know, from the audiologist and that was the first time that I realized that I was hearing bells, or, you know, the ringing and swishing and different sounds." Transcript at 7. He further stated that "it would be conjecture on my part. I'm not sure. I can't say, you know, that yeah I know for a fact that we were at the rifle range [and that] when I came back I had a ringing in the ear. I can't say that." Transcript at 8. The Board finds that the evidence is not at least in equipoise with respect to assigning an acoustic trauma etiology to the veteran's tinnitus and there is no evidence showing a head injury or concussion. The evidence shows and the veteran has recounted on several occasions that his tinnitus was incurred as a result of swimming, which led to his hospitalization in March 1953. Although there is evidence of some noise exposure during the veteran's service, neither the veteran nor a medical expert has linked such exposure to his tinnitus. Under the old criteria, absent a showing of a head injury, concussion or acoustic trauma, tinnitus is a non-compensable disability. The Board must therefore deny the veteran's claim for a compensable rating for tinnitus under the old criteria. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.31, and 4.87a, Diagnostic Code 6260 (1998). B. Compensable rating for tinnitus under new criteria The new regulations are more favorable to the veteran's claim, in that the requirement that tinnitus be the result of either head injury, concussion, or acoustic trauma has been removed by the 1999 amendment. The only question under the new regulation is whether the veteran's tinnitus is recurrent. Based on the medical evidence and the veteran's testimony, his tinnitus is clearly recurrent and the Board finds that the criteria for a 10 percent disability rating have been met under the new regulation. The Board notes that 10 percent is the maximum allowable rating for tinnitus under Diagnostic Code 6260. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.31, and 4.87, Diagnostic Code 6260, as amended by 64 Fed. Reg. 25202 through 25210 (May 11, 1999). ORDER Entitlement to a compensable disability rating for otitis media, left ear, with perforated tympanic membrane is denied. Entitlement to a compensable disability rating for tinnitus is denied prior to June 10, 1999. Entitlement to a compensable disability rating for tinnitus is granted from June 10, 1999, subject to the applicable regulations governing the payment of monetary benefits. REMAND Because the claim of entitlement to an increased rating for bilateral hearing loss is well grounded, VA has a duty to assist the appellant in developing facts pertinent to his claim. 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. § 3.159 (1999); Murphy v. Derwinski, 1 Vet. App. 78 (1990). The veteran submitted to a December 1998 VA audiometric examination, the results of which, when calculated in accordance with Table VI of 38 C.F.R. § 4.85(h), yield hearing impairment numeric designations of 'XI' for the right ear and 'II' for the left ear. Using Table VII of 38 C.F.R. § 4.85(h), the veteran's current numeric designations generate a ten percent disability rating. However, the veteran is on the borderline between a ten and twenty percent rating. If, for example, the veteran's level of speech discrimination for his left ear dropped just two percentage points since his last examination (from 92 percent to 90 percent), his Table VI numeric designation would increase to 'III', thereby generating a Table VII disability rating of 20 percent. Moreover, if his left ear puretone threshold at 1000 Hertz increases from 50 to 55, he would establish an exceptional pattern of hearing impairment pursuant to 38 C.F.R. § 4.86 and would therefore be eligible for the use of the more favorable Table VIA in 38 C.F.R. § 4.85(h). In considering the veteran's decline in his left ear speech recognition (from 98 to 92) and increase in his left ear average pure tone threshold (from 65 to 70) between his audiometric examinations in September 1997 and December 1998, coupled with the fact that the veteran was last audio tested over 14 months ago, the Board finds that VA's duty to assist in this case requires that the veteran be afforded an additional audiometric examination to allow for a proper consideration of his claim using the most recent data available. Accordingly, this claim is REMANDED to the RO for the following development: 1. The RO should request that the veteran provide the names and addresses of all health care providers who have examined him or afforded him treatment for his bilateral hearing loss since the date of his last VA audiometric examination in December 1998. 2. Upon receipt of any and all such names and addresses, and duly executed authorization for the release of private medical records if necessary, the RO should request that all health care providers identified by the veteran furnish legible copies of all medical records compiled pursuant to either the examination of or treatment rendered for his bilateral hearing loss. 3. Following receipt of any and all such records, the RO should afford the veteran a VA audiometric examination. 4. The RO is to advise the veteran that failure to report for a scheduled VA examination without showing good cause may have an adverse affect upon his claim, to include the possible denial thereof. 5. Following completion of all requested actions, the RO should review the claim, and determine whether an increased rating for the veteran's service-connected bilateral hearing loss disability can now be granted. If the decision remains in any manner adverse to the veteran, he and his representative should be furnished with a supplemental statement of the case, and with a reasonable period of time within which to respond thereto. 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). The case should then be returned to the Board for further appellate consideration, as warranted. The Board expresses its gratitude in advance to the RO for assisting in the requested development. M. W. GREENSTREET Board of Veterans' Appeals