BVA9502633 DOCKET NO. 93-22 729 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUE Entitlement to an increased evaluation for a peripheral vestibular disorder with residual vertigo, chronic left sided tinnitus secondary to traumatic left tympanic membrane perforation with perilymphatic fistula of the oval and round window and status post exploratory tympanotomy and repair, currently evaluated as 10 percent disabling. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD S. D. Regan, Associate Counsel INTRODUCTION The veteran had active service from January 1989 to September 1991. This matter came before the Board of Veterans' Appeals (hereinafter "the Board") on appeal from a July 1992 rating decision of the Phoenix, Arizona Regional Office (hereinafter "the RO") which, in pertinent part, granted service connection for a peripheral vestibular disorder with residual vertigo, chronic left sided tinnitus secondary to traumatic left tympanic membrane perforation with perilymphatic fistula of the oval and round window and status post exploratory tympanotomy and repair and assigned a 10 percent disability evaluation. The veteran has been represented throughout this appeal by the American Legion. CONTENTIONS OF APPELLANT ON APPEAL The veteran asserts on appeal that the RO erred in failing to grant an evaluation in excess of 10 percent for his ear disorder. The veteran contends, essentially, that his current symptomatology indicates that a higher disability evaluation is warranted for his left ear disorder. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran's claims file(s). Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that a preponderance of the evidence is adverse to the veteran's claim for an increased evaluation for a peripheral vestibular disorder with residual vertigo, chronic left sided tinnitus secondary to traumatic left tympanic membrane perforation with perilymphatic fistula of the oval and round window and status post exploratory tympanotomy and repair. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained by the RO. 2. The veteran's left ear disorder is productive of no more than moderate chronic labyrinthitis with tinnitus and occasional dizziness. CONCLUSION OF LAW The schedular criteria for an evaluation in excess of 10 percent for a peripheral vestibular disorder with residual vertigo, chronic left sided tinnitus secondary to traumatic left tympanic membrane perforation with perilymphatic fistula of the oval and round window and status post exploratory tympanotomy and repair have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. Part 4, including §§ 4.3, 4.7, 4.20 and Diagnostic Code 6204 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSION Initially, it is necessary to determine whether the veteran has submitted a well-grounded claim within the meaning of 38 U.S.C.A. § 5107(a) (West 1991), and if so, whether the Department of Veterans Affairs (hereinafter "VA") has properly assisted him in the development of his claim. A "well-grounded" claim is one which is not implausible. A review of the record indicates that the veteran's claim is plausible and that all relevant facts have been properly developed. Accordingly, a remand in order to allow for additional development of the record is not appropriate. I. Historical Review The veteran's service medical records indicate that he was seen in March 1990 following an injury to his left ear. A March 1990 emergency care report noted that the veteran reported that he had been cleaning his left ear with a Q-tip when he turned his head and caused the Q-tip to be jammed into his ear resulting in him passing out. The veteran complained of left ear pain and dizziness on admission. A March 1990 operative report indicated an operative diagnosis of left middle ear exploration with repair of round and oval window fistula and tympanoplasty. A May 1990 medical board report indicated that as a result of the trauma in March 1990, the veteran sustained an episode of syncope, fell to the ground and was extremely vertiginous. The veteran was found to have a large tympanic membrane perforation which appeared to be in a subluxation of the incudostapedial joint. The report noted a final diagnosis of traumatic tympanic perforation of the round window and oval window rupture. An October 1990 medical board report indicated that the veteran had post-operative scarring of the left tympanic membrane in the posterior superior quadrant. The fistula test was negative. It was noted that an electronystagmogram revealed left unilateral weakness of 63 percent suggesting a peripheral type of labyrinthine injury. It was also related that the veteran was handicapped as he was unable to perform his duty or physical activity without a sense of imbalance. The final diagnoses included traumatic left tympanic membrane perforation with perilymphatic fistula of the oval and round window, status post exploratory tympanotomy and repair and peripheral vestibular disorder, left ear, secondary to the above. The veteran underwent a VA examination in February 1992. He reported that he had dizziness and that he would sometimes feel awkward on activity. The veteran related that he did not believe his balance had come back fully. He also reported that he had lost hearing in his left ear and that he had constant ringing in that ear as well. The veteran indicated that he felt awkward walking at night and that he would suffer disorientation on running in a straight line. It was noted that the veteran had a history of a perforated tympanic membrane with decreased hearing and tinnitus. Further, it was observed that the veteran injured his ear with a Q-tip in 1990 and was found to suffer from dislocated ossicles of the ear on the left side as well as perilymph fistula which had been repaired. The veteran also suffered a perforated ear drum which was repaired with good results. The examiner reported that the veteran had a well-healed post auricular incision behind the left ear. The ear drum was well reconstructed, but there was some minimal scarring in the superior posterior portion. The veteran's left ear canal was normal with the right ear drum and canal also normal. It was noted that an audiogram showed a mild 20 to 40 decibel hearing loss in the left ear sensorineural in nature. The audiological evaluation revealed pure tone thresholds in the right ear of 0 decibels at 1,000 Hz, 5 decibels at 2,000 Hz, 5 decibels at 3,000 Hz and 0 decibels at 4,000 Hz. As to the left ear, there were pure tone thresholds of 20 decibels at 1,000 Hz, 20 decibels at 2,000 Hz, 20 decibels at 3,000 Hz and 30 decibels at 4, 000 Hz. The veteran had speech recognition ability of 100 percent in the right ear and 96 percent in the left ear. The diagnoses included status post trauma to the left ear drum and status post left tympanoplasty with ossicular reconstruction and correction of perilymph fistula all secondary to trauma with documented mild sensorineural hearing loss in the left ear also probably secondary to the trauma. The examiner also diagnosed residual vertigo, mild in nature, secondary to trauma and chronic left sided tinnitus, moderate in intensity, also probably secondary to trauma. II. Increased Evaluation Disability evaluations are determined by comparing the veteran's present symptomatology with the criteria set forth in the Schedule for Rating Disabilities. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. Part 4 (1993). The Board observes that the rating schedule does not specifically address a peripheral vestibular disorder with residual vertigo, chronic left sided tinnitus secondary to traumatic left tympanic membrane perforation with perilymphatic fistula of the oval and round window and status post exploratory tympanotomy and repair. In such situations, it is permissible to rate under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous. Conjectural analogies will be avoided, as will the use of analogous ratings for conditions of doubtful diagnosis, or for those not fully supported by clinical and laboratory findings. Nor will ratings assigned to organic diseases and injuries be assigned by analogy to conditions of functional origin. 38 C.F.R. § 4.20 (1993). The Board finds that the veteran's service-connected left ear disorder is most closely analogous to chronic labyrinthitis. Moderate chronic labyrinthitis with tinnitus and occasional dizziness warrants a 10 percent evaluation. A 30 percent evaluation requires that the disorder be severe with tinnitus, dizziness and occasional staggering. These evaluations are combined with evaluations for any associated loss of hearing or suppuration. 38 C.F.R. Part 4, Diagnostic Code 6204 (1993). It is also clear, and the veteran has indicated his agreement with this point, that an evaluation in excess of 10 percent is not appropriately assignable under diagnostic codes pertaining to hearing loss. (Codes 6100-6110). Where there is a question as to which of two disability 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 (1993). The Board has made a careful longitudinal review of the record. It is observed that the October 1990 medical board report noted that the veteran had post-operative scarring of the tympanic membrane in the posterior quadrant with left unilateral weakness suggestive of a peripheral type of labyrinth injury. The February 1992 VA examination report indicated that the veteran related that he had dizziness, would sometimes feel awkward on activity, suffered disorientation on running in a straight line and did not believe his balance had completely returned. The examiner diagnosed status post trauma to the left ear drum and status post left tympanoplasty with ossicular reconstruction and correction of perilymph fistula; mild sensorineural hearing loss in the left ear; mild residual vertigo and chronic left sided tinnitus, moderate in intensity, all secondary to the veteran's inservice trauma. As the clinical record indicates symptomatology productive of no more than moderate chronic labyrinthitis with mild dizziness and moderate left sided tinnitus, the Board concludes that an increased evaluation for the veteran's left ear disorder is not warranted. 38 C.F.R. Part 4, Diagnostic Code 6204 (1993). Accordingly, an increased evaluation for a peripheral vestibular disorder with residual vertigo, chronic left sided tinnitus secondary to traumatic left tympanic membrane perforation with perilymphatic fistula of the oval and round window and status post exploratory tympanotomy and repair is denied. We have considered the potential application of various provisions of Title 38 of the Code of Federal Regulations (1993), whether or not they were raised by the veteran as required by the holding of the United States Court of Veterans Appeals (hereinafter "the Court") in Schafrath v. Derwinski, 1 Vet.App. 589, 593 (1991). In particular, we find that the evidence does not suggest that the veteran's left ear disorder is productive of such an exceptional or unusual disability picture so as to render impractical the applicability of the regular schedular standards and thereby warrant the assignment of an extraschedular evaluation under the provisions of 38 C.F.R. § 3.321(b)(1) (1993). ORDER An increased evaluation for a peripheral vestibular disorder with residual vertigo, chronic left sided tinnitus secondary to traumatic left tympanic membrane perforation with perilymphatic fistula of the oval and round window and status post exploratory tympanotomy and repair is denied. JEFF MARTIN Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.