Citation Nr: 0004622 Decision Date: 02/23/00 Archive Date: 02/28/00 DOCKET NO. 95-37 090 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Entitlement to an increased rating for bilateral hearing loss, rated 20 percent disabling. 2. Entitlement to an increased rating for otitis media with mastoidectomy, rated 10 percent disabling. 3. Entitlement to an increased rating for tinnitus, rated 10 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD James J. Dunphy, Counsel INTRODUCTION The veteran served on active duty from January 1942 to October 1945. Forwarded to the Board of Veterans' Appeals (Board) was Volume II of a two volume claims folder. The initial item in the claims folder is a letter, dated in May 1985, that the claims folder has not been found, and that a rebuilt folder was attached. In a July 1995 note, the Department of Veterans Affairs (VA) Regional Office (RO) indicated that Volume I was not in the claims folder, and that this was a rebuilt folder. An undated note was attached to the claims folder, indicating that the file might be in an inactive status, but that it would be difficult to find. On the certification of appeal (VA Form 1-8) it was noted that Volume I of II was unavailable (Can't be located). The Board therefore concludes that the RO took appropriate steps to find the first volume of the claims folder, without success. Accordingly, the Board concludes that the case is currently ready for Board review, and that remanding the case to the RO for a further search, without assurance that the missing volume actually exists, would serve no useful purpose. In a September 1997 rating action, service connection was granted for vertigo, with occipital neuralgia, secondary to otitis media. A 30 percent rating was awarded, effective in August 1986. The veteran did not develop the issue of an increased rating for this disorder, and, accordingly, no action by the Board at this time is appropriate. In August 1999, service connection for hearing loss of the left ear was granted. The rating for the now bilateral hearing loss was increased from zero percent to 20 percent. The veteran was furnished with a supplemental statement of the case (SSOC) regarding the issue of bilateral hearing loss, along with the pertinent laws and regulations. In view of the fact that the veteran properly developed the issue of an increased rating for hearing loss, the issue of an increased rating for bilateral hearing loss is likewise before the Board for review. FINDINGS OF FACT 1. On VA compensation examinations, utilizing 38 C.F.R. § 4.85, Table VI, the veteran's hearing acuity is shown to be at worst either Level VI in the right ear and Level IV in the left ear; or Level X in the right ear and Level III in the left ear. 2. Utilizing 38 C.F.R. § 4.85, Table VIa, the veteran's hearing acuity is either Level VII in the right ear and Level IV in the left ear; or Level IX in the right ear and Level III in the left ear. 3. The otitis media is rated at the maximum evaluation during the suppurative process, and there is no evidence of labyrinthitis, facial nerve paralysis or bone loss of the skull. 4. The veteran is rated at the maximum evaluation for tinnitus, and the evidence of record does not demonstrate that the disability results in frequent hospitalizations or marked interference with employability. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 20 percent for bilateral hearing loss are not met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. § 4.85, Part 4, Code 6100 (1999). 2. The criteria for a rating in excess of 10 percent for otitis media are not met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.14, 4.87, Part 4, Code 6200 (1999). 3. The criteria for a rating in excess of 10 percent for tinnitus are not met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.321, 4.87, Part 4, Code 6260 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Initially, the Board notes that the veteran's claims are well grounded. By this, the Board means that the claims submitted are plausible. The Board further concludes that the VA has met its statutory duty to assist the veteran in the development of the claim. 38 U.S.C.A. § 5107 (West 1991). Under the laws administered by the VA, 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 (West 1991); 38 C.F.R. Part 4 (1999). Separate diagnostic codes identify the various disabilities. Where entitlement to compensation has already been established and an increase in the disability evaluation is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Increased rating for bilateral hearing loss The RO secured treatment record from Elmer W. Lorenz, M.D., regarding his treatment of the veteran's otological disorders. The veteran underwent audiological testing, the most recent of which was in December 1989. At that time, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 50 45 50 85 100 LEFT 25 30 55 75 85 Pure tone thresholds averaged 66 decibels in the right ear and 54 decibels in the left ear. On the authorized VA audiological evaluation in December 1992, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 40 25 55 85 95 LEFT 5 5 45 65 65 Pure tone thresholds averaged 65 decibels in the right ear and 45 decibels in the left ear. Speech audiometry revealed speech recognition ability of 94 percent in the right ear and 100 percent in the left ear. The veteran underwent an audiometric consultation at a VA facility in June 1996 and in September 1998. However, it was specifically indicated on these consultations that they were not for rating purposes. On additional VA audiological evaluation in June 1997, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 55 55 70 90 105 LEFT 45 25 65 75 95 Pure tone thresholds averaged 80 decibels in the right ear and 65 decibels in the left ear. Speech audiometry revealed speech recognition ability of 72 percent in the right ear and of 80 percent in the left ear. On the most recent VA compensation examination, in April 1999, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 65 75 95 100 105 LEFT 55 35 60 70 70 Pure tone thresholds averaged 94 decibels in the right ear and 59 decibels in the left ear. Speech audiometry revealed speech recognition ability of 40 percent in the right ear and of 84 percent in the left ear. Evaluations of bilateral defective hearing range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests together with the average hearing threshold level as measured by pure tone audiometry tests in the frequencies 1,000, 2,000, 3,000 and 4,000 cycles per second. To evaluate the degree of disability from defective hearing, the revised rating schedule establishes eleven auditory acuity levels from level I for essentially normal acuity through level XI for profound deafness. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. § 4.85 and Part 4, Codes 6100 to 6110. (1999) A review of the findings on examination show that the hearing loss in the right ear at the time of the December 1992 examination was Level II in the right ear and Level I in the left ear. In the June 1997 examination, hearing was Level VI in the right ear and Level IV in the left ear. Finally, on the most recent examination, hearing was Level X in the right ear and Level III in the left ear. 38 C.F.R. § 4.86, Table VI (1999). Under the schedular criteria, given these hearing Levels, a rating in excess of 20 percent is not appropriate. Hence, utilizing Table VI, an increased rating is not appropriate. Under regulations promulgated effective in June 1999, when the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more, or when the puretone threshold is 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz, the hearing Level will be determined using Table VI or Table VIa, whichever results in the higher numeral. Each ear will be evaluated separately. 38 C.F.R. § 4.86(a) (1999). The Board concludes that the newly promulgated provisions do not apply in the left ear, as on each examination, the threshold level at 1000 Hertz is less than 55, and on none of the examinations is the threshold at 1000 Hertz 30 or less and 70 or more at 2000 Hertz. However, the Board finds that on the 1997 and 1999 examinations, the Board must take Table VIa in account in determining the proper hearing Level in the right ear. Under these circumstances, the veteran had Level VII hearing in the right ear and Level IV hearing in the left ear in June 1997, and Level IX hearing in the right ear and Level III hearing in the left ear in April 1999. The Board finds that the hearing loss thus shown is properly evaluated as 20 percent disabling. 38 C.F.R. § 4.86, Part 4, Code 6100 (1999). Under such circumstances, an increased rating is not appropriate. Increased rating for otitis media The current 10 percent rating for otitis media is the maximum evaluation for otitis media based on suppuration, or with aural polyps. 38 C.F.R. § 4.87, Part 4, Code 6200 (1999). The schedular criteria also indicate that in rating otitis media, hearing impairment, and complications such as labyrinthitis, tinnitus, facial nerve paralysis, or bone loss of skull, should be evaluated separately. The Board notes that service connection is already in effect for hearing loss and tinnitus, and that separate ratings have been awarded for those disabilities. The evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14 (1999). Hence, in rating the veteran's otitis media, it would not be proper to consider symptomatology resultant from the service connected hearing loss or tinnitus. Instead, the Board must determine if the otitis media results in other enumerated symptomatology, such as labyrinthitis, facial nerve paralysis, or bone loss of skull. A review of the findings on examination do not show facial paralysis or bone loss of the skull. On examination in June 1997, there was no infectious disease of the middle or inner ear. There was no evidence of active ear disease on examination in April 1999. These findings are consistent with the symptomatology noted on VA outpatient treatment. In a February 1998 treatment note, the right ear was clear. Some symptoms were noted in the left ear. The diagnosis, when the veteran was seen in June 1998, was chronic otitis externa, and there was no finding of inner ear infection. The left ear cavity was cleaned when the veteran was seen in September 1998, and no pertinent symptomatology was reported. Thus, while the evidence does demonstrate the presence of otitis, in the absence of symptomatology such as labyrinthitis, facial nerve paralysis, or bone loss of skull, there is no basis for an increased rating for this disorder. To this extent, therefore, the veteran's claim must be denied. Increased rating for tinnitus The veteran is currently rated at the maximum schedular evaluation for tinnitus. 38 C.F.R. § 4.87, Part 4, Code 6260 (1999). For an increased rating to be warranted, the veteran must demonstrate the need for extraschedular relief. The provisions of 38 C.F.R. § 3.321 allow for the grant of an extraschedular rating when there 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. While the evidence does indicate that the veteran requires treatment for his multiple ear disorders, to include tinnitus, there is no report that the veteran has required hospitalization for this disorder, nor does the veteran so contend. Moreover, the findings on examination and treatment do not demonstrate that the tinnitus results in marked interference with employability. The Board notes that the veteran has not worked since 1985, at which time he reported that he was unable to work as a result of service connected vertigo. No indication was made at that time that the tinnitus had any effect on his employability, and the veteran has not so contended since that time. Accordingly, the Board finds no basis for an increased rating for tinnitus on a schedular basis. To this extent, therefore, the veteran's claim must be denied. In reaching the above decisions, the Board has given due consideration to the potential application of the various provisions of 38 C.F.R. Parts 3 and 4, whether or not they were raised by the veteran, as required by Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The Board finds that these provisions do not support the grant of an increased rating for the disorder at question. ORDER Increased ratings for bilateral hearing loss, otitis media and tinnitus are denied. V. L. Jordan Member, Board of Veterans' Appeals