BVA9504850 DOCKET NO. 93-03 578 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to an increased evaluation for residuals of bilateral tympano-mastoidectomies and tinnitus, currently evaluated as 10 percent disabling. 2. Entitlement to a permanent and total disability rating for pension purposes. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Lori J. Wells-Green, Associate Counsel INTRODUCTION The veteran served on active duty from February 1972 to January 1977. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a March 1992 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that he is entitled to a higher rating for his service-connected residuals of bilateral tympano- mastoidectomies for infected cholesteatomas with chronic vertigo and tinnitus with history of bilateral otitis media, as he experiences persistent pain and vertigo approximately 2 to 3 times a week. 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. 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 the evidence supports a 30 percent evaluation for the veteran's service-connected residuals of bilateral tympano- mastoidectomies of infected cholesteatomas. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained. 2. The residuals of bilateral tympano-mastoidectomies of infected cholesteatomas disability is manifested primarily by vertigo, tinnitus and dizziness. CONCLUSION OF LAW The schedular criteria for a 30 percent evaluation for residuals of bilateral tympano-mastoidectomies of infected cholesteatomas disability have been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.321(b), 4.1, 4.2, 4.7, 4.41, 4.42, Diagnostic Codes 6205, 6209 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board finds that the veteran's claim for an increased rating for residuals of bilateral tympano-mastoidectomies is well grounded within the meaning of 38 U.S.C.A. § 5107(a). That is, the Board finds that he has presented a claim which is plausible. The Board is also satisfied that no further assistance to the veteran is required to comply with 38 U.S.C.A. § 5107(a) regarding this issue. In accordance with 38 C.F.R. §§ 4.1, 4.2, 4.41 and 4.42 and Schafrath v. Derwinski, 1 Vet.App. 589 (1991), the Board has reviewed the service medical records and all other evidence of record pertaining to the history of the veteran's residuals of bilateral tympano-mastoidectomies of infected cholesteatomas disability. The Board finds nothing in the historical record which would lead it to conclude that the current evidence of record is not adequate for rating purposes. Moreover, the Board is of the opinion that this case presents no evidentiary considerations which would warrant an exposition of the remote clinical histories and findings pertaining to the veteran's residuals of bilateral tympano-mastoidectomies of infected cholesteatomas disability. The November 1990 VA examination report for compensation purposes shows that the veteran was originally treated for otalgia and otitis media in 1972. In 1973 he had bilateral myringotomy tubes placed in his ears. VA treatment records show that the veteran underwent bilateral tympanomastoidectomies for infected cholesteatomas in 1984 and 1985. The November 1990 VA examination report shows that the veteran's hearing had become progressively worse and that he had begun to experience some tinnitus with intermittent otorrhea from his right ear and occasional otorrhea in his left ear. The examiner found that the veteran's external auditory canals were within normal limits; however, his tympanic membranes were extremely retracted in both ears. There was no evidence of otorrhea or cholesteatoma at that time. Accompanying audiogram results revealed bilateral moderate mixed hearing loss with approximately ten to thirty decibels air/bone gaps in both ears. Discrimination was 100 percent in the veteran's right ear and 96 percent in his left ear. The examiner diagnosed a history of bilateral chronic otitis media without evidence of cholesteatoma. A December 1990 summary examination report for hearing loss shows that the veteran had mild conductive type hearing loss in his right ear and moderate mixed type hearing loss in his left ear. The examiner noted that these results were consistent with the veteran's history of otitis media. The veteran was prescribed hearing aids at that time. The April 1991 VA medical certificate report shows that the veteran complained of dizziness brought on by leaning his head forward or backwards, and indicated that he had been treated at the VA ears, nose and throat clinic for this condition with some improvement. He further indicated that he had been out of medications for approximately one week. The examiner noted that the veteran had no orthostatic symptoms and diagnosed vertigo. At his January 1992 VA examination for compensation purposes, the veteran complained of decreased hearing, dizziness with progressive persistent vertigo with associated nausea, that was unrelieved with Meclizine. He stated that he had difficulty taking a shower, looking up or down, or walking across a street. The examiner noted that the veteran's left eardrum area was scarred worse than his right. The examiner diagnosed decreased hearing. However, the examiner noted that the veteran had a hearing aid on his left ear and that his conversational hearing was within normal limits with this aid. The examiner further diagnosed peripheral vertigo and noted that the veteran was unable to be gainfully employed in his usual employment as a welder on high steel construction work. It was reported that his activities of daily living were markedly impaired with regard to his vertiginous episodes. An April 1992 VA examination report shows that the veteran stated that since his mastoidectomies he had had episodic vertigo, which occurred two to three times a week and was associated with hearing loss, nausea and fullness. He also complained of tinnitus with occasional otalgia. The examiner noted that the veteran's right tympanic membrane was severely retracted with a posterior superior retraction pocket. The examiner further noted a right postauricular incision and mastoid defect that were consistent with a mastoidectomy. Examination of the veteran's left ear revealed findings consistent with a canal walled down mastoidectomy. The left ear graft was in place and severely retracted. The examiner found no evidence of an active ear infection at that time and he diagnosed chronic Eustachian tube dysfunction. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule), and these ratings are based, as far as practicable, upon the average impairment of earning capacity in civil occupations. 38 U.S.C.A. § 1155. Service connection is in effect for residuals of bilateral tympano-mastoidectomies for infected cholesteatomas with chronic vertigo and tinnitus with history of bilateral otitis media. This disability is currently analogously rated under the provisions of 38 C.F.R. § 4.87(a), Diagnostic Code 6209, which assigns a 10 percent evaluation for minimum impairment of function as a result of new benign growths of the ear. The code does not provide a higher evaluation. Diagnostic Code 6205 provides a 30 percent evaluation for mild Meniere's syndrome with aural vertigo and deafness. A 60 percent evaluation requires evidence of moderate Meniere's syndrome with less frequent attacks including cerebellar gait. After assessing the foregoing evidence in light of the applicable criteria, the Board is of the opinion that the veteran's disability picture more closely approximates the criteria required for a 30 percent rating under Diagnostic Code 6205 than his current 10 percent rating under Diagnostic Code 6209. 38 C.F.R. § 4.7. In reaching this decision, the Board emphasizes that the veteran has episodic vertigo two to three times a week and dizziness when bending his head forward or backwards. The veteran's current evaluation is an analogous rating that provides only for minimal impairment. While the veteran does not have Meniere's syndrome, the Board is of the opinion that his current symptomatology is more closely akin to that considered in Diagnostic Code 6205 than that considered in Diagnostic Code 6209, and that he should be given an appropriate analogous rating taking all his symptoms into consideration. The Board finds that the veteran's disability picture does not indicate a higher rating under Diagnostic Code 6205, as there is no clinical indication of cerebellar gait. The Board does not find that this case presents such an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b). ORDER An increased evaluation for residuals of bilateral tympano- mastoidectomies for infected cholesteatomas, to 30 percent is granted, subject to the applicable criteria governing the payment of monetary benefits. 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. REMAND As to the veteran's claim of entitlement to a permanent and total disability rating for pension purposes, he contends that he is unable to work primarily due to the severity of his residuals of bilateral tympano-mastoidectomies, particularly vertigo. The veteran does have other claimed disabilities, including dysthymic disorder, traumatic arthritis of the cervical spine, bilateral conducted hearing loss, costochondritis and residuals of burn scars to the right dorsal forearm. In light of the foregoing decision and the fact that the veteran's most recent VA examination was conducted in 1992, the Board believes that a more contemporaneous examination should be conducted in order to properly consider this appeal. The United States Court of Veterans Appeals has held that, under 38 U.S.C.A. § 5107(a) (West 1991), VA's duty to assist a veteran in obtaining and developing available facts and evidence to support a claim includes obtaining an adequate and contemporaneous VA examination which takes into account the records of prior medical treatment. Littke v. Derwinski, 1 Vet.App. 90 (1990). Accordingly, the case is REMANDED for the following: 1. The RO should contact the veteran and request him to identify the names, addresses, and approximate dates of treatment for all claimed disabilities from all health care providers who have treated him since service. Then, with any necessary authorization from the veteran, the RO should attempt to obtain copies of all treatment records identified by the veteran and not already of record. 2. When the foregoing development has been completed, the RO should arrange for the veteran to undergo the following: a. A VA social and industrial survey to obtain information concerning the veteran's education and industrial background. The claims file should be made available for review prior to the examination. b. A VA examination, to include an audiogram, by a board certified specialist in diseases of the ear, nose and throat to determine the current severity of the veteran's residuals of bilateral tympano- mastoidectomies and tinnitus as well as conductive hearing loss. Any special diagnostic studies deemed necessary should be performed, and the claims file should be made available for review prior to the examination. The examiner should comment as to how the disability interferes with the veteran's ordinary activities, including his ability to work. c. A VA examination by a board certified psychiatrist, if available, to determine the nature and extent of any psychiatric disorder(s) present. All indicated studies should be performed. The veteran's claims file should be made available for review prior to the examination. d. A VA orthopedic examination by a board certified specialist, if available, to determine the nature and extent of the veteran's traumatic arthritis of the cervical spine, if present. All indicated studies, including x-ray studies and range of motion studies, should be performed. The veteran's claims file should be made available for review prior to the examination. e. A VA general medical examination to determine the nature and extent of any other disabilities present, to include costochondritis and residual scars of burns to the right dorsal hand and forearm. All indicated studies should be performed. The veteran's claims file should be made available for review prior to the examination. 3. Thereafter, the RO should readjudicate the veteran's claim for entitlement to a permanent and total disability rating for pension purposes, to include assigning a percentage evaluation for each disability found, combine the same and apply the "average person," "unemployability" and "extraschedular" tests consistent with the Court's decision affecting pension cases. If the benefit sought on appeal is not granted to the veteran's satisfaction, a Supplemental Statement of the Case containing adequate reasons and bases should be issued and the veteran and his representative provided an opportunity to respond. Thereafter, the case should be returned to the Board for further consideration, if otherwise in order. By this REMAND, the Board intimates no opinion as to any final outcome warranted. No action is required of the veteran until he is notified by the RO. F. JUDGE FLOWERS Member, Board of Veterans' Appeals (CONTINUED ON NEXT PAGE) 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. Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Veterans Appeals. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (1994).