Citation Nr: 0004092 Decision Date: 02/16/00 Archive Date: 02/23/00 DOCKET NO. 95-20 736 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUE Entitlement to an increased (compensable) evaluation for bilateral otitis externa. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant INTRODUCTION The veteran served on active duty from September 1942 to March 1946. The current appeal arose from a May 1993 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California. The RO, in pertinent part, denied entitlement to a compensable evaluation for bilateral otitis externa. In August 1994 the RO denied entitlement to service connection for arthritis of the cervical and lumbar spine as secondary to x-ray studies for service-connected bilateral otitis externa. In March 1997 the Board of Veterans' Appeals (Board) determined that new and material evidence had not been submitted to reopen a claim of entitlement to service connection for a cervical and lumbar spine disability, and remanded the issue of entitlement to an increased (compensable) evaluation for bilateral otitis externa to the RO for further development and adjudicative action. In November 1998 the RO, in pertinent part, affirmed the previous denial of entitlement to an increased (compensable) evaluation for otitis externa. The case has been returned to the Board for further appellate review. FINDING OF FACT Otitis externa of either ear has not been shown on examination for many years, and the veteran has denied any recent history of drainage of either ear. CONCLUSION OF LAW The criteria for an increased (compensable) evaluation for bilateral otitis externa have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991 & Supp. 1999); 38 C.F.R. §§ 4.7, 4.31, 4.87a, Diagnostic Code 6210 (effective prior to June 10, 1999); 38 C.F.R. § 4.87, Diagnostic Code 6210; 64 Fed.Reg. 25202-2520 (May 11, 1999) (effective June 10, 1999). REASONS AND BASES FOR FINDING AND CONCLUSION Factual Background In April 1946 the RO granted entitlement to service connection for bilateral, mild, otitis externa with assignment of a noncompensable evaluation, based on a history of treatment for this disorder in service. A May 1949 VA special ear, nose, and throat examination concluded in a diagnosis of no otitis externa found. A September 1989 VA outpatient ear, nose, and throat examination report shows a clinical inspection of the ears was normal. VA audiology outpatient treatment reports dated in 1994 are negative for any evidence of otitis externa. The veteran presented testimony before a hearing officer at the RO in January 1995. He provided testimony with respect to his claim for an increased (compensable) evaluation for otitis externa. A December 1995 VA audiology examination was negative for any evidence of otitis externa. A June 1997 VA audiology examination report shows the veteran denied having pain, drainage, ear surgery, or any recent ear infections. A July 1997 VA audiology-ear examination report shows the veteran had a history of otitis externa. Clinical inspection disclosed the auricle was within normal limits. The external canal disclosed no evidence of edema or erythema. The tympanic membrane was noted as sclerotic bilaterally. The tympanum was without fluid. There was no mastoid tenderness. No active disease was visible. No infectious disease of the middle or inner ear was present. The examiner noted that no ear disease was affecting any function other than hearing, such as balance, nor was any associated with any upper respiratory disease. No pertinent diagnosis was provided. Criteria Disability evaluations are determined by the application of the VA Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their medical conditions in civil occupations. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. § 4.1(1999). The inquiry into disability evaluations centers on the ability of the body or system in question to function in daily life, with specific reference to employment. 38 C.F.R. § 4.10. In considering the residuals of injury, it is essential to trace the medical-industrial history of the disabled person from the original injury, considering the nature of the injury and the attendant circumstances, and the requirements for, and the effect of, treatment over past periods, and the course of the recovery to date. 38 C.F.R. § 4.41. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, the regulations do not give past medical reports precedence over current findings. 38 C.F.R. § 4.2 (1999); Francisco v. Brown, 7 Vet. App. 55 (1994). 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 for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Where the minimum schedular evaluation requires residuals and the schedule does not provide a noncompensable evaluation, a noncompensable evaluation will be assigned when the required residuals are not shown. 38 C.F.R. § 4.31. The Board notes that the VA Rating Schedule that addresses the ear and other sense organs was recently amended, effective June 10, 1999. 64 Fed.Reg. 25202 (1999). Thus, the regulatory criteria governing the evaluation of the veteran's service-connected bilateral otitis externa changed while his claim was pending. Where the law or regulation changes after a claim has been filed or reopened but before the administrative or judicial appeal process has been concluded, the version more favorable to the appellant will apply unless Congress provided otherwise. Karnas v. Derwinski, 1 Vet. App. 308 (1991). Under the previous regulations, a 10 percent evaluation was provided for disease of the auditory canal with swelling, dry and scaly or serous discharge, itching, requiring frequent and prolonged treatment. 38 C.F.R. § 4.87a; Diagnostic Code 6210 (effective prior to June 10, 1999). Under the current regulations, a 10 percent evaluation may be assigned for chronic otitis externa with swelling, dry and scaly or serous discharge, and itching requiring frequent and prolonged treatment. 38 C.F.R. § 4.87; Diagnostic Code 6210 (effective June 10, 1999). Ratings shall be based as far as practicable, upon the average impairments of earning capacity with the additional proviso that the Secretary shall from time to time readjust this schedule of ratings in accordance with experience. To accord justice, therefore, to the exceptional case where the schedular evaluations are found to be inadequate, the Under Secretary for benefits or the Director, Compensation and Pension Service, upon field station submission, is authorized to approve on the basis of the criteria set forth in this paragraph an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities. The governing norm in these exceptional cases 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. 38 C.F.R. § 3.321(b)(1) (1999). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When, after consideration of all of the evidence and material of record in an appropriate case before VA, there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt doctrine in resolving each such issue shall be given to the veteran. 38 U.S.C.A. § 5107(b) (West 1991); 38 C.F.R. §§ 3.102, 4.3 (1999). Analysis Upon review of the record, the Board concludes that the veteran's claim for an increased (compensable) evaluation for his bilateral otitis externa is well grounded. 38 U.S.C.A. § 5107(a); Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992). The veteran's assertions concerning the severity of his bilateral otitis externa (that are within the competence of a lay party to report) are sufficient to conclude that his claim for an increased (compensable) evaluation for that disability is well grounded. King v. Brown, 5 Vet. App. 19 (1993). The Board is satisfied that in view of the March 1997 remand of the case to the RO for further development, all relevant facts have been properly developed. No further assistance to the veteran is required to comply with the duty to assist as mandated by 38 U.S.C.A. § 5107. Godwin v. Derwinski, 1 Vet. App. 419 (1991); White v. Derwinski, 1 Vet. App. 519 (1991). The Board's review of the evidentiary record does not permit a conclusion that an increased (compensable) evaluation for the veteran's bilateral otitis externa is warranted. In this regard, the Board notes that the post service evidentiary record is totally devoid of any evidence of disease of the auditory canal such as serous drainage, swelling, etc., upon which to predicate a grant of entitlement to an increased (compensable) evaluation under either the previous or amended criteria for rating otitis externa. VA examinations and outpatient treatment reports show that clinical inspections of the ears have been negative for any serous discharge. The veteran himself, on examination has denied any drainage. The evidence in its totality is negative for reactivation of disease of the auditory canal. The United States Court of Appeals for Veterans Claims (Court) has held that the Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R. § 3.321(b)(1) in the first instance. Floyd v. Brown, 9 Vet. App. 88 (1996). The Board, however, is still obligated to seek all issues that are reasonably raised from a liberal reading of documents or testimony of record and to identify all potential theories of entitlement to a benefit under the law or regulations. In Bagwell v. Brown, 9 Vet. App. 337 (1996), the Court clarified that it did not read the regulation as precluding the Board from affirming an RO conclusion that a claim does not meet the criteria for submission pursuant to 38 C.F.R. § 3.321(b)(1), or from reaching such conclusion on its own. In the veteran's case at hand, the Board notes that the RO neither provided nor discussed the provisions for assignment of an extraschedular evaluation in light of his claim. The Court has further held that the Board must address referral under 38 C.F.R. § 3.321(b)(1) only where circumstances are presented which the VA Under Secretary for Benefits or the Director of the VA Compensation and Pension Service might consider exceptional or unusual. Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). The Board does not find the veteran's disability picture to be unusual or exceptional in nature as to warrant referral of his case to the Director or Under Secretary for review for consideration of extraschedular evaluation under the provisions of 38 C.F.R. § 3.321(b)(1). In this regard, the Board notes that otitis externa of either ear has not been shown by the evidence of record, and consequently is rated as noncompensably disabling. 38 C.F.R. § 4.31. In view of the evidentiary record showing that otitis externa of either ear has not been shown on postservice medical documentation, no question exists as to which of two evaluations would more properly classify the severity of the appellant's bilateral otitis externa. 38 C.F.R. § 4.7. Although the veteran is entitled to the benefit of the doubt where the evidence is in approximate balance, the benefit of the doubt doctrine is inapplicable where, as here, the preponderance of the evidence is against the claim for an increased (compensable) evaluation for bilateral otitis externa. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). ORDER Entitlement to an increased (compensable) evaluation for bilateral otitis externa is denied. RONALD R. BOSCH Member, Board of Veterans' Appeals