Citation Nr: 0005322 Decision Date: 02/29/00 Archive Date: 03/07/00 DOCKET NO. 96-42 338 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, Puerto Rico THE ISSUES 1. Entitlement to an increased rating for bilateral conductive hearing loss, currently evaluated as 20 percent disabling. 2. Entitlement to an increased rating for otitis media with bilateral mastoiditis, status post operative left mastoidectomy, currently evaluated as 10 percent disabling. REPRESENTATION Appellant represented by: Puerto Rico Public Advocate for Veterans Affairs INTRODUCTION The appellant served on active duty from October 1965 to September 1967. The instant appeal arose from a March 1996 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), in San Juan, Puerto Rico, which denied claims for increased ratings for bilateral conductive hearing loss and otitis media with bilateral mastoiditis, status post operative left mastoidectomy. REMAND The appellant contends, in substance, that his service- connected bilateral conductive hearing loss and otitis media with bilateral mastoiditis, status post operative left mastoidectomy, have increased in severity; therefore, he believes increased ratings are warranted. The medical evidence of record reveals that the veteran may have some type of vestibular disequilibrium, or dizziness, as a result of his left ear pathology. A statement from Dr. A. Perez Vega dated in February 1997 indicated that the veteran had frequent treatment for ear infections and often had vertigo. The March 1997 VA audio-ear disease examination noted the veteran's ear disease was affecting a function other than hearing but also stated "[t]here is no dizziness." The diagnoses included "[p]ossible vertigo, secondary to left ear pathology." The Board of Veterans' Appeals (Board) notes that complications due to otitis media and mastoiditis, including labyrinthitis, or dizziness, require separate evaluation from the underlying disease if there are objective findings to support such a diagnosis. 38 C.F.R. § 4.87, Note following Diagnostic Code 6200, 6204 (1999). Because the March 1997 examination report is unclear as to whether there are objective findings to support a diagnosis of labyrinthitis, or dizziness, it is the Board's conclusion that the veteran should be afforded a new examination for purposes of exploring further the relationship between his current complaints of dizziness and his service-connected ear pathology. In addition, the Board finds that a current audiological and ear examination to evaluate the severity of the service-connected bilateral conductive hearing loss and otitis media with bilateral mastoiditis is warranted. The Board notifies the veteran that the requested examination is being scheduled to assist VA in properly adjudicating his claims and that his failure to report for the examination may result in his claims for increase being disallowed. 38 C.F.R. § 3.655(b) (1999). The Board also finds it necessary to make further efforts to assist the veteran in obtaining additional records of medical care. The record indicates that he has received relevant treatment for his hearing loss, otitis media with bilateral mastoiditis, and vertigo from a private physician, Dr. A. Perez Vega, and the clinical records of this treatment are not in the claims folder. The Board notes that the pertinent regulations governing evaluations for diseases of the ear and other sense organs were recently amended, effective June 10, 1999. Schedule for Rating Disabilities; Diseases of the Ear and Other Sense Organs, 64 Fed. Reg. 25,202 (1999). The United States Court of Appeals for Veterans Claims (known as the United States Court of Veterans Appeals prior to March 1, 1999) (hereinafter, "the Court") has stated that where the law or regulation changes during the pendency of a case, the version most favorable to the veteran will generally be applied. See West v. Brown, 7 Vet. App. 70, 76 (1994); Hayes v. Brown, 5 Vet. App. 60, 66-67 (1993); Karnas v. Derwinski, 1 Vet. App. 308, 313 (1991). Under VAOPGCPREC 16-92 and Bernard v. Brown, 4 Vet. App. 384, 393-94 (1993), the Board may consider regulations not considered by the RO only if the claimant will not be prejudiced by the Board's action in applying those regulations in the first instance. The Board notes that prior to certifying the case to the Board, it does not appear that the RO had an opportunity to readjudicate the appellant's claim with consideration of the amended rating criteria. This remand will therefore also afford the RO an opportunity to readjudicate the appellant's claim with consideration of the amended rating criteria. For the reasons stated, this case is REMANDED to the RO for the following actions: 1. The RO should ask the veteran to provide the RO with information regarding any evidence of current or past treatment for his hearing loss, otitis media with bilateral mastoiditis, and vertigo that has not already been made part of the record, and should assist him in obtaining such evidence following the procedures set forth in 38 C.F.R. § 3.159 (1999). After obtaining any necessary release, the RO should make an effort to obtain copies of relevant clinical records from Dr. Arnaldo Perez Vega, Apartado 8707, Humacao, Puerto Rico, 00792. In addition, the RO should make an effort to ensure that all relevant records of VA treatment, including those developed since February 1993 at the San Juan VAMC, have been obtained for review. Should its efforts to obtain evidence prove unsuccessful for any reason which the veteran could rectify, the RO should notify the veteran and advise him that the ultimate responsibility for furnishing evidence rests with the claimant. The veteran should be given a reasonable opportunity to respond to the RO's communications, and any additional evidence received should be associated with the claims folder. 2. The RO should have the veteran examined for the purpose of ascertaining the current status of his bilateral conductive hearing loss and otitis media with bilateral mastoiditis. All indicated tests, including an authorized audiological evaluation, should be conducted. The examiner should conduct a thorough examination of the veteran and fully describe the nature of any impairment attributable to otitis media with bilateral mastoiditis, including dizziness or vestibular disequilibrium. The examiner should specifically indicate whether there are objective findings to support a diagnosis of vestibular disequilibrium. If so, the examiner should indicate if vestibular disequilibrium is manifest as occasional dizziness or, alternately, as dizziness and occasional staggering. The claims folder should be made available for the examiner's review. 3. The RO should thereafter take adjudicatory action on the veteran's claim. In rating the veteran's hearing impairment, otitis media with bilateral mastoiditis, and any vestibular disequilibrium, the RO should consider and apply the more favorable of the old or amended rating criteria. See 38 C.F.R. §§ 4.85-4.87a (1998) and Schedule for Rating Disabilities; Diseases of the Ear and Other Sense Organs, 64 Fed. Reg. 25202 (1999) (to be codified at 38 C.F.R. §§ 4.85-4.87). If any of the benefits sought remain denied, a supplemental statement of the case (SSOC) should be issued. The SSOC should contain, among other things, the old and new criteria for rating hearing impairment, otitis media with bilateral mastoiditis, and vestibular disequilibrium, if applicable. After the veteran and his representative have been given an opportunity to respond to the SSOC, the claims folder should be returned to the Board for further appellate review. No action is required by the veteran until he receives further notice. The purposes of this remand are to procure clarifying data and to comply with governing adjudicative procedures. The Board intimates no opinion, either legal or factual, as to the ultimate disposition of this appeal. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded to the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 1999) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03. M. C. GRAHAM Acting Member, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 1999), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. 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) (1999).