Citation Nr: 0002942 Decision Date: 02/04/00 Archive Date: 02/10/00 DOCKET NO. 98-00 297A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to a higher initial evaluation for right ear otitis externa, currently rated noncompensably disabling. ATTORNEY FOR THE BOARD R. E. Smith, Counsel INTRODUCTION The veteran had active military service from October 1987 to March 1995. This matter came before the Board of Veterans' Appeals (Board) on appeal from a July 1996 rating decision by the Department of Veterans Affairs (VA) Columbia, South Carolina Regional Office (RO), granting the veteran service connection for right ear otitis externa and rating this disorder noncompensably disabling. The veteran has disagreed with the noncompensable disability evaluation assigned by the RO. The case was previously before the Board in September 1998 and was remanded to the RO for further development. The case has since been returned to the Board. FINDING OF FACT The veteran's right ear otitis externa is manifested by complaints of pain, itching and drainage without any clinical findings or more than very mild symptomatology; swelling, dry and scaly or serous discharge and itching of the ear canal with frequent and prolonged treatment is not shown. CONCLUSION OF LAW The schedular requirements for an increased (compensable) evaluation for right ear otitis externa have not been met. 38 U.S.C.A. §§ 1155, 5107(a) (West 1991); 38 C.F.R. §§ 4.1, 4.2, 4.10, 4.31 and Part 4, Diagnostic Code 6210 (1999). REASONS AND BASES FOR FINDING AND CONCLUSION Factual Background A review of the veteran's service medical records reveals that she presented to a service department treatment facility in May 1994 with complaints of right ear pain, serous drainage and some recent bleeding. Objective examination of the right tympanic membrane noted superficial abrasion with minimal bleeding along the posterior inferior wall of the external ear canal. External ear canal trauma was the diagnostic impression, and the veteran was prescribed conservative treatment. Further complaints of right ear pain and leaking fluid were made in July 1994. On examination, the right ear canal was erythematous and the veteran exhibited pain with movement of the ear lobe. Right otitis externa was the diagnostic assessment and the veteran was prescribed Cortisporin drops. At a post service VA audiological examination in February 1996, it was recorded that the veteran reported with a primary complaint of pain in the ear along with leaking and bleeding from the ear. The veteran did not complain of hearing loss. Following an audiological examination, it was indicated, by the veteran's examiner, that the veteran had normal hearing, bilaterally, at all frequencies. The examiner further indicated that an ear, nose, and throat (ENT) specialist should follow up the veteran's complaints of auricular pain. He further noted that, when he attempted an otoscopic evaluation of the veteran's ear, she complained of auricular pain and, thus, tympanometry was not completed. The veteran was afforded a VA audio-ear disease examination in June 1996. On this examination, the veteran complained of drainage from the right ear and said that the right ear has drained for several years on a periodic basis and caused itching and pain. She reported no history of hearing loss. She further reported being seen at the ENT clinic at Moncrieff General Hospital by a Dr. Alan Brill and being told by this physician that she had a swimmer's ear. She indicated she was provided a corticosporin-type drop as well as penicillin for her infection. She said that she was scheduled for a follow-up evaluation with Dr. Brill in approximately one week. On objective ENT evaluation on her VA examination, the veteran was found to have a very mild otitis externa of the right ear of the dermatitis type. Her left ear appeared normal. Both tympanic membranes were normal in appearance and moved normally. Otitis externa under treatment by Dr. Alan Brill was the diagnostic impression. The examining physician further indicated that his otologic evaluation was confirmatory of the above diagnosis. As noted above, the Board remanded this case to the RO in September 1998, for the purposes of obtaining copies of the treatment records of Dr. Brill. Several attempts by the RO thereafter to contact the veteran in order to obtain her assistance in identifying pertinent treatment for her right ear disorder and associate records of this treatment with her claims folder were unsuccessful. Her current mailing address is not of record. Analysis The veteran's claim for increased evaluation for her service-connected right ear otitis externa is well grounded, meaning it is plausible. The Board finds that all relevant evidence has been obtained to the extent possible and no further assistance to the veteran is required to comply with VA's duty to assist her. 38 U.S.C.A. § 5107(a). In this case, the RO attempted to obtain information from the veteran to develop her claim. However, the RO's letters to the veteran at her last address of record in November 1998 and April 1999 were not answered. Here we note that VA's duty to assist the veteran in developing the facts pertinent to her claim is not a one-way street. If the veteran wishes help she cannot passively wait for it in those circumstances where her own actions are essential in obtaining the putative evidence. Wood v. Brown, 1 Vet. App. 191 (1991). Disability evaluations are determined by the application of a schedule of ratings (rating schedule) which is based on the average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Separate disability codes identify the various disabilities. In evaluating the veteran's claim for increased evaluation for her service-connected right ear disorder, the Board has taken into consideration the most recent medical findings in light of the applicable provisions of the rating schedule as well as the history of this disorder. We have additionally noted the veteran's complaints of continuous problems with her ear and her assertions that this disorder is essentially more disabling than currently evaluated. In Fenderson v. West, 12 Vet. App. 119 (1999), it was held that evidence to be considered in the appeal of an initial assignment of a rating was not limited to that reflected in the current severity of the disorder. Rather, at the time of the initial rating, separate ratings can be assigned for separate periods of time based upon the facts found. Furthermore, regulations provide when there is a question of which of two 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. The veteran has been granted service connection for right ear otitis externa by the RO's July 1996 rating action. This disorder was rated noncompensably disabling under Diagnostic Code 6210 of the rating schedule. Under Diagnostic Code 6210, otitis externa with swelling, dry and scaly or serous discharge, itching, requiring frequent and prolonged treatment warrants a 10 percent evaluation. Diagnostic Code 6210. In every instance where the minimum schedule evaluation requires residuals and the schedule does not provide a no percent evaluation, a no percent evaluation will be assigned when the required residuals are not shown. 38 C.F.R. § 4.31. 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 required for that rating, otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. The veteran's right ear disorder was last treated in service in July 1994. There is no clinical evidence of any further complaints, findings, or treatment for the veteran's right ear prior to the veteran's service separation in March 1995. While the veteran had clinical indications of very mild otitis externa of the right ear on VA examination in June 1996, as well as complaints of periodic pain and drainage with itching, the clinical evidence did not show dry and scaly or serous discharge or itching. Frequent and prolonged treatment for active ear disease likewise has not been demonstrated. Consequently, as the veteran has failed to show any objective evidence of chronic pathology of any consequence related to her service-connected right ear disability, an increased (compensable) evaluation for this disorder is not currently warranted. Furthermore, at no time since service has the veteran's right ear disorder been shown to be more severely disabling than that reflected by the noncompensable evaluation and, thus, the veteran is not entitled to a "staged" rating for her service-connected disability as prescribed by the Court in Fenderson v. West, 12 Vet. App. 119 (1999). In reaching this decision the Board has considered the doctrine of granting the benefit of the doubt to the appellant, but does not find the evidence is approximately balanced as to warrant its application. ORDER A higher initial evaluation for right ear otitis externa is denied. J. E. Day Member, Board of Veterans' Appeals