Citation Nr: 0002348 Decision Date: 01/28/00 Archive Date: 02/02/00 DOCKET NO. 94-32 143 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to an increased disability rating for the residuals of a left ear tympanoplasty with otitis media, currently rated as 10 percent disabling. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD T. Reichelderfer INTRODUCTION The veteran served on active duty from September 1970 to December 1971 and from August 1978 to August 1979. This appeal arises from a rating decision of the Montgomery, Alabama, Department of Veterans Affairs (VA) regional office (RO). In March 1999, the Board of Veterans' Appeals (Board) remanded this case to the RO for additional evidentiary development. The case is again before the Board for consideration. FINDINGS OF FACT 1. The veteran's claim is plausible, and all evidence necessary for an equitable disposition of the veteran's claim has been developed. 2. Total deafness in the right ear is not shown. 3. The average pure tone decibel loss in the left ear was 19 decibels. Left ear speech recognition was 92 percent based on the W22 word list and 40 percent based on the Maryland CNC word list. 4. There is no evidence that the service connected left ear disorder has caused repeated hospitalizations, marked interference with employment, or otherwise rendered application of the regular schedular standards impractical. CONCLUSION OF LAW The criteria for an evaluation in excess of 10 percent for residuals of a left ear tympanoplasty with otitis media are not met. 38 U.S.C.A. §§ 1155, 1160, 5107 (West 1991); 38 C.F.R. §§ 3.383, 4.85, 4.86, 4.87, 4.87a, Diagnostic Codes 6100, 6101, 6200, 6201, 6210 (1998); 38 C.F.R. §§ 3.321(b)(1), 3.383, 4.14, 4.85, 4.86, 4.87, Diagnostic Code 6100, 6200, 6201, 6210 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Factual background The report of a May 1999 Department of Veterans Affairs (VA) ear disease examination indicates that the veteran's ear complaints centered on the right ear. The report notes the left auditory canal appeared normal. The left tympanic membrane showed some thickening and moistness. There was no evidence of middle ear effusion, no infectious process was present at the time of the examination, and there were no tympanic membrane perforations. The diagnosis was otitis externa. The report of a June 1999 VA audiological evaluation notes that the veteran complained of significant ear pain. Pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT - - - - - LEFT 25 20 20 15 20 The right ear was not tested due to pain. The report indicates that the right ear seemed to have some hearing loss although results were inconsistent. The average left ear loss was 19 decibels. Speech audiometry revealed speech recognition ability of 36 percent in the right ear and 40 percent in the left ear based on the Maryland CNC work list. Speech recognition ability based on the W22 word list (loud voice presentation) was 76 percent in the right ear and 92 percent in the left ear. The report indicates that the speech discrimination scores obtained based upon loud voice were a better indication of true discrimination ability based on the reported thresholds. The left ear results were consistent with all of the testing. The diagnosis was left ear results suggested normal hearing acuity. II. Legal analysis The first responsibility of a claimant is to present a well- grounded claim. 38 U.S.C.A. § 5107(a) (West 1991). A claim for an increased evaluation is well grounded if the claimant asserts that a condition for which service connection has been granted has worsened. Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992). In this case, the veteran has asserted that his left ear disability is worse than currently evaluated, and he has thus stated a well-grounded claim. The veteran has not indicated that additional relevant evidence of probative value may be obtained which has not already been sought and associated with the claims folder. The veteran's treatment records have been associated with the claims file, and he has been accorded an appropriate VA examination. Accordingly, the Board finds that the duty to assist, as mandated by 38 U.S.C.A. § 5107(a) (West 1991), has been satisfied. In a September 1972 rating decision, service connection for "rupture of eardrum with secondary otitis media, healed, P.O. [post operative] tympanoplasty, left" was granted with a noncompensable disability rating assigned. A February 1981 rating decision indicates that the veteran had been on active duty from August 1978 to August 1979 and reclassified the disability as "P.O. tympanoplasty, left, with otitis media." The noncompensable rating was continued. An April 1985 rating decision increased the disability rating to 10 percent. The 10 percent rating has remained in effect since that time. The veteran is also service connected for tinnitus with a 10 percent disability rating assigned. The severity of a disability is ascertained by application of the criteria set forth in the Department of Veterans Affairs (VA) Schedule for Rating Disabilities contained in 38 C.F.R. Part 4 (Schedule). The disability ratings are based on the average impairment of earning capacity in civil occupations. 38 U.S.C.A. § 1155 (West 1991). Although the evaluation of a service-connected disability requires a review of the veteran's medical history with regard to that disorder, the primary concern in a claim for an increased evaluation for a service-connected disability is the present level of disability. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994); Peyton v. Derwinski, 1 Vet. App. 282 (1991); 38 C.F.R. §§ 4.1, 4.2 (1996). The use of manifestations not resulting from service- connected disease or injury in establishing the service- connected evaluation, and the evaluation of the same disability manifestations under different diagnoses are to be avoided. 38 C.F.R. § 4.14 (1999). During the pendency of the veteran's appeal, the regulations applicable to rating diseases of the ear were amended, effective June 10, 1999. 64 Fed. Reg. 25,202 (May 11, 1999). When a law or regulation changes after a claim has been filed but before the administrative appeal process has been concluded, VA must apply the regulatory version that is more favorable to the veteran. Karnas v. Derwinski, 1 Vet. App. 308, 312-13 (1991). However, where the amended regulations expressly provide an effective date and do not allow for retroactive application, the veteran is not entitled to consideration of the amended regulations prior to the established effective date. Rhodan v. West, 12 Vet. App. 55 (1998); see also 38 U.S.C.A. § 5110(g) (West 1991) (where compensation is awarded pursuant to any Act or administrative issue, the effective date of such award or increase shall be fixed in accordance with the facts found, but shall not be earlier than the effective date of the Act or administrative issue). Therefore, the Board must consider whether the old criteria or the new criteria are more favorable to the veteran, from the effective date of the new regulations. If neither is more favorable, the new criteria are to be applied from their effective date. VA has a duty to acknowledge and consider all regulations which are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusion. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Diagnostic Code 6200 (chronic suppurative otitis media) has been assigned to the veteran's left ear disability. Under the old criteria, a 10 percent disability rating under this code requires continuance of the suppurative process, to be combined with ratings for loss of hearing. 38 C.F.R. § 4.87a, Diagnostic Code 6200 (1998). In every instance where the schedule does not provide a zero percent evaluation for a diagnostic code, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31. Diagnostic Code 6201 for chronic catarrhal otitis media provides that the disability will be rated based on hearing loss. 38 C.F.R. § 4.87a, Diagnostic Code 6201 (1998). Under the criteria of Diagnostic Code 6210, diseases of the auditory canal with swelling, dry and scaly or serous discharge, or itching that requires frequent and prolonged treatment warrants a 10 percent rating. 38 C.F.R. § 4.87a, Diagnostic Code 6210 (1998). Under the revised rating criteria, chronic suppurative otitis media, mastoiditis, or cholesteatoma (or any combination) warrants a 10 percent rating during suppuration or with aural polyps. Hearing impairment, and complications such as labyrinthitis, tinnitus, facial nerve paralysis, or bone loss of the skull are evaluated separately. 38 C.F.R. § 4.87, Diagnostic Code 6200 (1999). The revised criteria for Diagnostic Code 6201 provide that chronic nonsuppurative otitis media with effusion (serous otitis media) will be rated based on impairment of hearing. 38 C.F.R. § 4.87, Diagnostic Code 6201 (1999). Under the revised provisions of Diagnostic Code 6210, chronic otitis externa with swelling, dry and scaly or serous discharge, and itching that requires requiring frequent and prolonged treatment warrants a 10 percent disability rating. 38 C.F.R. § 4.87, Diagnostic Code 6210 (1999). The veteran's service connected otitis media is currently rated as 10 percent disabling. This is the maximum disability rating that is available under both the original and revised rating criteria of Diagnostic Code 6200, with hearing loss to be rated separately. It is noted that the revised provisions of Diagnostic Code 6200 provide that tinnitus that is a complication of otitis media is evaluated separately. However, the veteran already has a separate 10 percent rating for tinnitus. Therefore, a higher disability rating under these criteria is not available. 38 C.F.R. § 4.87a, Diagnostic Code 6200 (1998); 38 C.F.R. § 4.87, Diagnostic Code 6200 (1999). The May 1999 VA ear disease examination report shows a diagnosis of otitis externa. Under the original and revised rating criteria of Diagnostic Code 6210, the maximum disability rating for ear canal disease or otitis externa is 10 percent, which is the currently assigned disability rating. Accordingly, an increased disability rating under these criteria is not available. 38 C.F.R. § 4.87a, Diagnostic Code 6210 (1998); 38 C.F.R. § 4.87, Diagnostic Code 6210 (1999). The revised provisions of Diagnostic Code 6200 provide that hearing loss that is a complication of otitis media is to be rated separately. Additionally, the provisions of both the original and revised criteria of Diagnostic Code 6201 provide that chronic catarrhal otitis media and chronic nonsuppurative otitis media will be rated based on impairment of hearing. 38 C.F.R. § 4.87a, Diagnostic Code 6201 (1998); 38 C.F.R. § 4.87, Diagnostic Codes 6200, 6201 (1999). Evaluations of unilateral defective hearing range from noncompensable to 10 percent, based on the degree of hearing impairment as determined by audiological evaluation, and application of the results of the audiological evaluations to tables to determine the degree of disability. The average pure tone threshold is the average decibel loss at 1000, 2000, 3000, and 4000 Hertz. Evaluations derived from the rating schedule are intended to make proper allowance for improvement by hearing aids. 38 U.S.C.A. §§ 1155, 1160(a) (West 1991); 38 C.F.R. §§ 4.85, 4.86, 4.87, Diagnostic Codes 6100 and 6101 (1998). The assignment of disability ratings for hearing impairment is achieved by a mechanical application of the numeric designations assigned after audiometric evaluations are rendered. Lendenmann v. Principi, 3 Vet.App. 345 (1992). Under the revised rating criteria for evaluating ear disorders, there was no change to the tables used to determine the degree of hearing loss disability. 64 Fed. Reg. 25,202 (1999). The criteria continue to provide evaluations of unilateral defective hearing that range from noncompensable to 10 percent with the average pure tone threshold remaining the average decibel loss at 1000, 2000, 3000, and 4000 Hertz. 38 U.S.C.A. §§ 1155, 1160(a) (West 1991); 38 C.F.R. §§ 4.85, 4.86 Diagnostic Code 6100 (1999). When service connection has been established for unilateral hearing loss disability, the severity of any hearing loss in the ear that is not service-connected will be considered, for VA disability rating purposes, only when total deafness in the nonservice-connected ear is demonstrated. 38 U.S.C.A. § 1160(a) (West 1991); 38 C.F.R. § 3.383 (1998, 1999). Service connection has only been established for the left ear. The results of the June 1999 VA audiological evaluation indicate that the average pure tone decibel loss for 1000, 2000, 3000, and 4000 Hertz was 19 decibels. The examination report indicates speech recognition ability of 92 percent based on the W22 word list which the report indicates is a better indication of discrimination ability. The left ear average pure tone loss and speech recognition ability result in numeric designation I, in accordance with Table VI, Numeric Designation of Hearing Impairment. Since total deafness is not demonstrated in the right ear, numeric designation I is assigned to reflect normal hearing. VAOPGCPREC 32-97. When these numeric designations are applied to Table VII, Percentage Evaluations for Hearing Impairment, the disability rating is noncompensable (0%). If the speech recognition value of 40 percent from the Maryland CNC word list is used instead of the value derived from the W22 word list, the numeric designation is VIII based on Table VI. When this value and numeric designation I for the right ear is applied to Table VII, the disability rating is again noncompensable (0%). Therefore, the preponderance of the evidence is against granting an increased disability rating for left ear hearing loss under the original rating criteria. 38 U.S.C.A. §§ 1155, 1160(a) (West 1991); 38 C.F.R. §§ 3.383, 4.85, 4.86, 4.87, Diagnostic Codes 6100 and 6101 (1998). While the June 1999 VA examination report indicates that the W22 word list was a better indication of speech recognition ability, the revised rating criteria for hearing loss specify that the Maryland CNC word list is to be used. As noted above, the numeric designation for the left ear based on the Maryland CNC word list is VIII from Table VI. Since total deafness is not demonstrated in right ear, numeric designation I is assigned to the right ear. 38 C.F.R. § 4.85(f) (1999). When these values are applied to Table VII, the disability rating under the revised criteria is again noncompensable (0%). 38 U.S.C.A. §§ 1155, 1160(a) (West 1991); 38 C.F.R. §§ 3.383, 4.85, 4.86 Diagnostic Code 6100 (1999). The veteran's representative at the Board has argued that consideration should be given to granting an increased rating on an extraschedular basis under the provisions of 38 C.F.R. § 3.321(b)(1) (1999). The representative asserts that such a rating is warranted, because the veteran is assigned the maximum disability rating under the schedule for his condition. The governing norm for consideration of an extraschedular evaluation is that the case present such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization so as to render impractical the application of the regular schedular standards. There is no evidence in the claims file that the service connected left ear disorder has caused repeated hospitalizations, marked interference with employment, or otherwise rendered the Schedule impractical, and neither the veteran nor the representative has submitted such evidence. Furthermore, the argument that the veteran is assigned the maximum schedular evaluation is incorrect. Although no higher evaluation than 10 percent is available under Diagnostic Code 6200, that code does provide for separate evaluation of hearing loss, and higher ratings for hearing loss are available under the rating schedule. Accordingly, there is no basis for consideration of an extraschedular evaluation for the veteran's left ear disability. 38 C.F.R. § 3.321(b)(1) (1999); VAOPGCPREC 6-96. Evaluation of the veteran's service connected left ear disorder is the same whether considered under the old or the revised rating criteria. Accordingly, neither is more favorable. Based on the above, the preponderance of the evidence is against the veteran's claim for an increased disability rating for the residuals of a left ear tympanoplasty with otitis media. 38 U.S.C.A. §§ 1155, 1160, 5107 (West 1991); 38 C.F.R. §§ 3.383, 4.85, 4.86, 4.87, 4.87a, Diagnostic Codes 6100, 6101, 6200, 6201, 6210 (1998); 38 C.F.R. §§ 3.321(b)(1), 3.383, 4.14, 4.85, 4.86, 4.87, Diagnostic Code 6100, 6200, 6201, 6210 (1999). ORDER An evaluation in excess of 10 percent for service-connected residuals of a left ear tympanoplasty with otitis media is denied. J. SHERMAN ROBERTS Member, Board of Veterans' Appeals