Citation Nr: 0005199 Decision Date: 02/28/00 Archive Date: 03/07/00 DOCKET NO. 98-08 472A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES Entitlement to an increased (compensable) rating for bilateral otitis media. Entitlement to an increased (compensable) rating for bilateral hearing loss. Entitlement to an increased (compensable) rating for pes planus. Entitlement to an increased rating for dermatophytosis of the feet and the right arm pit with tinea cruris, currently rated as 10 percent disabling. REPRESENTATION Appellant represented by: Military Order of the Purple Heart ATTORNEY FOR THE BOARD R. K. ErkenBrack, Counsel NTRODUCTION The veteran served on active duty from January 1949 to October 1952, from May 1953 to May 1957, and from November 1957 to February 1960. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a March 1998 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) at Los Angeles, California. FINDINGS OF FACT 1. All the evidence necessary for an equitable disposition of the veteran's claim regarding otitis media has been obtained by VA. 2. Chronic otitis media is without suppuration and does not present an unusual; disability picture. 3. On multiple occasions the veteran failed, without good cause shown, to report for necessary rating examinations for his hearing loss, pes planus and dermatophytosis with tinea cruris. CONCLUSIONS OF LAW 1. A rating in excess of zero percent for otitis media is not warranted. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. § 4.1, 4.2, 4.31, 4.87a, Diagnostic Codes 6200, 6201 (1999). 2. Ratings in excess of zero percent for hearing loss and for pes planus are denied for failure to report for scheduled rating examinations. 38 C.F.R. § 3.655 (1999). 3. A rating in excess 10 percent for dermatophytosis with tinea cruris is denied for failure to report for scheduled rating examinations. 38 C.F.R. § 3.655. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Otitis Media - Factual Background The service medical records show that the veteran developed acute, nonsuppurative catarrhal otitis media of the left ear in May 1950. In 1958, he was noted to have drainage, sensitivity to cold, sero-purulent exudate, pain, and attic perforations of the ears. Chronic otitis and mastoiditis were diagnosed. In 1959, there were diagnoses of chronic, bilateral suppurative otitis media and secondary chronic labyrinthitis. On a VA examination in June 1961, there were diagnoses of chronic, purulent, recurrent otitis media in remission and mixed deafness. A county hospital reported in August 1971 that the veteran had been admitted with left ear pain, recurrent otitis media and X-ray evidence of possible cholesteatoma. He underwent surgical clean-out of the middle ear attic. Small cholesteatoma was diagnosed. A small superficial infection of the left ear was noted following the surgery and hospital release. On a VA examination in January 1972 there was no perforation or discharge of either ear. The final diagnoses included chronic, nonsuppurative, bilateral, healed otitis media. VA outpatient treatment records show an impression of chronic recurrent otitis in April 1978. During VA hospitalization in March 1981, left chronic otitis media was diagnosed. VA medical records show that in December 1995 the veteran had some retraction of the left tympanic membrane and retraction and a red area of the right tympanic membrane without gross fluid or redness. The diagnosis was chronic otitis media with retraction. In December 1995, he complained of pain and drainage of both ears. In January 1996, he complained of draining from the ears at times. The tympanic membranes were retracted. Serous otitis was assessed. In April 1996, the left tympanic membrane was described as ruptured and opaque (no light reflex). The right tympanic membrane was described as slightly opaque but with light reflex. Chronic otitis media was diagnosed. In June 1996, the veteran was noted to have otitis externa. VA outpatient treatment records dated in February 1997 show the veteran's complaints of ear pain, decreased hearing on the left, and a perforated drum. The left ear showed an inflamed and slightly bloody auditory canal. The right ear showed an inflamed canal with the malleus prolapsed into the tympanic membrane. The diagnosis was left otitis media. In June 1997, the veteran complained of steady hearing loss on the left and intermittent pain in both ears. The diagnosis was hearing loss secondary to chronic otitis media on the left. In August 1997, his complaints included intermittent pain inside his left ear. A heating pad helped. Otitis media was diagnosed. Slight erythema of the external left ear and chronic fibrotic changes were shown in September 1997, at which time the diagnosis was left otitis externa. When the veteran was seen in October 1997 for a complaint of sharp pains, he was noted to have severe retraction of the TM's with fluid. Otitis was assessed. The veteran was afforded a VA ear diseases examination in March 1998 at which time the examiner found no tympanic membrane perforations and no ear infections. The diagnosis was bilateral hearing loss. Legal Criteria Under the applicable criteria, disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. In determining the disability evaluation, VA has a duty to acknowledge and consider all regulations which are potentially applicable based upon 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). These regulations include 38 C.F.R. §§ 4.1, 4.2, which require the evaluation of the complete medical history of the claimant's condition. These regulations operate to protect claimants against adverse decisions based on a single, incomplete, or inaccurate report, and to enable VA to make a more precise evaluation of the level of the disability and of any changes in the condition. Schafrath, 1 Vet. App. at 593-94. 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. See 38 C.F.R. §§ 4.2, 4.41, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55 (1994). The veteran's otitis media is rated under the provisions of 38 C.F.R. § 4.87a, Diagnostic Code 6200. Under this diagnostic code, a 10 percent disability rating is warranted for chronic, suppurative otitis media during the continuance of the suppurative process. Note: To be combined with ratings for loss of hearing. Diagnostic Code 6201 provides that chronic, catarrhal, otitis media is to be rated on loss of hearing. 38 C.F.R. § 4.87, Diagnostic Code 6201 (1999). A perforation of the tympanic membrane warrants a zero percent evaluation, regardless of severity. 38 C.F.R. § 4.87, Diagnostic Code 6211 (1999). 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. Analysis An allegation of increased disability generally establishes a well-grounded claim for an increased rating. Proscelle v. Derwinski, 2 Vet. App. 629 (1992). The veteran has asserted that otitis media has increased in severity, establishing a well-grounded claim for an increased rating. The VA has obtained the available medical records and had the veteran examined. The Board finds that VA has fulfilled its duty to assist the veteran in the development of the facts pertinent to his claim for an increased rating for otitis media. 38 U.S.C.A. § 5107(a). Although the veteran failed to report for scheduled ear disease examinations in 1999, the Board finds that the medical evidence, including the March 1998 VA examination report, is adequate to rate the otitis media. Therefore, the Board will address this issue on the merits. See 38 C.F.R. § 3.655(a). As indicated by the applicable rating criteria, a 10 percent rating for suppurative otitis media contemplates an ongoing suppurative process. That means that the middle ear must be infected and productive of pus. See Lathan v. Brown 7 Vet. App. 539 (1995). In the veteran's case there has been no suppuration shown for many years. Inasmuch as a 10 percent rating is warranted under Diagnostic Code 6200 only during continuation of the suppurative process, the criteria for a compensable rating clearly are not met. A preponderance of the evidence is against an increased rating under Code 6200. The Board notes that Diagnostic Code 6201, which pertains to catarrhal (or non-suppurative) otitis media, provides that the disorder should be rated on loss of hearing. Therefore, that code does not afford a basis for a compensable rating based solely on the otitis. The Board further notes that there is evidence of tympanic membrane perforation. This disorder has not been adjudicated as service connected. However, even if the veteran's ear disability were to be rated for perforations, the rating schedule only provides a zero percent rating for that condition. 38 C.F.R. § 4.87, Diagnostic Code 6211. Accordingly, a compensable rating is not warranted under any potentially applicable diagnostic code. Consideration has also been given to the potential application of the various provisions of 38 C.F.R. Parts 3 and 4 (1999), whether or not they were raised by the veteran, as required by Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Nevertheless, the Board finds no basis upon which to assign a compensable disability evaluation. Additionally, the Board does not find that consideration of an extraschedular rating under the provisions of 38 C.F.R. § 3.321(b)(1) is in order. That regulation provides that, in exceptional circumstances, where the schedular evaluations are found to be inadequate, the veteran may be awarded 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. The veteran has not required frequent periods of hospitalization for his otitis media. Additionally, he has neither alleged nor presented evidence tending to show that the otitis causes marked interference with any employment. Bilateral Hearing Loss, Pes Planus and Skin Disorders The United States Court of Appeals for Veterans Claims (formerly the United States Court of Veterans Appeals) has stated that the "duty to assist is not always a one-way street. If the veteran wishes help, he cannot passively wait for it in the circumstances where he may or should have information that is essential in obtaining the putative evidence." Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). He must also be prepared to meet his obligations by cooperating with the VA's efforts to provide an adequate medical examination and submitting to the Secretary all medical evidence supporting his claim. Olson v. Principi, 3 Vet. App. 480 (1992). Regulations provide that individuals for whom examinations have been authorized and scheduled are required to report for such examinations. 38 C.F.R. § 3.326(a) (1999). Additionally, when entitlement or continued entitlement to a benefit cannot be established or confirmed without a current VA examination or reexamination and a claimant, without good cause, fails to report for such examination, or reexamination, action shall be taken in accordance with paragraph (b) or (c) of this section as appropriate. Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant, death of an immediate family member, etc. For purposes of this section, the terms examination and reexamination include periods of hospital observation when required by VA. (b) Original or reopened claim, or claim for increase. When a claimant fails to report for an examination scheduled in conjunction with an original compensation claim, the claim shall be rated based on the evidence of record. When the examination was scheduled in conjunction with any other original claim, a reopened claim for a benefit which was previously disallowed, or a claim for increase, the claim shall be denied. 38 C.F.R. § 3.655. On multiple occasions since 1998 the veteran has been scheduled for foot, skin and audiological examinations and has failed to report. On one early occasion he indicated that he had an "emergency" so the examinations were rescheduled. While the veteran apparently has had several addresses during the period in question, he would at times provide a new address after he had missed scheduled examinations. For example, he was to have undergone contract examinations on the 28th and 30th of September 1998 for which he failed to report. On October 8, he submitted a new address (on South Alexander). At that time he made some reference to mail having been stolen from a post office box, but the address to which notice of the September examinations had been sent was the veteran's then current street address, not a post office box. There is no indication that the mail was returned as undeliverable. According to a December 11, 1998 report of contact with the veteran he was still at the same South Alexander address. He was notified by letters of January 14, 1999, sent to that address, that he was to be examined on January 25 and February 1, 1999 by contract examiners. There is no indication that he did not receive the notice but the record reflects that he failed to report without explanation. He was then notified that he should report for examinations on February 10 and 17, but he did not report for those examinations either. According to a request for change of address dated March 17, 1999 and received on March 26, the veteran's address was a post office box. VA has been especially tolerant of the veteran's apparent disregard of the scheduled rating examinations, as reflected by the multiple times the examinations were rescheduled. Although the veteran's address has change during the period under consideration, it was his responsibility to keep VA informed of a current mailing address, and it appears that the scheduling notices were sent to the correct addresses as known by VA at the time. Thus, the Board concludes that the veteran failed to report for scheduled VA examinations (for which, incidentally, VA had to pay the contract examiners) without good cause. Effective June 10, 1999, subsequent to the veteran's last audiological evaluation, certain provisions of the rating schedule pertaining to hearing loss were revised. 64 Fed. Reg. 25,202-10 (May 11, 1999). The revision as it pertains to "exceptional patterns of hearing impairment" is potentially applicable to this case, inasmuch as the veteran's March 1998 audiological evaluation showed pure tone thresholds in the left ear that met the requirements of 38 C.F.R. § 4.86(a) (1999). Thus the evidence is not adequate for rating the claim (see Karnas v. Derwinski, 1 Vet. App. 308, 312 (1991)). Thus, the claim is denied for failure to report for the scheduled audiological evaluations without good cause. 38 C.F.R. § 3.655. In regard to the issues of increased ratings for the veteran's skin disorder and pes planus, the Board finds that there is a need for additional evidence in the form of VA examinations. As explained above, the veteran failed to report for multiple scheduled VA examinations without good cause shown, so his claims pertaining to pes planus and his skin disorders must be denied. ORDER Compensable ratings for otitis media, bilateral hearing loss, and pes planus are denied. A rating in excess of 10 percent for dermatophytosis with tinea cruris is denied. JANE E. SHARP Member, Board of Veterans' Appeals