BVA9506401 DOCKET NO. 93-13 875 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to a compensable evaluation for hearing loss of the left ear. 2. Entitlement to a compensable evaluation for otitis media of the left ear. REPRESENTATION Appellant represented by: John D. Rutland, Attorney at Law ATTORNEY FOR THE BOARD Sandra L. Smith, Associate Counsel INTRODUCTION The veteran had active service from July 1951 to January 1954. This appeal is before the Board of Veterans' Appeals (the Board) from a December 1992 rating decision of the Regional Office (RO) which denied compensable ratings for hearing loss of the left ear and otitis media of the left ear. The case is now ready for appellate review. In his substantive appeal and in an April 1993 statement, the veteran requested a hearing before a traveling member of the Board. However, in a subsequent April 1993 statement, his attorney requested that the case be forwarded directly to the Board in Washington, D.C. Thr RO interpreted this as a withdrawal of the request for a hearing and informed the veteran that pursuant to his attorney's request, his name was being removed from the travel Board hearing list. The Board also construes the attorney's statement as a withdrawal of the request for a hearing and will proceed with the case. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that his service-connected left hearing loss and otitis media have increased in severity to warrant compensable evaluations. He asserts that his hearing has decreased and he now experiences persistent tinnitus in the left ear. He further asserts that the fact his disabilities had been assigned a compensable evaluation until a 1987 rating decision should be taken into consideration. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran's claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the evidence warrants an increased evaluation, not in excess of 10 percent, for otitis media of the left ear, but the preponderance of the evidence is against the claim for a compensable evaluation for hearing loss of the left ear. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained by the RO. 2. The veteran has level III hearing in the left ear and wears a hearing aid in his left ear. 3. The veteran does not have chronic suppuration of the left ear. 4. The veteran complains of persistent tinnitus in his left ear which recent VA examination found might be caused by defects in the attic and tegmen of the middle ear and is likely associated with his otitis media. 5. The veteran had a perforated eardrum in service, and again after service, for which he underwent two mastoidectomies in 1972 and 1975. 6. The veteran's service-connected disabilities are not shown to cause marked interference with employment or frequent hospitalizations. CONCLUSIONS OF LAW 1. The criteria for a compensable disability evaluation for hearing loss of the left ear are not met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.321(b)(1), 4.85- 4.87, Diagnostic Code 6100 (1994). 2. The criteria for a 10 percent disability evaluation for otitis media with tinnitus of the left ear are met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.321(b)(1), 4.3, 4.31, 4.87a, Diagnostic Codes 6200, 6260 (1994). 3. The criteria for a disability evaluation in excess of 10 percent for otitis media of the left ear are not met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.321(b)(1), 4.3, 4.31, 4.87a, Diagnostic Codes 6200, 6260 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS A person who submits a claim for benefits has the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded. 38 U.S.C.A. § 5107. After reviewing the evidence on file we conclude that the veteran's claims are well grounded within the meaning of 38 U.S.C.A. § 5107(a). That is, the claims presented are not inherently implausible. Furthermore, we conclude that all facts pertinent to the plausible claims have been developed and that as such, there is no further duty to assist in developing the claims as contemplated by 38 U.S.C.A. § 5107(a). The Board must determine whether the evidence supports each claim or is in relative equipoise, with the veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet.App. 49 (1990). Historically, while in service the veteran experienced severe blockage of the left ear following an airplane ride. Approximately 14 months later, in December 1953, prior to his discharge from service, the veteran's ear was examined. A purulent discharge was noted. The left tympanic membrane was perforated with approximately 95 percent of the eardrum gone. X- rays revealed that the left mastoid appeared to have old and chronic infection. An audiogram showed almost normal hearing in the right ear but almost negligible residual hearing in the left. A radical mastoidectomy operation was recommended but not performed. The diagnoses were: (1) otitis media, suppurative, chronic, left ear, due to non hemolytic staph; (2) mastoiditis, chronic, left ear, due to same organism; (3) deafness, due to degeneration of the acoustic nerve, left. A hospital record from a public medical facility shows that the veteran was hospitalized from October to November 1970 with a history of chronic suppurative otitis media of many years duration with purulent otorrhea. A left modified radical mastoidectomy was performed. A VA medical examination report, dated one year later in October 1971, noted that the veteran complained of continued drainage from the left ear and occasional tinnitus. Examination revealed no purulent drainage in the ear canal but the cavity did appear wet. Audiogram revealed significant air conduction loss with normal bone conduction. The pure tone average on the left was 42 decibels and the speech discrimination score was 94 percent correct on the left. It was noted that the veteran's ear condition demanded regular treatment and possibly further surgery. In a subsequent rating decision, dated in November 1971, the veteran was granted service connection for otitis media of the left ear, rated as 10 percent; and defective hearing, rated as noncompensable. VA hospital records show that the veteran was admitted in June 1972 because of a repeat perforation of the left ear drum and a tympanoplasty was performed. The veteran was afforded a VA medical examination in October 1972 which noted that since that procedure his ear had remained dry and well healed. The veteran's hearing level however and his air bone gap had not significantly improved. In a subsequent rating decision, dated in December 1972, the veteran's disability evaluation for otitis media of the left ear was decreased to a noncompensable rating; the noncompensable rating for the service-connected defective hearing was continued. A statement from a private physician, dated in April 1973, indicated that the veteran's otitis media of the left ear was treated in February 1973 with medication. The RO in an August 1973 rating decision (in compliance with an August 1973 Board decision) increased the disability evaluation for the veteran's otitis media of the left ear to 10 percent. VA outpatient treatment records, dated from 1978 to 1988, show treatment for a number of different physical problems to include a chronic back disorder, degenerative joint disease, obesity, hypertension and coronary artery disease. However, there were only a few references to the veteran's left ear. In January 1984 the veteran's left ear was noted to be completely impacted with black hard wax. In July and August 1986 he complained about decreased left ear hearing, and in October 1986 the veteran was examined by an audiologist. The left ear was noted to have moderate conductive loss through 2000 hertz and moderate mixed loss above 2000 hertz. It was also noted that the left ear had a flat tympanogram and absent acoustic reflexes. The veteran was provided a hearing aid consultation for the left ear. Following a VA medical examination in April 1987 which found no active infection or drainage and his left hearing to be unchanged since 1986, the RO decreased the veteran's disability evaluation for left otitis media to a noncompensable rating. This rating has remained in effect, along with the noncompensable rating for hearing loss of the left ear, until the present. A medical report and medical records, dated in May 1989, from a private physician, show that the veteran received an otological examination and an initial audiological evaluation in May 1989. Physical examination revealed some retraction of the left tympanic membrane which might be chronic secondary to the previous surgeries. Audiometric test results revealed a moderate composite hearing loss for the left ear. Tympanometric results indicated a reduced middle ear mobility for the left ear. A +3cc cavity size reading was noted for the left ear due to the large area of the mastoid bowl secondary to the previous surgeries. It was recommended that the veteran consider a hearing aid for the left ear. The veteran was afforded a special VA audiological examination in January 1990. The examination report indicated that the veteran had an average hearing threshold of 55 decibels with 90 percent speech discrimination ability. The examiner noted that the veteran had moderate to moderately severe mixed hearing loss in the left ear and that the veteran reported constant tinnitus. VA outpatient treatment records, dated from January 1989 to November 1990, contained no evidence of any complaint, finding or treatment of problems pertaining to the veteran's left ear. However, the records do contain a copy of a report from a private physician, dated in March 1991. This report indicated that the veteran was given an otological examination in March 1991. He complained of decreased hearing in both ears. Physical examination revealed a normal right ear and retracted tympanic membrane in the left. Audiological test results showed a severe composite hearing loss in the left ear. Some decrease from previous tests was noted in both ears; however the speech discrimination scores for both ears was noted to be excellent. The veteran was afforded another VA audiological examination in October 1992. The examination report noted that the veteran complained of slow onset left ear hearing loss since 1952. The average puretone threshold for the left ear was 60 decibels. The speech recognition score for the left ear was 86 percent correct. It was also noted that the veteran reported left ear tinnitus of one year duration. He stated that the blowing and humming sound he heard all the time interfered with his every day activities. The veteran was also provided a special VA examination of his ears. It was noted that the veteran wore a hearing aid provided by the VA. He reported increasing vertigo over the past year with approximately two episodes a month. He complained of intermittent throbbing of his left ear as well as continuous nonpulsatile tinnitus. Physical examination revealed that the left mastoid cavity was clean and dry. The CT scan showed an intact semicircular canal with some soft tissue in the attic and some defect across the tegmen. The examiner was uncertain whether or not this would cause the veteran's current complaints. However, his examination, was normal and the mastoid cavity appeared clear. Increased rating for hearing loss of left ear Assignment of disability ratings for hearing impairment is derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are rendered. Lendenmann v. Principi, 3 Vet.App. 345 (1992). Under the current schedular criteria for the evaluation of this disability, the Board's determination of the degree of impairment resulting from service-connected defective hearing is based on the results of controlled speech discrimination tests together with the average hearing threshold as measured by pure tone audiometry in the frequencies of 1,000; 2,000; 3,000; and 4,000 hertz. The rating schedule establishes 11 levels of auditory acuity, designated from level "I", for essentially normal hearing, to level "XI", for profound deafness. 38 C.F.R. § 4.85, Codes 6100 to 6110. The veteran's most recent audiological examination, in October 1992, revealed that, in the left ear, the average pure tone threshold at the designated frequencies was 60 decibels with 86 percent speech discrimination ability. This corresponds to level III hearing in that ear. Under the applicable schedular criteria, a noncompensable disability evaluation is the maximum rating that may be legally assigned for the degree of impairment demonstrated. 38 C.F.R. §§ 4.85, 4.87, and Code 6100. The Board is aware of the veteran's contentions concerning his difficulty in hearing. We have no doubt, based on the findings of the audiometric examinations, that he has difficulty hearing, especially in situations with a great deal of background noise. However, the assignment of disability ratings for hearing impairment is derived by a mechanical application of the rating schedule based on the numeric designations assigned after audiometric evaluations are rendered. Therefore, based on the findings from the veteran's most current audiometric examination, the claim for an increased evaluation must be denied. Increased rating for otitis media of the left ear Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two evaluations shall be applied, the higher evaluations will be assigned if the disability more closely approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the veteran. 38 C.F.R. § 4.3. An extraschedular evaluation will be assigned if the case presents an unusual or exceptional disability picutre with such related factors as marked interference with employment or frequent periods of hospitalization such as to render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1). The entire history of the disability will be reviewed. Schafrath v. Derwinski, 1 Vet.App. 589 (1991). It is the policy of the VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the veteran. 38 C.F.R. § 4.3. By reasonable doubt is meant one which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. It is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility. 38 C.F.R. § 3.102. The veteran's service-connected otitis media is evaluated under diagnostic code 6200 which provides that a 10 percent disability evaluation is warranted for otitis media during the continuance of the suppurative process. 38 C.F.R. § 4.87a, Code 6200. In addition, the VA regulations state that in every instance where the minimum schedular 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. The veteran has submitted statements that his otitis media is more disabling than currently evaluated. However, a review of his VA outpatient treatment records and medical examination reports in recent years provided no evidence of recent suppuration of the left ear. Thus, the veteran's disability does not warrant a compensable evaluation under 38 C.F.R. §§ 4.31, 4.87a, Code 6200. However, the Board does find that an increased evaluation is warranted for the veteran's service-connected disability under the criteria of Code 6260. The VA medical records show that in recent years the veteran has consistently complained of tinnitus. Although as one VA examiner noted in the record, there is no way to clinically verify the veteran's complaints, the Board accepts the veracity of the veteran's statements. In addition the Board notes that the CT scan during the October 1992 VA examination did show some irregularities and the examiner was uncertain whether these could be causing the veteran's current symptoms. In light of these findings and the veteran's medical history of two mastoid infection ear operations, the Board finds that the veteran's tinnitus is associated with his otitis media and should be rated as a part thereof. The Board also concludes that his history of onset of left ear problems with severe ear blockage after an airplane ride is consistent with and analogous to concussion or acoustic trauma, and, therefore, the veteran's current left ear disability warrants a 10 percent evaluation. The Board further notes that the maximum schedular evaluation allowed by law for this disability is 10 percent. In reaching its decision, the Board did consider the potential application of the various provisions of 38 C.F.R. Parts 3 and 4, whether or not they were raised by the veteran as required by Schafrath v. Derwinski, 1 Vet.App. 589 (1991). The Board finds that the evidence does not present such an exceptional or unusual disability picture as to render impractical the application of the regular schedular criteria, so as to warrant the assignment of an extraschedular evaluation under 38 C.F.R. § 3.321(b)(1) for either of the veteran's service-connected disabilities. There is no evidence of frequent periods of hospitalization or marked interference with employment due to this disorder. The Board notes that the evidence of record shows that the veteran's long period of unemployment is primarily due to a chronic back disorder as well as his other nonservice-connected medical problems. ORDER A 10 percent disability evaluation for otitis media with tinnitus is granted. A disability evaluation, in excess of 10 percent, for otitis media with tinnitus is denied. A compensable disability evaluation for hearing loss of the left ear is denied. HOLLY E. MOEHLMANN Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.