Citation Nr: 0003697 Decision Date: 02/11/00 Archive Date: 02/15/00 DOCKET NO. 95-33 736 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an increased evaluation for postoperative mastoiditis of the right ear, currently evaluated as 10 percent disabling. 2. Entitlement to a compensable evaluation for bilateral hearing loss. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Jonathan E. Taylor, Associate Counsel INTRODUCTION The appellant served on active duty from June 1948 to June 1954 and from July 1954 to August 1968. This case comes before the Board of Veterans' Appeals (the Board) on appeal from an October 1994 rating decision of the Montgomery, Alabama, Department of Veterans Affairs (VA) Regional Office (RO), which denied entitlement to a compensable evaluation for postoperative mastoiditis of the right ear and entitlement to a compensable rating for right ear hearing loss. The same rating decision denied entitlement to service connection for hearing loss of the left ear. This case was certified to the Board by the St. Petersburg, Florida, VARO. It is noted that the appellant was awarded an increased evaluation for his service-connected postoperative mastoiditis of the right ear, from zero to 10 percent disabling by a June 1996 decision. Because he continues to disagree with the current rating assigned, the claim of an increased rating above 10 percent for this disability remains at issue on appeal. See AB v. Brown, 6 Vet. App. 35 (1993) (a claim remains in controversy where less than the maximum available benefits is awarded). This case was remanded by the Board in August 1997 to determine whether the appellant desired a hearing before a Member of the Board and for additional evidentiary development. While the case was in remand status, the appellant's claim of entitlement to service connection for left ear hearing loss was granted. His appeal of that issue is now moot. Because it would be impractical to address the issue of entitlement to a compensable evaluation for right ear hearing loss without considering the appellant's now service-connected left ear hearing loss, that issue has been framed above as entitlement to a compensable evaluation for bilateral hearing loss. FINDINGS OF FACT 1. The appellant's claims are plausible, and sufficient evidence has been obtained for correct resolution of these claims. 2. The appellant's postoperative mastoiditis of the right ear is currently manifested by suppuration and hearing loss. The appellant does not experience recurrent tinnitus. 3. The appellant's bilateral hearing loss is currently manifested by puretone threshold averages of 49-59 decibels in the right ear and 49-53 decibels in the left ear, with speech recognition ability of 94 percent for the right ear and 80-90 percent for the left ear, resulting in Level "I" or "II" hearing for the right ear and Level "II" or "IV" hearing for the left ear. CONCLUSIONS OF LAW 1. The appellant has stated well-grounded claims for increased evaluations for his bilateral hearing loss and postoperative mastoiditis of the right ear, and VA has satisfied its duty to assist him in development of these claims. 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. § 3.103 (1999). 2. The criteria for a disability rating higher than 10 percent for the appellant's service-connected postoperative mastoiditis of the right ear are not met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.87a, Diagnostic Codes 6200, 6206 (1998); 38 C.F.R. § 4.87, Diagnostic Code 6200, 6260 (1999). 3. The criteria for a compensable disability rating for the appellant's service-connected bilateral hearing loss are not met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.85, 4.87, Diagnostic Code 6100 (1998); 38 C.F.R. §§ 4.85, Diagnostic Code 6100, 4.86 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Factual Background VA outpatient treatment records indicate that the appellant was treated three times in 1988 for bleeding from his right ear. In July 1991 the appellant was treated as a VA outpatient for bleeding from his right ear. In September 1991 the appellant was treated as a VA outpatient for a bleeding right mastoid. In October 1991 the appellant was treated as a VA outpatient for bleeding from his right ear. The examiner diagnosed low- grade osteomyelitis external auditory canal [EAC] of the right ear [AD]. In November 1991 the appellant was treated as a VA outpatient for a small ulcer in the mastoid cavity of his right ear. In January 1992 the appellant was treated as a VA outpatient for complaints of drainage from his right ear [AD]. The appellant reported no tinnitus. The examiner noted debris in the mastoid bowl and a small amount of green drainage. The examiner noted that the appellant had severe vertigo with suctioning. The examiner noted also an ulcerated area in the upper ceiling of the bowl. The examiner diagnosed chronic draining ear. In July 1992 the appellant was treated as a VA outpatient for periodic cleaning of his right ear. He reported no otorrhea. The examiner noted that the mastoid bowl was clear with no pus. In November 1992 the appellant was treated as a VA outpatient for examination of his right ear [AD]. The bowl was fairly clear. Minimal debris was seen. The appellant reported bleeding from his ear approximately one year previously. In July 1993 the appellant was treated as a VA outpatient to clean the mastoid cavity of his right ear. The appellant reported persistent drainage, which was yellow and did not smell foul. In October 1993 the appellant was treated as a VA outpatient for fungal otitis externa [OE] of the right ear. In January 1994 the appellant was treated as a VA outpatient for chronic otorrhea of the right ear [AD]. The examiner diagnosed chronic external otitis/mastoid cavity. In July 1994 the appellant was treated as a VA outpatient for complaints of chronic drainage from his right ear [AD]. The examiner noted purulent discharge from the right ear. The examiner diagnosed otitis media [OM] of the right ear. In August 1994 the appellant was treated as a VA outpatient for complaints of a draining right ear. The examiner noted brown/green discharge [D/C] on cotton in the right ear. The examiner noted that the appellant's tympanic membrane appeared to be intact with some granulation inferiorly. The examiner diagnosed otitis externa-draining moderate radical mastoidectomy cavity. On the authorized VA audiological evaluation in September 1994, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 30 25 20 60 90 LEFT 10 20 25 70 80 Puretone average was 49 for each ear. Speech audiometry revealed speech recognition ability of 94 percent in the right ear and of 90 percent in the left ear. At an October 1994 VA audio-ear disease examination, the appellant complained of recurrent, almost daily otorrhea, which was foul, occasional bleeding from the right mastoid cavity, and occasional disequilibrium when the ear was cleaned. The appellant complained of very poor hearing and occasional tinnitus in the right ear. In the appellant's right ear, the examiner noted a large surgically-created meatoplasty. The mastoid cavity was lined with mucopus. There were no bony overhangs or granulations. The tympanic membrane was thick, scarred, and immobile, with a small, linear posterior perforation, which was draining mucopus. The middle ear tympanum was poorly aerated, and there was a well-healed postauricular scar. Chronic otitis media was present in the right ear. The examiner diagnosed active chronic otitis media, right ear, status post modified radical mastoidectomy in 1958. The examiner diagnosed also hearing loss and occasional tinnitus secondary to the chronic otitis media. In December 1994 the appellant was treated as a VA outpatient for complaints of occasional right ear [AD] otorrhea. The examiner noted no granulation and minimal debris. In June 1995 the appellant was diagnosed with chronic cavity drainage of the right ear. In February 1996 the appellant was treated as a VA outpatient for complaints of intermittent problems with purulent drainage from his right ear. The examiner diagnosed history of mastoiditis of the right ear and osteomyelitis versus cholesteatoma. At November 1997 VA audio examination, the appellant wore a VA hearing aid in his left ear. The examiner noted that the appellant's right ear canal was visibly different from the left because of surgical alteration of the right ear canal as part of a radical mastoidectomy performed in 1955. The appellant reported that his right ear has drained continuously since the operation. The examiner noted that the appellant wore a cotton plug in the ear to absorb the drainage. The appellant stated that he experienced occasional loss of balance. He denied tinnitus. On the authorized audiological evaluation, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 35 35 70 95 LEFT 20 25 30 70 85 Puretone average was 58 in the right ear and 52 in the left. Speech audiometry revealed speech recognition ability of 94 percent in the right ear and of 80 percent in the left ear. The examiner stated that the results demonstrated a moderately severe sensorineural hearing loss in the right ear and a moderate sensorineural hearing loss in the left ear. At a November 1997 VA ear disease examination, the appellant reported that he experienced recurrent episodes of otitis media on the right side until he underwent a modified radical mastoidectomy in the right ear in 1959. He stated that, since that time, he had required period cleanings of the mastoid cavity, approximately three times per year. He stated that he cleaned the cavity himself using both acetic acid irrigation and antibiotic drops. He complained of period debris and drainage, for which he kept a cotton ball in his right ear. He stated that he used antibiotic eardrops approximately every two days. He reported periodic episodes of vertigo, which were unprovoked. In the appellant's right ear, the examiner noted a modified radical mastoidectomy cavity with a wide meatoplasty that was amply patent. A moderate amount of crusted cerumen was present in the posterior aspect of the cavity that was easily cleaned. The cavity appeared dry. There was a graft of the middle ear space, which appeared intact with a minimal amount of granulation tissue over what may well have been the capitulum of the stapes. Manipulation of this area caused some transient dizziness. However, the graft was intact, and, other than some minimal moist drainage in that area, there was minimal debris. The examiner diagnosed bilateral sensorineural hearing loss. The examiner stated that the appellant got reasonable results from the use of a hearing aid on the left but that the appellant was unable to wear an aid on the right because of chronic drainage. II. Analysis The appellant's increased rating claims are well grounded. 38 U.S.C.A. § 5107(a) (West 1991); Murphy v. Derwinski, 1 Vet. App. 78 (1990). This finding is based on the appellant's contentions regarding the increased severity of his service-connected disabilities. See Jones v. Brown, 7 Vet. App. 134 (1994); Proscelle v. Derwinski, 2 Vet. App. 629 (1992). All relevant facts have been properly developed, and no further assistance to the appellant is required to comply with the duty to assist mandated by 38 U.S.C.A. § 5107(a) (West 1991). Further, the RO's efforts have complied with the instructions contained in the August 1997 Remand from the Board. See Stegall v. West, 11 Vet. App. 268 (1998). Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. § 4.71a (1999) (Schedule). Separate diagnostic codes identify the various disabilities. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2 (1999); Peyton v. Derwinski, 1 Vet. App. 282 (1991). 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. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994); Peyton, 1 Vet. App. 282; 38 C.F.R. §§ 4.1, 4.2 (1999). An evaluation of the level of disability includes consideration of the functional impairment of the appellant's ability to engage in ordinary activities, including employment. 38 C.F.R. § 4.10 (1999). 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 the rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (1999). When, after 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 claimant. "Reasonable doubt" means a doubt that 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 U.S.C.A. § 5107(b) (West 1991); 38 C.F.R. §§ 3.102, 4.3 (1999). 1. Postoperative mastoiditis of the right ear The RO has evaluated the appellant's service-connected postoperative mastoiditis of the right ear under Diagnostic Code 6206. During the pendency of this appeal, regulatory changes amended the VA Schedule for Rating Disabilities, 38 C.F.R. § Part 4 (1999), including the rating criteria for evaluating mastoiditis, which is now combined with suppurative otitis media under Diagnostic Code 6200. DC 6206 no longer exists. This amendment was effective June 10, 1999. See 64 Fed. Reg. 25202 through 25210 (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. Green v. Brown, 10 Vet. App. 111, 116-119 (1997); see also 38 U.S.C.A. § 5110(g) (West 1991). Therefore, the Board must evaluate the appellant's claim for an increased rating from June 10, 1999, under both the old criteria in the VA Schedule for Rating Disabilities and the current regulations in order to ascertain which version is most favorable to his claim, if indeed one is more favorable than the other. The new regulations were not in effect when the October 1994 rating decision was made or in June 1996 when the appellant's disability evaluation for mastoiditis was increased to 10 percent, and the RO has not considered the new regulations. Also, the appellant has not been given notice of the new regulations. However, it is not necessary to remand this claim since he is not prejudiced by the Board's consideration of the new regulations in the first instance. See Bernard v. Brown, 4 Vet. App. 384 (1993). The amended regulations did not result in any substantive changes pertinent to the appellant's disabilities. Rather, they added current medical terminology and unambiguous criteria. In this case, neither rating criteria can be more favorable to the appellant's claim since the substantive criteria are identical. Under regulations pertaining to disease of the ear in effect prior to June 10, 1999, mastoiditis was evaluated under Diagnostic Code 6206. That diagnostic code provided that chronic mastoiditis was to be rated for impairment of hearing and suppuration. Under Diagnostic Code 6200, chronic, suppurative otitis media is assigned a 10 percent disability evaluation. 38 C.F.R. § 4.87a, Diagnostic Codes 6200, 6206 (1998). The appellant's impairment of hearing in his right ear will be considered in the next section of this decision. The appellant's mastoiditis of the right ear is manifested by suppuration; however, a 10 percent disability rating is the highest rating available for this manifestation of the appellant's mastoiditis. No higher evaluation is available under Diagnostic Code 6200, and no other diagnostic codes are applicable. The revised regulations place mastoiditis, which was previously assigned Diagnostic Code 6206, with suppurative otitis media under Diagnostic Code 6200. 64 Fed. Reg. at 25205. Cholesteatoma, which was not assigned a diagnostic code under the old regulations, was included also under the revised Diagnostic Code 6200. Id. The three conditions are closely related and commonly coexist, and their manifestations may be essentially the same. Id. The revised regulations help assure that the same impairment is not evaluated twice when more than one of these conditions is present. Id. The note directing that hearing impairment be evaluated separately was expanded under the revised regulations to include a list of other possible complications that would also warrant separate evaluations. Id. By adding labyrinthitis, tinnitus, facial nerve paralysis, and bone loss of skull to the note, the criteria better encompass the usual range of impairments that may develop with mastoiditis, suppurative otitis media, and cholesteatoma. Id. Under the revised regulations chronic suppurative otitis media, mastoiditis, or cholesteatoma (or any combination) are evaluated under Diagnostic Code 6200. A 10 percent disability evaluation is assigned during suppuration, or with aural polyps. A note to that diagnostic code provides that hearing impairment, and complications such as labyrinthitis, tinnitus, facial nerve paralysis, or bone loss of skull should be evaluated separately. 38 C.F.R. § 4.87, Diagnostic Code 6200 (1999). Diagnostic Code 6260 provides a 10 percent rating for recurrent tinnitus. 38 C.F.R. § 4.87, Diagnostic Code 6260 (1999). Although the appellant was diagnosed with occasional tinnitus in 1994, the appellant denied tinnitus at the November 1997 VA audio examination. Further, although VA outpatient treatment records show extensive treatment of the appellant's postoperative mastoiditis of the right ear, none of those records contains a diagnosis or complaint of tinnitus. Because only one of the numerous medical records indicates that the appellant experienced tinnitus, the evidence does not indicate that the tinnitus is recurrent. Therefore, the preponderance of the evidence is against a separate disability evaluation for tinnitus. No other diagnostic codes are applicable. In determining whether a higher rating is warranted for a disease or disability, VA must determine whether the evidence supports the veteran's claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107(a) (West 1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In light of the above, the Board finds that the preponderance of the evidence is against his claim for an increased disability rating for postoperative mastoiditis of the right ear. 2. Bilateral hearing loss The appellant's bilateral hearing loss is rated under Diagnostic Code 6100. During the pendency of this appeal, regulatory changes amended the VA Schedule for Rating Disabilities, 38 C.F.R. § Part 4 (1999), including the rating criteria for evaluating a hearing loss disorder. This amendment was effective June 10, 1999. See 64 Fed. Reg. 25202 through 25210 (May 11, 1999). As noted above, the Board must consider the old and the revised rating criteria in evaluating this claim. Because the old and new regulations are not substantively different, the appellant is not prejudiced by the Board's consideration of the new regulations in the first instance. In this case, neither rating criteria can be more favorable to the appellant's claim since the criteria are identical. The amended regulations did incorporate some explanatory comments concerning VA's method of evaluating a hearing loss disorder, and these comments will be discussed where appropriate. The severity of a hearing loss disability is determined by applying the criteria set forth at 38 C.F.R. § 4.85 (1999). Under these criteria, evaluations of bilateral hearing loss range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests together with the average hearing threshold level as measured by pure tone audiometry tests in the frequencies 1,000, 2,000, 3,000 and 4,000 cycles per second. See 38 C.F.R. § 4.85(a), (d) (1999). To evaluate the degree of disability from defective hearing, the rating schedule establishes eleven auditory acuity levels from level I for essentially normal acuity through level XI for profound deafness. 38 C.F.R. §§ 4.85, 4.87, Diagnostic Code 6100; Table VI (1998); 38 C.F.R. § 4.85(b), (e) (1999). Tables VI and VII are reproduced below. See Lendenmann v. Principi, 3 Vet. App. 345 (1992). The amended regulations changed the title of Table VI from "Numeric Designations of Hearing Impairment" to "Numeric Designations of Hearing Impairment Based on Puretone Threshold Average and Speech Discrimination." See 64 Fed. Reg. 25202 (May 11, 1999). Moreover, Table VII was amended in that hearing loss is now rated under a single code, that of Diagnostic Code 6100, regardless of the percentage of disability. See 64 Fed. Reg. 25204 (May 11, 1999). TABLE VI Numeric Designation of Hearing Impairment Based on Puretone Threshold Average and Speech Discrimination Percent of Discrimination Average Puretone Decibel Loss 0-41 42- 49 50- 57 58- 65 66- 73 74- 81 82- 89 90- 97 98+ 92- 100 I I I II II II III III IV 84- 90 II II II III III III IV IV IV 76- 82 III III IV IV IV V V V V 68- 74 IV IV V V VI VI VII VII VII 60- 66 V V VI VI VII VII VIII VIII VIII 52- 58 VI VI VII VII VIII VIII VIII VIII IX 44- 50 VII VII VIII VIII VIII IX IX IX X 36- 42 VIII VIII VIII IX IX IX X X X 0-34 IX X XI XI XI XI XI XI XI Table VII Percentage Evaluations for Hearing Impairment LEVEL OF HEARING IN BETTER EAR XI 100 * X 90 80 IX 80 70 60 VII I 70 60 50 50 VII 60 60 50 40 40 VI 50 50 40 40 30 30 V 40 40 40 30 30 20 20 IV 30 30 30 20 20 20 10 10 III 20 20 20 20 20 10 10 10 0 II 10 10 10 10 10 10 10 0 0 0 I 10 10 0 0 0 0 0 0 0 0 0 XI X IX VII I VII VI V IV III II I LEVEL OF HEARING IN POORER EAR The results of the audiograms September 1994 and November 1997, as indicated above, showed that the appellant's hearing loss is properly evaluated as zero percent disabling. Based on a 94 percent speech recognition score and a 49-decibel puretone threshold average as shown in September 1994, Table VI indicates a designation of Level "I" for the right ear. Based on a 90 percent speech recognition score and a 49- decibel puretone threshold average as shown in September 1994, Table VI indicates a designation of Level "II" for the left ear. When applied to Table VII, the numeric designations of "I" for the better ear and "II" for the poorer ear translated to a zero percent evaluation. Based on a 94 percent speech recognition score and a 59-decibel puretone threshold average as shown in November 1997, Table VI indicates a designation of Level "II" for the right ear. Based on an 80 percent speech recognition score and a 53- decibel puretone threshold average as shown in November 1997, Table VI indicates a designation of Level "IV" for the left ear. When applied to Table VII, the numeric designations of "II" for the better ear and "IV" for the poorer ear also translated to a zero percent evaluation. Therefore, the appellant's service-connected hearing loss is properly assigned a noncompensable disability rating. 38 C.F.R. § 4.85, Tables VI and VII (1999). The amended regulations added two new provisions for evaluating veterans with certain patterns of hearing impairment that cannot always be accurately assessed under § 4.85 because the speech discrimination test may not reflect the severity of communicative functioning that these veterans experience. See 64 Fed. Reg. 25203 (May 11, 1999). The first new provision, that of 38 C.F.R. § 4.86(a), indicates that if puretone thresholds in any four of the five frequencies of 500, 1000, 2000, 3000, and 4000 Hertz are 55 decibels or more, an evaluation can be based either on Table VI or Table VIa, whichever results in a higher evaluation. See 64 Fed. Reg. 25209 (May 11, 1999). This provision corrects for the fact that with a 55-decibel threshold level (the level at which speech becomes essentially inaudible) the high level of amplification needed to attempt to conduct a speech discrimination test would be painful to most people, and speech discrimination tests may therefore not be possible or reliable. Id. The second new provision, that of 38 C.F.R. § 4.86(b), indicates that when the puretone threshold is 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz, the Roman numeral designation for hearing impairment will be chosen from either Table VI or Table VIa, whichever results in the higher numeral, and that numeral will then be elevated to the next higher Roman numeral. Id. This provision compensates for a pattern of hearing impairment that is an extreme handicap in the presence of any environmental noise, and a speech discrimination test conducted in a quiet room with amplification of sound does not always reflect the extent of impairment experienced in the ordinary environment. Id. Table VIa is reproduced below. The amended regulations changed the title of Table VIa from "Average Puretone Decibel Loss" to "Numeric Designation of Hearing Impairment Based Only on Puretone Threshold Average." See 64 Fed. Reg. 25202 (May 11, 1999). TABLE VIa Numeric Designation of Hearing Impairment Based Only on Puretone Threshold Average Average Puretone Decibel Loss 0- 41 42- 48 49- 55 56- 62 63- 69 70- 76 77- 83 84- 90 91- 97 98- 104 105 + I II III IV V VI VII VIII IX X XI Neither of these new provisions applies to the appellant's situation. Although some of the puretone thresholds shown on the VA examinations were 55 decibels are greater, such findings were not present in four of the five frequencies of 500, 1000, 2000, 3000, and 4000 Hertz. In both examinations, findings of 55 decibels or greater were present in two frequencies for each ear. Furthermore, neither of these audiometric evaluations showed puretone thresholds of 70 decibels or more at 2000 Hertz. Although the Board sympathizes with the appellant's difficulties due to hearing loss, the Board is constrained to abide by VA regulations. In light of the above, the Board finds that the preponderance of the evidence is against his claim for a compensable disability rating for bilateral hearing loss. ORDER Entitlement to a disability evaluation higher than 10 percent for postoperative mastoiditis of the right ear is denied. Entitlement to a compensable disability rating for hearing loss is denied. J. SHERMAN ROBERTS Member, Board of Veterans' Appeals