Citation Nr: 0001622 Decision Date: 01/19/00 Archive Date: 01/28/00 DOCKET NO. 97-19 212 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUES Entitlement to an increased (compensable) rating for bilateral otitis media. Entitlement to an increased (compensable) rating for left, scarred ear drum. Entitlement to an increased (compensable) rating for right, scarred ear drum. REPRESENTATION Appellant represented by: New York Division of Veterans' Affairs ATTORNEY FOR THE BOARD Todd R. Vollmers, Associate Counsel INTRODUCTION The veteran had active service from October 1944 to July 1946. This case came before the Board of Veterans' Appeals (Board) on appeal from a decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York, in January 1997 that denied increased (compensable) ratings for bilateral otitis media, and scarred ear drums in the left and right ears. The case was previously before the Board in June 1998 when it was remanded for further development. Following that remand, the RO granted service connection for hearing loss due to otitis media and scarring of the ear drums and rated the hearing loss as noncompensable. The veteran was notified of the decision and of his right to appeal the noncompensable evaluation, but an appeal was not filed. Therefore, the issue of entitlement to a compensable rating for hearing loss is not before the Board at this time. It is noted that on examination in August 1998, it appears that the examiner suggested that the veteran had tinnitus as a result of scarring of the ear drums. This is an inferred claim for secondary service connection, which has not been considered by the RO. As this issue is therefore not in appellate status at this time, it is referred back to the RO for appropriate action. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained. 2. The evidence of record does not show that the veteran has any suppuration or aural polyps in conjunction with his otitis media. 3. No residuals other than hearing loss have been attributed to the veteran's scarred left and right ear drums. CONCLUSIONS OF LAW 1. The criteria for a compensable evaluation for bilateral otitis media are not met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. Part 4, §§ 4.1, 4.3, Diagnostic Code 6200. 2. The applicable criteria under the Rating Schedule provides for a noncompensable evaluation for scarring of the left and right ear drums. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. Part 4, Diagnostic Code 6211. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Factual Background The veteran's service medical records show he was treated for otitis media in both ears during service. A report of a separation examination dated in July 1946 noted that the veteran had scarred, dull ear drums bilaterally. A VA examination in May 1947 found that the veteran's auditory canals were normal, with no discharge noted. A physician statement received in April 1953 noted that the veteran had old perforations in both ear drums, the right greater than the left. No evidence of recent discharge was noted. A VA examination in June 1953 found the veteran's tympanic membrane in the right ear to be scarred, and the tympanic membrane in the left ear to be dull and scarred. The diagnosis given was of residuals of bilateral otitis media, and bilateral hearing loss which was assessed as minimal. A VA examination of the veteran's ears in January 1970 noted that the tympanic membrane in the left ear was dull and scarred, and that the tympanic membrane in the right ear was scarred. The examiner listed diagnoses including residuals of otitis media, bilaterally, and hearing loss in the upper frequencies. The report of a VA examination of the veteran's ears, dated in June 1992, noted that both ear drums were thickened. The left drum was slightly retracted and did not move well on pneumatic massage. The right drum moved well but was thickened and slightly retracted. The diagnosis given was of a bilateral mild to moderate sensorineural hearing deficit consistent with presbycusis. VA treatment records dated in October 1995 noted that the veteran's left tympanic membrane had a retraction pocket without any drainage or cholesteatoma, and that the veteran's right tympanic membrane was normal. An examination in March 1996 noted that the veteran had impaired audition, and wore hearing aids. A VA test for auditory brain responses (ABR) was conducted in May 1996 due to the veteran's asymmetrical hearing loss. The impression given by the examiner noted that there was no indication of retrocochlear involvement. A VA examination of the veteran's ears in December 1996 found the external ears and canals to be normal. Both ear drums were slightly thickened and retracted, with no perforations noticed. There was a distorted cone of light, and both ear drums were intact. The diagnosis was of intermittent otitis media. The veteran's ears were again examined in August 1998, and the examiner stated that the veteran denied any chronic drainage from either ear. Physical examination found retraction of the pars flaccida on the left, the bottom of which could not be seen and was described as a cholesteatoma. The remainder of the left tympanic membrane was moderately scarred. The right tympanic membrane was dull and scarred, and there was no evidence of fluid on either side. The assessment given with the August 1998 examination was of chronic otitis media. The examiner also noted evidence of Eustachian tube dysfunction and tympanic membrane retraction on the left, with possible cholesteatoma. A VA audiological examination was conducted in August 1998. The examiner commented that the veteran had scarlet fever in service which resulted in scarred ear drums, hearing loss and a soft ringing in the right ear which occurred infrequently and lasted for only a few seconds. The ringing was high pitched. A September 1998 addendum to the August 1998 VA examination stated that the claims folder had been reviewed by the examiner, and that the veteran's service-connected otitis media and scarring had more likely than not contributed to his current hearing loss. The examiner further stated that "in the presence of chronic infection and scarring, this directly impacts on the tone, pitch and sensorineural audiology ability." Analysis Generally, an allegation of increased disability is sufficient to establish a well-grounded claim seeking an increased rating. Proscelle v. Derwinski, 2 Vet. App. 629 (1992). The Board finds that the veteran's claims concerned in this appeal are well grounded. In addition, there is no indication that there are additional, unsecured records that would be helpful in this case. Therefore, the Board has no further duty to assist the veteran in developing his claim. 38 U.S.C.A. § 5107(b). Disability evaluations, in general, are intended to compensate for the average impairment of earning capacity resulting from a service-connected disability. They are primarily determined by comparing objective clinical findings with the criteria set forth in the rating schedule. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. Part 4 (1999). Where there is a question as to which of two evaluations should 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 (1999). In evaluating the severity of a particular disability, it is essential to consider its history. Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. §§ 4.1 and 4.2. 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. Francisco v. Brown, 7 Vet. App. 55 (1994). When regulations concerning entitlement to a higher rating are changed during the course of a pending claim, the veteran is entitled to a decision on his claim under the criteria which are most favorable to him. Karnas v. Derwinski, 1 Vet. App. 308 (1991). The Board notes that the veteran's claims relating to his bilateral otitis media and scarred ear drums (with accompanying hearing loss and tinnitus) were filed prior to June 10, 1999, when the rating criteria for hearing impairment and diseases of the ear were revised. Therefore, under Karnas v. Derwinski, the veteran is entitled to consideration under the criteria in effect both before and beginning June 10, 1999, and a decision which reflects the criteria most favorable to him. Entitlement to an increased (compensable) rating for bilateral otitis media In a rating action dated in May 1947, the RO granted service connection for otitis media and assigned a noncompensable evaluation for that disability. The relevant criteria for rating the severity of the veteran's otitis media is through application of the provisions of Diagnostic Code 6200 of the VA's Schedule for Rating Disabilities, 38 C.F.R. Part 4. The criteria of Diagnostic Code 6200 which were in effect prior to June 10, 1999, provide that a 10 percent evaluation will be assigned for chronic, suppurative otitis media during the continuance of the suppurative process. This is to be combined with ratings for loss of hearing. A 10 percent rating is the maximum evaluation assignable under this diagnostic code. Diagnostic Code 6200 (criteria in effect prior to June 10, 1999). The new criteria under Code 6200, in effect beginning June 10, 1999, provide that chronic suppurative otitis media, mastoiditis, or cholesteatoma (or any combination), will be evaluated as 10 percent disabling during suppuration or with aural polyps. Hearing impairment, and complications such as labyrinthitis, tinnitus, facial nerve paralysis, or bone loss of skull will be rated separately. Diagnostic Code 6200 (criteria in effect beginning June 10, 1999). The evidence of record does not indicate that the veteran has had any suppuration or aural polyps in conjunction with his otitis media. Examinations of the veteran's ears in October 1995 and December 1996, as well as a VA examination of the veteran's ears in August 1998, were all negative for any suppuration from the veteran's ears. Under the criteria in effect prior to June 10, 1999, a 10 percent rating is warranted during the continuance of the suppurative process. There is no evidence of any suppuration from the veteran's ears which would warrant a compensable rating under the criteria for Diagnostic Code 6200 in effect prior to June 10, 1999. There is also no evidence of suppuration or the presence of aural polyps which would warrant a compensable rating under the Diagnostic Code 6200 criteria in effect beginning June 10, 1999. The veteran has contended in his form 9 received in May 1997 that he has had recurrent drainage from his ears. However, this contention must be viewed in conjunction with the objective medical evidence of record and the pertinent rating criteria. The current medical evidence, including several VA examinations, found no clinical evidence of otitis media in the suppurative process, or any aural polyps. Therefore, the evidence does not support a compensable rating for otitis. Entitlement to an increased (compensable) rating for left and right scarred ear drums The applicable criteria for rating the veteran's left and right scarred ear drums is under Diagnostic Code 6211. According to the criteria of Diagnostic Code 6211, in effect both before and beginning June 10, 1999, perforation of the tympanic membrane warrants a noncompensable evaluation. Diagnostic Code 6211. The August 1998 VA examination found the veteran's ear drums to be moderately scarred on the left, and dull and scarred on the right. The veteran has contended that his hearing loss is related to scarring of his ear drums, and the September 1998 addendum to the August 1998 VA examination stated that there was a connection between scarring and hearing loss. The Board notes that hearing loss has been separately rated as partially due to scarring of the veteran's ear drums, and no other evidence has been received to provide a basis for a compensable rating for ear drum scarring. There is no evidence that scars on the veteran's ear drums might warrant an extraschedular rating. The manifestations fall squarely within the criteria set forth in the Rating Schedule, and an extraschedular rating is not warranted under § 3.321. In the absence of findings relative to the veteran's service- connected scarring of the left and right eardrums which would warrant going outside of the Rating Schedule, a noncompensable evaluation is proper under the provisions of Code 6211. ORDER Entitlement to a compensable evaluation for bilateral otitis media is denied. Entitlement to an increased (compensable) rating for left, scarred ear drum is denied. Entitlement to an increased (compensable) rating for right, scarred ear drum is denied. C. W. Symanski Member, Board of Veterans' Appeals