Citation Nr: 0007620 Decision Date: 03/21/00 Archive Date: 03/28/00 DOCKET NO. 95-37 145 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to a compensable evaluation for bilateral hearing loss. 2. Entitlement to a higher evaluation for tinnitus, currently evaluated as 10 percent disabling. 3. Entitlement to a compensable evaluation for bilateral cholesteatoma, status postoperative bilateral tympanomastoidectomies and a history of vertigo with dizziness. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Kelli A. Kordich, Associate Counsel INTRODUCTION The veteran served on active duty from October 1983 to October 1987, and from September 1988 to June 1994. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 1994 rating decision of the Department of Veterans Affairs (VA) Regional Office in Muskogee, Oklahoma (RO) which, in part, granted service connection for bilateral hearing loss and assigned a noncompensable evaluation effective June 9, 1994; granted service connection for tinnitus and assigned a noncompensable evaluation effective June 9, 1994; granted service connection for bilateral cholesteatoma, status postoperative bilateral tympanomastoidectomies and a history of vertigo with dizziness and assigned a noncompensable evaluation effective June 9, 1994. This matter was remanded in March 1998 for the purpose of obtaining additional medical evidence. As a result, the RO, by a rating decision dated October 1999 increased the veteran's service connected tinnitus to 10 percent effective June 10, 1999 and continued the noncompensable evaluations on the other above mentioned issues. This case has been returned to the Board for appellate review. FINDINGS OF FACT 1. The veteran currently manifests 30 and 37 percent average puretone decibel hearing loss in the right and left ears, respectively, with speech recognition scores of 96 percent bilaterally. 2. The veteran's service-connected tinnitus is manifested by recurrent ringing in the ears, not a result of acoustic trauma. 3. The veteran's service-connected bilateral cholesteatoma, status postoperative bilateral tympanomastoidectomies and a history of vertigo with dizziness is manifested by an absence of cholesteatoma, or of infection or drainage, and subjective complaints of dizziness without objective evidence of chronic labyrinthitis or vestibular disequilibrium. CONCLUSIONS OF LAW 1. The criteria for a compensable evaluation for bilateral hearing loss have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.1-4.14, 4.85-4.87, Diagnostic Code 6100 (1994 & 1999). 2. The criteria for a compensable evaluation for tinnitus prior to June 10, 1999, and to an evaluation in excess of 10 percent as of June 10, 1999, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.1-4.14, 4.87a, Diagnostic Code 6260 (1994 & 1999). 3. The criteria for a compensable evaluation for bilateral cholesteatoma, status postoperative bilateral tympanomastoidectomies and a history of vertigo with dizziness, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. § 4.87a, Diagnostic Code 6200 (1994), 38 C.F.R. § 4.87, Diagnostic Code 6200 (1994 & 1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The veteran is appealing the original assignment of disability evaluations following awards of service connection, and, as such, the claims for the increased evaluations are well grounded. 38 U.S.C.A. § 5107(a); Shipwash v. Brown, 8 Vet. App. 218, 224 (1995). The Board finds that all relevant facts have been properly developed, and that all evidence necessary for equitable resolution of the issues has been obtained. No additional action is necessary to meet the duty to assist the veteran. 38 U.S.C.A. § 5107(a). Moreover, since the present appeals arise from initial rating decisions which established service connection and assigned the initial disability evaluations, it is not the present level of disability which is of primary importance, but rather the entire period is to be considered to ensure that consideration is given to the possibility of staged ratings; that is, separate ratings for separate periods of time based on the facts found. Fenderson v. West, 12 Vet. App. 119, 127 (1999). Disability evaluations are determined by the application of the Schedule for Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 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 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. By regulatory amendment effective June 10, 1999, changes were made to the schedular criteria for rating diseases of the ear. See 64 Fed. Reg. 25208, 25209 (1999). Where the law or regulations change while a case is pending, the version most favorable to the claimant applies, absent congressional intent to the contrary. See Karnas v. Derwinski, 1 Vet. App. 308, 312-13 (1991). The Board is therefore required to consider the claims in light of both the former and revised schedular rating criteria to determine whether higher evaluations are warranted for the veteran's bilateral hearing loss, tinnitus, and bilateral cholesteatoma, status postoperative bilateral tympanomastoidectomies and a history of vertigo with dizziness. The effective date rule established by 38 U.S.C.A. § 5110(g), however, prohibits the application of any liberalizing rule to a claim prior to the effective date of such law or regulation. Id.; Rhodan v. West, 12 Vet. App. 55, 57 (1998). I. Compensable evaluation for bilateral hearing loss The veteran contends that his service-connected bilateral hearing loss is more severely disabling than currently evaluated necessitating the use of hearing aids. The standards for rating impairment of auditory acuity are set forth at 38 C.F.R. §§ 4.85-4.87. The Board observes that, in evaluating service-connected hearing impairment, disability ratings are 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, 349 (1992). Audiological examinations are conducted using the controlled speech discrimination tests together with the results of the puretone audiometry test. The horizontal lines in Table VI (in 38 C.F.R. § 4.87) represent nine categories of the percentage of discrimination based on the controlled speech discrimination test. The vertical columns in table VI represent nine categories of decibel loss based on the puretone audiometry test. The numerical designation of impaired efficiency (levels I through XI) is determined for each ear by intersecting the horizontal row appropriate for the percentage of discrimination and the vertical column appropriate to puretone decibel loss. The percentage evaluation is found from Table VII (in 38 C.F.R. § 4.87) by intersecting the horizontal row appropriate for the numeric designation for the ear having the better hearing and the vertical column appropriate to the numeric designation level for the ear having the poorer hearing. For example, if the better ear has a numeric designation level of "V" and the poorer ear has a numeric designation level of "VII," the percentage evaluation is 30 percent, and the diagnostic code is 6103. See 38 C.F.R. § 4.85(b) Diagnostic Codes 6100-6110 (1994 & 1999). In a rating decision dated November 1994, the veteran was granted service connection for bilateral hearing loss and assigned a noncompensable evaluation effective June 9, 1994. The veteran was afforded a VA audiological evaluation in September 1994, at which time puretone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 50 50 45 50 55 LEFT 55 50 40 55 55 Average puretone thresholds were reported to be 50 decibels, bilaterally. Speech audiometry revealed speech recognition ability of 92 percent bilaterally. In November 1995, the veteran underwent a private audiological evaluation. Although the report indicates findings of speech recognition ability of 92 percent bilaterally, it was unclear if the reported puretone decibel loss was representative of the claimed worsening hearing loss. Therefore, a remand was ordered to offer the veteran another VA audiological examination. In December 1998, the veteran was afforded a VA audiological evaluation, at which time puretone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 40 35 20 30 35 LEFT 55 45 30 45 30 Average puretone thresholds for the right ear was 30 decibels and 37 decibels for the left ear. Speech audiometry revealed speech recognition ability of 96 percent bilaterally. In his February 1996 RO hearing the veteran testified that he was exposed to acoustic trauma while in service in the form of gunfire and missile fire aboard ship. Under the criteria in place when the veteran was evaluated in 1994, an evaluation of 0 percent was assigned whenever the percentage of discrimination in one ear was between 92 and 100 with an average puretone decibel loss less than 42, and discrimination percentage in the other ear was between 92 and 100 with average puretone loss less than 42. A 10 percent evaluation was warranted whenever the percentage of discrimination in one ear was between 76 and 82 with an average puretone decibel loss between 58 and 65, and discrimination percentage in the other ear was between 76 and 82 with average puretone loss between 58 and 65. Since the veteran's September 1994 audiological examination showed a right ear average of 50 and left ear of 50 with a discrimination percentage of 92 percent, the veteran's service-connected hearing loss was assigned a noncompensable evaluation. Applying the revised criteria as of June 10, 1999 found in 38 C.F.R. § 4.87 at Table VI to the veteran's recent examination results yields a numerical designation of I for each ear (between 0 and 41 percent average puretone decibel hearing loss, with between 92 and 100 percent speech discrimination). Entering the category designations for each ear into Table VII produces a disability percentage evaluation of 0 percent, under Diagnostic Code 6100. The Board finds that the veteran's bilateral hearing loss does not warrant a compensable evaluation under either the old or new criteria. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not applicable, and this aspect of the claim must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). II. Higher evaluation for tinnitus The veteran contends that his service-connected tinnitus is more severely disabling than currently evaluated. In a rating decision dated November 1994, the veteran was granted service connection for tinnitus and assigned a noncompensable evaluation effective June 9, 1994. That evaluation was increased by a rating decision dated October 1999 to 10 percent effective June 10, 1999 as a result of a VA examination in December 1998. The veteran was afforded a VA examination in September 1994 in which the veteran reported having cholesteatomas and bilateral ear surgery in 1993. The veteran complained of constant tinnitus. The examination showed auricles were normal, the left ear showed a modified radical mastoid cavity with scarred thick immobile pars tensa, the right ear showed a slightly large canal, but no mastoid cavity and the drum was also scarred and adherent to the medial wall of the middle ear. There was no active infection. Diagnostic testing showed type B tympanograms and a bilateral conductive loss. The diagnosis was constant tinnitus. In the December 1998 VA examination, the veteran reported having bilateral tympanomastoidectomies performed and since then, constant ringing in both ears. Prior to that time the veteran reported occasional ringing in his ears. The examination showed the pinnae were symmetrical and had well healed postauricular scars. The veteran had flat type B tympanograms bilaterally and both ear canals were larger secondary to surgical enlargement. The drums were intact, but scarred down and immobile with adhesive otitis bilaterally. There was no evidence of cholesteatoma, no evidence of infection or drainage. Bone conduction was greater than air conduction with the 1024 fork in each ear. Air conduction was greater than bone conduction with the 2048 fork on the right. Air conduction was equal to bone conduction with the 2048 fork on the left. There was no evidence of mastoid infection at the time. The diagnoses noted constant bilateral tinnitus and that the tinnitus was not due to acoustic trauma. In his February 1996 RO hearing, the veteran testified that he was exposed to acoustic trauma while in service in the form of gunfire and missile fire aboard ship. As a result, he has had constant ringing in his ears. The veteran testified that while in service the tinnitus became such a problem that it affected his quality of life and he was prescribed an anti-depressant, which due to side affects, he discontinued. Under the criteria in effect prior to June 10, 1999, tinnitus was rated as 10 percent disabling as a persistent symptom of a head injury, concussion, or acoustic trauma. Under the regulations in effect since June 10, 1999, Diagnostic Code 6260 for tinnitus was amended to eliminate the requirements that the tinnitus be due to a head injury, concussion, or acoustic trauma. Under the revised code, a 10 percent evaluation only requires that tinnitus be recurrent. The note following the amended regulation reveals that a separate evaluation for tinnitus may be combined with an evaluation under Diagnostic Codes 6100, 6200, 6204 or other diagnostic codes, except when tinnitus supports an evaluation under one of these codes. The veteran's tinnitus was rated as noncompensable prior to June 10, 1999 because the tinnitus was not found to be a result of a head injury, concussion, or acoustic trauma. Due to the regulation change, the veteran's recurrent tinnitus was increased to 10 percent effective June 10, 1999. The Board does not find that a higher rating is warranted under either the old or the new regulations for any period of time since his separation from service, or that a compensable evaluation was warranted prior to June 10, 1999. The veteran is assigned the maximum evaluation under Diagnostic Code 6260. In this case, there is no medical evidence suggesting that the veteran has any disability related to tinnitus for which service connection has not been established that would result in a higher evaluation than currently assigned. In view of this, the Board finds that the preponderance of the evidence is against an evaluation in excess of 10 percent for the veteran's tinnitus. The Board has considered whether an extra-schedular evaluation pursuant to the provisions of 38 C.F.R. § 3.321(b)(1) is warranted. In the instant case, however, there has been no showing that the disability under consideration has caused marked interference with employment, necessitated frequent periods of hospitalization or otherwise renders impracticable the application of the regular schedular standards. In the absence of such factors, the Board determines that referral for consideration of an extra- schedular rating pursuant to 38 C.F.R. § 3.321(b)(1) is not appropriate. See Bagwell v. Brown, 9 Vet. App. 237, 239 (1996); Shipwash, 8 Vet. App. at 227. III. Compensable evaluation for bilateral cholesteatoma, status postoperative bilateral tympanomastoidectomies and a history of vertigo with dizziness The veteran contends that his service-connected bilateral cholesteatoma, status postoperative bilateral tympanomastoidectomies and a history of vertigo with dizziness is more severely disabling than currently evaluated. In a rating decision dated November 1994, the veteran was granted service connection for bilateral cholesteatoma, status postoperative bilateral tympanomastoidectomies and a history of vertigo with dizziness and assigned a noncompensable evaluation effective June 9, 1994. In a September 1994 VA examination, the veteran reported having had cholesteatomas and bilateral ear surgery in 1993. He gave a history of episodes of vertigo, which occurred two to three times a week. The examination showed auricles were normal, the left ear showed a modified radical mastoid cavity with scarred thick immobile pars tensa, the right ear showed a slightly large canal, but no mastoid cavity and the drum was also scarred and adherent to the medial wall of the middle ear. There was no active infection. Diagnostic testing showed type B tympanograms and a bilateral conductive loss. Further, on general medical examination at the time, the veteran's gait was reported to be normal and examination of the eyes was unremarkable. The veteran was afforded a VA examination in December 1998 in which he reported constant and repeated bouts of otitis with draining ears requiring antibiotics while in military service. He had had bilateral cholesteatoma and had bilateral tympanomastoidectomies four months apart in 1994. He described occasional dizziness that was not vertigo. The veteran never had any falls and it lasted only 10 or 15 seconds and did not incapacitate him. He denied any evidence of trigeminal neuralgia, no shooting pains, no facial pains, and never had any treatment for trigeminal neuralgia. The examination showed the pinnae were symmetrical and had well healed postauricular scars. The veteran had flat type B tympanograms bilaterally and both ear canals were larger secondary to surgical enlargement. The drums were intact, but scarred down and immobile with adhesive otitis bilaterally. There was no evidence of cholesteatoma, no evidence of infection or drainage. Bone conduction was greater than air conduction with the 1024 fork in each ear. Air conduction was greater than bone conduction with the 2048 fork on the right. Air conduction was equal to bone conduction with the 2048 fork on the left. There was no evidence of mastoid infection at the time. Oropharynx showed the veteran's tonsils to be surgically absent. Nasal examination showed a ridge along the lower part of the left side of the septum with about 30 percent obstruction, no polyps and no purulence. Cranial nerves III through XII grossly intact. There was no evidence of deficit of the fifth cranial nerve. The veteran had normal feeling over the face and the seventh nerve was intact. There were symmetrical facial movements. Further, the examiner noted that the veteran's posture and gait were normal. Extraocular movements were intact without nystagmus. The diagnoses were postoperative left modified radical mastoidectomy for cholesteatoma and postoperative right tympanomastoidectomy right ear for cholesteatoma. The veteran's service-connected bilateral cholesteatoma is currently assigned a noncompensable evaluation pursuant to 38 C.F.R. § 4.87a, Diagnostic Code 6200 (1994), which refers to chronic, suppurative otitis media. Under the criteria in effect prior to June 10, 1999, for Diagnostic Code 6200, a 10 percent disability evaluation, which is the maximum allowed, was awarded for chronic suppurative otitis media, during the continuance of the suppurative process. The 1999 amendments added mastoiditis (which had been listed separately before) and cholesteatoma (which had no schedular evaluation) to Diagnostic Code 6200. Under the revised criteria, a 10 percent rating is warranted for the specific disability, or any combination thereof, during suppuration, or with aural polyps. It is noted that evaluations of hearing impairment, and complications such as labyrinthitis, tinnitus, facial nerve paralysis, or bone loss of the skull are to be considered separately. Under Diagnostic Code 6201, if the veteran presents with chronic nonsuppurative otitis media with effusion (serous otitis media), a compensable disability rating may be awarded, based on the veteran's hearing loss, if any. The Board has compared both the previous version of 38 C.F.R. § 4.87a, Diagnostic Code 6200 (1994), and the new versions of the regulation under 64 Fed. Reg. 25, 202-25, 210 (1999) and now codified in the Code of Federal Regulations under 38 C.F.R. § 4.87, Diagnostic Code 6200 (1999). The Board finds that, although the regulations have been rephrased, the elements to be considered in determining the degree of disability have not been changed to such an extent as to affect the outcome of the current claim. In the present case, the veteran's otitis media is asymptomatic. The VA examination in September 1994 showed no active infection and the December 1998 VA examination showed the drums were intact, but scarred down and immobile with adhesive otitis bilaterally. There was no evidence of cholesteatoma, no evidence of infection or drainage, and there was no evidence of mastoid infection at the time. Oropharynx showed the veteran's tonsils to be surgically absent. Nasal examination showed a ridge along the lower part of the left side of the septum with about 30 percent obstruction, no polyps and no purulence. The Board thus, finds that a preponderance of the evidence reflects that the veteran's otitis media and cholesteatoma are not suppurative and there is no evidence of aural polyps. Therefore, the current noncompensable rating under 6200 with respect to both the old and new criteria is appropriate. See 38 C.F.R. §§ 4.87a and 4.87, Diagnostic Code 6200 (1994 and 1999). The Board has also considered whether an increased evaluation is appropriate under Diagnostic Code 6204 for chronic labyrinthitis since there is a history of vertigo and dizziness, and the veteran reports current occasional dizziness. Under the previous criteria, a 10 percent level of disability contemplated moderate chronic labyrinthitis with tinnitus and occasional dizziness. A higher, 30 percent evaluation, contemplated severe chronic labyrinthitis with tinnitus, dizziness and occasional staggering. 38 C.F.R. § 4.87a, Diagnostic Code 6204 (1994). However, although the veteran had subjective complaints of both tinnitus and dizziness, there has been no finding on repeat VA examination of inflammation of the labyrinth, general ear infection, or peripheral vestibular disorder which would tend to corroborate such symptomatology. Currently, the Rating Schedule provides that dizziness is a symptom of a peripheral vestibular disorder, which may be assigned a 10 percent rating for occasional dizziness and a 30 percent rating for dizziness and occasional staggering. Objective findings supporting the diagnosis of vestibular disequilibrium are required before a compensable evaluation can be assigned under this code. 38 C.F.R. § 4.87, Diagnostic Code 6204 (1999). The Board finds that a compensable evaluation is not warranted under 38 C.F.R. § 6204 under the old or new criteria. The veteran does not have a diagnosis of labyrinthitis or objective evidence supporting a finding of vestibular disequilibrium. VA examinations show the veteran's subjective reports of occasional dizziness that was not vertigo. The veteran never had any falls and it lasted only 10 or 15 seconds and did not incapacitate him. He denied any evidence of trigeminal neuralgia, no shooting pains, no facial pains, and never had any treatment for trigeminal neuralgia. On examination in 1994, the veteran's gait and posture were noted to be normal, and there was no evidence ocular abnormality. On examination in December 1998, the veteran's gait was again described as normal and the examiner clearly noted that extraocular movements were intact and without nystagmus. Based on the findings on both examinations, the Board is unable to conclude that there is objective evidence of vestibular disequilibrium. The Board also finds that a compensable evaluation is not warranted under 38 C.F.R. § 4.124a, Diagnostic Code 8205, which provides that evaluation of fifth (trigeminal) cranial nerve paralysis, is dependent upon the relative degree of sensory manifestations or motor loss. A 10 percent evaluation is warranted for moderate incomplete paralysis. A 30 percent evaluation requires severe incomplete paralysis. The VA examinations noted above found no evidence of cranial nerve deficit and the veteran had normal feeling over the face and the seventh nerve was intact. There were symmetrical facial movements with no evidence of trigeminal neuralgia. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not applicable, and this aspect of the claim must be denied. 38 U.S.C.A. § 5107(b); Gilbert, 1 Vet. App. at 49. ORDER Entitlement to a compensable evaluation for bilateral hearing loss is denied. Entitlement to a higher evaluation for tinnitus, currently evaluated as 10 percent disabling, is denied. Entitlement to a compensable evaluation for bilateral cholesteatoma, status postoperative bilateral tympanomastoidectomies and a history of vertigo with dizziness is denied. S. L. KENNEDY Member, Board of Veterans' Appeals