Citation Nr: 0001585 Decision Date: 01/19/00 Archive Date: 01/28/00 DOCKET NO. 98-18 631 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE 1. Entitlement to an increased (compensable) evaluation for left ear hearing loss. 2. Entitlement to an increased (compensable) evaluation for left ear otitis media. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. Hannan, Counsel INTRODUCTION The appellant had active service in the Navy from May 1944 to May 1946. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida which denied a compensable evaluation for both the appellant's left ear hearing loss disability and his left ear otitis media disability. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the appellant's appeal has been obtained by the RO. 2. The appellant's left ear hearing loss disability is manifested by Level I hearing acuity in the left ear. 3. The appellant's hearing acuity in the right, non-service- connected ear is considered normal for rating purposes. He is not deaf in that ear. 4. The appellant's service-connected chronic otitis media is not productive of suppuration. There is no evidence of aural polyps. CONCLUSIONS OF LAW 1. The criteria for an increased (compensable) evaluation for a left ear hearing loss disability have not been met. 38 U.S.C.A. §§ 1155, 1160, 5107 (West 1991); 38 C.F.R. Part 4, §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.85, Table VI and Table VII, 4.86, Diagnostic Code 6100 (1998); 64 Fed. Reg. 25202-25210 (May 11, 1999) (codified at 38 C.F.R. § 4.85 et. seq. Diagnostic Code 6100 (1999)); VAOPGCPREC 32-97, 62 Fed. Reg. 63605 (1997). 2. The criteria for a compensable rating for chronic otitis media have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. § 4.31, 4.87a, Diagnostic Codes 6100, 6200, 6201 (1998) (1999). 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 the Board concludes that both of the appellant's increased rating claims are well-grounded within the meaning of 38 U.S.C.A. § 5107(a). The Board is satisfied that all relevant evidence has been obtained with respect to these claims and that all relevant facts have been developed. The Board concludes that, as required by the applicable statute, the duty to assist has been fulfilled. Id. Disability evaluations are determined by the application of a schedule of ratings which is based upon an average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Where there is a reasonable doubt as to the degree of disability, such doubt will be resolved in favor of the claimant. 38 C.F.R. §§ 3.102, 4.3, 4.7. In addition, the Board will consider the potential application of the various other provisions of 38 C.F.R., Parts 3 and 4, whether or not they were raised by the appellant, as well as the entire history of the appellant's disability in reaching its decision, as required by Schafrath v. Derwinski, 1 Vet. App. 589 (1991). In the evaluation of service-connected disabilities the entire recorded history, including medical and industrial history, is considered so that a report of a rating examination, and the evidence as a whole, may yield a current rating which accurately reflects all elements of disability, including the effects on ordinary activity. 38 C.F.R. §§ 4.1, 4.2, 4.10, 4.41. Where, as in this case, 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 38 C.F.R. § 4.2 requires that the whole recorded history be reviewed to make a more accurate evaluation, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The most current evidence of the present levels of disability is found in the reports of the VA audiometric examinations conducted in December 1996 and September 1997, and in the reports of VA outpatient treatment dated between December 1996 and January 1998. A. Hearing loss disability. Evaluations of unilateral defective hearing, in the absence of complete deafness in both ears, range from noncompensable to 10 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 a pure tone audiometry test in the frequencies of 1,000, 2,000, 3,000, and 4,000 cycles per second. The rating schedule establishes auditory acuity levels designated from level I for essentially normal auditory acuity through level XI for profound deafness. 38 C.F.R. § 4.85, Part 4 Diagnostic Codes 6100-6110. The 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. See Lendenmann v. Principi, 3 Vet. App. 345 (1992). The schedular evaluations are intended to make proper allowance for improvement by hearing aids. 38 C.F.R. § 4.86. It is noted that while this case was being developed, the rating criteria for hearing loss were revised. 64 Fed. Reg. 25202-25210 (May 11, 1999) (codified at 38 C.F.R. § 4.85 et. seq. (1999)). Review of the revised criteria reveals that the audiometric findings result in the same outcome regardless of whether the new or the old criteria are used. There is no change to the application in this case by the most recent revision, so neither set of criteria may be said to have a liberalizing effect in this case. Service connection for left ear sensorineural hearing loss was established by a rating decision, effective as of January 1979; a zero percent evaluation was assigned. On the audiometric evaluation conducted in December 1996, pure tone thresholds, in decibels, were as follows: HERTZ: 1000 2000 3000 4000 Average Right 15 10 25 35 21 Left 30 20 35 35 30 The speech audiometry testing revealed speech recognition ability of 100 percent in the left ear and 96 percent in the right ear. These findings result in a corresponding designation of Level I hearing acuity in the right ear (which is not service- connected) and Level I hearing acuity in the left ear. Pursuant to these findings, the RO continued the assignment of a noncompensable disability evaluation which the appellant contends is insufficient. Diagnostic Code 6100. The appellant subsequently underwent VA audiometric testing in September 1997; pure tone thresholds, in decibels, were as follows: HERTZ: 1000 2000 3000 4000 Average Right 25 20 25 40 28 Left 50 40 45 45 45 The speech audiometry testing revealed speech recognition ability of 96 percent in the left ear and 92 percent in the right ear. These findings again result in a corresponding designation of Level I hearing acuity in the right ear (which is not service-connected) and Level I hearing acuity in the left ear. As previously noted, such findings result in a noncompensable disability evaluation under Diagnostic Code 6100. The Board is aware of the appellant's contentions concerning his difficulty in hearing. However, the objective clinical evidence of record simply does not support a compensable evaluation for his left ear hearing loss disability. As previously noted, the 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. It is also noted that, where service connection is in effect for defective hearing in only one ear, in the absence of complete bilateral deafness, the nonservice connected ear is considered normal. 38 U.S.C.A. § 1160; VAOPGCPREC 32-97 62 Fed. Reg. 62605 (1997); (Precedent Opinion of the General Counsel of the VA). In this case, there is no evidence of complete deafness in the right ear; the September 1997 audiometric testing demonstrated the appellant's right ear hearing loss to be mild. Moreover, even considering the rating to be assigned if the nonservice connected ear was rated, i.e., Level I, the same rating would apply. Under Diagnostic Code 6100, a zero percent evaluation is assigned where hearing is at Level I for one ear and Level I for the other. Under current regulations, a zero percent rating is yielded by both the December 1996 and September 1997 VA audiometric examination results. The requirements of 38 C.F.R. § 4.85 set out the numeric levels of impairment required for each disability rating, and those requirements are mandatory. The Board must accordingly find that the preponderance of the evidence is against the appellant's claim for a compensable evaluation his left ear hearing loss disability. Since the preponderance of the evidence is against allowance of this issue, the benefit of the doubt doctrine is inapplicable. B. Otitis media disability. The appellant's service-connected otitis media of the left ear has been evaluated under the provisions of Diagnostic Code 6200 of the Rating Schedule; a noncompensable evaluation has been in effect since March 1979. Diagnostic Code 6200 provides that a 10 percent evaluation will be assigned for otitis media during the continuance of the suppurative process. These are the old criteria. Under the new criteria, as reported above, a 10 percent rating is for application where there is suppuration or with aural polyps. This change is not so significant as to prejudice the veteran if the Board proceeds to a decision. It is also noted that 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 compensable evaluation are not met. 38 C.F.R. § 4.31. The report of the December 1996 VA ear examination reflects that the appellant complained of recurrent pain in the left ear since his 1979 surgery and that the pain had traveled to the right ear since July 1996. Review of the medical evidence of record reveals that the appellant received medical treatment at various VA outpatient clinics between December 1996 and January 1998. During a January 1997 primary care clinic visit, the appellant complained of his hearing just going out. On physical examination, a perforated tympanic membrane with some liquid was noted on the left. The appellant was then seen in June 1997, and he reported feeling well and that he was swimming almost daily with no problems. The appellant was subsequently seen in the ENT clinic later that month. The clinical findings included a notation stating "no otalgia". The diagnosis was chronic Estuation tube dysfunction, left ear and dry tympanic membrane perforation, left ear. During a July 1997 primary care clinic visit, the appellant complained of head and ear pain; he reported a history of left-sided ear and head pain that was now on the right side. No significant clinical findings were recorded. Thereafter, the medical records do not reflect any complaints of, or treatment for, any left ear problem. At no time on any of these examinations was it indicated that there were aural polyps noted in the ear canal. The record reflects that the veteran has reported pain in the left ear on different occasions. As a lay person he may describe symptoms as he observes them, but he is not qualified to furnish medical opinions or diagnoses or associate symptoms with a specific disease entity. Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992). The competent medical evidence reflects that at the times the appellant's left ear was examined in 1996, and in 1997; there was no discharge and recent clinic examinations specifically indicate that the appellant was swimming almost daily with no problems and that the left ear was dry. Pursuant to VA's Schedule for Rating Disabilities, 38 C.F.R. § 4.87a, the RO ascertained the severity of the appellant's disability by application of the criteria set forth in Diagnostic Code 6200, chronic otitis media, suppurative. Under this provision, the only compensable rating assignable is a 10 percent rating during the continuance of the suppurative process or with aural polyps; however, this 10 percent rating is to be combined with ratings for loss of hearing. The appellant's hearing loss has been separately rated and will not be included as residuals of the left ear otitis media disability. A review of the medical evidence of record reveals that the appellant has not been diagnosed as having tinnitus; labyrinthitis; facial nerve paralysis; bone loss of the skull; chronic nonsupportative otitis media with effusion; mastoiditis; a peripheral vestibular disorder; Meniere's syndrome; the loss of, or deformity of, the auricle; or chronic otitis externa. Thus the Diagnostic Codes for those disabilities are not for consideration. The Board also notes that only a noncompensable evaluation is available for a perforated tympanic membrane under Diagnostic Code 6211. The medical evidence of record does not support a finding that there is a continuance of the suppurative process, nor are aural polyps shown. In the absence of medical evidence of suppuration associated with the appellant's left ear otitis media, there is no basis for assignment of a compensable evaluation under Diagnostic Code 6200. Therefore, the preponderance of the evidence is against a compensable evaluation for otitis media under Diagnostic Code 6200. C. Extra-schedular evaluations. An extra-schedular evaluation may be warranted if the application of the regular schedular standards is found to be inadequate to evaluate a veteran's disability. See 38 C.F.R. § 3.321(b). Because the evaluation of the appellant's hearing loss is based on a mechanical application of audiological findings to the charts contained in 38 C.F.R. § 4.87, consideration of extra-schedular factors in connection with the increased rating claim for that disability does not appear appropriate. However, even assuming, arguendo, that such consideration was appropriate, the Board finds that the criteria for the assignment of an extra-schedular evaluation for either the left ear hearing loss or the left ear otitis media have not been met. The record before the Board does not contain evidence of "exceptional or unusual" circumstances that would preclude the use of the regular rating schedule. The Board finds that the appellant's service-connected left ear hearing loss and otitis media have not caused marked interference with his employability, as reflected by the September 1997 VA audiometric examination report which indicates that the appellant stated that his left ear hearing was adequate for the activities of daily living and that he declined a hearing aid. Furthermore, neither disability has required any recent hospitalization. ORDER Entitlement to a compensable evaluation for left ear hearing loss is denied. Entitlement to a compensable evaluation for left ear otitis media is denied. MICHAEL D. LYON Member, Board of Veterans' Appeals