Citation Nr: 0102254 Decision Date: 01/26/01 Archive Date: 01/31/01 DOCKET NO. 99-10 945 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUES 1. Entitlement to an increased disability rating for bilateral otitis externa, currently rated as 10 percent disabling, 2. Entitlement to service connection for otitis media. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD T. Reichelderfer INTRODUCTION The veteran served on active duty from August 1961 to August 1963. This appeal arises from a rating decision of February 1999 from the Buffalo, New York, Regional Office (RO). A notice of disagreement was received in March 1999, a statement of the case was issued in April 1999, and the substantive appeal was received in April 1999. This decision will address the issue of an increased disability rating for otitis externa. The remand that follows the decision will address the issue of service connection for otitis media. FINDINGS OF FACT 1. All evidence necessary for an equitable disposition of the veteran's claim has been developed. 2. The veteran is rated as 10 percent disabled for bilateral otitis externa, which is the highest rating provided for that disorder. 3. There is no evidence that the bilateral otitis externa presents such an exceptional or unusual disability picture so as to render impractical the application of the regular schedular standards. CONCLUSION OF LAW The criteria for an increased disability rating for bilateral otitis externa are not met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475, § 4, 114 Stat. 2096, 2098-99 (2000) (to be codified as amended at 38 U.S.C.A. § 5107); 38 C.F.R. § 4.87a, Diagnostic Code 6210 (1998); 38 C.F.R. §§ 3.321(b)(1), 4.14, 4.87, Diagnostic Code 6210 (2000). REASONS AND BASES FOR FINDINGS AND CONCLUSION Factual background A rating decision in December 1967 granted service connection for "external otitis bilateral" and assigned a noncompensable disability rating. A March 1996 rating decision increased the disability rating for bilateral external otitis to 10 percent. A January 1998 VA clinical record notes there was mild erythema in the right external auditory canal and dry scaling without erythema in the left canal. The tympanic membranes were within normal limits, without effusion. The assessment was chronic otitis externa. The report of a February 1998 VA examination notes the external auditory canals were slightly dry but were otherwise within normal limits. The tympanic membranes were intact, there was no retraction, and the tympanum revealed no fluid. There were no active infections present. The veteran also had vertigo, hearing loss, and tinnitus. The assessments were chronic otitis externa; and tinnitus, hearing loss, and vertigo consistent with Meniere's disease. The report of a July 1998 VA examination notes the external ears and canals were within normal limits. There was no evidence of excoriation of the skin. The drums were slightly thickened and slightly retracted, and the cone of light was very dull. A diagnosis was not reported. An August 1998 VA clinical record notes the external auditory canals were without drainage or erythema. The tympanic membranes were thickened, but there was no effusion or ports. The clinical assessments indicated history of chronic otitis externa, and external auditory canals appearing well now. A May 1999 VA clinical record notes tympanic membrane scarring, but is otherwise negative. A June 1999 VA clinical record notes the tympanic membranes were normal bilaterally. There was good mobility, with no effusion seen. The assessment was history of otitis externa with normal tympanic membranes/external auditory canals on exam. An October 1999 VA audio consultation report notes bilateral sensorineural hearing loss. The report notes hearing was within normal limits except at 8000 Hertz, which represented a mild loss. Analysis Initially, the Board of Veterans' Appeals (Board) notes that, during the pendency of the veteran's appeal, the Veterans Claims Assistance Act of 2000 (VCAA) was enacted, as Public Law No. 106-475, 114 Stat. 2096 (Nov. 9, 2000). This new statute amended and clarified VA's duty to assist claimants in the development of the facts relevant to their claims, and is applicable to claims pending at the time of its enactment, including the present claim before the Board. Therefore, the Board must assess whether the development of the veteran's claim and appeal has been sufficient to meet the enhanced obligations embodied in the VCAA. The veteran has received two VA examinations related to the ears. The RO has obtained VA medical records identified by the veteran. The veteran has not identified additional relevant evidence that has not already been sought and associated with the claims file. In the supplemental statements of the case, the veteran was advised that the medical records in the claims file did not provide evidence of an exceptional or unusual disability picture to render application of the regular schedular standards impractical. Accordingly, the Board finds that the notification and duty- to-assist provisions mandated by the Veterans Claims Assistance Act of 2000 have been satisfied. The severity of a disability is ascertained by application of the criteria set forth in the VA Schedule for Rating Disabilities, contained in 38 C.F.R. Part 4 (2000) (Schedule). The disability ratings are based upon the average impairment of earning capacity in civil occupations. 38 U.S.C.A. § 1155 (West 1991). The use of manifestations not resulting from service- connected disease or injury in establishing the service- connected evaluation, and the evaluation of the same disability under differing diagnoses, is to be avoided. 38 C.F.R. § 4.14 (2000). Under the criteria of Diagnostic Code (DC) 6210, for diseases of the auditory canal, as were in effect at the time the veteran initiated his claim, a 10 percent rating is warranted where there is swelling, dry and scaly or serous discharge, or itching requiring frequent and prolonged treatment. 38 C.F.R. § 4.87a, DC 6210 (1998). During the pendency of the veteran's appeal, the regulations applicable to rating diseases of the ear were amended, effective June 10, 1999. 64 Fed. Reg. 25,202 (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. See Karnas v. Derwinski, 1 Vet.App. 308 (1991). Therefore, the Board must consider whether the old or the new rating criteria are more favorable to the veteran. Under the revised criteria of DC 6210 for chronic otitis externa, a 10 percent rating is warranted for swelling, dry and scaly or serous discharge, and itching requiring frequent and prolonged treatment. 38 C.F.R. § 4.87, DC 6210 (2000). The rating criteria of both the original and revised versions of Diagnostic Code 6210 are the same. The only change in the revised criteria is re-designation of the disability as chronic otitis externa. Accordingly, there is no prejudice to the veteran in the Board considering both the original and revised rating criteria in the first instance, since they are the same and neither is more advantageous to the veteran in assessing his claim. See Bernard v. Brown, 4 Vet.App. 384 (1993). The maximum disability rating under the Schedule for disease of the auditory canal or otitis externa is 10 percent. This is consistent with the disability rating currently assigned. The veteran has asserted that an increased disability rating is warranted for symptoms of otitis media and Meniere's disease. However, the veteran is not service connected for these disabilities and, therefore, they may not be considered in assessing the level of disability from the service- connected otitis externa. Accordingly, the veteran is receiving the maximum disability rating for otitis externa that is available under the Schedule. 38 C.F.R. § 4.87a, DC 6210 (1998); 38 C.F.R. §§ 4.14, 4.87, DC 6210 (2000). As noted, the veteran is currently rated at the maximum disability rating available for the service-connected otitis externa. In order to accord the veteran every possible consideration, the RO considered whether an increased disability rating was warranted on an extraschedular basis, under the provisions of 38 C.F.R. § 3.321(b)(1) (2000). The governing norm for consideration of an extraschedular evaluation is that the case present such an exceptional or unusual disability picture, with such related factors as marked interference with employment or frequent periods of hospitalization, so as to render impractical the application of the regular schedular standards. There is no evidence in the claims file that the service- connected otitis externa has caused repeated hospitalizations. While the record indicates the veteran has received outpatient treatment, this does not constitute hospitalization. In addition, there is no evidence which shows the otitis externa causes marked interference with employment or has otherwise rendered the application of the criteria of the Schedule impractical, and neither the veteran nor the representative has presented such evidence. Accordingly, there is no basis for consideration of an extraschedular evaluation for the veteran's otitis externa disability. 38 C.F.R. § 3.321(b)(1) (2000); VAOPGCPREC 6-96. The veteran is receiving the maximum disability rating available for his bilateral otitis externa. There is no evidence that the disability resulting from otitis externa has rendered the application of the regular schedular standards impractical. Accordingly, the preponderance of the evidence is against the veteran's claim for an increased disability rating for bilateral otitis externa. ORDER Entitlement to an increased disability rating for bilateral otitis externa is denied. REMAND A rating decision in March 2000 denied service connection for otitis media. The veteran was advised of this decision in an April 3, 2000, letter. In a statement received by the RO from the veteran's representative in October 2000, the representative stated "the veteran asserts that the service- connected condition should also be characterized as otiits [sic] media." Since this statement was received within one year of the date of the VA letter notifying the veteran that service connection for otitis media had been denied and was part of the appeal for an increased rating for the service connected ear disability, the statement constitutes a notice of disagreement. See Gallegos v. Gober, 14 Vet.App. 50 (2000). The veteran has not received a statement of the case addressing the issue as to which his representative expressed disagreement in the October 2000 submission. As the filing of a notice of disagreement places a claim in appellate status, the U.S. Court of Appeals for Veterans Claims has held that, once an NOD has been filed, the requirement that the RO issue an SOC is a procedural matter requiring remand. See Manlincon v. West, 12 Vet.App. 238 (1999); see also Godfrey v. Brown, 5 Vet. App. 127, 132 (1993). Therefore, this case must be returned to the RO for issuance of a statement of the case. Accordingly, this case is REMANDED for the following: The RO should provide the veteran with a statement of the case addressing the issue of service connection for otitis media. This issue should be returned to the Board for further consideration only if the veteran perfects a timely appeal of this issue. The Board intimates no opinion as to the outcome of this case. The veteran need take no action until so informed. The purpose of this REMAND is to ensure compliance with due process considerations. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet.App. 369 (1999). This claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 2000) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44- 8.45 and 38.02-38.03. ANDREW J. MULLEN Member, Board of Veterans' Appeals