Citation Nr: 0327593 Decision Date: 10/15/03 Archive Date: 10/28/03 DOCKET NO. 94-39 277 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Entitlement to an increased (compensable) rating for residuals of a right tympanic membrane perforation with defective hearing. 2. Entitlement to service connection for chronic recurrent right otitis media, claimed as tinnitus, vertigo, nausea, pressure in the ear, and dizziness on rapid movement, secondary to service-connected tympanic membrane perforation. REPRESENTATION Appellant represented by: Ruben Hernandez-Rosario, Attorney at Law WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD C. Lawson, Counsel INTRODUCTION The veteran served on active duty from November 1952 to November 1954. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico, which denied entitlement to an increased (compensable) evaluation for the residuals of a right tympanic membrane perforation with defective hearing, and denied entitlement to service connection for a right ear disorder, claimed as tinnitus, vertigo, nausea, pressure in the ear, and dizziness on rapid movement, secondary to a service-connected tympanic membrane perforation. A hearing was held before a Veterand Law Judge (VLJ) sitting in San Juan, Puerto Rico, in February 1998. The undersigned VLJ was designated by the Acting Chairman of the Board to conduct such a hearing. A transcript of the hearing testimony has been associated with the claims file. The case was remanded to the RO for additional action in September 1998. FINDINGS OF FACT 1. The veteran has a level I hearing impairment and he has had a perforated right tympanic membrane. 2. The veteran has a chronic recurrent right otitis media disease manifested by tinnitus, vertigo, dizziness on rapid movement, pressure in the ear and nausea which was caused by his service-connected right tympanic membrane perforation. CONCLUSION OF LAW 1. The criteria for an increased (compensable) rating for residuals of a right tympanic membrane perforation with defective hearing have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321, 4.85 et seq., Diagnostic Codes 6100, 6211 (2002). 2. A chronic recurrent right otitis media manifested by tinnitus, vertigo, dizziness on rapid movement, pressure in the ear and nausea was proximately due to the service-connected right tympanic membrane perforation with defective hearing. 38 C.F.R. § 3.310(a) (2002). REASONS AND BASES FOR FINDING AND CONCLUSION VCAA There has been a significant change in the law during the pendency of the appeals with the enactment of the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000) [now codified at 38 U.S.C.A. § 5100 et seq. (West 2002)]. This law eliminates the concept of a well-grounded claim, redefines the obligations of VA with respect to the duty to assist, and supersedes the decision of the United States Court of Appeals for Veterans Claims in Morton v. West, 12 Vet. App. 477 (1999) (holding that VA cannot assist in the development of a claim that is not well grounded), withdrawn sub nom. Morton v. Gober, 14 Vet.App. 174 (2000) (per curiam order). The new law also includes an enhanced duty to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits. The VCAA is applicable to all claims filed on or after the date of enactment, November 9, 2000, or filed before the date of enactment and not yet final as of that date. Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475, § 7, subpart (a), 114 Stat. 2096, 2099 (2000). In this case, VA's development and adjudication of the claim was consistent with the VCAA and the amendments to 38 C.F.R. §§ 3.103, 3.159, and 3.326 (2002), and VA's duties have been fulfilled. First, VA has a duty to notify the veteran and his representative of any information and evidence needed to substantiate and complete a claim, and to inform the veteran of which information and evidence is to be provided by the claimant, and which evidence, if any, it would attempt to obtain on the claimant's behalf. 38 U.S.C.A. §§ 5102 and 5103 (West 2002); 38 C.F.R. § 3.159. The record shows that VA has met its duties. The veteran was notified of evidence and information needed to substantiate and complete his claim and who had what duties in numerous items of correspondence including the April 2002 VCAA letter to him. The Board concludes that the discussions in the correspondence sent to the veteran informed him of the information and evidence needed to substantiate his claim and complied with VA's notification requirements. See Quartuccio v. Principi, 16 Vet. App. 183 (2002). Second, VA has a duty to make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.103 (2002). Service medical records and private and VA examination and treatment reports are of record. VA examination reports and VA and private medical records have been requested and obtained. Reasonable attempts were made to obtain identified relevant evidence. VA's development and adjudication of the veteran's claim was consistent with the VCAA and the amendments to 38 C.F.R. §§ 3.103, 3.159 and 3.326(a) and no further action is necessary. VA's duties have been fulfilled. Analysis Compensable rating for perforation and hearing loss Disability ratings are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155. Separate diagnostic codes identify the various disabilities. 38 C.F.R. Part 4. Evaluations for hearing loss range from noncompensable to 100 percent based on organic impairment of hearing acuity as noted by the results of controlled speech discrimination tests, together with the average hearing threshold levels as measured by puretone audiometry tests in the frequencies of 1,000, 2,000, 3,000, and 4,000 cycles per second. To evaluate the degree of disability from service-connected defective hearing, this rating schedule establishes 11 auditory acuity levels, designated from level I for essentially normal acuity through XI for profound deafness. See 38 C.F.R. § 4.85. 38 C.F.R. § 4.86, exceptional patterns of hearing impairment, provides that when puretone threshold at 1000, 2000, 3000, and 4000 Hertz is 55 decibels or more, or when the puretone threshold is 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIa, whichever results in the higher numeral. The Court of Appeals for Veterans Claims has noted that disability ratings for hearing impairment are derived by the mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are rendered. Lendenmann v. Principi, 3 Vet. App. 345 (1992). An examination for hearing impairment for VA purposes must be conducted by a state- licensed audiologist and must include a controlled speech discrimination test (Maryland CNC) and a puretone audiometry test. 38 C.F.R. § 4.85(a) (2002). An increased rating is not warranted for the service-connected residuals of a right tympanic membrane perforation or defective hearing. His tympanic membrane perforation is not compensable either. Under the rating schedule, the only rating for a tympanic membrane perforation is a noncompensable rating. 38 C.F.R. § 4.85, Diagnostic Code 6211. Defective hearing is not compensable either, because the October 2002 VA audiometric examination shows that the veteran has an average speech reception threshold of 48 decibels and discrimination ability of 96 percent, a level I hearing impairment. A level I hearing impairment results in a noncompensable rating. See 38 C.F.R. § 4.85(c), Diagnostic Code 6100 (1998). The Board notes that at the March 1995 audiometric examination, the examiner stated that language difficulties made the use of both pure tone average and speech discrimination score inappropriate. However, under the criteria in effect prior to June 1999, the right ear would also have been Level I under 38 C.F.R. § 4.85, Table VIa. Under the criteria in effect as of June 1999, the veteran does not have an exceptional pattern of hearing as defined in 38 C.F.R. § 4.86; therefore, he is rated under Table VI, as has been done above. Even considering all applicable provisions, the Board concludes that a compensable rating is not warranted for right ear hearing loss. There have been changes to 38 C.F.R. §§ 4.85 et seq. since the claim was filed. However, none of the versions are more favorable and none result in a compensable rating in light of the evidence. For example, prior to December 6, 2002, when rating unilateral hearing loss, the nonservice-connected ear was considered to be normal and given a Level I designation. 38 C.F.R. §§ 3.383, 4.85 (2002). Effective December 6, 2002, an amendment to 38 U.S.C.A. § 1160(a)(3) requires that compensation be payable for the combination of service- connected and non-service-connected disabilities as though both disabilities were service connected when there is deafness compensable to a degree of 10 percent or more in the service-connected ear and deafness in the other ear as a result of non-service-connected disability. See Veterans Benefits Act of 2002, Pub. L. No. 107-330, § 103, 116 Stat. 2820, 2821-22 (2002) (to be codified as amended at 38 U.S.C. § 1160). In the present case, this change to the law is inapplicable. As noted above, the veteran's service- connected right ear hearing loss does not warrant the assignment of at least a 10 percent rating under the schedular rating criteria. Thus, this change in the law does not provide a basis for the assignment of a compensable rating. The above decision is based on the VA Schedule of Rating Disabilities. In Floyd v. Brown, 9 Vet. App. 88, 96 (1996), the Court held that the Board does not have jurisdiction to assign extra-schedular evaluations under 38 C.F.R. § 3.321(b)(1), in the first instance. However, the evidence does not show that the veteran's tympanic membrane perforation or defective hearing has caused marked interference with employment or necessitated frequent periods of hospitalization for the period at issue such as would render impractical the application of the regular schedular standards. In the absence of such factors, the Board is not required to remand this matter to the RO for the procedural actions outlined in 38 C.F.R. § 3.321(b)(1). See Bagwell v. Brown, 9 Vet. App. 337, 338-9 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). The preponderance of the evidence is against the claim and there is no doubt to be resolved. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App.49, 55 (1991). Service connection Service connection may be granted on a secondary basis if a claimed disability is found to be proximately due to or is the result of a service-connected disease or injury. 38 C.F.R. § 3.310 (2002); Harder v. Brown, 5 Vet. App. 183, 187 (1993). Otitis media is an inflammation of the middle ear, which may be marked by pain, fever, abnormalities of hearing, hearing loss, tinnitus, and vertigo. Spalding v. Brown, 10 Vet. App. 6, 7 (1996) (citing Dorland's Illustrated Medical Dictionary 1204 (28th ed. 1994)). The evidence shows that the veteran has chronic and recurrent right ear otitis media and that it occurred as a result of his service-connected right tympanic membrane perforation. He had a healing tympanic membrane perforation on service discharge examination in November 1954. Dr. Rivera stated in April 1986 that the veteran's perforation had been a traumatic central perforation and that central perforations have poor prognoses and that the veteran's had caused infectious complications. Dr. Gonzalez in December 1994 indicated that the veteran's filling of his right ear and recurring infections were related to his history of otitis media with perforation of the tympanic membrane. Dr. Gonzalez also indicated that the veteran's dizziness and vertigo with abrupt head movements have, at the very least, been aggravated by the veteran's chronic middle ear infectious process. Dr. Rivera indicated in April 1986, July 1987, November 1994 and March 2000 that the veteran's tinnitus, pain, recurring infections, nausea, and vertigo had as their origin the noise from high caliber weapons which the veteran experienced in service. Dr. Coello indicated in May 2002 that the veteran had a permanent, recurring right otitis media, and that his history revealed that he suffered perforation of the right tympanic membrane after constant firearms detonations. The VA audiologist in October 2002 indicated that the veteran's tinnitus and ear infections are likely to be related to the tympanic membrane trauma he sustained in service. The Board notes that there is an October 2002 VA examination report from an ear, nose, and throat physician which opines that the veteran's symptoms had no relationship to his service activities, and which contains a comment that "If he did have a right tympanic membrane perforation, I have no way of proving it." However, that opinion and comment are of little probative value. The examiner did not review the veteran's claims folder thoroughly enough to confirm information consistent with what the veteran had told him, namely, that he had had a tympanic membrane injury in service. Moreover, the examiner was oblivious to the fact that service connection is in effect for a tympanic membrane perforation. The preponderance of the evidence is in favor of the claim and there is no doubt to be resolved. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App.49, 55 (1991). Service connection is warranted for chronic recurrent right otitis media manifested by tinnitus, vertigo, dizziness on rapid movement, pressure in the ear and nausea. (CONTINUED ON NEXT PAGE) ORDER An increased (compensable) rating for residuals of a right tympanic membrane perforation with defective hearing is denied. Service connection for chronic recurrent right otitis media manifested by tinnitus, vertigo, dizziness on rapid movement, pressure in the ear and nausea is granted. ______________________________________________ HOLLY E. MOEHLMANN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs YOUR RIGHTS TO APPEAL OUR DECISION The attached decision by the Board of Veterans' Appeals (BVA or Board) is the final decision for all issues addressed in the "Order" section of the decision. The Board may also choose to remand an issue or issues to the local VA office for additional development. If the Board did this in your case, then a "Remand" section follows the "Order." However, you cannot appeal an issue remanded to the local VA office because a remand is not a final decision. The advice below on how to appeal a claim applies only to issues that were allowed, denied, or dismissed in the "Order." If you are satisfied with the outcome of your appeal, you do not need to do anything. We will return your file to your local VA office to implement the BVA's decision. However, if you are not satisfied with the Board's decision on any or all of the issues allowed, denied, or dismissed, you have the following options, which are listed in no particular order of importance: ? Appeal to the United States Court of Appeals for Veterans Claims (Court) ? File with the Board a motion for reconsideration of this decision ? File with the Board a motion to vacate this decision ? File with the Board a motion for revision of this decision based on clear and unmistakable error. Although it would not affect this BVA decision, you may choose to also: ? Reopen your claim at the local VA office by submitting new and material evidence. There is no time limit for filing a motion for reconsideration, a motion to vacate, or a motion for revision based on clear and unmistakable error with the Board, or a claim to reopen at the local VA office. None of these things is mutually exclusive - you can do all five things at the same time if you wish. However, if you file a Notice of Appeal with the Court and a motion with the Board at the same time, this may delay your case because of jurisdictional conflicts. If you file a Notice of Appeal with the Court before you file a motion with the BVA, the BVA will not be able to consider your motion without the Court's permission. How long do I have to start my appeal to the Court? You have 120 days from the date this decision was mailed to you (as shown on the first page of this decision) to file a Notice of Appeal with the United States Court of Appeals for Veterans Claims. If you also want to file a motion for reconsideration or a motion to vacate, you will still have time to appeal to the Court. As long as you file your motion(s) with the Board within 120 days of the date this decision was mailed to you, you will then have another 120 days from the date the BVA decides the motion for reconsideration or the motion to vacate to appeal to the Court. You should know that even if you have a representative, as discussed below, it is your responsibility to make sure that your appeal to Court is filed on time. How do I appeal to the United States Court of Appeals for Veterans Claims? Send your Notice of Appeal to the Court at: Clerk, U.S. Court of Appeals for Veterans Claims 625 Indiana Avenue, NW, Suite 900 Washington, DC 20004-2950 You can get information about the Notice of Appeal, the procedure for filing a Notice of Appeal, the filing fee (or a motion to waive the filing fee if payment would cause financial hardship), and other matters covered by the Court's rules directly from the Court. You can also get this information from the Court's web site on the Internet at www.vetapp.uscourts.gov, and you can download forms directly from that website. The Court's facsimile number is (202) 501-5848. To ensure full protection of your right of appeal to the Court, you must file your Notice of Appeal with the Court, not with the Board, or any other VA office. How do I file a motion for reconsideration? You can file a motion asking the BVA to reconsider any part of this decision by writing a letter to the BVA stating why you believe that the BVA committed an obvious error of fact or law in this decision, or stating that new and material military service records have been discovered that apply to your appeal. If the BVA has decided more than one issue, be sure to tell us which issue(s) you want reconsidered. Send your letter to: Director, Management and Administration (014) Board of Veterans' Appeals 810 Vermont Avenue, NW Washington, DC 20420 VA FORM JUN 2003 (RS) 4597 Page 1 CONTINUED Remember, the Board places no time limit on filing a motion for reconsideration, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to vacate? You can file a motion asking the BVA to vacate any part of this decision by writing a letter to the BVA stating why you believe you were denied due process of law during your appeal. For example, you were denied your right to representation through action or inaction by VA personnel, you were not provided a Statement of the Case or Supplemental Statement of the Case, or you did not get a personal hearing that you requested. You can also file a motion to vacate any part of this decision on the basis that the Board allowed benefits based on false or fraudulent evidence. Send this motion to the address above for the Director, Management and Administration, at the Board. Remember, the Board places no time limit on filing a motion to vacate, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to revise the Board's decision on the basis of clear and unmistakable error? You can file a motion asking that the Board revise this decision if you believe that the decision is based on "clear and unmistakable error" (CUE). Send this motion to the address above for the Director, Management and Administration, at the Board. You should be careful when preparing such a motion because it must meet specific requirements, and the Board will not review a final decision on this basis more than once. You should carefully review the Board's Rules of Practice on CUE, 38 C.F.R. 20.1400 -- 20.1411, and seek help from a qualified representative before filing such a motion. See discussion on representation below. Remember, the Board places no time limit on filing a CUE review motion, and you can do this at any time. How do I reopen my claim? You can ask your local VA office to reopen your claim by simply sending them a statement indicating that you want to reopen your claim. However, to be successful in reopening your claim, you must submit new and material evidence to that office. See 38 C.F.R. 3.156(a). Can someone represent me in my appeal? Yes. You can always represent yourself in any claim before VA, including the BVA, but you can also appoint someone to represent you. An accredited representative of a recognized service organization may represent you free of charge. VA approves these organizations to help veterans, service members, and dependents prepare their claims and present them to VA. An accredited representative works for the service organization and knows how to prepare and present claims. You can find a listing of these organizations on the Internet at: www.va.gov/vso. You can also choose to be represented by a private attorney or by an "agent." (An agent is a person who is not a lawyer, but is specially accredited by VA.) If you want someone to represent you before the Court, rather than before VA, then you can get information on how to do so by writing directly to the Court. Upon request, the Court will provide you with a state-by-state listing of persons admitted to practice before the Court who have indicated their availability to represent appellants. This information is also provided on the Court's website at www.vetapp.uscourts.gov. Do I have to pay an attorney or agent to represent me? Except for a claim involving a home or small business VA loan under Chapter 37 of title 38, United States Code, attorneys or agents cannot charge you a fee or accept payment for services they provide before the date BVA makes a final decision on your appeal. If you hire an attorney or accredited agent within 1 year of a final BVA decision, then the attorney or agent is allowed to charge you a fee for representing you before VA in most situations. An attorney can also charge you for representing you before the Court. VA cannot pay fees of attorneys or agents. Fee for VA home and small business loan cases: An attorney or agent may charge you a reasonable fee for services involving a VA home loan or small business loan. For more information, read section 5904, title 38, United States Code. In all cases, a copy of any fee agreement between you and an attorney or accredited agent must be sent to: Office of the Senior Deputy Vice Chairman (012) Board of Veterans' Appeals 810 Vermont Avenue, NW Washington, DC 20420 The Board may decide, on its own, to review a fee agreement for reasonableness, or you or your attorney or agent can file a motion asking the Board to do so. Send such a motion to the address above for the Office of the Senior Deputy Vice Chairman at the Board. VA FORM JUN 2003 (RS) 4597 Page 2