Citation Nr: 0814505 Decision Date: 05/02/08 Archive Date: 05/12/08 DOCKET NO. 04-31 743A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to a compensable rating for left ear hearing loss. 2. Entitlement to an increased rating for otitis media of the left ear with incus erosion status-post tympanoplasty with tympanic disruption or neuropraxia of the quarter tympani and altered taste, currently evaluated as 10 percent disabling. ATTORNEY FOR THE BOARD John Kitlas, Counsel INTRODUCTION The veteran served on active duty from June 1994 to June 1998. This matter is before the Board of Veterans' Appeals (Board) on appeal from a February 2004 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio, which denied a rating in excess of 10 percent for the left ear otitis media, and granted service connection for left ear hearing loss, assigning a separate noncompensable (zero percent) rating. For the reasons addressed in the REMAND section of the decision below, the Board finds that additional development is warranted with respect to the left ear hearing loss claim. Accordingly, this claim will be REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if additional action is required on her part. FINDINGS OF FACT 1. All reasonable development and notification necessary for the equitable disposition of the issue decided herein has been completed. 2. In addition to service connection being in effect for left ear hearing loss, evaluated as noncompensable, the veteran is also in receipt of a separate compensable rating for tinnitus associated with her service-connected otitis media. 3. The veteran is in receipt of the maximum schedular rating for her service-connected otitis media. 4. The record does not reflect that the veteran's service- connected left ear otitis media 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 a rating in excess of 10 percent for left ear otitis media are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.2, 4.10, 4.87, Diagnostic Code 6200 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board notes at the outset that, in accord with the Veterans Claims Assistance Act of 2000 (VCAA), VA has an obligation to notify claimants what information or evidence is needed in order to substantiate a claim, as well as a duty to assist claimants by making reasonable efforts to get the evidence needed. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A and 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a); see also Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The United States Court of Appeals for Veterans Claims (Court) has held that adequate notice, as required by 38 U.S.C. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim for VA benefits. Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). In this case, the veteran was sent pre-adjudication notice by letters dated in February 2003, May 2003, and September 2003, all of which were clearly prior to the February 2004 rating decision that is the subject of this appeal. She was also sent additional notification regarding this case by letters dated in March 2006, June 2007, and October 2007. Taken together, these letters informed the veteran of the evidence necessary to substantiate her current appellate claim, what information and evidence she must submit, what information and evidence will be obtained by VA, and indicated the need for the veteran to advise VA of or to submit any evidence in her possession that was relevant to the case. As such, this correspondence fully complied with the notice requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b), as well as the holding in Quartuccio, supra. Further, the March 2006 and June 2007 letters contained the specific information regarding disability rating(s) and effective date(s) as mandated by the Court's holding in Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Board observes that the Court recently issued a decision in the case of Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), regarding the information that must be provided to a claimant in the context of an increased rating claim. Specifically, the Court held that section § 5103(a) requires: (1) at a minimum, that the Secretary notify the claimant that, to substantiate a claim, the claimant must provide, or ask the Secretary to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life; (2) if the Diagnostic Code under which the claimant is rated contains criteria necessary for entitlement to a higher disability rating that would not be satisfied by the claimant demonstrating a noticeable worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life (such as a specific measurement or test result), the Secretary must provide at least general notice of that requirement to the claimant; and (3) the claimant must be notified that, should an increase in disability be found, a disability rating will be determined by applying relevant Diagnostic Codes, which typically provide for a range in severity of a particular disability from noncompensable to as much as 100 percent (depending on the disability involved), based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration, and their impact upon employment and daily life. As with proper notice for an initial disability rating and consistent with the statutory and regulatory history, the notice must also provide examples of the types of medical and lay evidence that the claimant may submit (or ask the Secretary to obtain) that are relevant to establishing entitlement to increased compensation-e.g., competent lay statements describing symptoms, medical and hospitalization records, medical statements, employer statements, job application rejections, and any other evidence showing an increase in the disability or exceptional circumstances relating to the disability. In regard to the aforementioned criteria, the Board notes that the VCAA letters noted above satisfy elements (1) and (3). Although none of the aforementioned notification letters contained the specific criteria of the relevant Diagnostic Code (i.e., element (2)), this information was included in the August 2004 Statement of the Case (SOC). The Board also notes that the veteran has actively participated in the processing of this case, and the statements submitted in support of her claim have indicated familiarity with the requirements for the benefits sought on appeal. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), reversed on other grounds, 444 F.3d 1328 (Fed. Cir. 2006) (VA can demonstrate that a notice defect is not prejudicial if it can be demonstrated ... that any defect in notice was cured by actual knowledge on the part of the appellant that certain evidence (i.e., the missing information or evidence needed to substantiate the claim) was required and that the appellant should have provided it.); see also Overton v. Nicholson, 20 Vet. App. 427 (2006). Her familiarity with the pertinent criteria for a higher rating is further demonstrated by the fact that she has had prior claim(s) for an increased rating since service connection was established, as exemplified, in part, by a prior Board decision of April 2001 which assigned the 10 percent rating for the otitis media. All the law requires is that the duty to notify is satisfied and that claimants are given the opportunity to submit information and evidence in support of their claims. Once this has been accomplished, all due process concerns have been satisfied. See Bernard, supra; Sutton v. Brown, 9 Vet. App. 553 (1996); see also 38 C.F.R. § 20.1102 (harmless error). In view of the foregoing, the Board finds that the veteran was notified and aware of the evidence needed to substantiate this claim and the avenues through which she might obtain such evidence, and of the allocation of responsibilities between herself and VA in obtaining such evidence. Accordingly, there is no further duty to notify. In addition, the duty to assist the veteran has been satisfied in this case. All relevant medical records are in the claims file. Nothing in the record indicates the veteran has identified the existence of any relevant evidence that has not been obtained or requested. She has had the opportunity to present evidence and argument in support of her claim, and has explicitly stated that she does not desire a Board hearing in conjunction with this appeal. Further, she was accorded VA medical examinations in May and September 2005. Consequently, the Board concludes that the duty to assist has been satisfied. The Board further notes that, as detailed below, it concludes that the veteran is not entitled to an increased schedular rating for her service-connected left ear otitis media as a matter of law. In VAOPGCPREC 5-2004 (July 23, 2004) VA's Office of General Counsel held that the VCAA does not require either notice or assistance when the claim cannot be substantiated under the law or based on the application of the law to undisputed facts. Similarly, the Court has held that the VCAA is not applicable to matters in which the law, and not the evidence, is dispositive. See Mason v. Principi, 16 Vet. App. 129, 132 (2002). The Board observes that it has thoroughly reviewed the record in conjunction with this case. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence submitted by the appellant or on her behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). Rather, the Board's analysis below will focus specifically on what the evidence shows, or fails to show, on the claim. See Timberlake v. Gober, 14 Vet. App. 122, 129 (2000) (noting that the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C.A. § 5107(b). When a reasonable doubt arises regarding service origin, such doubt will be resolved in the favor of the claimant. Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102. The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied. Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). In this, and in other cases, only independent medical evidence may be considered to support medical findings. The Board is not free to substitute its own judgment for that of such an expert. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). Here, nothing on file shows that the veteran has the requisite knowledge, skill, experience, training, or education to render a medical opinion. See Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). Consequently, her contentions cannot constitute competent medical evidence. 38 C.F.R. § 3.159(a)(1). Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a question as to which of two evaluations applies, assigning the higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disability upon the person's ordinary activity, 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The degree of impairment resulting from a disability is a factual determination and generally the Board's primary focus in such cases is upon the current severity of the disability. Francisco v. Brown, 7 Vet. App. 55, 57-58 (1994); Solomon v. Brown, 6 Vet. App. 396, 402 (1994). However, the Court recently held that "staged" ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). The Board acknowledges that the veteran has described ongoing medical treatment for her left ear otitis media due to recurrent infections, as well as the expense of this treatment. However, in evaluating a request for an increased schedular evaluation, the Board will only consider the factors as enumerated in the applicable rating criteria. See Massey v. Brown, 7 Vet. App. 204, 208 (1994); Pernorio v. Derwinski, 2 Vet. App. 625, 628 (1992). Under 38 C.F.R. § 4.87, Diagnostic Code 6200, a compensable rating of 10 percent for chronic suppurative otitis media, mastoiditis, or cholesteatoma (or any combination) is warranted during suppuration, or with aural polyps. This Code does not provide for a rating in excess of 10 percent. In short, the veteran is already in receipt of the maximum schedular rating available for her service-connected left ear otitis media under the pertinent Diagnostic Code. As there is no legal basis to assign a higher schedular rating, the veteran's appeal must be denied. See Sabonis v. Brown, 6 Vet. App. 426 (1994) (when the law and not the evidence is dispositive, a claim for entitlement to VA benefits should be denied or the appeal to the Board terminated because of the absence of legal merit or the lack of entitlement under the law). The Board acknowledges that Diagnostic Code 6200 states that other symptoms such as hearing impairment, labyrinthitis, facial nerve paralysis or bone loss of skull are rated separately, if present. Similarly, the provisions of 38 C.F.R. § 4.87, Diagnostic Code 6201 for nonsuppurative otitis media, provide that the disorder is to be evaluated as hearing loss. However, in this case, the record already reflects that the veteran is in receipt of a separate evaluation for her left ear hearing loss. She is also in receipt of a separate compensable rating of 10 percent for tinnitus associated with the otitis media. No other symptoms are shown of the service-connected otitis media that would otherwise warrant additional separate evaluations. The Board wishes to make it clear that it has no reason to doubt that the veteran experiences impairment due to her left ear otitis media. Indeed, the grant of service connection constitutes recognition on the part of VA that such disability exists. However, the outcome of this issue is determined by the schedular criteria, which, as stated above, do not provide for a rating in excess of 10 percent for otitis media. In exceptional cases where the schedular evaluations are found to be inadequate, an extraschedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities may be approved provided the case presents such an exceptional or unusual disability picture with related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1). Here, the Board concurs with the RO's determination that the veteran's service-connected left ear otitis media does not warrant consideration of an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1). The Board acknowledges that the veteran has received medical treatment for her left ear during the pendency of this case; that she reported the expense of such treatment; that she had to take time off from work for the treatment; and that, during the pendency of this case, she had surgical procedures performed on her left ear in August 2004 and September 2007, and reported prior surgery in April 2002. Nevertheless, the amount of treatment in this case, to include the expense and intermittent surgical procedures over the years, does not appear to rise to the level of frequent periods of hospitalization necessary to warrant an extraschedular rating in this case. The Board is also of the opinion that the time lost from work to obtain this treatment appears to be adequately compensated by the current schedular evaluation, and does not constitute marked interference with employment. Loss of industrial capacity is the principal factor in assigning schedular disability ratings. See 38 C.F.R. §§ 3.321(a), 4.1. Indeed, 38 C.F.R. § 4.1 specifically states: "[g]enerally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability." See also Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (noting that the disability rating itself is recognition that industrial capabilities are impaired). In addition, there is no evidence in the medical records of an exceptional or unusual clinical picture, or of any other reason why an extraschedular rating should be assigned. For these reasons, the Board finds that the veteran does not meet or nearly approximate the criteria for a rating in excess of 10 percent for her service-connected left ear otitis media, to include referral of the case for extra- schedular consideration pursuant to 38 C.F.R. 3.321(b)(1), during any portion of the appeal period. Consequently, the benefit sought on appeal is denied. ORDER Entitlement to an increased rating for left ear otitis media, currently evaluated as 10 percent disabling, is denied. REMAND In this case, the Board notes that the veteran was accorded VA audiological evaluations in April 2003 and May 2005 to evaluate the severity of her service-connected left ear hearing loss. However, on a VA Form 9 (Appeal to the Board) dated in March 2007, she stated that her hearing was "worse now then in the past," and that she felt she should be evaluated again. VA's General Counsel has indicated that when a claimant asserts that the severity of a disability has increased since the most recent rating examination, an additional examination is appropriate. VAOPGCPREC 11-95; see also Caffrey v. Brown, 6 Vet. App. 377, 381 (1995); Green v. Derwinski, 1 Vet. App. 121, 124 (1991). In view of the foregoing, the Board concludes that a remand is required to accord the veteran a new VA medical examination to evaluate the severity of her left ear hearing loss. Since the Board has determined that a new examination is necessary in the instant case, the veteran is hereby informed that 38 C.F.R. § 3.326(a) provides that individuals for whom examinations have been authorized and scheduled are required to report for such examinations. The provisions of 38 C.F.R. § 3.655 address the consequences of a veteran's failure to attend scheduled medical examinations. That regulation at (a) provides that, when entitlement to a benefit cannot be established or confirmed without a current VA examination and a claimant, without "good cause," fails to report for such examination, action shall be taken. At (b) it is provided that when a claimant fails to report for an examination scheduled in conjunction with an original compensation claim, the claim shall be rated based on the evidence of record. However, when the examination is scheduled in conjunction with any other original claim, a reopened claim for a benefit which was previously disallowed, or a claim for increase, the claim shall be denied. In addition, the Board observes that as a remand is otherwise required in this case, the veteran should be provided with further notification that is in compliance with the Court's recent decision in the case of Vazquez- Flores, supra, regarding the information that must be provided to a claimant in the context of an increased rating claim. For the reasons stated above, this case is REMANDED for the following: 1. Please send the veteran corrective notice under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), that includes the information described for increased rating claim(s) as outlined by the Court in Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008). 2. Please obtain the names and addresses of all medical care providers who have treated the veteran for her hearing loss since May 2005. After securing any necessary release, the RO should obtain those records not on file. 3. After obtaining any additional records to the extent possible, the veteran should be afforded a new examination to address the current severity of her service-connected left ear hearing loss. The claims folder should be made available to the examiner for review of pertinent documents therein in connection with the examination. 4. Thereafter, review the claims folder to ensure that the foregoing requested development has been completed. In particular, review the examination report to ensure that it is responsive to and in compliance with the directives of this remand and, if not, implement corrective procedures. See Stegall v. West, 11 Vet. App. 268 (1998). 5. After completing any additional development deemed necessary, readjudicate the issue on appeal in light of any additional evidence added to the records assembled for appellate review. If the benefit requested on appeal is not granted to the veteran's satisfaction, she should be furnished a Supplemental SOC (SSOC), which addresses all of the evidence obtained since the last SSOC in January 2008, and provided an opportunity to respond. The case should then be returned to the Board for further appellate consideration, if in order. By this remand, the Board intimates no opinion as to any final outcome warranted. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. 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 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007). ____________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs