Citation Nr: 0814936 Decision Date: 05/06/08 Archive Date: 05/12/08 DOCKET NO. 07-00 534 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. 3. Entitlement to a compensable disability rating for bilateral otitis externa. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD David Ganz, Associate Counsel INTRODUCTION The veteran had active military service from September 1968 to November 1970. This matter comes to the Board of Veterans' Appeals (Board) from a February 2006 rating decision of the Department of Veterans' Affairs (VA) Regional Office (RO) in Nashville, Tennessee, which denied entitlement to a disability rating in excess of 0 percent for residuals of otitis externa, mild, and denied service connection for bilateral hearing loss and tinnitus. The veteran testified at a Board hearing at the RO before the undersigned Veteran's Law Judge in December 2007. A transcript of the hearing is of record. At the time of the Board hearing, the veteran submitted additional evidence that had not been considered by the RO. However, a remand pursuant to 38 C.F.R. § 20.1304 (2007) is not necessary, as the veteran specifically waived RO jurisdiction of the newly submitted evidence. FINDINGS OF FACT 1. Resolving all doubt, the competent medical evidence shows a relationship between the currently diagnosed bilateral hearing loss and service. 2. Resolving all doubt, the competent medical evidence shows a relationship between the currently diagnosed tinnitus and service. 3. Bilateral otitis externa is manifested by no more than swelling, dry, scaly, or serous discharge and itching, requiring frequent and prolonged treatment. CONCLUSIONS OF LAW 1. Bilateral hearing loss was incurred in service. 38 U.S.C.A. §§ 1110, 5103, 5103A (West 2002 and Supp. 2007); 38 C.F.R. §§ 3.102, 3.303. 2. Tinnitus was incurred in service. 38 U.S.C.A. §§ 1110, 5103, 5103A (West 2002 and Supp. 2007); 38 C.F.R. §§ 3.102, 3.303. 3. The schedular criteria for a 10 percent evaluation for bilateral otitis externa, but no more, are met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 and Supp. 2007); 38 C.F.R. §§ 3.102, 3.159, 4.10, 4.87, Diagnostic Code (DC) 6210 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION Notice and Assistance The veteran's service connection claims for bilateral hearing loss and tinnitus and increased rating claim for bilateral otitis externa have been considered with respect to VA's duties to notify and assist. Given the favorable outcome noted above regarding the grant of service connection for bilateral hearing loss and tinnitus, and the award of the maximum rating for otitis externa, no conceivable prejudice to the veteran could result from this adjudication. See, Bernard v. Brown, 4 Vet. App. 384. 393 (1993); see also 38 C.F.R. § 4.87 DC 6210. I. Service Connection for Bilateral Hearing Loss and Tinnitus The veteran seeks service connection for bilateral hearing loss and tinnitus. At his December 2007 hearing, he testified that his tinnitus began when he had an ear infection in-service, and that he was exposed to noise exposure from military artillery, weapons, aircraft, and construction equipment without hearing protection while in service, particularly while serving in Vietnam. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Regulations also provide that service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury which was incurred in or aggravated by service. 38 C.F.R. § 3.303(d). Generally, to prevail on a claim of service connection on the merits, there must be medical evidence of (1) current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in- service disease or injury and the present disease or injury. Hickson v. West, 12 Vet. App. 247 (1999); see also Pond v. West, 12 Vet. App. 341, 346 (1999). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The record shows present hearing loss and tinnitus disabilities. A January 2006 VA audiological examination shows diagnoses of bilateral mild to profound hearing loss and tinnitus. Likewise, a May 2005 VA audiological treatment report notes that the veteran is suffering from mild, mixed hearing loss. The next issue is whether there is evidence of any in-service incurrence of hearing loss or tinnitus. The service medical records are negative. Personnel records confirm, however, that the veteran served as a construction electrician and that he served in Vietnam. At his hearing the veteran testified to exposure to noise from artillery, weapons, aircraft, and construction equipment without hearing protection. The Board finds this testimony credible, and the veteran's exposure to acoustic trauma in service is conceded. See, 38 C.F.R. § 3.304 (d) (2007). As the record shows present hearing loss and tinnitus disabilities and exposure to acoustic trauma in service, the determinative issue is whether the acoustic trauma suffered while in the military and the present hearing loss and tinnitus disabilities are directly related. The favorable evidence consists of a May 2005 VA audiological opinion by a physician that notes that it is as likely as not that the veteran's current hearing loss is service-connected. While the physician did not address the issue of tinnitus, he noted the veteran's noise exposure during service and performed audiometry testing. A VA audiological examination was conducted in January 2006. The examiner did not review the veteran's claims file, but did note his in-service noise exposure. The examining audiologist said that he could not offer an opinion concerning whether it is as least as likely as not that the veteran's current hearing loss and tinnitus disabilities are the result of military service without resorting to mere speculation. In the present case the evidence favorable to finding service connection is, at worst, in a relative equipoise. 38 U.S.C.A. § 5107(b). The veteran has put forth evidence in the form of two VA audiological opinions. The January 2006 VA audiological opinion shows that the veteran's tinnitus has the same, at least partly, etiology as his hearing loss. The May 2005 opinion determined the veteran's hearing loss is at least as likely as not related to service. Together these opinions show that it is as likely as not that the etiology of both the veteran's current hearing loss and tinnitus disabilities is noise exposure during service. All doubt is resolved in the veteran's favor and service connection for hearing loss and tinnitus is warranted. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49. II. Increased Rating for Bilateral Otitis Externa The RO originally granted service connection for residuals of otitis externa, mild, in August 1971, assigning a 0 percent rating with an effective date of November 6, 1970. This rating was continued in the February 2006 rating decision presently on appeal. During his hearing the veteran testified that his bilateral otitis externa disability merits a 10 evaluation. Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. Ratings are based on the average impairment of earning capacity. See 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. In cases where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Diagnostic Code 6210 provides for a maximum 10 percent rating where chronic otitis externa is exhibited by swelling, dry, scaly, or serous discharge and itching, requiring frequent and prolonged treatment. 38 C.F.R. § 4.87, DC 6210. Under 38 C.F.R. § 4.31, where the criteria for a compensable rating under a diagnostic code are not met, and the schedule does not provide for a zero percent evaluation, as in DC 6210, a zero percent evaluation will be assigned when the required symptomatology is not shown. 38 C.F.R. § 4.31 (2007). The veteran must have evidence of swelling, dry, scaly, or serous discharge and itching, requiring frequent and prolonged treatment, in order for a compensable rating to be warranted. A private medical opinion from the veteran's physician dated in December 2007 notes that the veteran was seen because he was having recurrent itching, crusting, and painful and sore ear canals. A physical examination revealed crusting and scaling of both of the ear canals. A diagnosis of bilateral chronic external otitis was given and a treatment plan for the future was made. Likewise, a VA examination dated in January 2006 that was conducted for the veteran's diabetes mellitus disability notes that on examination the veteran's external ear canals revealed slight scaling. The Board accepts the veteran's statements regarding his recurrent itching, crusting, and painful ear canals because he is competent to report his own experiences with his ears as he is not giving a diagnosis or a statement requiring specialized knowledge and there is no reason to doubt his credibility. See Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). The December 2007 private medical report shows that the veteran's bilateral ears were positive for scaling, itching, and crusting. Furthermore, a future treatment plan was made, indicating the disability requires frequent or prolonged treatment. Likewise, the January 2006 VA examination notes scaling of the veteran's ear canals. A compensable (10 percent) rating is warranted. The Board has considered whether the veteran's hearing loss disability picture warrants a compensable rating on an extraschedular basis. Regulation permits extra-schedular rating when "the schedular evaluations are found to be inadequate ... [because] the case presents such an exceptional or unusual disability picture with such 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). The rating schedule, however, is meant to compensate for the average impairment in civil occupations generally resulting from disability. 38 C.F.R. § 3.321. In this case, the veteran has presented no evidence or even alleged that his bilateral otitis externa disability manifests such factors as marked interference with employment or frequent periods of hospitalization. Thus, the Board does not find that the veteran's disability picture has been rendered unusual or exceptional in nature as to warrant a referral of his case to the Director or Under Secretary for review for consideration of extraschedular evaluations for the disabilities at issue for which increased compensation benefits is sought on appeal. 38 C.F.R. § 3.321 (b)(1); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). ORDER Entitlement to service connection for bilateral hearing loss is granted, subject to the rules and payment of monetary benefits. Entitlement to service connection for tinnitus is granted, subject to the rules and payment of monetary benefits. Entitlement to an evaluation of 10 percent, but no more, for bilateral otitis externa, is granted, subject to the rules of compensation and monetary benefits. ____________________________________________ RONALD W. SCHOLZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs