Citation Nr: 0924220 Decision Date: 06/26/09 Archive Date: 07/01/09 DOCKET NO. 04-43 967 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a left eye disability, claimed as secondary to service- connected left ear otitis media. 2. Whether new and material evidence has been received to reopen a claim of entitlement to a temporary total disability rating based on the need for convalescence under 38 C.F.R. § 4.30 following September 1999 left ear surgery. 3. Entitlement to service connection for numbness as secondary to the service-connected otitis media of the left ear. 4. Entitlement to an increased rating for left ear otitis media, currently rated as 10 percent disabling. (The issue of entitlement to benefits pursuant to the provisions of 38 U.S.C. § 1151 for additional disability caused by the failure of Department of Veterans Affairs medical personnel to diagnosis the Veteran's duodenal (peptic) ulcer in the early 1970's is addressed in a separate decision.) WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. H. Nilon, Counsel INTRODUCTION The Veteran had active service from April 1960 to August 1967. His discharge certificate characterizes his service as other than honorable; however, a November 1967 administrative decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas held the Veteran's service was not dishonorable for VA purposes. These matters come before the Board of Veterans' Appeals (Board) on appeal from a January 2004 rating decision by the RO in Huntington, West Virginia. A hearing was conducted via videoconference by an Acting Veterans Law Judge (AVLJ) in March 2006; a transcript of the hearing is associated with the claims files. The AVLJ who presided at that hearing is no longer with the Board; the Veteran was advised of his options for another Board hearing but he advised the Board in writing in May 2009 that he prefers to have the claims adjudicated on the evidence of record. As noted on the title page, the Board will address the issue of entitlement to compensation under 38 U.S.C. § 1151 in a separate decision. The reason for this is that the Veteran is represented by an attorney in that matter, whereas he is representing himself in the issues decided in this decision. Given this situation, the cases must be addressed separately. The Board remanded some of these issues to the originating agency in September 2006. The originating agency issued a rating decision in March 2008 that denied service connection for numbness as secondary to the service-connected otitis media; the Veteran subsequently perfected his appeal and the issue has been added to those previously remanded. The originating agency also issued a rating decision in September 2008 that granted a 100 percent evaluation for convalescence following surgery for a service-connected disability for the period February-March 2008. The Veteran submitted a timely Notice of Disagreement requesting an extension of convalescence, and the RO issued a Statement of the Case on that issue in April 2009. Review of the file does not show the Veteran has filed a substantive appeal, so that issue is not before the Board. In March 2008 the Veteran filed a claim for service connection for vertigo (claimed as equilibrium), dizziness and headaches as secondary to the service-connected otitis media. In January 2009 he submitted a letter that appears to be a request for increased rating for the service-connected hearing (he enclosed a VA audiology report dated in December 2008 showing current severe left ear hearing loss, otitis, tinnitus, and vertigo). These issues are referred to the originating agency for appropriate development. FINDINGS OF FACT 1. A rating decision in January 2000 denied entitlement to service connection for left eye condition as secondary to the service-connected otitis media and also denied entitlement to a temporary total evaluation because of treatment for a service-connected disability requiring convalescence; the Veteran did not appeal. 2. Evidence received since the January 2000 rating decision, when considered by itself or with previous evidence of record, is not sufficient to raise a reasonable possibility of substantiating the claim for service connection for a left eye condition or the claim for a temporary total evaluation for convalescence following left ear surgery in September 1999. 3. Numbness was not present in service and is not etiologically related to service or service-connected disability. 4. The currently assigned 10 percent rating is the maximum schedular rating for suppurative otitis media. CONCLUSIONS OF LAW 1. New and material evidence has not been received to reopen the claim for service connection for a left eye disability, claimed as secondary to the service-connected otitis media. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(c) (2008). 2. New and material evidence has not been received to reopen the claim for a temporary total evaluation for convalescence following left ear surgery in September 1999. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(c) (2008). 3. The criteria for service connection for numbness, to include as secondary to a service-connected disability, are not met. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.310(a) (2006); 38 C.F.R. § 3.303 (2008). 4. The criteria for an evaluation in excess of 10 percent for suppurative otitis media are not met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.7, 4.87 Diagnostic Code 6200 (2008). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2008), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2008), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. Although the regulation previously required VA to request that the claimant provide any evidence in the claimant's possession that pertains to the claim, the regulation has been amended to eliminate that requirement for claims pending before VA on or after May 30, 2008. The Board also notes the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) requires that notice to a claimant pursuant to the VCAA be provided "at the time" that, or "immediately after," VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The Court further held that VA failed to demonstrate that "lack of such a pre-AOJ-decision notice was not prejudicial to the appellant, see 38 U.S.C. § 7261(b)(2) (as amended by the Veterans Benefits Act of 2002, Pub. L. No. 107-330, § 401, 116 Stat. 2820, 2832) (providing that '[i]n making the determinations under [section 7261(a)], the Court shall...take due account of the rule of prejudicial error')." The timing requirement enunciated in Pelegrini applies equally to the initial-disability-rating and effective-date elements of a service-connection claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). Additionally, in March 2006, the Court held that because the terms "new" and "material" in a new and material evidence claim have specific, technical meanings that are not commonly known to VA claimants, when providing the notice required by the VCAA, it is necessary, in most cases, for VA to inform claimants seeking to reopen a previously and finally disallowed claim of the unique character of the evidence that must be presented. Kent v. Nicholson, 20 Vet. App. 1, 9-10 (2006). The Court has recently provided guidance with respect to the notice that is necessary in increased rating claims. See Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008). Adequate VCAA notice in an increased rating claim must inform the claimant that he 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; and that, if an increase in disability is found, a disability rating will be determined by applying relevant Diagnostic Codes. If the claimant is rated under a Diagnostic Code that 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, the notice letter must provide at least general notice of that requirement. The notice letter 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. The record reflects that the Veteran was provided all required notice in response to his claims to reopen and his claim for an increased rating in a letter mailed in January 2007. Although this letter was sent after the initial adjudication of the claims, the Board finds that there is no prejudice to him in proceeding with the issuance of a final decision. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). ). In this regard, the Board notes that following the provision of the required notice, the originating agency readjudicated the claim based on all evidence of record prior to the recertification of the appeal. There is no indication in the record or reason to believe that any ultimate decision of the originating agency would have been different had complete VCAA notice been provided at an earlier time. See Overton v. Nicholson, 20 Vet. App. 427, 437 (2006) (A timing error may be cured by a new VCAA notification followed by a readjudication of the claim). The record also reflects that the Veteran was provided all required notice in response to his claim for service connection for numbness in a letter mailed in January 2008, prior to the initial adjudication of the claim. The Board also finds VA has complied with its duty to assist the Veteran in the development of the claims. In this regard, the Board notes that service treatment records (STRs) and VA and non-VA outpatient records were obtained. In regard to medical examination, the VCAA's duty to assist does not require examination for a previously-denied claim unless the claim is reopened; see 38 U.S.C.A. § 5103A. Examination for the claimed numbness is not required because the Veteran has not submitted a prima facie case for service connection on either a direct or secondary basis. See 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4); see also Wells v. Principi, 326 F. 3d. 1381, 1384 (Fed. Cir. 2003). The Veteran was afforded an appropriate VA examination in conjunction with his claim for a higher rating in December 2003. As noted below, the Veteran already has the highest schedular rating for the service-connected otitis media and there is no reason to believe that another VA examination would result in any benefit to the Veteran. The Veteran has not identified any outstanding evidence that could be obtained to substantiate any of the claims, and the Board is unaware of any such evidence. In sum, the Board is satisfied that any procedural errors in the development and consideration of the claims by the originating agency were insignificant and not prejudicial to the Veteran. Accordingly, the Board will address the merits of the claims. Legal Criteria New and Material Evidence Generally, a claim that has been denied in an unappealed RO decision may not thereafter be reopened and allowed. 38 U.S.C.A. § 7105(c) (West 2002). The exception to this rule is 38 U.S.C.A. § 5108, which provides if new and material evidence is presented or secured with respect to a claim that has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence is defined as existing evidence not previously submitted to agency decisionmakers. Material evidence means evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). For the purpose of establishing whether new and material evidence has been submitted, the credibility of evidence is presumed unless the evidence is inherently incredible or consists of statements that are beyond the competence of the person or persons making them. See Justus v. Principi, 3 Vet. App. 510, 513 (1992); Meyer v. Brown, 9 Vet. App. 425, 429 (1996); King v. Brown, 5 Vet. App. 19, 21 (1993). Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active duty. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection may be granted for any disease initially diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection may also be granted for disability that is proximately due to or the result of service-connected disability. 38 C.F.R. § 3.310(a). Additional disability resulting from the aggravation of a nonservice-connected disability by a service-connected disability is also compensable under 38 C.F.R. § 3.310(a). Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). During the pendency of this claim, 38 C.F.R. § 3.310 was amended, effective October 10, 2006. The amendments to this section are not liberalizing. Therefore, the Board will apply the former version of the regulation. Evaluation of Disabilities Disability evaluations are determined by the application of the VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2008). The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321(a), 4.1 (2008). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The rating criteria for otitis media distinguish between chronic suppurative otitis media and chronic nonsuppurative otitis media (serous otitis media). Chronic suppurative otitis media is assigned a 10 percent rating during suppuration or with aural polyps; hearing impairment and complications such as labyrinthitis, tinnitus, facial nerve paralysis, or bone loss of the skull are rated separately. 38 C.F.R. § 4.87, Diagnostic Code 6200. Chronic nonsuppurative otitis media is rated based on hearing impairment. 38 C.F.R. § 4.87, Diagnostic Code 6201. It is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified; findings sufficiently characteristic to identify the disease and the disability therefrom are sufficient; and above all, a coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21. Burden of Proof Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Analysis New and Material Evidence A January 2000 rating decision denied service connection for a left eye disability (inter alia) as secondary to the service-connected disability of otitis media, based on a determination that there was no relationship between the service-connected disability and the claimed disorder. The same rating decision denied entitlement to a temporary total evaluation because of treatment for a service-connected disability requiring convalescence, based on a determination the Veteran did not require a period of convalescence as a result of the left tympanoscopy in September 1999. The Veteran was notified of the January 2000 rating decision by a letter dated in February 2000, but he did not appeal. Evidence of record at the time of the January 2000 rating decision included the following: STRs; VA treatment records for the period January 1975 to September 1977 (VA clinic in Temple, Texas), July 1991 (VAMC Mountain Home, Tennessee), September 1996 to October 1999 (VAMC Durham, North Carolina), and April-May 1999 (VAMC in Beckley, West Virginia); and VA and private treatment records submitted by the Veteran relating to assorted dates. Specifically in regard to the claim for secondary service connection for the left eye disability, the evidence of record included VA radiology reports in May 1997 and June 1999 of the temporal bones of the orbit, showing suggestion of cholesteatoma versus chronic infection with granulation of tissue. Specifically in regard to the claim for a temporary total rating based on the need for convalescence, the evidence of record included the VA operation report (left tympanomastoidectomy) in September 1999, with associated pre- operative and post-operative treatment records showing the Veteran was discharged in September 1999 from the 23-hour "short stay" unit as ambulatory and capable of self-care. The record also included follow-up notes in October 1999 stating the Veteran was doing well and denied ear drainage or pain, although he reported occasional vertigo; the treatment plan was to follow up in 3 or 4 months with audiology. The Veteran submitted his petition to reopen the two previously-denied claims in September 2002. Evidence received after the January 2000 rating decision includes additional VA treatment records and reports of VA examinations conducted in February 2001 (gastrointestinal examination) and December 2003 (ear disease examination); a copy of the Veteran's SSA disability file; and the Veteran's testimony before the Board in March 2006. Specifically in regard to the claim for secondary service connection for the left eye disability, the evidence added to the record includes a statement by the Veteran in October 2002 attributing his claimed left eye disorder to erosion of the bone caused by his left ear infections; a March 2004 VA treatment note reflecting a complaint of blurry vision in both eyes, with clinical impression of chronic blepharitis; numerous VA treatment reports confirming cholesteatoma of the mastoid; an April 2004 VA eye consult assessing chronic blepharitis; and a July 2007 VA eye consult assessing bilateral pseudophakia and chronic blepharitis, left worse than right. Also, the Veteran's testimony in March 2006 asserts his left eye infection started one month prior to his most recent surgery and that the VA physician told him the eye disorder was possibly related to the ear infection but declined to make a statement on the record to that effect. Specifically in regard to the claim for a temporary total rating, the evidence added to the record includes the Veteran's statement in August 2004 that he was an outpatient for five months after treatment in September 1999 but had to make many trips to "Duke" (Durham) VAMC for follow-up treatment, and was advised to not drive or perform heavy lifting during the period; he also stated he had been granted a temporary total rating for convalescence for other, more trivial surgeries in the past. The evidence also includes the VA Form 9 (December 2004) and Statement in Support of Case (December2005) in which the Veteran asserts he was verbally placed on five months of convalescence by the VA physician in September 1999. His testimony before the Board asserts the VA physician told him after surgery not to bend over, lift, cut grass, or drive; for five months. He paid others for these services until the physician released him, but the VA physician did not tell him that he should be hospitalized during convalescence. The evidence above is not cumulative or redundant of evidence previously considered. However, careful review of the new evidence above does not show any competent medical suggestion the Veteran has a left eye disorder, however diagnosed, that is due to or aggravated by his service-connected otitis media (the newly received medical records document a history of infections in both eyes, variously diagnosed, but there is no clinical opinion linking such infection to the service- connected mastoiditis or cholesteatoma). There is also no medical or other evidence corroborating the Veteran's contention that he required convalescence following the left tympanoscopy in September 1999. The fact he was granted temporary total ratings for convalescence for other surgeries in the past is irrelevant to the issue of entitlement to such a rating for this particular surgery. Accordingly, the new evidence does not provide additional information that raises a reasonable possibility of substantiating either previously-denied claim. The claims files contain a March 2008 letter from a VA physician stating the Veteran was under the physician's care for chronic ear disease, had recent mastoid surgery and would require six months of convalescent care. This letter relates to a different convalescent period than the one on appeal and is accordingly not material to resolution of the issue before the Board. The Veteran's correspondence and testimony, in which he asserts a relationship between his current left eye disorder and the service-connected left ear disability, is redundant of his arguments previously considered; redundant and cumulative arguments not "new" as defined in 38 C.F.R. § 3.156(a). Also, the Veteran as a layperson is not competent to opine regarding matters requiring medical expertise, such as medical causation. See Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). Accordingly, without making a value judgment as to the Veteran's credibility, the Veteran's unsupported statements are outside his competence and are not material. Similarly, in regard to the requirement for convalescence after surgery in September 1999, the Veteran's assertion he was verbally granted a six-month period of convalescence at the time of his treatment is not competent medical evidence. See Robinette v. Brown, 8 Vet. App. 69, 77 (1995) ("[w]hat a physician said, and the layman's account of what he purportedly said, filtered through a layman's sensibilities, is simply too attenuated and inherently unreliable to constitute medical evidence.") In sum, the evidence received since the January 2000 decision is cumulative or redundant of the evidence previously of record or is not sufficient to raise a reasonable possibility of substantiating either claim. The Board accordingly finds that new and material evidence has not been received to reopen the previously-denied claims. Service Connection The Veteran seeks service connection for numbness, claimed as secondary to the service-connected left ear otitis media. As an initial matter, there is no indication in STRs of any facial numbness during military service, and the Veteran has not asserted numbness began during service. The criteria for direct service connection are accordingly not met, and the Board will consider entitlement to secondary service connection. The Veteran had a VA otolaryngology examination in April 1971 during which the left tympanic membrane was noted to be normal; the examiner diagnosed chronic otitis media of the right ear with perforation of the tympanic membrane. There is no indication in the examination report of any numbing associated with otitis media. The Veteran had a VA clinical evaluation in August 1977 consequent to inpatient treatment for an epigastric complaint. The examiner noted at the time that cranial nerves were grossly intact, and there was no mention of any numbing. The Veteran subsequently underwent a left ear tympanoplasty in September 1977; the procedure was carried out uneventfully. There is no indication of numbing before or after the tympanoplasty. VA ear/nose/throat (ENT) examination in December 1980 showed chronic perforated left eardrum with partial deafness, dry with no current infection. There was no mention of associated numbness. The Veteran underwent a left ear tympanoplasty and placement of a total ossicular replacement prosthesis (TORP) by VA in September 1984 and appeared to do well; however, he developed dizziness and was readmitted for observation in October 1984. His dizziness improved during hospitalization, and he was discharged home. There was no mention of numbness. The Veteran complained at a VA audiology clinic in March 1985 that his most recent tympanoplasty had not demonstrably improved his hearing. There is no mention of numbness. In July 1991 the VA audiology clinic referred the Veteran to the VA ENT clinic for evaluation of the left inner ear pathology. The ENT clinic noted chronic otitis media in the left ear, stable and reconstructed. There is no mention of associated numbness. In October 1996 the VA audiology clinic referred the Veteran to the VA ENT clinic for evaluation of a foreign body in the left ear canal. The ENT clinic noted an extension of the TORP in the left ear, without infection. There no mention of numbness. In December 1998 the Veteran had a VA examination of the ears in which the examiner noted the TORP had been removed in 1997, leaving the Veteran with severe mixed hearing loss in the left ear. The ear canal was clear and was without drainage or infection. There no mention of numbness. VA medical records dating from 1999 to 2002 show continued references to current cholesteatoma of the left ear; however, none of those records cites numbness of the face as a complaint or as a clinical finding. The Veteran presented to VA in September-October 2002 complaining of recent pain and drainage of the left ear. There no mention of numbing. The Veteran had a VA examination of the ears in December 2003 in which he reported 8/10 pain on the left side of the head but did not complain of numbing; the examiner noted cranial nerves were intact. The Veteran testified before the Board in March 2006 that the left side of his head from the upper jaw to the top had become numb. He stated he informed the VA examiner (in December 2003) about the numbness but the examiner was unconcerned. The Veteran underwent a radical left mastoidectomy by VA in March 2008; the surgeon noted in the operative report that facial nerve function was identified to be present while the Veteran was still on the table. Subsequent VA postoperative treatment notes show continued complaints of pain and drainage after surgery, but there is no indication of numbness. Although the Veteran is certainly competent to state that he experiences numbness, he is not competent to diagnose a nerve disorder or to render an opinion concerning the etiology of his numbness. See Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). As set forth above, the Veteran has been evaluated numerous times. The extensive treatment records do not document any complaint or finding of numbness of the face. In addition, the VA surgeon noted in December 2003 that cranial nerves were intact. Although the Veteran's lay statements concerning the presence of numbness are competent, the Board must determine whether such evidence is also credible. See Layno v. Brown, 6 Vet. App. 465 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. Caluza v. Brown, 7 Vet. App. 498 (1995). The Board may weigh the absence if contemporaneous medical evidence against the lay evidence in determining credibility, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). In this case, the Board finds the Veteran's statements concerning the presence of numbness are not credible. The Veteran's extensive treatment notes show no indication he had ever reported numbness to any examiner or clinician. In addition, there is no clinical evidence of damage to the facial nerves. Further, insofar as the clinical notes address the nerves they actually disprove any demonstrated impairment. The Veteran's lay statements are accordingly inconsistent with the medical evidence of record and are not credible. Based on the evidence and analysis above, the Board concludes that the preponderance of the evidence is against this claim. Evaluation of the Service-Connected Otitis Media Review of the claims files shows the Veteran submitted a claim for an increased (compensable) rating for otitis media in November 1998. The RO issued a rating decision in February 1999 continuing the current noncompensable rating. The Veteran submitted a timely substantive appeal (NOD in March 1999, the RO issued a SOC in April 1999, and the Veteran's VA Form 9 was received in May 1999. The Veteran accordingly has a valid appeal before the Board in regard to the February 1999 rating decision. In February 2000 the RO issued a decision granting an increased evaluation of 10 percent, effective from the date of receipt of the claim for increase (November 18, 1998). The RO considered this to be a complete grant of benefits, as the 10 percent rating was the highest available under the applicable diagnostic code, and terminated the Veteran's appeal. However, because the Veteran actually had an appeal pending before the Board, the Board will consider the evidence regarding the severity of the disability from November 1998, to include the applicability of "staged ratings." See Hart v. Mansfield, 21 Vet. App. 505 (2007). The Board notes at this point the Veteran has separate service connection for several disabilities secondary to the service-connected otitis media; i.e., defective hearing in the left ear (rated at 10 percent since January 1985) and osteomyelitis (rated a noncompensable from September 2006); those separate ratings are not before the Board. His claim for separate service connection for numbness is addressed above. His assertions of vertigo are addressed in the following discussion. The Veteran had a VA examination of the ears in December 1998 in which the examiner noted severe left ear hearing loss. The left ear canal was clear, the auricle normal, and the tympanic membrane mostly absent. There was no current drainage or acute infection. The examiner stated the Veteran did not have an active ear disease but did have sequelae of previous surgery and hearing loss. A VA medical certificate dated in April 1999 shows the Veteran was treated for a left ear infection of reported one- week duration. On observation the left ear canal was inflamed and purulent. The Veteran was provided steroid medications and discharged. In September 1999 the Veteran underwent a tympanomastoidectomy and reconstruction at a VA medical center due to chronic draining of the left ear. The Veteran presented to VA in September-October 2002 complaining of recent pain and drainage of the left ear, although such symptoms were not noted clinically. The clinician noted a long history of operations on the left ear performed at "Duke" (actually Durham VAMC), the most recent in 1997 or 1998. During examination a large plug of keratomatous debris was removed to access the surgical mesh; there was no active drainage but there was painful pressure. The Veteran was provided medication and referred to "Duke" for follow-up. The Veteran presented to a VA primary care clinic in September 2002 complaining he had almost passed out when turning his head; he reported vertigo since his left ear surgery. The clinician was unable to see into the left ear due to the previous tympanoplasty but noted an impression of vertigo status post left ear operation and referred the veteran for ear/nose/throat (ENT) evaluation and computed tomography (CT) and Doppler evaluation of the carotid. CT scan of the head in October 2002 (performed to rule out tumor as a cause of the vertigo) showed no infarct or intracranial hemorrhage but showed mild atrophic changes. Ultrasound of the bilateral carotid in October 2002 (performed to rule out stenosis as a cause of the vertigo) showed 70-75 percent stenosis in the right carotid and 45 percent stenosis in the distal right and left common carotid, as well as plaque and antegrade flow. The impression following a VA CT scan in October 2002 was left chronic mastoiditis with bony erosions, probably secondary to cholesteatoma. The Veteran had a VA examination of the ears in December 2003 in which the examiner noted a history of recurrent infections extending up to dura and to the mastoid cavity. The Veteran reported pain at level 8/10 on the left side of the head. Examination showed no drainage, suppuration, polyps or exudates in the left ear. The examiner also noted mild decreased hearing in the left ear, as well as photophobia and some problems with balance. The examiner diagnosed chronic mastoiditis and residuals of multiple surgeries in the left ear. The Veteran presented to VA in March 2004 complaining of a persistent bloody discharge from the left ear. On examination there was a small amount of yellowish discharge in the left ear, with no tragus or mastoid tenderness. The clinical impression was chronic left otitis media. The Veteran presented to the VA oncology clinic in July 2004 for follow-up of leucopenia and anemia. The Veteran reported having blackouts, which he attributed to blockage of the carotids on both sides. He also stated that infection from his perforated ear drum was moving into his brain. The Veteran had a VA Doppler ultrasound of the carotids in July 2004 as follow-up to the previous study in October 2002, referencing his complaint of blacking out when he turned his head. The new study noted errors in the previous reading and stated a current impression of mild-diameter stenosis (38 percent) of the right internal carotid and moderate-diameter stenosis (40 percent) of the left internal carotid. There was stenosis of 43 percent in the distal common carotid on the right and 45 percent in the distal common carotid on the left. Both vertebral arteries had forward flow. The Veteran testified before the Board in March 2006 that he had seven VA surgeries on his left ear, all becoming progressively more invasive. He complained the last VA examiner (in December 2003) falsified his symptoms, in that the examiner stated in the report there was no current drainage from the ear even though there was drainage at the time. He testified his equilibrium was "messed up" and caused near-blackouts when driving a car, walking or looking to the left. He denied current drainage but complained of dizziness. In July 2006 the Veteran presented to a VA emergency room (ER) complaining of constant foul-smelling drainage and pain in the left ear; he also complained of sinus symptoms and postnasal drip and of pain on the left side of the face. The Veteran stated he had a bad taste in his mouth and could feel the infection in his eyes, nose and forehead. Examination showed the left ear canal to have purulent drainage without blood; there was also postnasal drainage. The clinical impression was chronic left otitis media and rhino sinusitis. Antibiotics were prescribed. The Veteran had a VA ENT consult in August 2006 for evaluation of the left ear. On examination the Veteran's facial symmetry was intact; the left ear canal was shortened, with heaped-up granulated tissue and some purulent matter. There was no evidence of pus or polyps. The clinical impression was chronic mastoid and middle ear difficulties, likely osteomyelitis of the temporal bone. Oral antibiotics had not been effective, so a regimen of inpatient intravenous antibiotics was recommended. In September 2006 the Veteran received two weeks of inpatient VA treatment for a course of antibiotics to treat the left otitis media. On admission the left ear canal appeared to be wet and inflamed, with a possible area of bone apparent. Left mastoid surgery was recommended after resolution of the infection. During inpatient treatment the Veteran had mastoid debridement of the left ear; he was also treated for staph infection of the ear, nose and eyes. The discharge diagnosis was otitis media with chronic left mastoiditis. An outpatient follow-up note in November 2006 states the Veteran was doing extremely well after the inpatient antibiotics. The ear was currently completely dry, not red, and without granulation. A November 2007 VA ENT note shows the Veteran presented with a complaint of continuous drainage and a history of staph infection. He reported decreased hearing in the left ear and occasional light-headedness. On physical examination there was purulent discharge from the left ear with chronic granulation and lots of squamous debris. There was no facial weakness. The clinical impression was chronic left otitis media and possible persistent cholesteatoma. The clinician recommended CT scan of the temporal bone and mastoid. The Veteran underwent VA CT of the temporal bone in January 2008. The impression was significant opacification of the left middle ear and mastoid air cells with near-complete destruction of the middle ear ossicles. An incidental note was made of mild right maxillary and ethmoid sinus disease. In February 2008 the Veteran presented to the VA ENT clinic once again with persistent squamous debris and foul-smelling fluid and granulation tissue preset throughout the left inner ear. There was probable cholesteatoma extending into the mastoid. The Veteran underwent a radical left mastoidectomy by VA in February 2008; the preoperative history and physical (H&P) examination noted a history of chronic mastoid infection with 8 previous mastoid surgeries. The surgeon identified a cholesteatoma that completely filled the mastoid area, which was surgically removed along with most of the granulation encountered. Per the follow-up notes in March 2008, the Veteran tolerated the procedure well and the results were excellent. However, the Veteran presented to the VA primary care clinic in May 2008 complaining of continued drainage in the left ear following surgery; he stated this had been his 9th surgery and he was disappointed with the results. Clinical examination showed chronic scarring and irregularity of tympanic membranes (TMs) left and right; the external auditory canals (EACs) were normal left and right. The Veteran presented to a VA primary care clinic in November 2008 complaining of continued pain and drainage of the left ear following surgery in March 2008. The clinician's impression was chronic left otitis media status post left- sided mastoidectomy. The Veteran presented to a VA audiology clinic for evaluation in December 2008. The audiologist indicated case history showed tinnitus, vertigo and otalgia. Audiological evaluation showed profound sensorineural hearing loss (SNHL) on the left; speech recognition could not be performed on the left due to the severity of the hearing loss on that side. Otoscopy revealed a thick greenish discharge on the left accompanied by otorrhea. A VA outpatient treatment note dated in March 2009 states the Veteran continued to have persistent drainage since his surgery. The physician recommended the Veteran once again undergo a round of inpatient intravenous antibiotics. On review of the evidence above, the Board notes the Veteran has the maximum schedular evaluation available for suppurative otitis media, which is 10 percent. Although the disorder has not been suppurative during the entire period on review, he has been rated as 10 percent throughout. Accordingly, increased schedular "staged rating" per Hart is not for application. The Veteran has complained of pain associated with his otitis media. However, the Veteran has the highest available schedular rating, and the rating schedule does not provide a separate rating for pain. See Spurgeon v. Brown, 10 Vet. App. 194 (1997). In regard to symptoms blackouts, the medical evidence of record does not show that they are related to the service- connected disability. Instead, they appear to be related to carotid stenosis. The Veteran recently filed a claim for secondary service connection for vertigo, which has been referred to the originating agency for appropriate action. If service connection is established for vertigo, it will be separately rated from the otitis media and the Veteran will have the opportunity to appeal the rating assigned by the originating agency. The Board has also considered whether this claim should be referred to the Director of the VA Compensation and Pension Service for extra-schedular consideration under 38 C.F.R. § 3.321(b)(1) (2008). In determining whether a case should be referred for extra-schedular consideration, the Board must compare the level of severity and the symptomatology of the claimant's disability with the established criteria provided in the rating schedule for disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the disability picture is contemplated by the rating schedule, the assigned evaluation is therefore adequate, and no referral for extra-schedular consideration is required. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). On careful review of the record, the Board notes the Veteran has not asserted his service-connected otitis media causes any marked interference with employment. Over the years, he has required a number of periods of hospitalization, both for surgery and for intravenous antibiotics, but he has been compensated for such hospitalization through the award of temporary 100 percent ratings. In addition, complications of the otitis media have been separately rated. During the periods when convalescence was not required, the manifestations of the disability have been consistent with the schedular criteria. In short, the Veteran's disability does not reflect a degree of impairment beyond that contemplated by the rating schedule, so referral for extra- schedular evaluation is not warranted. (CONTINUED ON NEXT PAGE) ORDER As new and material evidence has not been received, reopening of the claim for service connection for a left eye disability is denied. As new and material evidence has not been received, reopening of the claim for a temporary total evaluation based on the need for convalescence following surgery in September 1999 is denied. Service connection for numbness is denied. An evaluation in excess of 10 percent for otitis media is denied. ____________________________________________ Shane A. Durkin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs