Citation Nr: 1119084 Decision Date: 05/17/11 Archive Date: 05/26/11 DOCKET NO. 05-07 379 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUE Entitlement to a compensable disability rating for otitis externa. REPRESENTATION Appellant represented by: Puerto Rico Public Advocate for Veterans Affairs ATTORNEY FOR THE BOARD D. Orfanoudis, Counsel INTRODUCTION The Veteran had active service from August 1953 to June 1955. This matter is before the Board of Veterans' Appeals (Board) on appeal from May 2004 and August 2004 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico. This matter was previously before the Board in March 2007, August 2009, and December 2010, at which time it was remanded for additional development. It is now returned to the Board for appellate consideration. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2010). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDING OF FACT The medical evidence of record shows that the Veteran's otitis externa is characterized by occasional itching and irritation, but without evidence of swelling, scaling, serous discharge, or frequent and prolonged treatment. CONCLUSION OF LAW The criteria for entitlement to a compensable disability rating for service-connected otitis externa have not been met. 38 U.S.C.A. §§ 1155, 5103, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.159, 4.1, 4.7, 4.87, Diagnostic Code 6210 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist In correspondence dated in December 2003, June 2004, March 2007, August 2007, July 2008, and March 2009, the RO satisfied its duty to notify the Veteran under 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2010) and 38 C.F.R. § 3.159(b) (2010). Specifically, the RO notified the Veteran of: information and evidence necessary to substantiate the claims; information and evidence that VA would seek to provide; and information and evidence that the Veteran was expected to provide. The RO also notified the Veteran of the process by which initial disability ratings and effective dates are established. Dingess v. Nicholson, 19 Vet. App. 473 (2006). For an increased-compensation claim, the Veterans Claims Assistance Act of 2000 (VCAA) requirement is generic notice, that is, the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, as well as general notice regarding how disability ratings and effective dates are assigned. See Vazquez-Flores v. Shinseki, 580 F. 3d 1270 (Fed. Cir. 2009); Wilson v. Mansfield, 506 F.3d 1055 (Fed. Cir. 2007). In this case, the Veteran was provided pertinent information in the above mentioned letters and other correspondence provided by the RO. Specifically, VA informed the Veteran of the necessity of providing, on his own or by VA, medical or lay evidence demonstrating a worsening or increase in severity of the respective disability, and the effect that the worsening has on his employment and daily life. The Veteran was informed that should an increase in disability be found, a disability rating would be determined by applying the relevant diagnostic codes; and examples of pertinent medical and lay evidence that he could submit relevant to establishing entitlement to increased compensation. The Veteran was also provided notice of the applicable relevant diagnostic code provisions. VA has done everything reasonably possible to assist the Veteran with respect to his claim for benefits in accordance with 38 U.S.C.A. § 5103A (West 2002 & Supp. 2010) and 38 C.F.R. § 3.159(c) (2010). Service treatment records have been associated with the claims file. All identified and available treatment records have been secured. The Veteran has been medically evaluated in conjunction with his claim. Thus, the duties to notify and assist have been met. Increased Disability Ratings Disability ratings are intended to compensate impairment in earning capacity due to a service-connected disorder. 38 U.S.C.A. § 1155. Separate diagnostic codes identify the various disabilities. Id. It is necessary to rate the disability from the point of view of the Veteran working or seeking work, 38 C.F.R. § 4.2, and to resolve any reasonable doubt regarding the extent of the disability in the Veteran's favor. 38 C.F.R. § 4.3. If there is a question as to which disability rating to apply to the Veteran's disability, the higher rating will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41 (2010). Consideration of the whole recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2 (2010); Peyton v. Derwinski, 1 Vet. App. 282 (1991). While the Veteran's entire history is reviewed when assigning a disability rating, 38 C.F.R. § 4.1, where service connection 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. Francisco v. Brown, 7 Vet. App. 55 (1994). Additionally, in determining the present level of a disability for any increased rating claim, the Board must consider the application of staged ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary. The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case." See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, the current diagnosis and demonstrated symptomatology. Any change in a diagnostic code by VA must be specifically explained. Pernorio v. Derwinski, 2 Vet. App. 625 (1992). Words such as "moderate," "moderately severe" and "severe" are not defined in the Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just." 38 C.F.R. 4.6 (2010). Use of terminology such as "severe" by VA examiners and others, although evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6 (2010). The Veteran's service-connected otitis externa is currently rated under Diagnostic Code 6210, which provides the rating criteria for chronic otitis externa. In order to warrant a compensable disability rating, the Veteran's otitis externa must be characterized by swelling, dry and scaly or serous discharge, and itching requiring frequent and prolonged treatment. See 38 C.F.R. § 4.87, Diagnostic Code 6210. This is the maximum disability rating available under this diagnostic code provision. The Board notes that the criteria under Diagnostic Code 6210 are conjunctive, not disjunctive; thus all criteria must be met. See Melson v. Derwinski, 1 Vet. App. 334 (1991) (use of the conjunctive "and" in a statutory provision meant that all of the conditions listed in the provision must be met). A VA audio examination report dated in April 2004 shows that the Veteran, in pertinent part, reported a history of otitis externa with fullness and severe itching in the ears. There were no specific findings associated with the reported otitis externa. On VA ear disease examination in July 2004, external and otoscopic examination revealed no deformity of the auricle. The external ear canals were dry with no infection. The tympanum and tympanic membrane were negative. There was no discharge or evidence of cholesteatoma of the mastoids. There were no infections of the middle or inner ear. The examiner provided no diagnosis related to the otitis externa. A VA outpatient treatment record dated in February 2005 shows that the Veteran presented with a cerumen plug at the right ear canal. He was sent for ear lavege. In a May 2006 VA outpatient treatment record, the Veteran was shown to be provided with instructions on ear irrigation for impacted cerumen. The canal appeared to have intact skin. He was said to have tolerated the irrigation well. A VA outpatient treatment record dated in September 2006 shows that the Veteran was said to have a history of impacted cerumen. He reported that his ears, with hearing aids, would itch. He added that this would be alleviated by topical medication. Physical examination of the ears was negative. The assessment, in pertinent part, was that his ear irritation was bothersome as usual. In a January 2007 VA outpatient treatment record, the Veteran was reported to have a history of impacted cerumen. He reported that his ear irritation had somewhat improved with medication. Physical examination of the ears was negative. A VA audio examination report dated in December 2009 shows that the Veteran, in pertinent part, reported a history of otitis externa with fullness and severe itching in the ears. Physical examination revealed that the ear canals were free of cerumen. There were no specific findings associated with the reported otitis externa. At a December 2009 VA ear disease examination, external and otoscopic examination revealed no deformity of the auricle. The external ear canals had no edema, scaling, or discharge. The tympanum was negative. The tympanic membrane was normal on the left and with a healed membrane perforation on the right. There was no discharge or evidence of cholesteatoma of the mastoids. The Veteran had no active ear disease or infections of the middle or inner ear. There was no diagnosis related to the otitis externa. A VA audio examination report dated in March 2010 shows no specific findings associated with the reported otitis externa. Having carefully considered the evidence of the record, the Board finds that the Veteran's symptoms associated with otitis externa most nearly approximate the criteria for a noncompensable disability rating. While the VA outpatient treatment records and examination reports have consistently demonstrated that the Veteran experiences itching and irritation in his ears, the Veteran has reported improvement with topical treatment. Additionally, the evidence does not show swelling, scaling, or discharge. The bulk of the evidence of record shows no active symptoms of this disability, much less the frequent and prolonged treatment required for a 10 percent disability rating. See 38 C.F.R. § 4.87, Diagnostic Code 6210. As such, the criteria for a 10 percent disability rating are not satisfied. Therefore, the Board finds that the preponderance of the evidence is against the assignment of a compensable disability rating for otitis externa, and the claim must be denied. The Board has considered the statements of the Veteran as to the extent of his current symptoms. He is certainly competent to report that his symptoms are worse. Layno v. Brown, 6 Vet. App. 465, 470 (1994). However, in evaluating a claim for an increased schedular rating, VA must only consider the factors as enumerated in the rating criteria discussed above, which involves the examination of clinical data gathered by competent medical professionals. Massey v. Brown, 7 Vet. App. 204, 208 (1994). Based upon the guidance of the Court in Hart, the Board has considered whether a staged rating is appropriate. However, in the present case, the Veteran's symptoms have remained constant throughout the course of the period on appeal, and as such, staged ratings are not warranted. Extra-schedular Consideration Finally, the Board finds that the Veteran's otitis externa does not warrant referral for extra-schedular consideration. In exceptional cases where schedular ratings are found to be inadequate, consideration of an extra-schedular disability rating is made. 38 C.F.R. § 3.321(b)(1). There is a three-step analysis for determining whether an extra-schedular disability rating is appropriate. Thun v. Peake, 22 Vet. App. 111 (2008). First, there must be a comparison between the level of severity and symptomatology of the Veteran's service-connected disability and the established criteria found in the rating schedule to determine whether the Veteran's disability picture is adequately contemplated by the rating schedule. Id. If not, the second step is to determine whether the claimant's exceptional disability picture exhibits other related factors identified in the regulations as "governing norms." Id.; see also 38 C.F.R. § 3.321(b)(1) (governing norms include marked interference with employment and frequent periods of hospitalization). If the factors of step two are found to exist, the third step is to refer the case to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for a determination whether, to accord justice, the claimant's disability picture requires the assignment of an extra-schedular rating. Id. The Board finds that the evidence does not warrant referral of the Veteran's claim for extra-schedular consideration. The level of severity of the Veteran's otitis externa is adequately contemplated by the applicable diagnostic criteria. The criteria provide for a higher rating, but as has been thoroughly discussed above, the rating assigned herein is appropriate. In view of the adequacy of the disability rating assigned under the applicable diagnostic criteria, consideration of the second step under Thun is not for application in this case. Accordingly, the claim will not be referred for extra-schedular consideration. ORDER A compensable disability rating for otitis externa is denied. ____________________________________________ JENNIFER HWA Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs