Citation Nr: 1301561 Decision Date: 01/15/13 Archive Date: 01/23/13 DOCKET NO. 09-46 012 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUE Entitlement to a disability rating in excess of 10 percent for status post tympanoplasty, mastoidectomy, cholesteatoma, and left ear hearing loss. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD C. R. Olson, Counsel INTRODUCTION The Veteran served on active duty from April 1981 to February 1990. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2009 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington. The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system to insure a total review of the evidence. In March 2012, a hearing was held before the undersigned Veterans Law Judge, who is the Board member making this decision and who was designated by the Chairman to conduct that hearing, pursuant to 38 U.S.C.A. § 7102(b) (West 2002). The issues were fully explained and the evidence discussed, including the possible submission of additional evidence. The transcript of the hearing is in the claims folder. The Board notes that the August 2009 RO rating decision also granted service connection for tinnitus with a 10 percent rating. That is the maximum rating that can be assigned under the rating schedule and the Veteran did not appeal the rating or effective date, so issues pertaining to tinnitus are not before the Board. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). In September 2011, the Veteran's representative presented claims for secondary service connection for peripheral vestibular disorders and Meniere's syndrome (endolymphatic hydrops). The issues of entitlement to secondary service connection for peripheral vestibular disorders and Meniere's syndrome (endolymphatic hydrops) have been raised by the record, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. FINDINGS OF FACT 1. The service-connected status post tympanoplasty, mastoidectomy, cholesteatoma, and left ear hearing loss do not result in chronic suppurative otitis media, mastoiditis, cholesteatoma, aural polyps, chronic nonsuppurative otitis media with effusion (serous otitis media), loss of part or all of the auricle, or malignant or benign neoplasms. 2. The service-connected status post tympanoplasty, mastoidectomy, cholesteatoma does not result in exceptional symptomatology. 3. The schedular rating for the Veteran's service-connected status post tympanoplasty, mastoidectomy, and cholesteatoma is adequate. 4. The Veteran's right ear merits a Level I hearing impairment designation. 5. The Veteran's left ear hearing loss is productive of no worse that Level I hearing impairment. 6. The Veteran does not have an exceptional hearing loss pattern. 7. The schedular rating for the Veteran's left ear hearing loss is adequate. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 10 percent for status post tympanoplasty, mastoidectomy, cholesteatoma, and left ear hearing loss have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. Part 4, including §§ 4.85, 4.86, 4.87, Diagnostic Code 6210 (2012). 2. The criteria for a separate, additional compensable rating for the service-connected left ear hearing loss disability have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. § 4.85, Diagnostic Code 6100 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran contends that he is entitled to an initial compensable rating for his left ear hearing loss. For the reasons that follow, the Board concludes that an increased rating is not warranted. The Board has reviewed all of the evidence in the Veteran's claims file and Virtual VA file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record, but does not have to discuss each piece of evidence). Consequently, the following discussion will be limited to the evidence the Board finds to be relevant. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000). The Board specifically finds that any evidence not discussed does not support the claims. Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2012); 38 C.F.R. § 4.1 (2012). Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2012). Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2012). However, the evaluation of the same disability under various diagnoses, known as pyramiding, is to be avoided. 38 C.F.R. § 4.14 (2012). The service-connected status post tympanoplasty, mastoidectomy, cholesteatoma, and left ear hearing loss are currently rated as 10 percent disabling under Diagnostic Code (DC) 6210. Those criteria provide a 10 percent rating for swelling, dry and scaly or serous discharge, and itching requiring frequent and prolonged treatment. DC 6210 does not provide evaluations in excess of 10 percent. 38 C.F.R. § 4.87, DC 6210 (2012). DC 6200 also provides a maximum rating of 10 percent for chronic suppurative otitis media, mastoiditis, or cholesteatoma (or any combination) during suppuration, or with aural polyps. DC 6201 provides that chronic nonsuppurative otitis media with effusion (serous otitis media) will be rated on hearing loss. 38 C.F.R. § 4.87, (2012). Diagnostic code 6204 contains the criteria for rating peripheral vestibular disorders and diagnostic code 6205 is for rating Meniere's disease. 38 C.F.R. § 4.87, DC 6204, 6205 (2012). As noted above, these claims have yet to be adjudicated by the agency of original jurisdiction and will not be considered by the Board at this time. There is no evidence of loss of part or all of the auricle ratable under DC 6207, nor is there evidence of malignant or benign neoplasms ratable under DC 6208 or DC 6209. 38 C.F.R. § 4.87 (2012). There does not appear to be any relevant evidence during the year before the claim for increase was received in July 2009. In July 2009, the Veteran claimed that he had a substantial hearing loss in his left ear. (This will be discussed in detail below.) He also reported having constant fluid in his left ear, causing him to be light-headed and dizzy. As a lay witness, the Veteran is competent to describe the symptoms he experiences; although, he does not have the medical training and experience to diagnose the cause. See 38 C.F.R. § 3.159(a) (2012). That is, he can report dizziness, but his assertion that it is caused by his service-connected ear disability is only his claim and is not competent evidence. VA had the Veteran examined in August 2009. He gave a history and a description of current symptomatology that provided sufficient background for the examination and current evaluation. During service, he had pain on the left side of his head for a long time. His left ear began leaking pus. He was found to have an infection and surgery was performed to clean it out. A year later, he had reconstructive surgery on the left inner ear. Currently, he described dizziness as an off-balance sensation that made it difficult for him to walk. Vertigo occurred as a slight spinning sensation that usually occurred in the morning. He had difficulty walking due to a feeling of being off balance. He also reported a discharge of yellow pus from his left ear and ear pain once a month for 5 to 10 days. Examination showed the left auricle and external ear to be within normal limits. The left tympanic membrane was abnormal with scar tissue on the membrane. Mastoid examination was within normal limits on the left. There was no ear disease or active infection present in the left ear. The examiner found no disturbance of balance. There was no upper respiratory disease, staggering gait, or cerebellar gait. The diagnosis was status post tympanotomy, mastoidectomy, cholesteatoma. The examiner specified that there was no change in diagnosis and the Veteran's current condition was asymptomatic. The examiner also diagnosed tinnitus and expressed the opinion that it was at least as likely as not associated with the hearing loss. Subsequently, the RO granted service connection for tinnitus with a 10 percent evaluation. VA had the Veteran examined again in April 2011. The Veteran's history was discussed. He reported having ear infections about twice a year and lasting 3 to 4 days. He indicated the last infection was in 2009. He also reported intermittent dizziness, occurring 2 to 3 times a week and lasting for one hour. He also had intermittent vertigo occurring 2 to 3 times a week and lasting for one hour each time. He reported constant problems with balance. He did not report any ear discharge, ear pain, ear pruritus, staggering gait or cerebellar gait. He did complain of difficulty hearing and understanding at work and dizziness intermittently. He kept his left ear dry to prevent infections and so, was unable to swim. He was also unable to fly due to his left ear. Examination of the left auricle and external ear was within normal limits. The left external canal, mastoid, and tympanic membrane were within normal limits. There was no auricle deformity, aural polyps, middle ear infection, or effusion. There was no ear related cranial nerve condition or bone loss of the skull. Examination did not reveal any disturbance of balance, staggering gait or cerebellar gait. There were diagnoses of left ear hearing loss and tinnitus. For the diagnosis of status post tympanoplasty, mastoidectomy, and cholesteatoma, there was no change in diagnosis. The examiner reported that at this time, there was no evidence of disease in the Veteran's left ear. It was noted that subjectively, the Veteran had to keep his ear dry to avoid infection and had problems with balance, but objectively there were no manifestations. It was remarked that the effect of the conditions was that the Veteran was unable to fly or swim due to his left ear and had to hold on to something to steady himself. Videonystagmography (VNG) in May 2011 produced abnormal results. The right Dix-Hallpike test was consistent with a central problem. The left Dix-Hallpike test was consistent with a central problem. The positional head test was consistent with a central problem. The conclusion was that the Veteran had central vertigo because all abnormal findings on VNG were related to an abnormal central nervous system. The examiner further expressed the opinion that the Veteran's dizziness was not at least as likely as not related to the left ear hearing loss and that the right ear hearing loss was not at least as likely as not related to the left ear hearing loss because the surgery was on the left ear and not on the right. A private physician, T. G., M.D., reported seeing the Veteran in September 2011. The Veteran provided a history of ear infection in service with surgery to clean out the infection and subsequent reconstructive surgery. It was the doctor's medical opinion that the Veteran's dizziness/vertigo could be caused by the medical procedures performed on his left ear. In September 2011, the Veteran submitted several internet treatises on mastoidectomies. These are general in nature and do not provide information that is sufficiently specific to the Veteran's claim. Therefore, they will not be discussed in detail. In March 2012, the Veteran appeared before the undersigned Veterans Law Judge, at the RO, and provided sworn testimony. He gave a history of a tympanic membrane rupture in service, after a year of hurting and infection. He had surgery. Later he had another surgery with plastic replacement parts being installed. He currently had symptoms including constant dizziness and vertigo, loss of hearing, and ringing. He said that symptoms were worse at high altitudes. Flying caused head pain. He was unable to swim because liquid in the ear would cause infection. He found the symptoms to be depressing. Conclusion As discussed above, the claims of dizziness related to peripheral vestibular disorders and Meniere's syndrome (endolymphatic hydrops) have yet to be adjudicated by the agency of original jurisdiction, so the Board will not attempt to weigh the evidence for those complaints. Otherwise, testing in August 2009 and April 2011 was consistent in showing normal findings. There was no evidence of chronic suppurative otitis media, mastoiditis, or cholesteatoma, or aural polyps that would warrant a separate, compensable rating under DC 6200. The Board has considered the Veteran's sworn testimony as well as the subjective complaints and objective findings on the VA examinations. Nevertheless, the Board does not find any basis for a higher or and additional rating for the service-connected for status post tympanoplasty, mastoidectomy, and cholesteatoma. The objective examination findings outweigh the Veteran's assessment of his disability and provide the preponderance of evidence in this case. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not applicable and the appeal must be denied. 38 U.S.C.A. § 510 7(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). Left Ear Hearing Loss The left ear hearing loss is part of the service-connected disability and the Board has specifically considered whether it warrants a higher or additional rating. The Veteran's hearing loss has been rated under Diagnostic Code 6100, for hearing loss. See 38 C.F.R. §§ 4.85, 4.86. In evaluating service-connected hearing loss, disability ratings are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are performed. See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). Hearing loss disability evaluations range from noncompensable to 100 percent based on organic impairment of hearing acuity, as measured by controlled speech discrimination tests in conjunction with the average hearing threshold, as measured by puretone audiometric tests in the frequencies 1,000, 2,000, 3,000 and 4,000 Hertz (previously cycles per second). 38 C.F.R. § 4.85. The rating schedule establishes 11 auditory acuity levels designated from Level I for essentially normal hearing acuity, through Level XI for profound deafness. VA audiometric examinations are conducted using a controlled speech discrimination test together with the results of a puretone audiometry test. The vertical lines in Table VI (in 38 C.F.R. § 4.85) represent nine categories of the percentage of discrimination based on the controlled speech discrimination test. The horizontal columns in Table VI represent nine categories of decibel loss based on the pure tone audiometry test. The numeric designation of impaired hearing (Levels I through XI) is determined for each ear by intersecting the vertical row appropriate for the percentage of discrimination and the horizontal column appropriate to the puretone decibel loss. The Veteran's claim for increase was received in July 2009. Effective March 18, 2009, the regulations allow for compensation for hearing loss as if both ears were service-connected if the service-connected hearing loss is ratable as at least 10 percent disabling and the non service-connected hearing loss meets the standard for a hearing loss disability for VA purposes under 38 C.F.R. § 3.385 unless the non service-connected hearing loss is the result of the Veteran's willful misconduct. See 38 C.F.R. § 3.383 (2012); 74 Fed. Reg. 11481 (Mar. 18, 2009). The Board will consider first whether the right ear has a hearing loss under 38 C.F.R. § 3.385. For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385 (2012). On an August 2009 VA audiological evaluation, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 15 20 25 20 LEFT 25 20 15 35 55 Speech audiometry revealed speech recognition ability of 100 percent in the right ear and of 100 percent in the left ear. On an April 2011 VA audiological evaluation, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 15 30 40 20 LEFT 30 15 20 25 40 Speech audiometry revealed speech recognition ability of 100 percent in the right ear and of 100 percent in the left ear. The Board finds first that the Veteran has a "hearing loss disability" in the right ear based only on the April 2011 results. A layperson, such as the Veteran, is generally competent to report diminished hearing acuity (he is not however, medically qualified to address the objective degree of hearing loss - for example - indicate that he has a certain percentage hearing loss). The objective medical evidence shows plainly that no right ear hearing loss disability existed prior to April 2011. The Veteran's puretone thresholds do not exceed 40 dB in any right ear range at any time prior. His speech recognition scores for the right ear were uniformly above 94 percent. His right ear puretone thresholds did not exceed 26 or more dB on either examination. When applying Table VI, the right ear hearing loss present in April 2011 would merit a numeric designation of I, as discussed further below. This is the same numeric designation used when a hearing loss disability does not exist in the non service-connected ear. See 38 C.F.R. § 3.383 (2012). The percentage evaluation is found from Table VII (in 38 C.F.R. § 4.85) by intersecting the vertical column appropriate for the numeric designation for the ear having the better hearing acuity and the horizontal row appropriate to the numeric designation level for the ear having the poorer hearing acuity. For example, if the better ear has a numeric designation Level of "V" and the poorer ear has a numeric designation Level of "VII," the percentage evaluation is 30 percent. See 38 C.F.R. § 4.85. Using Table VI in 38 C.F.R. § 4.85, the puretone average and speech recognition score are combined to give each ear a numeric designation for use on Table VII to determine the correct disability level. The right ear will have a designation of I at all times, for the reasons detailed above. In August 2009, the left ear had a puretone average of 21.25 dB and a speech recognition score of 100; therefore the left ear received a designation of I. In April 2011, the left ear had a puretone average of 25 dB and a speech recognition score of 100; therefore the left ear again received a designation of I. Using either score, the point where I (for the right ear) and I (for the left ear) intersect on Table VII then reveals the disability level for the Veteran's left ear hearing loss, which in this case does not reach a compensable level. The regulations have two provisions for evaluating veterans with certain patterns of hearing impairment that cannot always be accurately assessed under § 4.85 because the speech discrimination test may not reflect the severity of communicative functioning that these veterans experience. See 64 Fed. Reg. 25203 (May 11, 1999). 38 C.F.R. § 4.86(a) indicates that if puretone thresholds in each of the specified frequencies of 1000, 2000, 3000, and 4000 Hertz are 55 decibels or more, an evaluation can be based either on Table VI or Table VIa, whichever results in a higher evaluation. This provision corrects the fact that with a 55-decibel threshold level (the level at which speech becomes essentially inaudible) the high level of amplification needed to attempt to conduct a speech discrimination test would be painful to most people, and speech discrimination tests may therefore not be possible or reliable. See 64 Fed. Reg. 25209 (May 11, 1999). 38 C.F.R. § 4.86(b) indicates that when the puretone threshold is 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz, the Roman numeral designation for hearing impairment will be chosen from either Table VI or Table VIa, whichever results in the higher numeral, and that numeral will then be elevated to the next higher Roman numeral. This provision compensates for a pattern of hearing impairment that is an extreme handicap in the presence of any environmental noise, and a speech discrimination test conducted in a quiet room with amplification of sound does not always reflect the extent of impairment experienced in the ordinary environment. Id. However, in this case, the audiometric results from both examinations do not meet these criteria, and the Veteran's left ear disability cannot be evaluated under the alternative rating scheme. Extraschedular Evaluation The Board has also considered whether a referral for extraschedular rating is warranted. See Thun v. Peake, 22 Vet.App. 111, 115 (2008). Initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. Under the approach prescribed by VA, if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule; therefore, the assigned schedular evaluation is adequate, and no referral is required. See VAOPGCPREC 6-96; see also Fisher v. Principi, 4 Vet. App. 57, 60 (1993) (a threshold finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate is required for extraschedular consideration referral). The schedular evaluation for the Veteran's service-connected left ear disability is not inadequate. The Veteran complains of current symptoms including constant dizziness and vertigo, loss of hearing, and ringing. He said that symptoms were worse at high altitudes. Flying caused head pain. He was unable to swim because liquid in the ear would cause infection. He found the symptoms to be depressing. Comparing these complaints with the rating criteria, the Board finds that the Veteran does not have any symptoms from his service-connected disorder that are unusual or are different from those contemplated by the schedular criteria. Specifically, the complaints of dizziness and vertigo are associated with claims that have yet to be adjudicated by the RO. The claim of ringing led to the grant of service connection for tinnitus with the assignment of the highest rating for that complaint, 10 percent. As for the hearing loss part of the claim, diminished auditory acuity is the foundation of the schedular rating. The Veteran's work does not involve flying so occasional episodes of head pain on flying, even if related to the service-connected disability would not reflect an industrial impairment warranting extraschedular evaluation. Similarly, the Veteran's fear of getting his ears wet may limit his recreational activities but does not have an impact on his employment that would warrant a rating above that provided by the schedule. In this case, the Veteran merely disagrees with the assigned evaluation for his level of impairment. The available schedular evaluations for that service-connected disability are adequate. Referral for extraschedular consideration is not warranted. See VAOPGCPREC 6-96. Further inquiry into extraschedular consideration is moot. See Thun, supra. Entitlement to a total disability rating based on individual unemployability (TDIU) is an alternative theory of all claims for a higher disability rating. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). TDIU may be raised explicitly by a claimant or inferred from the record. An inferred claim for a TDIU is raised as part of an increased rating claim only when certain requirements are met. Jackson v. Shinseki, 587 F.3d 1106, 1109-10 (2009). TDIU is raised by inference when a claimant: (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability. See Roberson v. Principi, 251 F.3d 1378, 1384 (Fed. Cir. 2001). In the present appeal, the Veteran has made no mention of unemployability. His private examination report, VA examination reports and VA treatment records also make no mention of unemployability. Thus, the Board concludes that the Roberson requirements are not met and that consideration of TDIU is not warranted. 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). Consistent with the facts found, the rating may be higher or lower for segments of the time under review on appeal, i.e., the rating may be "staged." Fenderson v. West, 12 Vet. App. 119 (1999); see also Hart v. Mansfield, 21 Vet. App. 505 (2007). The Board has considered the possibility of staged ratings. The Board, however, concludes that the criteria for a higher or additional rating have at no time been met. Accordingly, staged ratings are inapplicable. See id. As such, the Board finds that the preponderance of the evidence is against the Veteran's increased rating claim. Consequently, the benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Duties to Notify and Assist VA has met all statutory and regulatory notice and duty to assist provisions as to the Veteran's claim for an initial compensable rating. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012). When VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2012). VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. Quartuccio v. Principi, 16 Vet. App. 183 (2002). Prior to adjudication of the Veteran's claim, in August 2009, a July 2009 letter fully satisfied the duty to notify provisions, including notice of the degree of disability and effective dates. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio, at 187. The Board also concludes VA's duty to assist has been satisfied. The Veteran's service treatment records and VA medical records are in the file. The Veteran submitted a report from his private physician but did not identify any other records that VA might obtain on his behalf. The Veteran has at no time referenced outstanding records that he wanted VA to obtain or that he felt were relevant to the claim. The duty to assist includes, when appropriate, the duty to conduct a thorough and contemporaneous examination of the Veteran. Green v. Derwinski, 1 Vet. App. 121 (1991). In addition, where the evidence of record does not reflect the current state of the Veteran's disability, a VA examination must be conducted. Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 3.327(a) (2012). The RO provided the Veteran the appropriate VA examinations in August 2009 and April 2011. The Veteran has not reported receiving any recent treatment specifically for this condition (other than at VA and the private treatment mentioned above, records of which are in the file), and there are no records suggesting an increase in disability has occurred as compared to the prior VA examination findings. There is no objective evidence indicating that there has been a material change in the severity of the Veteran's service-connected left ear disorder since he was last examined. 38 C.F.R. § 3.327(a). There was some difference in the Veteran's right ear hearing acuity, but this was incorporated into the analysis above. The examination report provides sufficient evidence to apply the ratings schedule and to determine that the schedular rating is adequate. The duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate VA examination was conducted. VAOPGCPREC 11-95. The July 2009 VA examination report is thorough and supported by VA outpatient treatment records. The examination in this case is adequate upon which to base a decision. The Board also concludes the VA examinations are adequate upon which to base a decision. The August 2009 and April 2011 examinations for VA include did not indicate that the claims folder was reviewed. However, the Veteran provided a reasonably accurate background history and a detailed description of his current symptoms. There is no indication that review of the claims folder would have provided any significant information as to the current extent of the service-connected disability. Moreover, the two examinations were thorough and included both physical examination and audiometric testing. The examination reports did not include a discussion of the effect of the Veteran's hearing loss disability on occupational functioning and daily activities. However, in Martinak v. Nicholson, 21 Vet. App. 447 (2007), the United States Court of Appeals for Veterans Claims (Court) noted that even if an examiner's description of the functional effects of the Veteran's hearing disability was somehow defective, the Veteran bears the burden of demonstrating any prejudice caused by a deficiency in the examination. The Veteran has not alleged any prejudice caused by a deficiency in the examinations here. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Newhouse v. Nicholson, 497 F.3d 1298 (Fed. Cir. 2007). ORDER A disability rating in excess of 10 percent for status post tympanoplasty, mastoidectomy, cholesteatoma, and left ear hearing loss is denied. ____________________________________________ MICHELLE L. KANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs