Citation Nr: 1304286	
Decision Date: 02/06/13    Archive Date: 02/19/13

DOCKET NO.  02-03 570A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUE

Entitlement to an initial compensable rating for right ear hearing loss with otitis media.  


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

N. Snyder, Counsel

INTRODUCTION

The Veteran had active service from October 1960 to October 1962 and May 1984 to July 2001.  

This matter came before the Board of Veterans' Appeals (Board) on appeal from a decision of August 2001 by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida.  A hearing before the undersigned Veterans Law Judge was held at the RO in June 2004.  A transcript of the proceeding has been associated with the claims file.

When this issue was most recently before the Board in December 2011, it was remanded for additional development and due process concerns.  


FINDING OF FACT

The right ear hearing loss with recurrent otitis media does not result in hearing impairment more severe than level II and is not associated with suppuration or aural polyps.  


CONCLUSION OF LAW

The criteria for a compensable initial rating for right ear hearing loss with recurrent otitis media have not been met.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 38 C.F.R. §§ 4.7, 4.85-4.87, Diagnostic Codes 6100, 6200, 6201 (2012).



REASONS AND BASES FOR FINDING AND CONCLUSION

Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2012), 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.  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) (West 2002), 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 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).

Although the Veteran was not provided complete notice with respect to his initial rating claim until February 2010, after the initial adjudication of the claim, there is no prejudice in proceeding with the issuance of a final decision.  See Bernard v. Brown, 4 Vet. App. 384, 394 (1993).  Following the provision of the required notice and the completion of all indicated development of the record, the originating agency readjudicated the Veteran's claim.  There is no indication in the record or reason to believe that the ultimate decision of the originating agency on the merits of the claim 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 reflects that all available post-service medical evidence identified by the Veteran was associated with the record, to include the records associated with the Veteran's application for Social Security Administration (SSA) benefits (which the Veteran provided after he was informed VA was unable to obtain any records from the SSA).  Neither the Veteran nor his representative has identified any outstanding evidence that could be obtained to substantiate the claim; the Board is also unaware of any such evidence.  The Veteran has been afforded appropriate VA examinations, most recently in January 2012.  The Veteran has not asserted, and the evidence of record does not show, that his condition has increased significantly in severity since that examination.  The Veteran was also afforded a hearing before the Board. Finally, the Board is satisfied that there has been substantial compliance with the directives issued in the previous Board remand.  See Dyment v. West, 13 Vet. App. 141, 146-47 (1999), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002).  

Initial Rating

The Veteran contends that a compensable rating is warranted for his right ear hearing loss with recurrent otitis media.  He and his spouse report that he has episodes of hearing impairment and ear discharge.  

Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity.  38 U.S.C.A. § 1155;   38 C.F.R. Part 4.  Separate diagnostic codes identify the various disabilities.  Where there is a reasonable doubt as to the degree of disability, such doubt will be resolved in favor of the claimant.  38 C.F.R. § 3.102.  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.  38 C.F.R. § 4.14.  In an appeal of an initial rating (such as in this case), consideration must be given to "staged" ratings, i.e., disability ratings for separate periods of time based on the facts found.  See Fenderson v. West, 12 Vet. App. 119, 126 (1999).  The Board will thus consider entitlement to "staged ratings."

Evaluations of defective hearing are based on organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests, together with the average hearing threshold level as measured by pure tone audiometry tests in the frequencies of 1000, 2000, 3000, and 4000 Hertz. To evaluate the degree of disability from service-connected hearing loss, the Rating Schedule establishes eleven hearing acuity levels, ranging from numeric level I for essentially normal acuity to numeric level XI for profound deafness. 38 C.F.R. §§ 4.85, 4.86. Application of these tables is mechanical; there is no discretion. See Lendenmann v. Principi, 3 Vet. App. 345 (1992). In cases, such as this one, where only one ear is service-connected and both ears are not profoundly deaf, the nonservice-connected ear is presumed normal (Level I) for the purposes of determining the rating percentage.  See 38 C.F.R. § 4.85.  

Otitis media is evaluated under either Diagnostic Code (DC) 6200 or 6201, depending on whether the otitis media is suppurative.  Diagnostic Code 6200, which rates chronic suppurative otitis media, provides a 10 percent rating if there are aural polyps or during suppuration.  DC 6201, which rates chronic nonsuppurative otitis media with effusion (serous otitis media), indicates that the condition should be rated as hearing impairment.    

A January 2003 VA treatment record reflects the Veteran's negative history as to ear ache.  Examination revealed intact tympanic membrane and canals.  A July 2003 SSA record indicates that the Veteran was able to hear and understand a normal conversational speech.  

At his June 2004 hearing, the Veteran testified that he had ear infections associated with a "nasty smell" and decreased hearing, with difficulty hearing the television or people talking on the phone.  


An October 2007 VA examination revealed pure tone thresholds, in decibels, as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
20
15
20
25
30

Speech audiometry revealed speech recognition ability of 88 percent in the right ear.  The examiner opined that the Veteran should be able to function very well in most occupational situations with only slight difficulty hearing.  

An April 2009 VA examination reflects the Veteran's history of intermittent otalgia and drainage in the right ear.  Examination revealed no otorrhea, inflammation, eczema, or lesion.  The right tympanic membrane was scarred and thickened superiorly, and there was a questionable bulging of the right tympanic membrane compared to the left.  Hearing was adequate for conversation.  

An October 2012 VA examination record reflects the Veteran's history of difficulty listening to the television or hearing directions on an airplane.  He also reported having ear infections three to four times each year.  Audiometric testing revealed pure tone thresholds, in decibels, as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
25
25
20
20
20

Speech audiometry revealed speech recognition ability of 94 percent in the right ear.  The examiner indicated that there were no air/bone gaps which would indicate middle ear pathology impeding auditory function.  

If impaired hearing is service-connected in only one ear, the impairment in both ears will be considered in rating the disability if the impairment in the service-connected ear is to a degree of 10 percent or more and the impairment in the non service-connected ear qualifies as a disability under 38 C.F.R. § 3.385.  38 C.F.R. § 3.383.

Otherwise, the nonservice-connected ear will be assigned a Roman numeral designation for hearing impairment of I.  38 C.F.R. § 4.85(f).  

A compensable rating is not warranted based on hearing impairment.  The audiometric findings dated in 2007 and 2012 correspond to level II and I, respectively.  These designations in combination with level I hearing impairment in the other ear correspond to a noncompensable rating.  See 38 C.F.R. § 4.85, Table VII.  

A compensable rating is also not warranted based on the reported otitis media.  As noted above, the rating criteria only provide a compensable rating for suppurative otitis media with aural polyps or during a period of suppuration.  The record does not reflect any diagnoses or findings indicative of suppurative otitis media.  The Board acknowledges that the Veteran has reported ear drainage.  Although the Veteran is competent to report ear drainage, he is not competent to diagnose the drainage as suppuration due to otitis media.  Moreover, even if the Veteran were competent to make such a determination, the Board finds the history is not credible because it is not corroborated by the contemporaneous clinical evidence:  the medical evidence does not demonstrate chronic suppuration, or even one finding of a suppurating right ear during the period under review since 2001. In addition, the medical evidence does not show ongoing treatment for a right ear problem or a diagnosis of an ear condition such as of otitis media. Accordingly, despite the Veteran's testimony that he has suffered recurrent ear infections characterized by drainage and irritation, the Board concludes that a compensable rating is not warranted under DC 6200.   

Extra-schedular Consideration 

The Veteran has stated that his hearing loss with otitis media results in decreased hearing acuity and discharge, during ear infections.  The Veteran's complaints are considered under the appropriate diagnostic codes.  The VA examinations included the 2012 examiner's observation that the functional impact of the Veteran's hearing impairment was difficulty listening to the television and difficulty hearing directions on an airplane.  See Martinak v. Nicholson, 21 Vet. App. 447 (2007). The rating criteria contemplate speech reception thresholds and ability to hear spoken words on Maryland CNC testing and further contemplate exceptional patterns of hearing impairment.  The rating criteria also provide a compensable rating for suppuration due to otitis media, which is not shown here.  Hence, the rating criteria contemplate the Veteran's symptomatology. Referral for consideration of an extraschedular rating is therefore not warranted.  See Thun v. Peake, 22 Vet. App. 111 (2008).


ORDER

A compensable rating for right ear hearing loss with recurrent otitis media is denied.  



____________________________________________
Shane A. Durkin 
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs