Citation Nr: 1313746 Decision Date: 04/24/13 Archive Date: 05/03/13 DOCKET NO. 07-14 686 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Wilmington, Delaware THE ISSUES 1. Entitlement to an increased (compensable) rating for residuals of post operative right ear otitis media. 2. Entitlement to a compensable rating prior to March 9, 2011, and in excess of 30 percent as of March 9, 2011, for service-connected bilateral hearing loss on an extra-schedular basis pursuant to 38 C.F.R. § 3.321(b)(1). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Jeanne Schlegel, Counsel INTRODUCTION The Veteran served on active duty from June 1955 to February 1959. This appeal to the Board of Veterans' Appeals (Board) arose from a March 2005 rating decision in which the RO continued the assigned noncompensable rating for the Veteran's bilateral hearing loss and for postoperative residuals of right ear otitis media. The Veteran filed a notice of disagreement (NOD) in April 2005, and the RO issued a statement of the case (SOC) in April 2007. The Veteran filed a substantive appeal (via a VA Form 9, Appeal to Board of Veterans' Appeals in May 2007. In October 2012, the Board denied higher schedular ratings for bilateral hearing loss; hence, that matter is no longer in appellate status. The Board also took jurisdiction of a service connection claim for tinnitus; as that claim was granted in a February 2013 rating action, that matter is, likewise, no longer in appellate status. In the October 2012 decision, the Board explained that a claim for a compensable rating prior to March 9, 2011, and in excess of 30 percent as of March 9, 2011, for service-connected bilateral hearing loss on an extra-schedular basis, was raised by the Veteran's representative in an April 2012 brief, and by a March 2011 VA examination. At that time, the matter was recharacterized as an issue before the Board as separate from the claim for higher schedular ratings for the bilateral hearing loss, and was remanded by the Board to address due process matters. Also remanded was an increased rating claim for post operative right ear otitis media. After accomplishing further action, the RO denied the claims and returned the matters to the Board for further appellate consideration. An April 2013 review of the Veteran's virtual VA file (VVA) includes VA/Capri records dated from February 2005 to October 2012, which were compiled in November 2012. The February 2013 Supplemental Statement of the Case addressing the issues on appeal reflects consideration of the aforementioned records. FINDINGS OF FACT 1. All notification and development actions needed to fairly adjudicate each claim herein decided have been accomplished. 2. At point since the October 13, 2004 claim for increase has the Veteran's post operative right ear otitis media been shown to be productive of chronic suppuration, aural polyps, mastoiditis or cholesteatoma, and the disability has not been manifested by complications such as labyrinthitis, facial nerve paralysis, or bone loss of skull (service connection for hearing loss and tinnitus has already been established, unrelated to right ear otitis media). 3. At no point since the October 13, 2004 claim for increase has the Veteran's bilateral hearing loss been shown to be so exceptional or unusual-with such related factors as marked interference with employment and/or repeated hospitalization-to render inadequate the schedular criteria for rating the disability, and to warrant the assignment of a higher rating on an extra-schedular basis. CONCLUSIONS OF LAW 1. The criteria for a compensable rating from post operative right ear otitis media are not met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 4.1, 4.3 4.7, 4.87, Diagnostic Code 6200 (2012). 2. The criteria for a compensable rating prior to March 9, 2011, and in excess of 30 percent as of March 9, 2011, for service-connected bilateral hearing loss on an extra-schedular basis pursuant to 38 C.F.R. § 3.321(b)(1) are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.321 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Due Process Considerations The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2012), includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2011). Notice requirements under the VCAA essentially require VA to notify a claimant of any evidence that is necessary to substantiate the claim(s), as well as the evidence that VA will attempt to obtain and which evidence he or she is responsible for providing. See, Quartuccio v. Principi, 16 Vet. App. 183 (2002) (addressing the duties imposed by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)). As delineated in Pelegrini v. Principi, 18 Vet. App. 112 (2004), after a substantially complete application for benefits is received, proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim(s); (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim(s), in accordance with 38 C.F.R. § 3.159(b)(1). The Board notes that, effective May 30, 2008, 38 C.F.R. § 3.159 was revised, in part. See 73 Fed. Reg. 23,353 - 23,356 (April 30, 2008). Notably, the final rule removes the third sentence of 38 C.F.R. § 3.159(b)(1), which had stated that VA will request that a claimant provide any pertinent evidence in his or her possession. In rating cases, a claimant must be provided with information pertaining to assignment of disability ratings (to include the rating criteria for all higher ratings for a disability), as well as information regarding the effective date that may be assigned. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA-compliant notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO, to include the AMC). Id; Pelegrini, 18 Vet. App. at 112. See also Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). However, the VCAA notice requirements may, nonetheless, be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Id. In this appeal, in a November 2004 pre-rating letter, the RO provided notice to the Veteran explaining what information and evidence was needed to substantiate the increased rating claims for hearing loss and otitis media, what information and evidence must be submitted by the appellant, and what information and evidence would be obtained by VA in connection with these claims. Following the March 2005 rating action on appeal, additional notice was sent in March 2006. The March 2006 post-rating letter again provided notice to the appellant regarding what information and evidence is needed to substantiate the claim for an increased rating, as well as what information and evidence must be submitted by the appellant, and what evidence would be obtained by VA. This March 2006 letter also provided general information pertaining to VA's assignment of disability ratings and effective dates, as well as the type of evidence that impacts those determinations, consistent with Dingess/Hartman, and specifically informed the Veteran to submit any evidence in his possession pertinent to the claim on appeal (consistent with Pelegrini and the version of 38 C.F.R. § 3.159 then in effect). After issuance of the March 2006 letter and the April 2007 SOC, and opportunity for the Veteran to respond, February 2012 and February 2013 supplemental SOCs reflect adjudication of the claims remaining on appeal. Hence, the Veteran is not shown to be prejudiced by the timing of this notice. See Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as in an SOC or SSOC, is sufficient to cure a timing defect). The record also reflects that VA has made reasonable efforts to obtain or to assist in obtaining all relevant records pertinent to the matter herein decided. Pertinent medical evidence associated with the claims file consists of service, VA and private treatment records, and the report of a March 2011 VA audiological evaluation that was obtained following the Board's remand for further development.. Also of record and considered in connection with the appeal are the written statements provided by the Veteran , and by his representative, on his behalf. The Board also finds that no additional RO action on the claims herein decided, prior to appellate consideration, is required. In particular, there has been substantial compliance with the actions requested in prior remand. See also D'Aries v. Peake, 22 Vet. App. 97 (2008) (finding that only substantial compliance, rather than strict compliance, with the terms of a Board's remand directives is required). In summary, the duties imposed by the VCAA have been considered and satisfied. Through various notices of the RO/AMC, the Veteran has been notified and made aware of the evidence needed to substantiate the claim herein decided, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. There is no additional notice that should be provided, nor is there any indication that there is additional existing evidence to obtain or development required to create any additional evidence to be considered in connection with the claim herein decided. Consequently, any error in the sequence of events or content of the notice is not shown to prejudice the Veteran or to have any effect on the appeal. Any such error is deemed harmless and does not preclude appellate consideration of the matters herein decided, at this juncture. See Mayfield, 20 Vet. App. at 543; See also ATD Corp. v. Lydall Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). II. Increased Rating - Otitis Media Historically, in an April 1961 rating action, service connection was established for right ear otitis media, for which a 0 percent (noncompensable) rating was assigned. In October 2004, the Veteran filed an increased rating claim for this condition. The report of a December 2004 VA examination reflects that the Veteran reported having a right ear mastoidectomy at the age of 11, with repeated ear infections since that time. Examination of the right ear mastoid cavity revealed that it was healed, dry, and clean, without indications of wax, debris or drainage. There was no mention of otitis media or of any related manifestations in that report. Pursuant to the Board's December 2010 remand, a VA examination of the ears was conducted in March 2011. The examiner noted that there was right ear wax in the mastoid cavity which was debrided. The examiner found no tissue loss or deformity of the auricle. Tympanic membrane was described as intact bilaterally with scarring on the right side and the tympanum seemed clear. The examination was negative for mastoids, discharge, evidence of cholesteatoma, suppuration, effusion, or aural polyps. The examiner indicated that there were no conditions such as balance disturbance, hearing loss, or upper respiratory disease, secondary to ear disease. The examiner concluded that there were no complications of ear disease shown on examination and hearing loss was diagnosed. VA/Capri records from the Veteran's Virtual VA file dated from February 2005 to October 2012 were also reviewed in this case, which failed to document any complaints, findings, residuals, or diagnosis relating to right ear otitis media Most recently, a VA examination was conducted in January 2013. At that time, no complaints, findings, residuals, or diagnosis relating to right ear otitis media were recorded. The examiner did opine that the Veteran's tinnitus was at least as likely as not a symptom associated with his service connected hearing loss. Service connection for tinnitus was established in a February 2013 rating action, for which a 10 percent rating was assigned, effective from October 2004. Analysis The Veteran seeks a compensable rating for residuals of post operative right ear otitis media. Disability ratings 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, 4.3. Where there is a question as to which of two rating shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 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 (2012). The degree of impairment resulting from a disability is a factual determination and generally the Board's primary focus in such cases is upon the current severity of the disability. Francisco v. Brown, 7 Vet. App. 55, 57-58 (1994); Solomon v. Brown, 6 Vet. App. 396, 402 (1994). Staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). For the entirety of the appeal period in this case extending from October 2004, the Veteran's service-connected residuals of post operative right ear otitis media have been assigned a noncompensable rating under 38 C.F.R. § 4.86, Diagnostic Code 6200. Under that code chronic suppurative otitis media, mastoiditis, or cholesteatoma (or any combination) during suppuration or with aural polyps, warrants a maximum evaluation of 10 percent. Having reviewed VA records dated from 2005 to 2012, as well as VA examination reports of 2004, 2011, and 2013, the Board is unable to find any evidence supporting the assignment of a compensable rating for residuals of post operative right ear otitis media at any point pertinent to this appeal. There has been no clinical evidence of chronic suppurative otitis media, mastoiditis, or cholesteatoma (or any combination) during suppuration or with aural polyps, nor has the Veteran provided any lay information to this effect. The Board would also point out that a note associated with and following Diagnostic Code 6200 provides for separate evaluations of hearing impairment, and complications such as labyrinthitis, tinnitus, facial nerve paralysis, or bone loss of skull. Service connection has already been separately established for both hearing loss and tinnitus (unrelated to otitis media), and VA examinations reports have consistently failed to identify any complications associated with the Veteran's claimed ear disease/right ear otitis media, to include labyrinthitis, facial nerve paralysis, or bone loss of skull. To the extent that the Veteran has generally asserted that the residuals associated with his right ear otitis media are worse, the Board retains the discretion to make credibility determinations and otherwise weigh the evidence submitted, including lay evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1135 (Fed. Cir. 2006). In this regard, the Board points out that the Veteran has not actually made any specific contentions or identified any records suggesting that his condition has increased in severity. Further, the findings on the VA medical examinations and the lack of contemporaneous evidence essentially indicating any active ear disease/otitis media or associated residuals/symptoms thereof, do not establish that the Veteran has a compensable disability in this regard. In view of such, the Board finds that the clinical findings represent the most credible and probative evidence on file for rating purposes. In sum, there simply is no medical indication that, at any time pertinent to this appeal, the service-connected residuals of post operative right ear otitis media have been significantly active or shown involve chronic suppuration, mastoiditis, or cholesteatoma. As indicated previously, no aural polyps have been observed. Accordingly, there is no basis for staged rating, pursuant to Hart, and the claim for higher rating for residuals of post operative right ear otitis media must be denied. In reaching these conclusions, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against assignment of a compensable rating for the disability in question at any point pertinent point, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). III. Extra-schedular Consideration - Bilateral Hearing Loss Historically, in an April 1961 rating action, service connection was established for bilateral defective hearing, for which a non-compensable evaluation was assigned. In October 2004, the Veteran filed an increased rating claim for bilateral hearing loss. Audiometric testing conducted by VA in December 2004 revealed pure tone threshold averages of 95 decibels (dB) in the right ear and 28 dB in the left ear. Speech discrimination scores were 84 percent in the right ear, 94 percent in the left ear. The audiologist found that, as for the right ear, the Veteran had a profound mixed type hearing loss in the right ear and a mild sensorineural type hearing loss in his left ear. On audiometric testing conducted by VA in March 2011, pure tone threshold averages were 105 dB in the right ear and 46 dB in the left ear. Speech discrimination scores were less than 70 percent in the right ear (deemed poor) and at 78-70 percent in the left ear, deemed fair. The audiologist found that, as for the right ear, the Veteran had mixed profound hearing loss of 90+ dB. The assessment for the left ear was mild (26-40 dB) to profound (90 dB) sensorineural hearing loss. The March 2011 documents the Veteran's lay reports of having difficulty hearing when driving, watching TV, talking on the phone, and in social and religious gatherings. The examiner described the daily and occupational effects of the Veteran's hearing loss as significant, as evidenced by the Veteran's reports that his hearing loss posed a safety risk in not hearing alarms and caused difficulty hearing customers. Pursuant to the Board's October 2012 remand, the RO was requested to address the applicability of the provisions of 38 C.F.R. § 3.321(b), in the first instance (and, if denied, give him and his representative notice and an opportunity to respond). See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). In a supplemental statement of the case issued in February 2013, the matter was considered and denied. Analysis In arguments presented by the Veteran's representative in April 2012, it was contended that the Veteran's bilateral hearing loss warranted consideration of an extra-schedular evaluation, based on findings made in the 2011 VA examination report and due to his near total deafness in the right ear. Under the applicable criteria, ratings for hearing loss are determined in accordance with the findings obtained on audiological evaluation. Ratings for hearing impairment range from noncompensable to 100 percent 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 1000, 2000, 3000, and 4000 cycles per seconds. To evaluate the degree of disability from hearing impairment, the rating schedule establishes eleven auditory acuity levels designated from Level I for essentially normal acuity through Level XI for profound deafness. 38 C.F.R. § 4.85, Diagnostic Code 6100 (2012). As discussed in the introduction above, in October 2012, the Board adjudicated the matter of a compensable schedular rating prior to March 9, 2011, and to a schedular rating in excess of 30 percent for service-connected bilateral hearing loss as of March 9, 2011, and determined that no higher schedular rating was warranted for either period. Thus the only matter remaining for consideration whether a compensable rating prior to March 9, 2011, and in excess of 30 percent as of March 9, 2011, for service-connected bilateral hearing loss is warranted on an extra-schedular basis. VA's Rating Schedule will apply unless there are exception or unusual factors, which would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). Under those circumstances, where the schedular evaluations are found to be inadequate, a veteran may be awarded a rating higher than that encompassed by the schedular criteria. 38 C.F.R. § 3.321(b)(1). According to the regulation, an extra-schedular disability rating is warranted upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. Id. There is a three-step analysis for determining whether an extra-schedular rating is appropriate. Thun v. Peake, 22 Vet. App. 111, 115 (2008). The threshold factor for extra-schedular consideration is a finding on the part of the RO or the Board that the evidence presents such an exceptional disability picture that the available schedular ratings for the service-connected disability at issue are inadequate. See Fisher, 4 Vet. App. at 60. See also 38 C.F.R. § 3.321(b)(1); VA Adjudication Procedure Manual, Pt. III, Subpart iv, Ch. 6, Sec. B(5)(c). Therefore, initially, there must be a comparison between the level of severity and the symptomatology of the claimant's disability with the established criteria provided in the rating schedule for this 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 rating is therefore adequate, and no referral for extra-schedular consideration is required. See VAOGCPREC 6-96 (Aug. 16, 1996). See also Thun, supra. If the rating schedule does not contemplate the claimant's level of disability and symtomatology, and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms" (including marked interference with employment and frequent periods of hospitalization). 38 C.F.R. § 3.321(b)(1). If so, then the case must be referred to the Under Secretary for Benefits or the Director of Compensation and Pension Service for completion of the third step: a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extra-schedular rating. Thun, supra. Considering the pertinent evidence of record in light of the above, the Board finds that the criteria for assignment of a compensable rating for the Veteran's service-connected bilateral hearing loss, on an extra-schedular basis pursuant to 38 C.F.R. § 3.321(b)(1), have not been met at any point since the increased rating claim was filed in October 2004. In February 2013, the RO issued a decision to this effect and declined to forward the case to the VA Director of Compensation and Pension Service for consideration of any higher, extra-schedular rating. Essentially, in support of this decision, it was found that no unusual or exceptional hearing pattern had been demonstrated that would render the regular rating criteria inapplicable, and that hearing loss evaluations were based on objective testing, with higher evaluations assigned for more severe hearing impairments. It was further pointed out that in the absence of a disability picture outside the regular criteria, assignment of an extra-schedular rating was not warranted. The evidence (2011 VA examination report) reflects that the Veteran's industrial capacity has been impaired, to some degree, as a result of his service-connected hearing loss. However, the degree and extent of that loss has been recognized and contemplated by the award of an increased, 30 percent rating for bilateral hearing loss effective March 9, 2011, the date of the VA examination report. In summary, even if, given the method of deriving ratings for hearing deficit, and considering the assertions of the Veteran, the Board found that the rating schedule does not contemplate the Veteran's particular complaints, the collective evidence simply does not reflect such an unusual or exceptional disability picture, with such factors as marked interference with employment (beyond that contemplated by the assigned 0 and 30 percent ratings) or frequent treatment-much less, hospitalization-to render inadequate the schedular criteria, and to warrant assignment of a higher rating on an extra-schedular basis. As, on this record, the requirements for the procedures set forth in 38 C.F.R. § 3.321(b)(1) are not invoked, referral of this matter to the C&P Director for consideration of an extra-schedular rating for bilateral hearing is not warranted. See Bagwell v. Brown, 9 Vet. App. 337, 338-39 1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996);Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). For the foregoing reasons, the Board finds that entitlement to a compensable rating prior to March 9, 2011, and in excess of 30 percent as of March 9, 2011, for service-connected bilateral hearing loss on an extra-schedular basis pursuant to 38 C.F.R. § 3.321(b)(1) must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against this claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53-56. ORDER The claim for an increased (compensable) rating for post operative right ear otitis media is denied. The claim for a compensable rating prior to March 9, 2011, and in excess of 30 percent as of March 9, 2011, for service-connected bilateral hearing loss on an extra-schedular basis pursuant to 38 C.F.R. § 3.321(b)(1), is denied. ____________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs