Citation Nr: 1332213 Decision Date: 10/17/13 Archive Date: 10/21/13 DOCKET NO. 09-45 650 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUE Entitlement to an increased rating for service-connected otitis media, currently rated as noncompensable. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD L. Crohe, Counsel INTRODUCTION The Veteran served on active military duty from May 1980 to March 1982. This issue comes before the Board of Veterans' Appeals (Board) on appeal from a May 2009 rating action of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota. In October 2010, the Veteran testified at a Travel Board hearing before the undersigned; a transcript of that hearing is of record. In May 2011 and 2013, the Board remanded the claim for further development. FINDINGS OF FACT 1. The Veteran's bilateral otitis media has been manifested by symptoms akin to suppuration and/or polyps. 2. Prior to May 8, 2013, the Veteran's otitis media caused labyrinthitis with occasional dizziness. 3. From May 8, 2013, the Veteran's otitis media causes labyrinthitis with dizziness and occasional staggering. CONCLUSIONS OF LAW 1. The criteria for a 10 percent disability rating for otitis media have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 4.1, 4.87, Diagnostic Code (DC) 6200 (2013). 2. Prior to May 8, 2013, the criteria for a separate rating of 10 percent, but no higher, for labyrinthitis associated with otitis media have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.159, 3.321, 4.3, 4.7, 4.87 Diagnostic Codes (DC) 6200, 6204 (2013). 3. From May 8, 2013, the criteria for a rating of 30 percent, but no higher, for labyrinthitis associated with otitis media have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.159, 3.321, 4.3, 4.7, 4.87 Diagnostic Codes (DC) 6200, 6204 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record that (1) is necessary to substantiate the claim; (2) VA will seek to provide; and (3) the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In addition, the notice requirements of the VCAA apply to all elements of a service connection claim, including (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. VCAA notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as a statement of the case or supplemental statement of the case, is sufficient to cure a timing defect). In a claim for increase, the VCAA requires only generic notice as to 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. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). The Veteran was sent a letter in April 2009 that fully addressed all notice elements and was sent prior to the initial RO decision. The letter provided information as to what evidence was required to substantiate the claim and of the division of responsibilities between VA and a claimant in developing an appeal. Moreover, the letter informed the Veteran of what type of information and evidence was needed to establish a disability rating and effective date. Accordingly, no further development is required with respect to the duty to notify. VA also has a duty to assist the Veteran in the development of the claim. This duty includes assisting her in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. VA obtained all of the identified relevant VA treatment records. VA treatment records were electronically available through the Compensation and Pension Records Interchange (CAPRI) and were uploaded to the Virtual VA eFolder. These records were considered when the Veteran's claim was subsequently readjudicated in August 2012 supplemental statement of the case. The Veteran has not identified any additional outstanding evidence and review of the paper claims file and Virtual VA does not reveal any additional documents pertinent to the claims decided herein. Furthermore, in April 2013, the Board remanded the claim to provide the Veteran with another VA ENT evaluation to assess the severity of her otitis media. The Veteran was afforded a VA examination in May 2013. The Board finds that the VA examination is adequate because, as shown below, it was based upon consideration of the Veteran's pertinent medical history, her lay assertions and current complaints, review of the file, and physical examination, and because it describes the Veteran's otitis media and associated labyrinthitis in detail sufficient enough to allow the Board to make a fully informed determination. Barr v. Nicholson, 21 Vet. App. 303 (2007) (citing Ardison v. Brown, 6 Vet. App. 405, 407 (1994)). Also, the requested examination conducted in May 2013 was in accordance with the remand request. See Stegall v. West, 11 Vet. App. 268, 270-71 (1998). Furthermore, the evidence does not show that her symptoms have materially worsened since this most recent evaluation. See 38 C.F.R. §§ 3.326, 3.327 (reexaminations will be requested whenever VA determines there is a need to verify the current severity of a disability, such as when the evidence indicates there has been a material change in a disability or that the current rating may be incorrect.); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). The Board accordingly finds no reason to remand for further examination relative to the questions decided herein. For the reasons set forth above, the Board finds that VA has complied with the VCAA's notification and assistance requirements. II. Background A March 2009 VA treatment record included an examination of the ears that revealed that there was no cerumen in the canal and there was a small perforation and retraction of the left ear TM. At that time, the Veteran denied having dizziness or vertigo. At an April 2009 VA examination, the Veteran's claims file was reviewed. In regards to the effects on occupational functioning and daily activities, the Veteran reported that she had a hum-type noise in her ear, which also interfered with her sleep. She indicated that she currently worked in a paper bag plant. She reported that she had not had any ear infections for many years. On April 2009 VA examination for ear disease, the Veteran had complaints of worsening hearing and a history of recurrent otitis media with bilateral ear drum perforations. On the left side there was a scarred TM, with some adhering cerumen to the ear drum. The examiner indicated that due to the cerumen, it was not possible to determine whether or not the ear was perforated. According to the Veteran, shortly after the ear drum was repaired, it perforated again. She reported that she had not had any ear infections lately. VA treatment records dated in June 2009 noted that the Veteran was still having hearing problems and that there was blood on her pillow from her ear when she woke up. An examination of the left TM showed a scant amount of dry skin, which was removed. There was a perforation in the posterior and interior TM and small amount of cerumen was removed from the central retraction pocket. January 2010 VA treatment records noted that the Veteran denied having vertigo. An examination of the ears showed a film of cerumen overlying the left TM and that a central perforation was stable at 5 percent. The right ear had 40 percent perforation with normal middle ear mucosa. The impression was status-post tympanoplasty with persistent perforation. A February 2010 VA treatment record noted that the Veteran was seen for follow-up of right tympanoplasty in November 2010. A residual perforation was noted and she did not notice any hearing improvement. She did not have a history of otorrhea or otalgia on either side. She had complaints of hypersensitivity to the cold, particularly on her left side. She said she also indicated that she had a very small amount of vertigo associated with the cold. She also wore cotton in her ears when she walked and still had difficulty with the wind. The examiner also discussed with the Veteran that her cold sensitivity was not secondary to the TM perforation as evidenced by the fact that she felt it even with plugs or cotton in her ears. A June 2010 VA treatment record noted that the Veteran experienced a job change related to job stress (from abuse from a former co-worker). During her October 2010 Board hearing, the Veteran and her representative indicated that the Veteran continued to experience pain and difficulty with her ability to hear. She also had surgery for a left perforated TM. She indicated that her symptoms were so unique that rating on an extraschedular basis should be considered. She described the pain as an aggravating 9 or 10 along with having drainage. She felt that her hearing loss affected her ability to get promoted. She reported that she started a new job running machinery, but asked to go back into the warehouse to drive the forklift where it was quieter. She reported that her trainer became short with her because he had to repeat things so many times. She indicated that she might step down to become a forklift driver, which would be a cut in pay from the new job. She reported that she wore hearing protection at work, but it further distorted her hearing and made her feel dizzy. She stated that she avoided large crowds, auditoriums, or even high school concerts because of the loud noise. On July 2011 VA examination, the examiner noted that the claims file was reviewed. The Veteran had complaints of ongoing poor sound quality in her left ear. She reported that she had a lot of difficulty focusing on the person in front of her if there was any background sound. She also had frequent itchiness in her left ear on a daily basis. She had pain and drainage in her left ear that would come and go, but it had been quite rare since she had her tonsils removed. The pain was usually associated with noise and the symptoms were more related to irritation than pain. Her hearing was down in that ear as documented in audiometric evaluations. She recently underwent surgery in her right ear to repair the eardrum perforation in the inferior aspect of this monomeric area. The posterior aspect of the drum had some overlying debris, but appeared to be grossly intact. She had an anterior inferior perforation approximately 2 mm in size. There was some surrounding debris that was dry cerumen mixed with dead skin cells. There was no evidence of cholesteatoma or active otorrhea. The examiner noted that the Veteran experienced constant symptoms of poor sound quality and decreased hearing. She experienced occasional pain and drainage, which was quite infrequent and had daily symptoms of itching in the left ear. The examiner found that that these symptoms could be attributed to the Veteran's ear disease, TM perforation, and history of otitis media, as well as hearing loss. On November 2011 VA treatment record, an examination of the ears revealed that the TM's were intact and with scarring bilaterally. The canals and oropharynx were clear. On May 2013 VA examination, the Veteran reported that she last took antibiotics for an ear infection in July or August 2012. She stated that when she had an ear infection she felt "water behind the ear drum." She underwent a left tympanoplasty in 1981 and 1984. Physical examination of the external ear and the ear canal were normal. Her gait was normal. The Romberg test was normal and there was no vertigo or nystagmus during the Dix Hallpike test. A limb coordination test was normal. The examiner determined that the Veteran's peripheral vestibular conditions did not impact the Veteran's ability to work. The examiner diagnosed the Veteran with chronic suppurative otitis media and perforated left tympanic membrane since 1980. When asked to report the symptoms that applied to the Veteran's ear conditions, the examiner did not indicate that there was active suppuration or aural polyps, but rather reported that there was chronic left tympanic membrane perforation. The examiner noted the Veteran's reports of intermittent dizziness, described as lightheadedness sometimes associated with mild staggering, which occurred 2-3 times weekly and lasted from a few seconds to up to one minute. She denied vertigo. Her symptoms of dizziness, described as intermittent lightheadedness sometimes associated with mild staggering, were compatible with a diagnosis of labyrinthitis, which was at least as likely as not a manifestation of her chronic otitis media. The Veteran had mild vestibular disequilibrium, which was another term for labyrinthitis, and which was at least as likely as not related to her service-connected otitis media. The examiner reasoned that otitis media was known to cause vestibular symptoms, and there was no other cause identified for her current symptoms of intermittent lightheadedness. The timeline was consistent with this association, as the symptoms began following her diagnosis of otitis media. The examiner stated that the Veteran's symptoms were mild. There was no functional impairment. In a July 2013 statement, the Veteran reported that her job performance as a waitress had been marked by her losing her footing and running into other employees, along with dropping items. She had also lost her footing while hiking with her grandchildren. III. Analysis Disability evaluations are determined by the application of a schedule of ratings which is based on the average impairment of earning capacity resulting from a disability. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4. When there is a question as to which of two evaluations should 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. It is appropriate to consider whether separate ratings should be assigned for separate periods of time based on the facts found, a practice known as "staged" ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Where the schedule does not provide a zero percent evaluation for a diagnostic code, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 C.F.R. §§ 3.102, 4.3 (2006). By way of background, service connection for bilateral hearing loss, otitis media, and perforation of the left TM was initially established pursuant to a rating decision issued in July 1982, within a year after separation from service. An initial noncompensable rating was assigned for each disability, effective from March 6, 1982. In February 2009, the Veteran initiated increased rating claims. By an April 2013 decision, the Board continued the noncompensable ratings for service-connected hearing loss and perforation of the left TM. At the same time, the Board remanded the issue of entitlement to a higher rating for otitis media for further development, and this is the only matter remaining on appeal. The Board notes that, in the interim, service connection for tinnitus has been granted in a May 2009 rating decision, and a 10 percent disability rating was assigned, effective February 12, 2009 The Veteran's otitis media has been rated under 38 C.F.R. § 4.87, Diagnostic Code 6200 for otitis media. Here, the Board acknowledges the Veteran's complaints of ear pain with drainage and itching. The Board finds that she is competent to report her symptoms and has presented credible testimony. Layno v. Brown, 6 Vet. App. 465, 469 (1994). Additionally, the Board has reviewed the evidence of record, which specifically included a diagnosis of chronic suppurativa otitis media as well as findings of adhering cerumen and dry skin, and finds that the Veteran's otitis media warrants a 10 percent rating under Diagnostic Code 6200. Overall, the evidence reflects symptoms akin to a chronic suppurative process or aural polyps for which a compensable rating is warranted under Diagnostic Code 6200. Therefore, a maximum 10 percent evaluation is appropriate. See 38 C.F.R. § 4.31 (2013). A note following Diagnostic Code 6200 directs separate evaluations for manifestations such as hearing impairment, and complications such as labyrinthitis, tinnitus, facial nerve paralysis or bone loss of skull. As previously mentioned, hearing impairment and tinnitus have been separately evaluated and are not currently before the Board. However, as the evidence reflects a diagnosis of labyrinthitis associated with the Veteran's otitis media and a separate evaluation has not yet been assigned, the Board must consider this issue as directed by Diagnostic Code 6200. Based on the evidence of record, the Board concludes that, a 30 percent rating for labyrinthitis with dizziness and occasional staggering is warranted from May 8, 2013, the date of the most recent VA examination under Diagnostic Code 6204 (which evaluates impairment for peripheral vestibular disorders). 38 C.F.R. § 4.87, DC 6204 (2013). Specifically, pursuant to DC 6204, a 30 percent rating is warranted for dizziness and occasional staggering. Id. At the May 2013 VA examination, the Veteran reported that she usually had some associated dizziness, which was described as lightheadedness like on a boat that was rocking, not vertigo, during ear infections. In addition she stated that when she yawned or went outside in the cold, she noted some lightheadedness. Lightheadedness was precipitated by head movements such as bending down to do yard work. She had not fallen and has not sought emergency treatment for lightheadedness. She experienced some sensation of lightheadedness 2-3 times weekly associated with mild staggering. Lightheadedness with staggering lasted for seconds to up to one minute. If she was standing, she stopped what she was doing and held onto the wall until lightheadedness resolved spontaneously. She has not fallen due to staggering. The examiner found that the Veteran's symptoms of dizziness, described as intermittent lightheadedness sometimes associated with mild staggering, were compatible with a diagnosis of labyrinthitis, which was at least as likely as not a manifestation of her chronic otitis media. Therefore, when affording the Veteran the benefit of the doubt, the Board concludes that a 30 percent rating is warranted from May 8, 2013, as the Veteran was shown to have signs of labyrinthitis with dizziness and staggering. A 30 percent rating is the highest available under DC 6204. Prior to May 8, 2013, and affording the Veteran the benefit of the doubt, a 10 percent rating, but no higher, is warranted for labyrinthitis with occasional dizziness under Diagnostic Code 6204. 38 C.F.R. § 4.87, DC 6204 (2013). A February 2010 treatment record shows the Veteran's complaints of having a small amount of vertigo in the cold related to her ears. Additionally, during her October 2010 Board hearing, the Veteran reported that wearing hearing protection at work made her feel dizzy. However, other VA treatment records noted that the Veteran denied having vertigo. Additionally, prior to the May 2013 VA examination, it has not been either shown by the medical record or alleged by the Veteran or her representative that that she had occasional staggering associated with her reports of dizziness. Therefore, the preponderance of evidence is against the award of a rating in excess of 10 percent for labyrinthitis prior to May 8, 2010. In sum, the Board finds that the criteria for separate evaluations of 10 percent prior to May 8, 2013 and 30 percent from that date for labyrinthitis associated with otitis media have been met. Pursuant to § 3.321(b)(1), the Under Secretary for Benefits or the Director, Compensation and Pension Service, is authorized to approve an extraschedular evaluation if the case "presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards." 38 C.F.R. § 3.321(b)(1) (2013). The question of an extraschedular rating is a component of a claim for an increased rating. See Bagwell v. Brown, 9 Vet. App. 337, 339 (1996). The Board must specifically consider whether to refer a case for extraschedular consideration when the issue either is raised by the claimant or is reasonably raised by the evidence of record. Barringer v. Peake, 22 Vet. App. 242 (2008). If the evidence raises the question of entitlement to an extraschedular rating, the threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Therefore, 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. Thun v. Peake, 22 Vet. App. 111 (2008). If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. In the second step of the inquiry, however, if the schedular evaluation does not contemplate the claimant's level of symptomatology and is consequently 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." 38 C.F.R. 3.321(b)(1) (related factors include "marked interference with employment" and "frequent periods of hospitalization"). The evidence of record shows that the rating criteria for both the otitis media and labyrinthitis describe each of the Veteran's disabilities and its severity, as discussed above. The chronic suppurativa otitis media is manifested by drainage, itchiness, pain, and adhering cerumen, which is contemplated in the criteria. The rating for the labyrinthitis encompasses dizziness and staggering associated with the disability. Hence, the Board finds the rating criteria for each disability contemplates the level of disability caused by the Veteran's otitis media and labyrinthitis. Thus, the schedular criteria are adequate to address each of her disabilities, which means neither of the Veteran's disabilities is exceptional. In the absence of an exceptional disability picture, there is no basis for referral for consideration of a higher rating on an extraschedular basis. ORDER A 10 percent disability rating for otitis media is granted. Prior to May 8, 2013, a separate rating of 10 percent for labyrinthitis associated with otitis media is granted. From May 8, 2013, a rating of 30 percent for labyrinthitis associated with otitis media is granted. ________________________________ MARK F. HALSEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs