Citation Nr: 1334014	
Decision Date: 10/28/13    Archive Date: 11/06/13

DOCKET NO.  10-21 503	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Roanoke, Virginia


THE ISSUE

Entitlement to an initial compensable rating for status post tympanomastoidectomy with chronic otitis media of the right ear.


REPRESENTATION

Veteran represented by:  Virginia Department of Veterans Services


ATTORNEY FOR THE BOARD

Rory Reyhan Layne, Associate Counsel







INTRODUCTION

The Veteran served on active duty from May 1978 to June 1982.  This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia.

The record before the Board consists of the Veteran's paper claims file and an electronic file known as Virtual VA.


FINDING OF FACT

1.  The status post tympanomastoidectomy with chronic otitis media of the right ear has been manifested by hearing impairment that is not worse than level I.

2.  The disability has not been manifested by suppuration or aural polyps.


CONCLUSION OF LAW

The criteria for a compensable evaluation for status post tympanomastoidectomy with chronic otitis media of the right ear have not been met.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.85, 4.87, Diagnostic Codes 6100, 6201 (2013).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

I.  VA's 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. 2013), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2013), 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), 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).

The record reflects that the Veteran was provided all required notice in a letter mailed in October 2009, prior to the initial adjudication of the claim.

The record also reflects that all available post-service medical evidence identified by the Veteran was associated with the record.  The Board notes that the Veteran asserted that she received relevant treatment at a VA medical facility from 2005 to 2007.  The RO attempted to obtain these records, but was advised that the Veteran cancelled her initial appointments and did commence treatment until August 2007.  Neither the Veteran nor her representative has identified any other 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 March 2012.  The Veteran has not asserted, and the evidence of record does not show, that her condition has increased significantly in severity since that examination.  In sum, the Board finds that the duty to assist has been met.  

II.  Legal Criteria

Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2013).  The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during active service and their residual conditions in civil occupations.  38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (2013).  

Serious otitis media is evaluated under 38 C.F.R. § 4.87, Diagnostic Code 6201, which provides for ratings based on hearing impairment.  38 C.F.R. § 4.87, Diagnostic Code 6201 (2013).  Under Diagnostic Code 6100, the assignment of disability ratings for service-connected hearing impairment is derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are rendered.  Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992).  Evaluations for defective hearing 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 1,000, 2,000, 3,000, and 4,000 Hertz.  The Rating Schedule establishes eleven auditory acuity levels designated from Level I to Level XI for profound deafness.  38 C.F.R. § 4.85.  

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).



III.  Analysis

In accordance with 38 C.F.R. §§ 4.1, 4.2 (2013) and Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board has reviewed all evidence of record pertaining to the history of the service-connected disability.  The Board has found nothing in the historical record which would lead to the conclusion that the current evidence of record is not adequate for rating purposes.  Moreover, the Board is of the opinion that this case presents no evidentiary considerations which would warrant an exposition of remote clinical histories and findings pertaining to this disability.  In this regard the Board notes that where entitlement to compensation has already been established and an increase in the disability is at issue, the present level of disability is of primary concern.  Francisco v. Brown, 7 Vet. App. 55, 58 (1994).

Historically, the RO granted entitlement to service connection for status post tympanomastoidectomy with chronic otitis media in the right ear in a July 2006 rating decision, in which it also assigned an initial noncompensable evaluation under 38 C.F.R. § 4.87, Diagnostic Code 6201, effective May 12, 2005.  The current claim for an increased rating was received in September 2009.

The Board notes that the Veteran has been granted service connection for chronic sinusitis, rhinitis, tinnitus, and a scar of the right pinna as secondary to the service-connected status post tympanomastoidectomy with chronic otitis media in the right ear.  Those disabilities have been separately rated and are not at issue in this appeal.  She has also been denied entitlement to service connection for vertigo, also claimed as disequilibrium, which she alleged is related to the service-connected tympanomastoidectomy.  She did not appeal the denial of service connection for vertigo.

Private treatment records dated in 2008 detail complaints of and treatment for ear pain and fullness, chronic rhinitis, dizziness, vertigo, "slightly decreased hearing," and jaw tenderness.  A February 2008 treatment record lists a diagnosis of otitis media with pain, and notes that the Veteran's tympanic defect was closed without drainage.

VA medical records detail complaints of and treatment for additional ailments such as tinnitus and insomnia.  In May 2008, the Veteran was treated for "pressure in her right ear."  Symptomatology reported at that time included difficulty understanding speech if an individual was speaking on her right side.  Testing at that time revealed mild to severe sensorineural hearing loss in the right ear.  A physician recommended a hearing aid for the Veteran's right ear.  In September 2009, the Veteran complained of and was treated for an ear infection.  At that time, it was noted that her symptoms consisted of right ear pinna pain with some clear drainage from the ear.  The impression was acute otalgia and possible serous otitis media.  She was prescribed an antibiotic.  On follow up two weeks later, the infections was noted to have resolved.  On October 6, 2009, the Veteran had a follow-up audio examination.  Specific readings were not obtained, and it was noted that testing was not completed, but the physician noted that initial pure tone results indicated that the Veteran had severe hearing loss in the right ear.  The records from July 2010 also indicate that neurologists determined that the Veteran's vertigo was most consistent with atypical vestibular migraines.

In a March 2012 VA ear examination, the examiner indicated that an ear or peripheral vestibular condition had been diagnosed, specifically tympanomastoidectomy right ear and chronic vertigo consistent with atypical migraines.  Current symptomatology reported by the Veteran included, difficulty hearing on the right, bilateral tinnitus, vertigo, and insomnia secondary to tinnitus.  The examination revealed that the right tympanic membrane was healed and that there was no suppuration or other evidence of ear infection.  

The Veteran also was afforded VA audiological evaluations in response to her claim.  

The authorized audiological evaluation in May 2008 revealed pure tone thresholds, in decibels, as follows:







HERTZ



500
1000
2000
3000
4000
RIGHT
40
40
65
60
70
LEFT
5
5
0
5
0

Speech audiometry revealed speech recognition ability of 52 percent in the right ear and of 96 percent in the left ear.  The average pure tone thresholds at 1,000, 2,000, 3,000, and 4,000 Hertz were 58.75 decibels in the right ear and 2.5 decibels in the left ear.  These findings demonstrate that under Table VI of the Rating Schedule, the Veteran has Level VII hearing impairment in the right ear.  She did not manifest an exceptional pattern of hearing impairment.  See 38 C.F.R. § 4.85, Table VI; see also 38 C.F.R. § 4.86(a). 

An authorized VA audiological evaluation in October 2009 revealed pure tone thresholds, in decibels, as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
15
20
20
10
35
LEFT
10
15
10
10
10

Speech audiometry revealed speech recognition ability of 96 percent in the right ear and of 96 percent in the left ear.  The average pure tone thresholds at 1,000, 2,000, 3,000, and 4,000 Hertz were 21.25 decibels in the right ear and 11.25 decibels in the left ear.  These findings demonstrate that under Table VI of the Rating Schedule, the Veteran had Level I hearing impairment in the right ear.  She did not manifest an exceptional pattern of hearing impairment.  See 38 C.F.R. § 4.85, Table VI; see also 38 C.F.R. § 4.86(a). 

The Court has held that, in addition to providing objective test results, a VA audiologist must fully describe the effects of a disability on occupational functioning and daily activities.  Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007).  The October 2009 examiner noted that there were no effects on usual daily activities and no significant effects on occupational functioning.

Applying the above results, from the May 2008 and October 2009 VA examinations, to 38 C.F.R. § 4.85, Table VII of the Rating Schedule, results in a noncompensable evaluation for hearing loss under Diagnostic Code 6100.  Thus, the Veteran's service-connected serious otitis media does not warrant a compensable rating on the basis of hearing impairment.

The Board has considered whether there is any other schedular basis for granting this claim but has found none.  In particular, the Board notes that Diagnostic Code 6200 authorizes a 10 percent rating for chronic suppurative otitis media, mastoiditis, or cholesteatoma (or any combination) during suppuration or with aural polyps.  As discussed above, no evidence of infection was found on the March 2012 VA examination.  While clear drainage was noted when the Veteran was seen on an outpatient basis in September 2009, the impression was acute otalgia and possible serous otitis media.  She was not found to have suppurative otitis media at that time or any other time during the period of the claim.  Therefore, a compensable rating is not warranted under Diagnostic Code 6200.  

The Board has also considered the Veteran's statements.  The Board acknowledges that the Veteran is competent to describe her symptoms; however, she is not competent to attribute her symptoms to the otitis media.  As previously noted, she has been denied service connection for the vertigo that she attributes to the otitis media.  The Board has no reason to doubt that the Veteran sincerely believes that her otitis media warrants a compensable rating.  Specifically, the Board acknowledges the Veteran's assertion that the noncompensable rating for her right ear "does not consider the effect of the treatment medication."  However, the Veteran did not specify the effect or medication.  The record shows that she was briefly prescribed an antibiotic for an ear infection in September 2009, but does not show that she has been receiving medication for the otitis media.  Instead, it shows that she has been prescribed medications for other conditions.  As explained above, the medical evidence shows that she does not have suppurative otitis media and that her hearing impairment is not sufficient to warrant a compensable rating under the schedular criteria.

IV.  Other Considerations

Consideration has been given to assigning a staged rating; however, at no time during the period in question has the disability warranted a compensable rating.  See Hart v. Mansfield, 21 Vet. App. 505 (2007).

The Board also has considered whether the Veteran's claim should be referred to the Director of the Compensation and Pension Service for extra-schedular consideration under 38 C.F.R. § 3.321.  In determining whether a case should be referred for extra-schedular consideration, the Board must compare the level of severity and the symptomatology of the claimant's disability with the established criteria provided in the rating schedule for 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 evaluation is therefore adequate, and no referral for extra-schedular consideration is required.  Thun v. Peake, 22 Vet. App. 111, 115 (2008).

As discussed above, the evidence shows that the disability has been manifested by hearing impairment that is contemplated by the schedular criteria.  While the Veteran had one episode of drainage, it responded quickly to treatment.  In addition, the October 2009 VA examiner stated that the hearing loss had no significant impact on occupational functioning.  In sum, the disability picture is adequately contemplated by the schedular criteria.  Therefore, the Board has determined that referral of this claim for extra-schedular consideration is not warranted.

Finally, in reaching this decision the Board has considered the doctrine of reasonable doubt but has determined that it is not applicable to this claim because the preponderance of the evidence is against the claim.




ORDER

A compensable evaluation for status post tympanomastoidectomy with chronic otitis media of the right ear is denied.



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

Department of Veterans Affairs