Citation Nr: 1753905	
Decision Date: 11/24/17    Archive Date: 12/01/17

DOCKET NO.  09-38 499	)	DATE
	)
	)

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


THE ISSUE

Entitlement to a compensable evaluation for bilateral hearing loss and chronic nonsuppurative otitis media. 


REPRESENTATION

Veteran represented by:	AMVETS


WITNESSES AT HEARING ON APPEAL

Veteran and his spouse



ATTORNEY FOR THE BOARD

N. Keogh, Associate Counsel 


INTRODUCTION

The Veteran served on active duty from September 1975 to February 1998.

This appeal is before the Board of Veterans' Appeals (Board) from a March 2008 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO).  

In October 2012, the Veteran and his wife testified during a Board hearing before a Veterans Law Judge (VLJ) at the RO.  A transcript is included in the claims file.

In March 2015, the Board remanded the issue for further development.  

In August 2017, the Veteran filed a timely appeal with regard to his claim for an increased rating for his service-connected posttraumatic stress disorder.  However, that issue has not been certified to the Board.  The Veteran's claim for an increased rating for PTSD will not be addressed in this decision.  

In September 2017, VA determined the Veteran is not competent to handle disbursement of funds due to dementia.


FINDINGS OF FACT

1.  Audiometric examinations correspond to no greater than a Level I hearing loss for the right ear, and no greater than a Level I hearing loss for the left ear.

2.  For the entire rating period on appeal, the Veteran's bilateral hearing loss and chronic nonsuppurative otitis media has been manifested by symptoms of recurrent itching and discharge requiring frequent and prolonged treatment.  
CONCLUSIONS OF LAW

1.  The criteria for a compensable disability rating for bilateral hearing loss and  chronic nonsuppurative otitis media have not been met under Diagnostic Codes 6100 and 6201.  38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.1, 4.85; Diagnostic Codes 6100, 6201 (2017).

2.  Resolving all reasonable doubt in favor of the Veteran, for the entire rating period on appeal, the criteria for a 10 percent disability rating, and no higher, for bilateral hearing loss and chronic nonsuppurative otitis media have been met under Diagnostic Code 6210.  38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.3, 4.7, 4.20, 4.87; Diagnostic Code 6210 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Duties to Notify and Assist

VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 and 38 C.F.R. 
§§ 3.102, 3.156(a), 3.159, 3.326(a). 

VA's duty to notify was satisfied by an August 2007 letter.  See 38 U.S.C. §§ 5102, 5103, 5103A (2012); 38 C.F.R. § 3.159 (2017); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015).

VA also met its duty to assist the Veteran.  VA obtained all relevant medical records and evidence identified by the Veteran.  These records have been associated with the claims file.  VA further afforded the Veteran appropriate VA medical examinations in January 2008, April 2016, and February 2017, with regard to his bilateral hearing loss claim. 

In April 2016 the Veteran attended the hearing loss examination, but the audiologist was unable to provide the required clinical findings to assess the Veteran's hearing loss due to the Veteran's cognitive problems.  In February 2017, the Veteran underwent a VA ENT examination.  In a June 2017 rating decision, the RO found the Veteran's chronic nonsuppurative otitis to be service connected, and it is evaluated with bilateral hearing loss as noncompensable.  

The Board finds there has been substantial compliance with its remand directives.  See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that there was no Stegall (Stegall v. West, 11 Vet. App. 268 (1998)) violation when the examiner made the ultimate determination required by the Board's remand.)  

Accordingly, the Board will address the merits of the claim.

Analysis  

Rating Principles

A disability rating is determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4.  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 military service and their residual conditions in civil occupations.  Separate diagnostic codes identify the various disabilities.  38 U.S.C. § 1155; 38 C.F.R. § 4.1.  

VA has a duty to acknowledge and consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions.  Schafrath v. Derwinski, 1 Vet. App. 589 (1991).

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 for that rating.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7. 
The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings."  Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007).

Evaluations for defective hearing are based upon organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests, along with the average hearing threshold level as measured by pure tone audiometric tests in the frequencies of 1000, 2000, 3000, and 4000 Hertz.  38 C.F.R. § 4.85, Tables VI, VII.  To evaluate the degree of disability for service-connected bilateral hearing loss, the rating schedule establishes eleven auditory acuity levels, designated from Level I for essentially normal acuity, through Level XI for profound deafness.  Table VI is used to determine the Roman numeric designation, based on test results consisting of puretone thresholds and Maryland CNC test speech discrimination scores.  The numeric designations are then applied to Table VII to determine the appropriate rating for hearing impairment.  Id.  

Where there is an exceptional pattern of hearing impairment, a rating based on pure tone thresholds alone may be assigned (Table VIA).  This alternative method for rating hearing loss disability may be applied if the puretone thresholds at 1000, 2000, 3000, and 4000 Hertz are all at 55 decibels or higher, or if the puretone threshold at 1000 Hertz is 30 or less and at 2000 Hertz is 70 or more.  38 C.F.R. § 4.86.  Each ear is to be evaluated separately under this part of the regulations.

Ratings for hearing impairment are 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 (1992).  

Increased Rating Claim for Bilateral Hearing Loss and Chronic Nonsuppurative Otitis Media.

Bilateral hearing loss is evaluated under Diagnostic Code 6100.  38 C.F.R. § 4.86. Chronic nonsuppurative otitis media is evaluated under Diagnostic Code 6201, which uses the same hearing impairment criteria as bilateral hearing loss under Diagnostic Code 6100.  38 C.F.R. § 4.86.

Upon the VA audiological evaluation in January 2008, pure tone thresholds, in decibels, were as follows:



HERTZ



1000
2000
3000
4000
RIGHT
15
10
25
30
LEFT
30
35
65
50

The average of the puretone thresholds findings at 1000, 2000, 3000, and 4000 Hertz was 20 decibels in the right ear and 45 decibels in the left ear.  The speech recognition scores on the Maryland CNC word list were 98 percent for the right ear and 98 percent for the left ear.

Applying the test results of the January 2008 VA audiometric examination to Table VI of the Rating Schedule results in a Roman numeric designation of Level I for the right ear, and Level I for the left ear.  38 C.F.R. § 4.85, Table VI.  Applying the Roman numeric designations to Table VII, the result is a noncompensable rating for the Veteran's service-connected bilateral hearing loss.  38 C.F.R. § 4.85, Table VII, Diagnostic Codes 6201-6100. 

The Veteran attended the April 2016 VA examination, but the findings cannot be used for rating purposes as the examiner noted that the audiometric scores were inconsistent or not reliable due to the Veteran's severe dementia.  To date, there are no audiometric findings warranting an increased rating for the Veteran's bilateral hearing loss. 

The alternative method for rating hearing loss disability for an exceptional pattern of hearing impairment, 38 C.F.R. § 4.86, is inapplicable to the January 2008 and April 2016 VA examination results.

There are no other audiometric testing results for the remainder of the appeal period which comply with the requirements of 38 C.F.R. § 4.85 for rating purposes.  The Veteran has not identified any further VA or private audiometric testing.

Accordingly, the evidence of record does not support a compensable rating for bilateral hearing loss and chronic nonsuppurative otitis media.  See Lendenmann v. Principi, 3 Vet. App. 345 (1992). 

Other Applicable Diagnostic Codes 

The Board has considered whether the Veteran's disability can be evaluated under another diagnostic code.  The Veteran has asserted that his hearing loss is complicated by ear infections, constant draining, soreness, bleeding, difficulty with hearing aids, dizziness, and problems with his equilibrium.  

Otitis externa (inflammation or infection of the external auditory canal, the auricle, or both) is evaluated under Diagnostic Code 6210, which provides a 10 percent disability rating for swelling, dry and scaly or serous discharge, and itching requiring frequent and prolonged treatment.  38 C.F.R. § 4.87.  The 10 percent rating is the highest schedular disability rating for chronic otitis externa.  

After a review of all the evidence of record, and after affording the Veteran the benefit of reasonable doubt, especially in light of his severe dementia, the Board finds that the evidence demonstrates that the symptoms associated with the Veteran's bilateral hearing loss warrant a 10 percent disability rating for the entire rating period on appeal under Diagnostic Code 6210.  

During the October 2012 hearing, the Veteran's wife testified that depending on the medication for his chronic ear infections, it burns his ears so his ears were sore and bleed.  While the hearing aid works, it damages the earlobe and "they had to use an oil base ointment or eardrop to prevent the aggravation of it in the outside."  

In an April 2016 VA examination, the wife "described cerumen impaction and otitis externa."  
A February 2017 VA examination reported the Veteran had swelling in his external ear canal, dry and scaly discharge in his external ear canal, and experienced ear infections at least twice a month needing antibiotic ear drops.  The examiner opined that this condition was at least as likely as not due to service and notes the Veteran was treated in service for ear infections with antibiotic drops.

Based on the results of the February 2017 VA examination, the evidence is in relative equipoise as to whether Veteran meets the criteria for a rating under Diagnostic Code 6210.

The Board notes that despite his wife's assertions that the Veteran has dizziness or vertigo that is attributed to his hearing loss with chronic nonsuppurative otitis media, none of the medical records reflect a diagnosis of vestibular disequilibrium to support a diagnosis under Diagnostic Code 6204.  The medical evidence does not reflect a diagnosis of Meniere's syndrome to warrant a rating under Diagnostic Code 6205.  Specifically, during the February 2017 VA examination, the examiner marked "no" to the question does the Veteran have any of the following findings, signs or symptoms attributable to Meniere's syndrome (endolymphatic hydrops), a peripheral, vestibular condition or another diagnosed condition from Section 1.  Moreover, the medical evidence has not related dizziness or vertigo to his hearing loss or chronic nonsuppurative otitis media.  The Board finds this significant as the Veteran's ears have been evaluated several times as reflected in VA treatment records during the appeal period, but neither dizziness or vertigo was noted to be a result of his hearing loss or chronic nonsuppurative otitis media disability.  The Board affords these objective findings more probative value than the Veteran and his wife's assertions.

Accordingly, the Board finds that the criteria for a 10 percent evaluation under Diagnostic Code 6210 are met, and a separate rating based on analogy is granted.  38 C.F.R. §§ 4.20, 4.87.   




Extraschedular Evaluation 

In this case, the Board finds that the schedular ratings currently assigned for hearing loss reasonably describes the Veteran's disability level and symptomatology.  See 38 C.F.R. § 4.85, Diagnostic Code 6100; 38 C.F.R. § 4.87, Diagnostic Code 6210.  The Veteran reports that his hearing loss impacts the ordinary conditions of his daily life in that he has difficulty understanding conversations.  The Court has held that the rating criteria for hearing loss contemplate the functional effects of decreased hearing and difficulty understanding speech in an everyday work environment as these are precisely the effects that VA's audiometric tests are designed to measure.  Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017).  The situations noted by the Veteran in this case amount to decreased hearing and difficulty understanding speech in an everyday work environment and are not exceptional or unusual for someone with hearing loss.  In Doucette, the Court recognized that there were other functional effects the rating criteria did not discuss or account for, such as dizziness, vertigo, ear pain, recurrent loss of balance, social isolation, etc.  As discussed above, the Board has assigned a 10 percent rating under Diagnostic Code 6210 by analogy to account for his ear pain (itching), swelling, and dry and scaly discharge requiring frequent and prolonged treatment.  As discussed above, the Board concluded that dizziness and vertigo have not been attributed to his service-connected disability.  The Veteran has not contended, nor does the evidence reflect, that he has recurrent loss of balance or social isolation as a result of his service-connected disability.  Accordingly, the rating criteria contemplate his service-connected symptomatology, and referral for extra-schedular consideration is not warranted.  See 38 C.F.R. § 3.321; see also Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009).







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ORDER

Entitlement to a compensable evaluation for service-connected bilateral hearing loss with chronic nonsuppurative otitis media is denied.

Entitlement to a separate compensable rating for under 38 C.F.R. § 4.87 Diagnostic Code 6210 granted.





____________________________________________
S. HENEKS 
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs