Citation Nr: 1801978 Decision Date: 01/10/18 Archive Date: 01/23/18 DOCKET NO. 12-35 515 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE Entitlement to a compensable rating for right ear, status post mastoidectomy with hearing loss prior to August 11, 2017, and entitlement to a rating in excess of 10 percent thereafter. REPRESENTATION Veteran represented by: California Department of Veterans Affairs ATTORNEY FOR THE BOARD S. M. Stedman, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1976 to October 1979. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California, which, in pertinent part, declined to increase the disability rating of the Veteran's service-connected right ear, status post mastoidectomy with hearing loss. During the pendency of this appeal, this rating was increased to 10 percent, effective August 11, 2017. As this increase does not represent a full grant of benefits sought on appeal as concerning this issue, the claim for an increased disability rating for right ear, status post mastoidectomy with hearing loss remains pending before the Board. See A.B. v. Brown, 6 Vet. App., 35, 39 (1993) (the claimant is presumed to be seeking the highest possible rating for a disability unless he or she expressly indicates otherwise). In June 2017, the Board remanded this matter for further development. That development having been completed, this matter has returned to the Board for further appellate review. In a September 2017 rating decision, the RO granted the Veteran's claim for service connection for hepatitis C. This represents a full grant of the benefit sought, therefore that issue is no longer on appeal. See Grantham v. Brown, 114 F.3d 1156, 1158-59 (Fed. Cir. 1997). FINDINGS OF FACT 1. Prior to August 11, 2017, there is no competent evidence that the Veteran's right ear, status post mastoidectomy with hearing loss was manifested by active suppuration or aural polyps. 2. From August 11, 2017, forward, the Veteran's right ear, status post mastoidectomy with hearing loss is assigned a 10 percent rating, which is the maximum rating authorized under Diagnostic Code 6200. 3. From June 11, 2012, forward, the Veteran's right ear, status post mastoidectomy with hearing loss is manifest by bone loss of skull. CONCLUSIONS OF LAW 1. The criteria for a compensable disability rating prior to August 11, 2017 for right ear, status post mastoidectomy with hearing loss have not been met. 38 U.S.C. §§ 1155, 5107(b) (2012); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.87, Diagnostic Code 6200 (2017). 2. There is no legal basis for the assignment of a schedular rating in excess of 10 percent for right ear, status post mastoidectomy with hearing loss. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.87, Diagnostic Code 6200 (2017). 3. The criteria for a separate disability rating for bone loss of skull have been met as of June 11, 2012. 38 U.S.C. §§ 1155, 5107(b) (2012); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5296 (2017) REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has considered the Veteran's claim and decided entitlement based on the evidence. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record, with respect to his claim. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). I. Increased Rating VA has adopted a Schedule for Rating Disabilities (Schedule) to evaluate service-connected disabilities. See 38 U.S.C. § 1155 (2012); 38 C.F.R., Part IV (2017). Disability evaluations assess the ability of the body as a whole, the psyche, or a body system or organ to function under the ordinary conditions of daily life, to include employment. 38 C.F.R. § 4.10. The percentage ratings in the Schedule represent the average impairment in earning capacity resulting from service-connected diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The percentage ratings are generally adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the disability. Id. The Schedule assigns Diagnostic Codes to individual disabilities. Diagnostic Codes provide rating criteria specific to a particular disability. If two Diagnostic Codes are applicable to the same disability, the Diagnostic Code that allows for the higher disability rating applies. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability is resolved in favor of the claimant. 38 C.F.R. § 4.3. The Schedule recognizes that a single disability may result from more than one distinct injury or disease; however, rating the same disability or its manifestation(s) under different Diagnostic Codes-a practice known as pyramiding-is prohibited. Id.; see 38 C.F.R. § 4.14. Because the level of disability may have varied over the course of the claim, the rating may be "staged" higher or lower for segments of time during the period under review in accordance with such variations, to the extent they are sufficient to warrant changes in the evaluations assignable under the applicable rating criteria. See Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). As is the case here, for increased-rating claims, where a claimant seeks a higher evaluation for a previously service-connected disability, it is the present level of disability that is of primary concern, and VA considers the level of disability for the period beginning one year prior to the claim for a higher rating. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994); see also 38 U.S.C. § 5110(b)(2) ( 2012); 38 C.F.R. § 3.400(o)(2) (2017). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence on any issue material to the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102 (providing, in pertinent part, that reasonable doubt will be resolved in favor of the claimant). When the evidence supports the claim or is in relative equipoise, the claim will be granted. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); see also Wise v. Shinseki, 26 Vet. App. 517, 532 (2015). If the preponderance of the evidence weighs against the claim, it must be denied. See id.; Alemany v. Brown, 9 Vet. App. 518, 519 (1996). A. Prior to August 11, 2017 The Veteran's right ear, status post mastoidectomy with hearing loss is rated as noncompensable prior to August 11, 2017, and as 10 percent disabling thereafter under Diagnostic Code 6200 (chronic suppurative otitis media, mastoiditis, or cholesteatoma (or any combination thereof)). 38 C.F.R. § 4.87. Under Diagnostic Code 6200, a single 10 percent rating is assigned during suppuration, or with aural polyps. Id. Diagnostic Code 6200 notes that hearing impairment and complications such as labyrnthitis, tinnitus, facial nerve paralysis, or bone loss of skull must be evaluated separated. Id. at Note 1. The Veteran contends that he is entitled to a compensable rating for his service-connected right ear, status post mastoidectomy with hearing loss prior to August 11, 2017. For the following reasons and bases, the Board finds that a compensable rating prior to August 11, 2017 is not warranted. A May 2010 VA examination noted the Veteran complained of drainage from his right ear. See May 2010 VA Examination Report. Following a physical examination, the May 2010 VA examiner noted that the Veteran did not have active suppuration. Id. Additionally, no aural polyps were noted at the examination. Id. Following a June 2012 VA examination, the examiner found that the Veteran had symptoms of hearing impairment and tinnitus, external itching, and bone loss of skull. See June 2012 VA Examination Report The examiner did not find that the Veteran had active suppuration. Id. The Board notes that numerous post-service treatment records document the Veteran's complaints of, and treatment for, discharge and drainage from his right ear. However, at no point prior to August 2017 has the Veteran been found to have active suppuration or aural polyps. As stated above, a 10 percent evaluation is assigned for active suppuration, or with aural polyps. Prior to August 11, 2017, the Veteran's right ear condition did not manifest is either active suppuration or aural polyps. Accordingly, a compensable rating for right ear, status post mastoidectomy with hearing loss prior to August 11, 2017 is not warranted. B. From August 11, 2017, forward Turning to the evidence of record, the Veteran underwent an August 2017 VA examination to address the severity of his service-connected right ear. Upon physical examination, the August 2017 VA examiner noted the Veteran's right ear, status post mastoidectomy was manifest by active suppuration, hearing impairment, and tinnitus. The RO subsequently increased the Veteran's disability rating to 10 percent, effective August 11, 2017, the date of the VA examination. The Board notes that the Veteran is currently awarded the highest rating possible under Diagnostic Code 6200 for his right ear, status post mastoidectomy with hearing loss; thus, Diagnostic Code 6200 does not allow for a higher rating. The Board further notes that a 10 percent rating is awarded under this diagnostic code during periods of suppuration or when aural polyps are present, and such a rating contemplates constant symptoms. Accordingly, the preponderance of the evidence is against the Veteran's claim for a rating in excess of 10 percent for right ear, status post mastoidectomy. The Board has also considered whether the Veteran would be entitled to a rating in excess of 10 percent for his right ear, status post mastoidectomy with hearing loss under any other diagnostic code. In this regard, the Board notes that the Veteran has reported occasional dizziness, but has not been diagnosed with a peripheral vestibular disorder; therefore Diagnostic Code 6204 does not allow for a compensable rating. Moreover, Diagnostic Code 6210 (chronic otitis externa) provides for a maximum 10 percent rating and DC 6211 (perforation of tympanic membrane) provides for only a noncompensable rating. Further, Diagnostic Codes 6205 through 6209 do not apply, as the Veteran has not been diagnosed with Meniere's syndrome, loss of auricle, malignant neoplasm of the ear, or benign neoplasms of the ear. 38 C.F.R. § 4.87. With regard to separate ratings, the Veteran is already separately compensated for his service-connected tinnitus, and he is not shown to have labrynthitis or facial nerve paralysis. A June 2012 VA examination report reflected a finding that the Veteran had bone loss of skull as a result of his status post mastoidectomy. The bone loss area was measured as smaller than an America quarter (4.61 square centimeters). See June 2012 VA Examination Report. Diagnostic Code 5296 (skull, loss of part of) provides a 10 percent rating for loss of an area smaller than the size of a 25-cent piece or 0.716 square inches (4.169 square centimeters) without brain hernia; 30 percent for an intermediate area without brain hernia; 50 percent for an area larger than the size of a 50-cent piece or 1.140 square inches (7.355 square centimeters) without brain hernia; and an 80 percent rating with a brain hernia. In light of the June 2012 VA examiner findings, the Board finds the Veteran is entitled to a separate rating of 10 percent, but no higher, for bone loss of skull, effective June 11, 2012. Finally, the Board notes that the Veteran's hearing loss associated with his service-connected right ear, status post mastoidectomy with hearing loss has been noncompensable during the entire appellate period. In this regard, hearing loss is evaluated under 38 C.F.R. § 4.85, Diagnostic Code 6100. In evaluating hearing loss, disability ratings are derived from a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are performed. See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). Hearing loss disability evaluations range from noncompensable to 100 percent based on organic impairment of hearing acuity, as measured by controlled speech discrimination tests using the Maryland CNC word list, in conjunction with the average hearing threshold, measured by puretone audiometric tests in the frequencies 1000, 2000, 3000, and 4000 cycles per second. 38 C.F.R. § 4.85, Diagnostic Code 6100. The rating schedule establishes eleven auditory acuity levels designated from Level I, for essentially normal hearing acuity, through Level XI for profound deafness. See id. VA audiometric examinations are generally conducted using a controlled speech discrimination test together with the results of a puretone audiometry test. Id. Table VI in 38 C.F.R. § 4.85 is then used to determine the numeric designation of hearing impairment based on the puretone threshold average derived from the audiometry test, and from the results of the speech discrimination test. The horizontal rows in Table VI represent nine categories of the percentage of discrimination based on the controlled speech discrimination test. See id. The vertical columns in Table VI represent nine categories of decibel loss based on the puretone audiometry test. Id. The numeric designation of impaired hearing (Levels I through XI) is determined for each ear by intersecting the horizontal row corresponding to the percentage of discrimination and the vertical column corresponding to the puretone decibel loss. Id. The percentage evaluation is derived from Table VII in 38 C.F.R. § 4.85 by intersecting the vertical column corresponding to the numeric designation for the ear having the better hearing acuity (as determined by Table VI) and the horizontal row corresponding to the numeric designation level for the ear having the poorer hearing acuity (as determined by Table VI). For example, if the better ear has a numeric designation Level of "V" and the poorer ear has a numeric designation Level of "VII," the percentage evaluation is 30 percent. See id. There are alternative criteria for certain exceptional patterns of hearing loss. Specifically, if puretone thresholds in each of the specified frequencies of 1000, 2000, 3000, and 4000 Hertz are 55 decibels or more, an evaluation will be based on either Table VI or Table VIa in 38 C.F.R. § 4.85, whichever results in a higher evaluation. 38 C.F.R. § 4.86(a) (2017). Each ear will be evaluated separately. Id. When the puretone threshold is 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz, the Roman numeral designation for hearing impairment will be chosen from either Table VI or Table VIa in 38 C.F.R. § 4.85, whichever results in the higher Roman numeral, and that numeral will then be elevated to the next higher numeral. 38 C.F.R. § 4.86(b). The Board notes that the Veteran's right ear hearing loss is manifest by the exceptional patterns set forth in 38 C.F.R. § 4.85(a). Accordingly, the alternative criteria apply. See 38 C.F.R. § 4.86. In the present case, the preponderance of the evidence shows that the criteria for a separate compensable rating for hearing loss have not been satisfied at any time during the appellate period. A VA audiological report conducted in June 2009 has been associated with the claims file. However, while the report demonstrates puretone threshold testing, the speech recognition scores do not indicate which speech recognition test was used. As the Maryland CNC controlled speech test may not have been used, as is required for rating a hearing loss disability under 38 C.F.R. § 4.85, this evaluation is invalid for rating purposes. A May 2010 VA examination report reflects a puretone threshold average of 85 dB for the right ear, and 31 dB in the left ear. Speech recognition scores were 86 percent in the right ear, and 94 percent in the left ear. A May 2012 VA examination report reflects a puretone threshold average of 60 dB for the right ear, and 28 dB in the left ear. Speech recognition scores were 96 percent in the right ear, and 100 percent in the left ear. A January 2015 VA examination report reflects a puretone threshold average of 59 dB for the right ear, and 29 dB in the left ear. Speech recognition scores were 96 percent in the right ear, and 100 percent in the left ear. An August 2017 VA examination report reflects a puretone threshold average of 95 dB for the right ear, and 36 dB in the left ear. Speech recognition scores were 96 percent in the right ear, and 100 percent in the left ear. Throughout the appellate period, the applicable examination reports show that the highest puretone threshold average for the right ear was 95 dB. Applying this value to Table VIA pursuant to the alternative criteria set forth in 38 C.F.R. § 4.86(a) results in a numeric designation of IX for the right ear. The highest puretone average for the left ear was 36 dB, and the lowest speech recognition score was 94 percent. Applying these values to Table VI results in a numeric designation of I for the left ear. The point where numeric designations IX and I intersect on Table VII yields a 0 percent, or noncompensable, rating. Accordingly, a separate compensable rating for hearing loss is not warranted. ORDER Entitlement to a compensable disability rating prior to August 11, 2017 for right ear, status post mastoidectomy with hearing loss is denied. Entitlement to a rating in excess of 10 percent from August 11, 2017, forward, for right ear, status post mastoidectomy with hearing loss is denied. Entitlement to a separate 10 percent rating for bone loss of skull, but no higher, is granted, effective June 11, 2012. ____________________________________________ Lesley A. Rein Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs