Citation Nr: 1802241 Decision Date: 01/11/18 Archive Date: 01/23/18 DOCKET NO. 14-11 407 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to a compensable rating for bilateral hearing loss. 2. Entitlement to a rating higher than 10 percent for tinnitus. 3. Entitlement to a rating higher than 10 percent for otitis externa. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD M. Mac, Counsel INTRODUCTION The Veteran served on active duty to include the period from May 1985 to July 2000. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions dated in June 2010 and July 2012 of a Regional Office (RO) of the Department of Veterans Affairs (VA). In December 2008, the Board remanded the issue of entitlement to an effective date earlier than April 30, 2004 for the grant of service connection for tinnitus in order for a Statement of the Case to be issued pursuant to Manlincon v. West, 12 Vet. App. 238 (1999). However, in a rating decision in June 2010 the RO granted an effective date of July 14, 2000, which is the day after the Veteran was discharged from active service. The Veteran did not file a notice of disagreement with this determination. Thus, this issue is no longer in appellate status. In the July 2012 rating decision codesheet, the RO advised the Veteran that he can file a claim of whether there is clear and unmistakable error with the January 2009 rating decision in the effective date assigned for the grant of service connection for otitis externa. The Veteran raised such a claim in November 2012, and the Board hereby refers this matter to the RO for appropriate action. Further, in March 2016, the Veteran filed a claim of service connection for a low back disability, and the Board also refers it to the RO for appropriate action. FINDINGS OF FACT 1. The service-connected bilateral hearing loss is manifested by hearing acuity no worse than Level I hearing acuity in the right ear and Level I hearing acuity in the left ear, with no exceptional pattern of hearing loss in either ear. 2. The service-connected tinnitus is assigned a 10 percent rating, the maximum schedular rating authorized under VA regulatory provisions. 3. The service-connected otitis externa has resulted in no more than symptoms contemplated and appropriately compensated by the assigned 10 percent schedular rating, the maximum schedular rating authorized under VA regulatory provisions. CONCLUSIONS OF LAW 1. The criteria for the assignment of a compensable rating for bilateral hearing loss have not been met. 38 U.S.C.A.§§ 1155, 5107 (West 2014); 38 C.F.R. § 4.85 including Diagnostic Code 6100 (2017). 2. There is no legal basis for the assignment of a disability rating higher than 10 percent for tinnitus. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. § 4.87, Diagnostic Code 6260 (2017); Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006). 3. The criteria for a rating in excess of 10 percent for otitis externa have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. § 4.87, Diagnostic Code 6210 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Notify and Assist 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; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The duty to notify has been met. See VA correspondence dated in March 2013. All identified and available authorized records relevant to the matter, to include treatment records and examinations, have been requested or obtained. VA has met all statutory and regulatory notice and duty to assist provisions. The Veteran has not alleged prejudice with regard to VA's statutory and regulatory notice and duty to assist provisions. See Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015) (holding that "absent extraordinary circumstances . . . we think it is appropriate for the Board and the Veterans Court to address only those procedural arguments specifically raised by the veteran . . ."). Rating Criteria 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.A. § 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," whether it is an initial rating case or not. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Bilateral Hearing Loss The Rating Schedule provides a table (Table VI) to determine a Roman numeral designation (I through XI) for hearing impairment, based on puretone thresholds and controlled speech discrimination (Maryland CNC) testing. Table VII is used to determine the rating assigned by combining the Roman numeral designations for hearing impairment of each ear. 38 C.F.R. § 4.85. The "puretone threshold average" as used in Tables VI, is the sum of the puretone thresholds at 1000, 2000, 3000, and 4000 Hertz, divided by four. This average determines the Roman numeral designation for hearing impairment from Table VI or Via. 38 C.F.R. § 4.85(d). Ratings for hearing impairment are derived by the mechanical application of the Rating Schedule to the numeric designations assigned after audiometry evaluations are rendered. Lendenmann v. Principi, 3 Vet. App. 345 (1992). When the puretone threshold at each of the four specified frequencies (1,000, 2,000, 3,000, and 4,000 Hertz) is 55 decibels or more, Table VI or Table Via is to be used, whichever results in the higher numeral. 38 C.F.R. § 4.86(a). Additionally, when the puretone threshold is 30 decibels or less at 1,000 Hertz, and 70 decibels or more at 2,000 Hertz, Table VI or Table Via is to be used, whichever results in the higher numeral. Thereafter, that numeral will be elevated to the next higher numeral. 38 C.F.R. § 4.86(b). An examination for hearing impairment for VA purposes must be conducted by a state licensed audiologist and must include a controlled speech discrimination test (Maryland CNC) and a puretone audiometry test. Examinations will be conducted without hearing aids. 38 C.F.R. § 4.85(a). Further, in Martinak v. Nicholson, 21 Vet. App. 447 (2007), the United States Court of Appeals for Veterans Claims (Court) held that in addition to dictating objective test results a VA audiologist must describe the functional effects caused by a hearing disability in his or her final report. The Court also noted, however, that, even if an audiologist's description of the functional effects of a veteran's hearing disability was somehow defective, the veteran bears the burden of demonstrating any prejudice caused by a deficiency in the examination. Id. The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show. The Veteran should not assume that the Board has overlooked pieces of evidence that are not specifically discussed herein. Timberlake v. Gober, 14 Vet. App. 122 (2000). The law requires only that the Board provide reasons for rejecting evidence favorable to the Veteran. On VA audiological examination in May 2010, puretone thresholds for the right ear, in decibels, at 1000, 2000, 3000, and 4000 Hertz were as follows: 10, 15, 30, and 25 for an average of 20, and puretone thresholds for the left ear, in decibels, at 1000, 2000, 3000, and 4000 Hertz were as follows 15, 20, 35, and 30 for an average of 25. The speech recognition score, using the Maryland CNC Test, was 94 percent in the right ear and 94 percent in the left ear. Evaluating these VA audiological test results cited above, the Board finds that, when the puretone threshold averages and the speech recognition scores for the right ear and left ear from the May 2010 VA examination are applied to Table VI, the numeric designations of hearing impairment is Level I for the right ear and Level I for the left ear. When these numeric designations for the right and left ears are applied to Table VII (Percentage Evaluation for Hearing Impairment-Diagnostic Code 6100), the percentage of disability for hearing impairment is zero percent, and a compensable rating is therefore not warranted. See 38 C.F.R. § 4.85, DC 6100. Further, the May 2010 VA examiner noted that there were no significant effects on the Veteran's occupation. Martinak, supra. On VA audiological examination in January 2012, puretone thresholds for the right ear, in decibels, at 1000, 2000, 3000, and 4000 Hertz were as follows: 15, 20, 35, and 30 for an average of 25, and puretone thresholds for the left ear, in decibels, at 1000, 2000, 3000, and 4000 Hertz were as follows 15, 25, 35, and 35 for an average of 28. The speech recognition score, using the Maryland CNC Test, was 94 percent in the right ear and 94 percent in the left ear. Evaluating these VA audiological test results cited above, the Board finds that, when the puretone threshold averages and the speech recognition scores for the right ear and left ear from the January 2012 VA examination are applied to Table VI, the numeric designations of hearing impairment is Level I for the right ear and Level I for the left ear. When these numeric designations for the right and left ears are applied to Table VII (Percentage Evaluation for Hearing Impairment-Diagnostic Code 6100), the percentage of disability for hearing impairment is zero percent, and a compensable rating is therefore not warranted. See 38 C.F.R. § 4.85, DC 6100. Further, the January 2012 VA examiner noted that the Veteran's hearing loss affected occupational activities by causing hearing difficulty. Martinak, supra. On VA audiology examination in May 2014 puretone thresholds for the right ear, in decibels, at 1000, 2000, 3000, and 4000 Hertz were as follows: 15, 20, 35, and 30, for an average of 25, and puretone thresholds for the left ear, in decibels, at 1000, 2000, 3000, and 4000 Hertz were as follows 15, 20, 30, and 30 for an average of 24. The speech recognition score, using the Maryland CNC Test, was 94 percent in the right ear and 94 percent in the left ear. Evaluating these VA audiological test results cited above, the Board finds that, when the puretone threshold averages and the speech recognition scores for the right ear and left ear from the May 2014 VA examination are applied to Table VI, the numeric designations of hearing impairment is Level I for the right ear and Level I for the left ear. When these numeric designations for the right and left ears are applied to Table VII (Percentage Evaluation for Hearing Impairment-Diagnostic Code 6100), the percentage of disability for hearing impairment is zero percent, and a compensable rating is therefore not warranted. See 38 C.F.R. § 4.85, DC 6100. Further, the May 2014 VA examiner noted that the Veteran's functional impairment due to his hearing loss was difficulty hearing and understanding conversational speech. Martinak, supra. Throughout the entire appeal period the provisions of 38 C.F.R. § 4.86 which address exceptional patterns of hearing loss are not applicable. There is no showing that the Veteran had an exceptional pattern of hearing loss in either ear at any portion of this appeal period. Although there are other audiograms in the record during the current appeal period to include ones associated with the Veteran's Reserve service, they do not include all the findings necessary in order to determine whether the Veteran is entitled to a compensable rating for bilateral hearing loss and thus they do not warrant consideration. Consideration is given to the functional effects of the Veteran's bilateral hearing loss. Although his statements regarding his symptoms are competent and credible, the evaluation of hearing loss is reached by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are rendered. Lendenmann v. Principi, supra. The requirements of 38 C.F.R. § 4.85 set out the percentage ratings for exact numerical levels of impairment required for an evaluation of hearing loss, which requires specific testing. In this case, such mechanical application does not warrant a compensable rating. For these reasons, the evidence preponderates against the claim for a compensable rating for bilateral hearing loss. The Board finds that the benefit-of-the-doubt standard of proof does not apply. 38 U.S.C.A. § 5107(b). Tinnitus Tinnitus is evaluated under Diagnostic Code 6260, which provides a 10 percent disability rating for recurrent tinnitus. 38 C.F.R. § 4.87, Diagnostic Code 6260. Note (2) following Diagnostic Code 6260 further explains that the Board must assign only a single evaluation for recurrent tinnitus, whether the sound is perceived in one ear, both ears, or in the head. The Veteran has already been assigned the maximum schedular (10 percent) rating allowed for tinnitus. As tinnitus has its own code, Diagnostic Code 6260, no rating by analogy under other codes is permissible; thus, a higher rating under another code provision is not warranted. Copeland v. McDonald, 27 Vet.App. 333, 338 (2015) (held where there is a diagnostic code that addresses the particular service-connected disability, to evaluate that disability under another code would constitute impermissible rating by analogy). There is no legal basis for a schedular rating in excess of 10 percent for recurrent tinnitus due to acoustic trauma. Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006). As the disposition of this claim is based on the law, and not the facts of the case, the claim must be denied based on a lack of entitlement under the law. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Otitis Externa The Veteran is in receipt of a 10 percent rating under Diagnostic Code 6210 for chronic otitis externa. A 10 percent rating is assigned for otitis externa that is productive of swelling, dry and scaly or serous discharge, and itching requiring frequent and prolonged treatment. The 10 percent evaluation is the maximum rating for otitis externa under Diagnostic Code 6210. The Veteran contends that his otitis externa is manifested by symptoms to include severe swelling, drainage, scaling, scabbing, pain, and an irritating and nauseating medical condition. See December 2011 claim. The prescribed ear drops and antibiotics did not help. Id. On VA examination in January 2012, the Veteran reported pressure inside the ear, swelling of the ear, aching pain, scaly itching, and irritation. The examiner noted that he has been on a number of courses of ear drops and his canal was frequently clogged. The Veteran also complained of recurrent pain with recurrent drainage and purulence from the ears. Physical examination shows erythema of the concha bilaterally. On VA ear examination in May 2014, the examiner noted that the Veteran has a history of having collapsing cartilagenous ear canals that have caused recurrent otitis externa. The examiner noted that the Veteran did not take continuous medication for the condition. The Veteran's symptoms included dry and scaly external ear canal. VA treatment records during the appeal period are consistent with the findings presented on these VA examinations. The Board also has considered the Veteran's statements that describe symptoms associated with his otitis externa. The Veteran is certainly competent to describe his observations, and the Board finds that his statements are credible. However, the Veteran is in receipt of a 10 percent rating, which as discussed above is the maximum schedular rating available for otitis externa. As otitis externa has its own code, Diagnostic Code 6210, no rating by analogy under other codes is permissible; thus, a higher rating under another code provision is not warranted. Copeland, supra. For these reasons, the evidence preponderates against the claim for a rating higher than 10 percent for otitis externa. The Board finds that the benefit-of-the-doubt standard of proof does not apply. 38 U.S.C.A. § 5107(b). Final Matters Under certain circumstances, the claim for an increased rating for a service-connected disability includes a claim of entitlement to a total disability rating based on individual unemployability (TDIU). Rice v. Shinseki, 22 Vet. App. 447 (2009). In the instant case, the Veteran has confirmed that he is working and that he never filed a claim of entitlement to TDIU. See November 2012 statement and notice of disagreement. Lastly, neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. Doucette v. Shulkin, 28 Vet. App. 366 (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). ORDER A compensable rating for bilateral hearing loss is denied. A rating higher than 10 percent for tinnitus is denied. A rating higher than 10 percent for otitis externa is denied. ____________________________________________ THERESA M. CATINO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs