Citation Nr: 1808508	
Decision Date: 02/09/18    Archive Date: 02/20/18

DOCKET NO.  11-34 387	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in North Little Rock, Arkansas


THE ISSUES

1. Entitlement to a rating in excess of 30 percent for posttraumatic stress disorder (PTSD).

2. Entitlement to a compensable rating for right ear hearing loss, status-post perforated eardrum with scarring on the right tympanic membrane.

3. Entitlement to a compensable rating for mild tympanisclerosis of the left tympanic membrane, claimed as perforated left ear drum.

4. Entitlement to service connection for left ear hearing loss.


REPRESENTATION

Appellant represented by:	Disabled American Veterans



ATTORNEY FOR THE BOARD

J. Nichols, Counsel


INTRODUCTION

The Veteran served on active duty from August 1967 to April 1969. 

This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions issued in August 2010 and November 2010 by a Department of Veterans Affairs (VA) Regional Office (RO) that denied the benefits sought on appeal.  

These issues were previously remanded by the Board in June 2014.  Since then, the Board notes that the Veteran was awarded a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) by way of an August 2017 rating decision.

The issues involving increased ratings for PTSD and right ear hearing loss, along with service connection for left ear hearing loss, are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDING OF FACT

The Veteran's mild tympanisclerosis of the left tympanic membrane is most appropriately rated under Diagnostic Code (DC) 6211, for which only a noncompensable evaluation may be assigned.



CONCLUSION OF LAW

The criteria for a compensable rating for mild tympanisclerosis of the left tympanic membrane have not been met.  38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.87, Diagnostic Code (DC) 6211 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

The Board has limited the discussion below to the relevant evidence required to support its findings of fact and conclusions of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record.  See Doucette v. Shulkin, 28 Vet. App. 366, 69-70 (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); Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015).

I. General Rating Principles

Disability evaluations are determined by comparing a veteran's present symptoms with the criteria set forth in the VA Schedule for Rating Disabilities, which is based upon average impairment in earning capacity.  38 U.S.C.A. § 1155; 38 C.F.R. Part 4.  When a question arises as to which of two ratings applies under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating; otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7.  After careful consideration of the evidence, any reasonable doubt is resolved in favor of the Veteran.  38 C.F.R. § 4.3. 

A disability rating may require re-evaluation in accordance with changes in a veteran's condition.  Thus, it is essential that the disability be considered in the context of the entire recorded history when determining the level of current impairment.  See 38 C.F.R. § 4.1.  See also Schafrath v. Derwinski, 1 Vet. App. 589 (1991).  

When a claimant is awarded service connection and assigned an initial disability rating, separate disability ratings may be assigned for separate periods of time in accordance with the facts found.  Where the veteran is appealing the rating for an already established service-connected condition, his present level of disability is of primary concern.  See Francisco v. Brown, 7 Vet. App. 55, 58 (1994).  Staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings.  Hart v. Mansfield, 21 Vet. App. 505 (2007).

II. Increased Rating for Mild Tympanisclerosis of Left Tympanic Membrane

The Veteran's mild tympanisclerosis of the left tympanic membrane is currently rated under 38 C.F.R. § 4.87, DC 6211.  Under DC 6211, perforation of the tympanic membrane (eardrum) warrants a noncompensable (zero percent) rating.  It is the maximum rating for perforation of the tympanic membrane under that DC.

Accordingly, the Veteran may only receive a higher rating under a different DC for diseases of the ear.

In this regard, the Board has considered all of the relevant DCs for the left ear disability.  The evidence of record reveals that the Veteran has bilateral tinnitus; however, he is already receiving compensation for this.  Thus, to award an additional rating under the DC pertaining tinnitus would amount to impermissible pyramiding.  See 38 C.F.R. § 4.14 (noting that the evaluation of the same disability, or the same manifestation of a disability, under different DCs is to be avoided).  In addition, there is no evidence of chronic nonsuppurative otitis media, mastoiditis, cholesteatoma, otosclerosis, peripheral vestibular disorders, Meniere's syndrome, loss of auricle, malignant neoplasm of the ear, benign neoplasm of the ear, or chronic otitis externa.  See 38 C.F.R. § 4.87, DCs 6200, 6201, 6202, 6204, 6205, 6207, 6208, 6209, and 6210. 

In particular, the Board notes that under 38 C.F.R. § 4.87, DC 6204, for rating peripheral vestibular disorders, 10 and 30 percent ratings are assignable for manifestations of dizziness.  The accompanying note to this DC states that "[o]bjective findings supporting the diagnosis of vestibular disequilibrium are required before a compensable evaluation can be assigned under this code.  Hearing impairment or suppuration shall be separately rated and combined.  

On VA examination in October 2010, the examiner noted a history of intermittent dizziness.  In order to determine whether a compensable rating under DC 6204 was warranted, the Board, in its June 2014 remand, requested a medical opinion to "describe the nature and degree of any impairment caused by the Veteran's bilateral perforated tympanic membranes.  The examiner must indicate whether the Veteran's complaints of dizziness are a manifestation of his service-connected right and/or left ear perforated tympanic membranes, regardless of whether a diagnosis of vestibular disequilibrium is made."  

The Veteran was then afforded a VA examination for ear conditions in July 2016.  While a diagnosis of dizziness was noted, the examiner, after detailed explanation, came to the conclusion that the Veteran's symptoms of dizziness described as lightheadedness/impending vertigo are symptoms less likely than not caused by peripheral vestibular disorder and less likely than not manifestations of his service-connected tympanic membrane.  The lightheadedness was stated to be consistent with orthostatic hypotension or a vascular phenomenon, as reported by a previous physician, rather than otologic etiology; the Veteran is not in receipt of service connection for any of these conditions.  Thus, the lightheadedness and dizziness symptoms are not manifestations of the Veteran's left ear disability, and are not symptoms that support a diagnosis of vestibular disequilibrium.  Also, the Veteran is not currently in receipt of service connection for left ear hearing loss; however, in any event, competent medical evidence shows that the dizziness is unrelated to a hearing or ear problem.  As such, he cannot be awarded a compensable rating under DC 6204.

As the other DCs for diseases of the ear are inapplicable, the Veteran's mild tympanisclerosis of the left tympanic membrane must continue to be rated as noncompensable under DC 6211.  See Butts v. Brown, 5 Vet. App. 532, 539 (1993) (holding that the Board's choice of DC should be upheld so long as it is supported by explanation and evidence).
Accordingly, the Board finds that entitlement to a compensable evaluation for mild tympanisclerosis of the left tympanic membrane, claimed as perforated left ear drum, is not warranted.

ORDER

A compensable rating for mild tympanisclerosis of the left tympanic membrane, claimed as perforated left ear drum, is denied.


REMAND

Remand is necessary to ensure that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration.  

Specifically, the service connection and the remaining increased rating issues on appeal must be remanded to afford the Veteran an opportunity to undergo new VA examinations to assess the current severity of his PTSD and right ear hearing loss, and also to determine whether the Veteran meets VA standards for hearing loss disability for his left ear.

In this regard, the Board notes that, as per its June 2014 remand directives, a new PTSD examination was ordered in June 2016.  However, this VA examiner did not made adequate findings and complete the relevant portions of the PTSD Disability Benefits Questionnaire.  Instead, she summarized her findings from evaluating the Veteran in just a few paragraphs.  She indicated that the Veteran's degree of impairment appeared commensurate with that last examination.  The examiner who conducted the last October 2014 VA examination was not available.  Unfortunately, the Board does not find this June 2016 examination adequate because conclusions were made, but specific clinical findings (those necessary for rating purposes) were not indicated.  As such, a new examination with complete findings will be required.

Second, the Board notes that the last VA audiological examination was conducted in October 2014 for both ears.  The relatively recent July 2016 examination was only for ear conditions and did not include an audiometric examination.  As the evidence suggests a potential worsening of the right ear hearing loss disability, the Board finds the October 2014 examination is too old to properly evaluate it.  See Snuffer v. Gober, 10 Vet App. 400 (1997); see also Caffrey v Brown, 6 Vet App 377, 381 (1994).  Furthermore, the July 2016 examination noted that the Veteran has bilateral sensorineural hearing loss that is secondary to his acoustic trauma in service.  As this is suggestive of the fact that the Veteran's left ear hearing loss may have worsened to the point where he may qualify for service connection based on VA standards, the Board will reevaluate his left ear hearing loss as well.

Lastly, because the method of rating service-connected hearing loss that is unilateral (one ear) versus bilateral (both ears) is different, the Board must defer considering whether the Veteran is entitled to a higher rating for the service-connected right ear hearing loss.  If the hearing loss in his left ear has increased to the point of constituting a ratable disability as defined by § 3.385, he would then have service-connected bilateral hearing loss, versus just the right ear hearing loss.  See 38 C.F.R. §§ 3.383(a)(3), 4.85, 4.86 (2017). 

Accordingly, the case is REMANDED for the following action:

1. Afford the Veteran a VA examination to ascertain the current severity and manifestations of his PTSD.  The claims file must be made available to the examiner for review.  Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed and examination should be conducted in accordance with the current examination worksheet or Disability Benefits Questionnaire. 

(a) The findings of the examiner should address the level of social and occupational impairment attributable to the disability. 

(b) The examiner should also specifically consider the Veteran's statements as it relates to his occupational and social impairment and how his symptoms have worsened since the last complete VA psychiatric evaluation of record in October 2014.  [While the Board notes that the last examination report is from June 2016, the examiner did not provide complete responses with respect in accordance with the current examination worksheet or Disability Benefits Questionnaire for PTSD.]

2. Schedule a VA examination to (a) reassess the current level of severity for the already service-connected hearing loss in the Veteran's right ear, and (b) to determine whether he now has sufficient hearing loss in his left ear to constitute a ratable disability for VA compensation purposes.

The examiner must, in addition to providing audiometric results and Maryland CNC test results, fully describe the functional effects caused by the Veteran's hearing loss disability.  Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007).

Please note that an etiological opinion is not needed regarding the hearing loss in the left ear because a VA examiner already has confirmed that any hearing loss in the left ear, like that in the service-connected right ear, is at least partly the result of the noise exposure and consequent acoustic trauma the Veteran sustained during his military service, and specifically, during in combat in Vietnam.

3. Readjudicate the remanded issues with consideration of all pertinent evidence, to include any evidence added to the file since the issuance of the August 2017 supplemental statement of the case, and legal authority, and addressing all relevant theories of entitlement.  If any benefit sought on appeal remains denied, furnish to the Veteran and his representative an appropriate supplemental statement of the case that includes clear reasons and bases for all determinations.  The Veteran and his representative should be afforded the appropriate time period to respond.  Thereafter, if indicated, the case should be returned to the Board.

The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C. §§ 5109B, 7112 (2012).




______________________________________________
S.B. MAYS
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs