Citation Nr: 1815293 Decision Date: 03/15/18 Archive Date: 03/23/18 DOCKET NO. 10-48 029 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUES 1. Entitlement to a disability rating in excess of 10 percent for left otitis media. 2. Entitlement to a disability rating of 60 percent for bilateral hearing loss disability effective May 17, 2013. 3. Entitlement to service connection for a jaw disability. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Gregory T. Shannon, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1969 to June 1973. These matters come before the Board of Veterans' Appeals (Board) from October 2009 and January 2014 rating decisions by the Department of Veterans Affairs, Regional Office (RO) in Indianapolis, Indiana. In connection with his appeal, the Veteran requested a hearing before a Veterans Law Judge via videoconference. The Veteran was notified twice by letter in December 2017 that he was scheduled for a hearing in January 2018. The Veteran did not appear at his scheduled hearing. There is no indication in the evidence of record that the Veteran did not receive notice of the hearing or that he attempted to postpone his hearing. Therefore, the case will be processed as though the request for a hearing had been withdrawn. 38 C.F.R. § 20.704(d). The Veteran submitted a claim for service connection "for a left jaw condition." A claim for service connection encompasses claims for all disorders that are reasonably raised by the record. Clemons v. Shinseki, 23 Vet. App. 1 (2009). In light of Clemons and medical evidence of popping on both sides of the Veteran's jaw, the Board will characterize the Veteran's claim broadly as a jaw disability. The issue of service connection for a jaw disability is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The Veteran has been assigned the maximum evaluation for left otitis media. 2. The Veteran's otitis media disability picture does not exhibit marked interference with employment or frequent periods of hospitalization. 3. The AOJ granted the Veteran a 70 percent rating for his hearing loss disability effective May 17, 2013, which was a full grant of the benefit sought. 4. Temporomandibular joints disability is related to active service. CONCLUSIONS OF LAW 1. The criteria for an extra-schedular rating for left otitis media are not met. 38 C.F.R. § 3.321(b)(1). 2. There is no alleged specific error of fact or law with regard to the Veteran's hearing loss disability rating appeal. 38 U.S.C. § 7105(d)(5) (2012). 3. Temporomandibular joints disability was incurred in service. 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.102 (2017). 4. The criteria for an evaluation ion excess of 10 percent for left otitis media are not met. 38 U.S.C. § 1155; 38 C.F.R. Part 4, Code 6200 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. 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. §§ 5103, 5103A (2012); 38 C.F.R. § 3.159 (2017). The Veteran, through his representative, has requested additional examination and contends that a September 2012 VA examination of the Veteran's otitis media "did not, however, have any associated diagnostic tests performed (X-ray, ENG, CT, MRI)". See 2018 informal hearing presentation. However, there is a failure to establish why such testing is necessary for this disability. The record in this case is adequate. Neither the Veteran nor his representative has raised any other issues with the duty to notify or duty to assist. See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument). II. Increased Rating - Otitis Media The Veteran seeks a rating in excess of 10 percent for left ear otitis media. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Schedule), found in 38 C.F.R. Part 4 (2017). The Veteran's chronic suppurative otitis media is rated under 38 C.F.R. § 4.87, Diagnostic Code (DC) 6200. This diagnostic code provides for a maximum disability rating of 10 percent under the Schedule. The Veteran has been assigned the maximum evaluation for left ear otitis media. The Board has also considered the provisions of 38 C.F.R. § 3.321(b)(1), which provide for an extra-schedular rating. Barringer v. Peake, 22 Vet. App. 242, 243-44 (2008). However, in the present case, the Board finds that the record does not show that the Veteran's otitis media is so exceptional or unusual as to warrant the assignment of a higher rating on an extra-schedular basis. See 38 C.F.R. § 3.321(b)(1). The Veteran does not claim and the record does not support additional limitation beyond the scope of the rating criteria. The Veteran has claimed additional disability secondary to otitis media, including dizziness. However, the Veteran was denied service connection for this claim in October 2012 and did not express disagreement or provide new and material evidence within a year. Therefore the claim of dizziness, decided as loss of balance/vertigo, is final and not before the Board. See October 2012 rating decision; 38 U.S.C. § 7105(c); 38 C.F.R. §§ 20.302, 20.1103. The threshold factor for extra-schedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Thun v. Peake, 22 Vet. App. 111 (2008). In this regard, there must be a comparison between the level of severity and symptomatology of the claimant's service- connected disability with the established criteria found in the rating schedule for that disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule and the assigned schedular evaluation is therefore adequate, and no extra-schedular referral is required. Thun, 22 Vet. App. 111; VAOGCPREC 6-96 (Aug. 16, 1996). Otherwise, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, VA must determine whether the claimant's exceptional disability picture exhibits other related factors, such as marked interference with employment and frequent periods of hospitalization. 38 C.F.R. § 3.321(b)(1). The evidence of record does not show such an exceptional disability picture that the assigned schedular evaluations for the service-connected disability are inadequate. Even if the evidence did show an exceptional disability picture, other related factors are not exhibited. Indeed, upon VA examination in August 2009, the Veteran was noted to last be hospitalized for his left otitis media in 1980. The August 2009 examiner noted the Veteran's disability has a severe effect on occupational activities. However, the examiner noted the limitation on occupational activities was due to hearing loss, and Diagnostic Code 6200 specifies that hearing loss is to be evaluated separately. Additionally, the Veteran was evaluated in September 2012 and the VA examiner opined the Veteran's disability has no impact on the Veteran's ability to work. In light of the above, the Board concludes that referral for extra-schedular consideration is not warranted. III. Increased Rating - Bilateral Hearing Loss Disability When there is no case or controversy, or when a once live case or controversy becomes moot, the Board lacks jurisdiction. See Bond v. Derwinski, 2 Vet. App. 376, 377 (1992); Mokal v. Derwinski, 1 Vet. App. 12, 15 (1990). The controversy with regard to rating the Veteran's bilateral hearing loss disability is now moot, and the issue must be dismissed. In a May 2013 rating decision, the RO proposed to reduce the rating of the Veteran's bilateral hearing loss disability from 20 percent to 10 percent. The Veteran, through his representative, expressed disagreement with the proposed reduction in a May 2013 letter. In the letter, the Veteran also requested an increase in rating for his bilateral hearing loss disability to 60 percent effective May 17, 2013, the date of a recent examination. In a January 2014 rating decision, the RO reduced the rating of the Veteran's bilateral hearing loss disability from 20 percent to 10 percent effective April 1, 2014. The Veteran expressed disagreement with the reduction in a VA Form 21-0958 and indicated he was seeking a 20 percent rating. In an October 2017 rating decision, the RO increased the Veteran's bilateral hearing loss disability rating to 70 percent effective May 17, 2013. Although the Veteran submitted a general substantive appeal in October 2017, the RO had also issued a supplemental statement of the case in October 2017 for the other issues currently on appeal. The Veteran has not explicitly commented on the hearing loss disability since the October 2017 rating decision, and in a February 2018 informal hearing presentation provided by the Veteran's representative the issue was characterized as "Reduction of hearing loss". In light of the above, the Board interprets the Veteran's appeal as an appeal of the June 2014 rating decision that reduced his bilateral hearing loss disability rating to 10 percent and implicitly denied his request for a 60 percent rating effective May 17, 2013. The Veteran has limited his bilateral hearing loss disability rating appeal to a particular disability rating which is less than the maximum disability rating allowed by law. See AB v. Brown, 6 Vet. App. 35, 39 (1993). Given that the 60 percent rating expressly sought by the Veteran has been exceeded, there is no "controversy" or "issue" currently before the Board as the claim has been resolved in the Veteran's favor. See Shoen v. Brown, 6 Vet. App. 456, 457 (1994) (a case or controversy must exist in order to obtain appellate review). The law provides that the Board may dismiss any appeal that fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105(d)(5) (2012). As the Veteran has received a full grant of the benefit sought, there remains no error of fact or law for the Board to address, and the appeal must be dismissed. IV. Service Connection - Jaw Disability The Veteran has appealed the denial of service connection for a jaw disability. The service treatment records do reveal the Veteran underwent left ear surgery in May 1973. The Veteran underwent VA examination for his jaw disability claim in September 2009. The examiner noted the Veteran underwent surgery related to his left ear otitis media disability a month before separating from service and that pain began approximately a year later. The Veteran reported that in the 10 years leading up to the examination, pain and popping had worsened. The Veteran also complained of constant left facial muscle pain to the examiner. The examiner noted a magnetic resonance imaging (MRI) revealed no abnormalities of the temporomandibular joints (TMJ), but did reveal bilateral maxillary sinusitis. The examiner also noted left side temporomandibular joint pain, on palpation, in multiple positions, as well as left side facial muscles pain on palpation. On auscultation there was slight popping on opening and closing on both sides. The examiner opined the Veteran's complained of TMJ problem is less likely than not caused by the surgery on his left ear. In support of this, the examiner stated: "With my research of the literature, it was discovered his TMJ complaints can be the rusult (sic) of the ear surgery he underwent but not often." However, the examiner did not elaborate on why the Veteran would fall into the majority rather than the minority ("not very often"). Additionally, the examiner only noted one left ear surgery, but the evidence or record reveals the Veteran has had two additional surgeries on his left ear (tympanomastoidectomy). See January 2017 VA hearing loss examination. The examiner established that there could be a relationship, but did not establish why there was no relationship in this case other than statistics. The Board shall not remand for further clarification. The evidence is in equipoise. In light of the examiner's research that found the Veteran's in-service left ear surgery could have resulted in the Veteran's jaw disability, and resolving doubt in favor of the Veteran, service connection is warranted. ORDER Entitlement to a disability rating in excess of 10 percent for otitis media is denied. The claim of entitlement to a disability rating of 60 percent for bilateral hearing loss disability effective May 17, 2013 is dismissed. Entitlement to service connection for temporomandibular joints disability is granted. ______________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs