Citation Nr: 21003137 Decision Date: 01/19/21 Archive Date: 01/19/21 DOCKET NO. 14-08 889 DATE: January 19, 2021 ORDER Entitlement to an initial compensable rating for a disability characterized as minimal scarring and small, superior retraction pocket, right tympanic membrane is denied. FINDING OF FACT The Veteran is receiving the maximum rating for minimal scarring and small, superior retraction pocket of his right tympanic membrane. CONCLUSION OF LAW The criteria for a compensable rating for minimal scarring and small, superior retraction pocket, right tympanic membrane have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.87, Diagnostic Codes, 6200,6211. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1983 to September 1990. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran appeared at a Board hearing before the undersigned Veterans Law Judge in November 2018. A transcript of the hearing is in the Veteran’s file. This matter was previously before the Board in April 2019, at which time it was remanded for a VA examination regarding the etiology for the Veteran’s other ear disorders. A review of the record reveals that there has been substantial compliance with the Board’s prior remand directives as to the issues decided below. See Stegall v. West, 11 Vet. App. 265 (1998). Entitlement to an initial compensable rating for disability characterized as minimal scarring and small, superior retraction pocket, right tympanic membrane The Veteran contends he should be awarded a higher rating for his right eardrum rupture in service. The Veteran is service connected at a non-compensable rate for minimal scarring and small, superior retraction pocket, right tympanic membrane. The Veteran’s tympanic membrane scar and retraction pocket is rated pursuant to Code 6211, which is for perforation of the tympanic membrane. Under that Code, the Veteran’s disability can only be assigned a noncompensable rating. See 38 C.F.R. § 4.87, Code 6211. The Board acknowledges that the Veteran has other ear conditions, (see January 2020 VA examination), but there is simply no legal basis to assign a higher schedular rating for perforation of the tympanic membrane. The Board has considered whether a separate rating is warranted under DCs 6200, for chronic suppurative otitis media, mastoiditis, or cholesteatoma (or any combination thereof). Separate disability ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not “duplicative of or overlapping with the symptomatology” of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 262 (1994). In April 2019, the Board determined that, based on the VA treatment records that show additional ear related diagnoses, the issue of entitlement to a separate rating for chronic suppurative otitis media was raised and part of the Veteran’s claim of entitlement to a higher rating for his service-connected scarring and retraction pocket of the tympanic membrane. See Esteban v. Brown, 6 Vet. App. 259, 262 (1994). On VA examination for ear conditions in February 2010, the Veteran reported that after his in-service injury, he was referred to ENT and had a polyethylene tube inserted. He stated he did not see an ENT specialist after that, and he did not have any further trouble with his right ear except for hearing. (He has since been service connected for right ear hearing loss.) Physical examination revealed minimal scarring and retraction pocket in his right tympanic membrane; there was no history of balance or gait problems, no history of ear pain, and no history of vertigo of dizziness. There were no aural polyps, external or canal abnormality. There was a history of ear infection in the right ear, with the last date of infection in December 2009. VA treatment records in May 2010 show the Veteran underwent a tympanomastoidectomy for ear pain. Post-operation, the Veteran noted a metallic taste, but he did not have vertigo and his facial nerves were intact. In January 2011, the Veteran reported no pain, drainage or vertigo. There was a small amount of fluid behind his right ear drum and his mastoid cavity was clean without significant debris. VA treatment records also show diagnoses of chronic serous otitis media, chronic suppurative otitis media and mastoiditis. In June 2019, an ENT note showed the Veteran had long term chronic right sided mastoid care. His right mastoid cavity was debrided, and it was advised to repeat cleaning twice a year. The provider noted the Veteran’s problem originated when he developed an eardrum perforation from exposure to cannon fire and it was more likely than not the mastoid infection and subsequent surgery would not have been needed if not for the original injury from cannon fire. During his November 2018 Board hearing, the Veteran asserted that after his 2010 ear surgery he lost taste buds on the right side of his mouth and he now needs to have his right ear manually cleaned twice a year, as the wax no longer drains. In a January 2020 Ear Conditions VA examination, the examiner noted diagnoses of chronic suppurative otitis media, mastoiditis and cholesteatoma, together with the ruptured right tympanic membrane and recurrent otitis diagnoses. The Veteran reported that after he ruptured his eardrum, he later developed otitis externa and media requiring tympanostomy tube. He continued to have ear infections and eventually developed chronic suppurative otitis media. The Veteran also reported after his tympanomastoidectomy in 2010, he never regained hearing and had to have his ears cleaned every 6 months and has a metallic taste in his tongue. The examiner noted an abnormal right canal which opens into a large mastoid cavity and described the tympanic membrane has a graft with slight retraction. There were no vestibular conditions, inflammation, or infections, and no other conditions, including tumors and neoplasms. There were no other pertinent physical findings, signs, complications, conditions, symptoms, scars, or functional impact. The examiner opined that the Veteran’s chronic suppurative otitis media with cholesteatoma was at least as likely as not incurred in or caused by service. The examiner explained that the Veteran has a history of perforated tympanic membrane and otitis externa on several occasions, in addition to tympanostomy tube placement. Post-service, he developed chronic suppurative otitis media, which is a known complication of tympanostomy tubes. (Continued on the next page)   Although the Veteran’s disability also may now contemplate chronic suppurative otitis media, as this condition is only compensable during suppuration or with the presence of aural polyps, neither of which has been shown during the appeal period, this rating code (Diagnostic Code 6200) does not provide a basis for a compensable rating. Under the circumstances described above, an increased compensable rating for the Veteran’s right ear disability is not warranted, and the appeal is denied. MICHAEL KILCOYNE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Jaigirdar, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.