Citation Nr: 21005580 Decision Date: 02/02/21 Archive Date: 02/02/21 DOCKET NO. 15-23 270A DATE: February 2, 2021 ISSUES 1. Entitlement to a disability rating in excess of 10 percent for service-connected bilateral chronic otitis media. 2. Entitlement to service connection for a chronic lung disability, to include bronchitis, to include as due to service-connected bilateral otitis media. ORDER Entitlement to a disability rating in excess of 10 percent for service-connected bilateral chronic otitis media is denied. REMANDED Entitlement to service connection for a chronic lung disability, to include bronchitis, to include as due to service-connected bilateral otitis media is remanded. FINDINGS OF FACT The Veteran’s service-connected bilateral chronic otitis media is manifested by serous discharge, which requires frequent and prolonged treatment with antibiotics. The maximum schedular rating for service-connected bilateral chronic otitis media is assigned, and no other Diagnostic Codes are applicable which could provide a disability rating in excess of 10 percent. CONCLUSION OF LAW The criteria for a rating in excess of 10 percent for service-connected bilateral chronic otitis media have not been met, as the maximum schedular rating is already assigned. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.87, Diagnostic Code 6200-6260. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Air Force from October 1955 to October 1959. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2012 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO) which denied entitlement to the benefits currently sought on appeal. The Veteran appeared before the undersigned Veterans Law Judge in a Travel Board hearing in October 2017 to present testimony on the issues on appeal. A transcript of the hearing has been associated with the Veteran’s claims file. In August 2020, the Board remanded this matter for further development and adjudication. Upon review of the Veteran’s claim file, the Board finds that there has been substantial compliance with the Board’s remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900 (c). 38 U.S.C. § 7107 (a)(2). Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The Veteran in this case has not referred to any deficiencies in either the duties to notify or assist; therefore, the Board may proceed to the merits of the claim. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015, cert denied, U.S.C. Oct.3, 2016) (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 [appellant] fails to raise them before the Board”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to an appellant’s failure to raise a duty to assist argument before the Board). The Board has reviewed all of the evidence in the Veteran’s claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board’s analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-130 (2000). Entitlement to a disability rating in excess of 10 percent for service-connected bilateral chronic otitis media. The Veteran has claimed that his service-connected bilateral chronic otitis media is worse than currently rated. The Veteran was originally rated at a noncompensable disability rating for otitis externa from September 1966, and his disability rating was increased to 10 percent in December 1991. Disability evaluations are determined by the application of the facts presented to VA’s Schedule for Rating Disabilities (Rating Schedule) at 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 the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321 (a), 4.1. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). That said, higher evaluations may be assigned for separate periods based on the facts found during the appeal period. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). This practice is known as staged ratings. Id. VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154 (a). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). If the evidence for and against a claim is in equipoise, the claim will be granted. 38 C.F.R. § 4.3. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Veteran’s chronic otitis media is rated under Diagnostic Code 6210, which provides for a 10 percent rating for chronic otitis externa with swelling, dry and scaly or serous discharge, and itching requiring frequent and prolonged treatment. 38 C.F.R. § 4.87, Diagnostic Code 6210. An evaluation of 10 percent is the maximum schedular rating afforded under Diagnostic Code 6210. As noted in the Board’s August 2020 Decision, the Veteran may be entitled to higher or additional ratings for his chronic otitis externa under any other diagnostic code. The Board is reminded that a separate disability rating can be awarded for chronic nonsuppurative otitis media with effusion (serous otitis media) under Diagnostic Code 6201, which in turn provides for the disorder to be rated as hearing impairment. See 38 C.F.R. § 4.87, Diagnostic Code 6201. The Board also notes that in addition to the foregoing, the rating schedule also provides for a 10 percent rating for chronic suppurative otitis media, mastoiditis, or cholesteatoma (or any combination), during suppuration, or with aural polyps. See 38 C.F.R. § 4.87, Diagnostic Code 6200. The Veteran was afforded a VA examination in February 2019 for his ear disability. The examiner confirmed the Veteran’s diagnosis of chronic nonsuppurative otitis media (serous otitis media). The Veteran reported his current symptoms as: unsteady on his feet, intermittent earache of either ear, and increased left ear drainage. The Veteran reported that his last ear infection treatment was approximately two to three months ago. During the exam, it was noted that the Veteran had serous discharge (external ear canal). Physical examination showed a normal external ear, ear canal, tympanic membrane and limb coordination. The examiner noted that the Veteran had a wide stance/ataxic gait, and his gait was unsteady when he walked more than a few feet. The examiner reported that the Veteran unsteadiness was associated with “generalized axonal sensorimotor polyneuropathy of the bilateral upper and lower extremities based on an April 2018 EMG. Based on an EMG dated August 2012, the examiner also noted that the Veteran had mild generalized axonal sensorimotor polyneuropathy involving both arms. The examination was negative for benign or malignant neoplasm or metastases related to any of his ear diagnoses. A September 2019 medical note reported that the Veteran had chronic suppurative otitis media (CSOM) and strict water precautions to the left ear were recommended. The examiner also stated that “we will await culture results. I also recommend CT temporal bone.” Since the February 2019 VA examiner’s diagnosis was chronic nonsuppurative otitis media (serous otitis media), and the September 2019 examiner’s diagnosis was chronic suppurative otitis media, in August 2020 the Board remanded this issue to clarify the Veteran’s current diagnosis. The purpose was to confirm the Veteran’s diagnosis of chronic suppurative otitis media, and if that diagnosis could be confirmed, whether there was active suppuration or aural polyps associated with that diagnosis. This could potentially allow for a separate disability rating under DC 6200, with separate and distinct symptomatology. That VA examination occurred in October 2020. The Veteran was given a VA examination, and it is clear from the evidence discussed that the Veteran’s claims file was reviewed. Upon clinical testing, the examiner confirmed the diagnosis of chronic suppurative otitis media. The examiner noted that the Veteran did not have any signs or symptoms related to Meniere’s syndrome, nor any benign or malignant neoplasms of the ear. The examiner noted that the Veteran has a left tympanic membrane perforation, and that the Veteran had serous discharge of the external ear canal, which required frequent and prolonged treatment with antibiotics. The examiner was asked to clarify the Veteran’s diagnoses for each ear, and the following response was given: His physical problem has changed from the [February 2019] C&P exam which did not fully support suppurative [otitis media] and since this exam [and] the history since … shows a chronic suppurative [otitis media] of the left-ear. This can be dated to the September 2019 medical note. Exam today and history present fully supports the chronic suppurative otitis media with repeated bouts of otorrhea, repeated infections, continued perforation and inflammation on today’s exam of the left ear. The right ear is showing chronic non suppurative [otitis media]. Tympanic membrane is not perforated and is without otorrhea and no inflammation. Thus, the examiner clarified that the Veteran’s left ear diagnosis was chronic suppurative otitis media, while his right ear was chronic non-suppurative otitis media. There is no evidence that the VA examiner was not competent or credible, and as the report was based on accurate facts and objective examinations, the Board finds they are entitled to significant probative weight as to the severity of the Veteran’s disability. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). In consideration of the above, the Board finds that the Veteran is not entitled to a disability rating higher than the current 10 percent rating. To begin, the Board notes that the Veteran is currently service connected for his bilateral chronic otitis externa under DC 6210. This is predominantly due to the symptomatology of serous discharge, which requires frequent and prolonged treatment with antibiotics. Those symptoms are evidence from the February 2019 VA examination, and were recently repeated in the October 2020 VA examination. Under DC 6210, the Veteran has been rated at the 10 percent disability rating, which is the maximum schedular rating allowed. As discussed in the August 2020 Board decision, the Veteran could be rated at separate disability ratings under 6200 (chronic suppurative otitis media) or 6201 (chronic nonsuppurative otitis media), however that requires evidence of separate and distinct symptomatology. As it relates to DC 6200, while the Veteran does have a diagnosis of chronic suppurative otitis media of the left ear, it has not been found to be during active suppuration, or have aural polyps, which is required for the minimum 10 percent disability rating. As such, based on his symptomatology, DC 6210 is still the most appropriate diagnostic code for rating the Veteran’s otitis media. As it relates to DC 6201, while the Veteran does have a diagnosis of chronic nonsuppurative otitis media of the right ear, DC 6201 directs the Board to rate the Veteran as having a hearing impairment. The Board notes that the Veteran is however currently in receipt of a separate 40 percent disability rating for “bilateral hearing loss associated with bilateral otitis media.” Therefore, to grant the Veteran a separate disability rating under DC 6201 would constitute impermissible pyramiding, as he would be rated twice for the same hearing loss symptomatology. 38 C.F.R. § 4.14. Under the anti-pyramiding provision of 38 C.F.R. § 4.14, the evaluation of the “same disability” or the “same manifestation” under various diagnoses is to be avoided. For purposes of determining whether a veteran is entitled to separate ratings for different problems or residuals of an injury, such that separate evaluations do not violate the prohibition against pyramiding, the critical element is that none of the symptomatology for any one of the conditions is duplicative of, or overlapping with, the symptomatology of the other conditions. Esteban v. Brown, 6 Vet. App. 259 (1994). The Board has also examined other applicable diagnostic codes. Neither the February 2019, nor the October 2020 examiner found that the Veteran had otosclerosis (DC 6202), or any loss of auricle (DC 6207). The examiners also specifically denied that the Veteran had Meniere’s syndrome (DC 6205), as well as malignant or benign neoplasms of the ear (DCs 6208 and 6209, respectively). While the February 2019 examiner did note that the Veteran had an unsteady gait when he walked more than a few feet, that examiner also noted that the unsteadiness was associated with polyneuropathy of the bilateral upper and lower extremities, and denied that it was due to a peripheral vestibular disorder (DC 6204). The October 2020 VA examiner also confirmed this, by denying that the Veteran had any additional peripheral vestibular disorders. Finally, the Veteran is already compensated for bilateral tinnitus at a 10 percent disability rating, and as such, DC 6260 is inapplicable. Finally, the Board notes that the Veteran’s left ear had evidence of tympanic membrane perforation, which is covered under DC 6211. Having said that, the compensation rating for DC 6211 is noncompensable, and thus the Veteran would not be entitled to a higher disability rating for his left ear disability under this Diagnostic Code. See DC 6211. In summary of the above, the Veteran is currently in receipt of the maximum schedular disability rating under his correctly assigned diagnostic code (6210), based on the symptomatology. Furthermore, other diagnostic codes are inapplicable, as either the requisite symptoms are not met, or the assignment of a separate rating would violate the anti-pyramiding provision of 38 C.F.R. § 4.14. As a result, the Veteran’s claim for entitlement to a disability rating in excess of 10 percent for the service-connected bilateral chronic otitis media must be denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (where the law, and not the evidence, is dispositive, the claim should be denied, or the appeal terminated because of the absence of legal merit or the lack of entitlement under the law). Neither the Veteran nor his Representative have raised any other issues, nor have any other issues been reasonably raised by the record. See 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). The Board has also considered whether the Veteran is entitled to a greater level of compensation on an extraschedular basis. Ordinarily, the VA Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). Having said that, the Court has held that where extraschedular consideration is not specifically sought by the claimant nor reasonably raised by the facts found by the Board, discussion of referral for extraschedular consideration is not required. See Yancy v. McDonald, 27 Vet. App. 484, 4919 (2016), citing Dingess v. Nicholson, 19 Vet. App. 473, 499 (2006); aff’d 226 Fed. Appx. 1004 (Fed. Cir. 2007). Similarly, the Court stated “that the Board is required to address whether referral for extraschedular consideration is warranted for a veteran’s disabilities on a collective basis only when that issue is argued by the claimant or reasonably raised by the record through evidence of the collective impact of the claimant’s service-connected disabilities.” Yancy, 27 Vet. App. at 495; see Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014). In the present case however, the Veteran has pointed to no exceptional or unusual factors which would render the schedule impractical. As such, referral for extraschedular consideration has not been specifically sought by the claimant nor reasonably raised by the facts of record and is not warranted in this case. See Yancy, Id. As such, the benefit of the doubt rule is not for application, and the Veteran’s claim for entitlement to a disability rating in excess of 10 percent for his service-connected chronic bilateral otitis media is denied. REASONS FOR REMAND The Board finds that additional evidentiary development is required before the claims on appeal are adjudicated. Entitlement to service connection for a chronic lung disability, to include bronchitis, to include as due to service-connected bilateral otitis media is remanded. The Veteran contends that his chronic lung condition, including bronchitis, is secondary to his service-connected bilateral chronic otitis media. To establish an entitlement to service connection, the Veteran must establish (1) the existence of a present disability, (2) an in-service occurrence or aggravation of a disease or injury, and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. 38 C.F.R. § § 3.303(a). Service connection may also be granted as secondary to a currently service-connected disability. To meet the criteria for secondary service connection, a Veteran must prove that there is (1) a current disability that is not already service-connected; and (2) at least one service-connected disability; and (3) evidence that the non-service connected disability is either proximately due to or the result of a service-connected disability, or aggravated (increased in severity) beyond its natural progress by a service connected disability. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995). To begin, the Veteran’s report of medical history from October 1955 noted that he had ear, nose and throat (ENT) trouble. A subsequent report of medical history, dated October 1959, also noted that he had ENT trouble and that his ears were running. A medical note from Linton Hospital, dated September 1983, indicates that the Veteran was assessed with acute wheezy bronchitis with a severe hacking cough. The plan was to admit the Veteran in hospital, and conduct dilator therapy. A January 1990 medical note reports that the Veteran was seen for complaints of upper respiratory congestion, sore throat, and mildly productive cough, productive of a whitish phlegm with diffuse myalgias. The Veteran was assessed with an upper respiratory infection and bronchitis. The Veteran was afforded a VA examination in June 2019 for respiratory conditions. The examiner diagnosed the Veteran with chronic obstructive pulmonary disease (COPD) with a date of onset of 2011. The Veteran stated he wheezes intermittently, and has had upper respiratory infections since service, which have led to pneumonia at times. The Veteran’s medical treatment records show a diagnosis of COPD in 2010. He reported that he had Legionnaire disease (a form of atypical pneumonia caused by any type of Legionella bacteria) post service and received treatment for it. He noted that he is not currently being treated for any pulmonary diagnosis or on any inhalers. The examiner opined that there is no physiological link between his COPD and his service-connected otitis media. The examiner stated that there is no medical literature to connect otitis media to aggravating COPD. The examiner also opined that the Veteran’s COPD is not related to his active duty service but directly related to his years of smoking. A January 2011 medical note indicated that the Veteran had COPD but that the Veteran was stable. The note also indicated that the Veteran did not have a history of smoking in the past. The Veteran was prescribed an albuterol inhaler to be used as needed since the Veteran did not wheeze on a regular basis and he does not need an inhaler on a regular basis. It is not clear if the January 2011 reporting about the Veteran not being a smoker was a reporting based on the Veteran’s lay statements or based on the examiner’s review of the medical evidence, because according to a September 1983 medical note from the Linton Hospital, the Veteran quit smoking around 1981 after having smoked for 25 years. As discussed in the Board’s August 2020 Decision, the June 2019 VA examination was deemed inadequate. The reason for the inadequacy is that it did not take into consideration the Veteran’s service treatment records, which note a history of ENT problems, and the Veteran’s previous diagnoses of bronchitis. The August 2020 Board Decision also noted that the Veteran had claimed that the June 2019 VA examination was inadequate, and that the examiner was “derogatory” and provided the wrong conclusions. As such, a subsequent VA examination was required. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). That examination was given in October 2020. The Veteran was seen in person, and it is clear the evidence cited to within the report, that the examiner reviewed the Veteran’s claims file. Following additional clinical testing, the examiner wrote that the Veteran’s lung disability was less likely than not due to the Veteran’s active duty service. The following opinion was provided: No indication of COPD until 2011 in medical treatment records, there is no tie in noted ENT to cause bronchitis and thus COPD. Veteran has a long history of allergic rhinitis and his ear problems. This does not provide a nexus for his COPD. His COPD of chronic bronchitis type develops after viral lung infections or pneumonia causing chronic inflammation that once developed is more easily affected by colds/URIs. The cause of this reaction is his inherent propensity to have this. Problems in service are too far separated to be causative of this or predict this. It is not result of his ear conditions. His chronic bronchitis is developmental and noted in 2011. Once COPD occurs, his airways became chronically inflamed leading to having more affects from colds and URIs. His ears naturally have symptoms during colds and URIs for same reason of inflammation which for the ears in his eustachian tubes. So, while Veteran states association these are separate conditions which are each aggravated by colds/URI. As such, the examiner provided a negative etiological opinion. While there is no reason to doubt the competence or credibility of the examiner, and while the rationale provided is thorough, more information is needed before a determination of the Veteran’s service connection claim can be made. While the October 2020 VA examiner denied that the Veteran’s “COPD of chronic bronchitis type” was not due to his active duty service, as it was “too far separated to be causative,” this opinion overlaps that which was provided for secondary service connection. As a result, the opinion provided for secondary service connection, for which the Veteran has specifically claimed, remains unclear. Furthermore, the partial opinion provided by the examiner, that “it is not result of his ear conditions,” speaks to proximate causation between the lung disability and the ENT problems. The opinion does not address possible aggravation of the current lung disability, due to ENT problems. Furthermore, the Board notes that the examiner appears to only cite to “his ear conditions,” despite broader ENT problems being noted in service, including throat problems. See Linton Hospital report of September 1983; see further January 1990 medical report. Because the Veteran's entire history is reviewed when making disability evaluations, the record must be complete for such service connection determinations to be made. See Schafrath v. Derwinski, 1 Vet. App. 589 (1995). As a result, the Board finds that an addendum opinion is required from that same October 2020 VA examiner. That opinion must address whether or not the Veteran’s COPD, to include bronchitis, is at least as likely as not aggravated by his service-connected bilateral chronic otitis media. 38 C.F.R. § 3.310. Therefore, a remand is necessary to ensure that there is a complete record upon which to decide the Veteran's claim for an entitlement to service connection so that he is afforded every possible consideration. 38 U.S.C. § 5103 (A); 38 C.F.R. § 3.159. The matters are REMANDED for the following action: 1. Obtain all outstanding VA and/or private treatment records. For any private treatment records, obtain the appropriate signed releases from the Veteran, and associate any additional records with the claim. Should such records exist, associate them with the electronic claims file. 2. Forward the Veteran’s claims file to the same VA examiner, if available, who conducted the October 2020 VA examination for an addendum opinion. If that examiner is unavailable, then forward the Veteran’s claims file to another appropriate professional. The claims folder, to include a copy of this remand, should be made available to the examiner for review and the examiner should acknowledge such review in the addendum report. Following a review of the claims folder, the examiner is requested to provide an addendum opinion on the following: (a.) Is it at least as likely as not (50 percent or greater) that the Veteran’s COPD, to include bronchitis is at least as likely as not related to an in-service injury, event, or disease? (b.) If not, the examiner must opine whether the Veteran’s COPD, to include bronchitis, is at least as likely as not (1) proximately due to service-connected bilateral chronic otitis media, or (2) aggravated beyond its natural progression by service-connected bilateral chronic otitis media. The examiner is reminded than an opinion on possible aggravation is required. All opinions provided must be thoroughly explained, and a complete and detailed rationale for any conclusions reached should be provided (a bare conclusory statement will be deemed inadequate). The examiner is reminded that the term “as likely as not” does not mean “within the realm of medical possibility,” but rather that the evidence of record is so evenly divided that, in the examiner’s expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. 3. After completing the above, and any other necessary development, the claims remaining on appeal must be readjudicated in light of all pertinent evidence and legal authority. If any benefits sought are not granted, issue the Veteran and his Representative an appropriate supplemental statement of the case (SSOC). 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. Michael A. Pappas Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G. Mulrain, 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.