Citation Nr: 21013466 Decision Date: 03/09/21 Archive Date: 03/09/21 DOCKET NO. 20-23 951 DATE: March 9, 2021 ORDER Entitlement to a rating in excess of 30 percent for a perforated tympanic membrane of the left ear with scarring, pain, and dizziness, to include on an extraschedular basis, is denied. FINDINGS OF FACT 1. The Veteran’s perforated tympanic membrane of the left ear is manifested by hearing loss, tinnitus, scarring, pain, and tinnitus, and is assigned the maximum schedular rating for peripheral vestibular disorders; symptoms or impairment not contemplated by schedular ratings already assigned are not shown. 2. In addition to service connection and a separate disability rating for perforated membrane of the left ear with scarring, pain and dizziness, service connection and separate disability evaluations have been established for tinnitus, and bilateral hearing loss. CONCLUSION OF LAW The criteria for a rating in excess of 30 percent for a perforated tympanic membrane of the left ear, to include on an extraschedular basis, are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321 (b)(1), 4.1, 4.3, 4.7, 4.20, 4.21, 4.87, Diagnostic Codes (DC’s) 6211, 6204, 6205. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active service from January 1962 to May 1962. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a February 2017 rating decision from Department of Veteran’s Affairs (VA) Agency of Original Jurisdiction (AOJ). In the February 2017 rating decision, the AOJ had proposed a reduction of the Veteran’s 10 percent evaluation for a perforated tympanic membrane of the left ear. In a July 2017 rating, the AOJ awarded a 30 percent evaluation for the disability. The claim remained on appeal to consider the highest evaluation available, and in February 2019 the Board, in pertinent part, remanded the claim for the AOJ to consider an extraschedular evaluation raised by the Veteran. In a May 2020 Statement of the Case (SOC) the AOJ determined that the criteria for an extraschedular rating had not been met and continued the denial for an increased rating. In December 2020, the Veteran testified at a Board virtual videoconference hearing before the undersigned Veterans Law Judge. A copy of the hearing transcript has been associated with the e-folder. The Veteran has an active appeal for a total rating based on individual unemployability (TDIU) that is also before the Board. Because the Veteran testified before another Veterans Law Judge on the TDIU claim, it must be adjudicated separately and will not be addressed herein. A rating in excess of 30 percent for residuals of a perforated tympanic membrane of the left ear Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities. 38 C.F.R. Part 4. The Board determines the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, and the assigned rating is based, as far as practicable, upon the average impairment of earning capacity in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1. Where there is a question as to which of two ratings should be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. It is not expected that all cases will show all the findings specified. However, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. Under 38 C.F.R. § 4.20, evaluation by analogy is permitted where the rating schedule does not provide a specific diagnostic code to rate the disability. 38 C.F.R. § 4.20. Under Diagnostic Code 6211, perforation of the tympanic membrane (eardrum) warrants a noncompensable rating. Therefore, a higher rating is not available for perforated left tympanic membrane under Diagnostic Code 6211. Under Diagnostic Code 6204, peripheral vestibular disorders, a 10 percent rating is warranted for manifestation of occasional dizziness, and a maximum 30 percent rating is warranted when there is dizziness and occasional staggering. 38 C.F.R. § 4.87, Diagnostic Code 6204. A note provides that hearing impairment or suppuration shall be separately rated and combined. Id. Under Diagnostic Code 6205, regarding Meniere's syndrome (endolymphatic hydrops), a 30 percent rating is warranted for hearing impairment with vertigo less than once a month, with or without tinnitus, and a 60 percent rating is warranted for hearing impairment with attacks of vertigo and cerebellar gait occurring from one to four times a month, with or without tinnitus. A 100 percent rating is warranted for hearing impairment with attacks of vertigo and cerebellar gait occurring more than once weekly, with or without tinnitus. 38 C.F.R. § 4.87, Diagnostic Code 6205. A note provides that Meniere's syndrome can be evaluated either under these criteria or by separately evaluating vertigo as a peripheral vestibular disorder, hearing impairment, and tinnitus, whichever method results in a higher overall evaluation. But a combined evaluation for hearing impairment, tinnitus, or vertigo with an evaluation under Diagnostic Code 6205 is inappropriate. Id. The Veteran is in receipt of a 30 percent disability evaluation for perforated tympanic membrane of the left ear with scarring, pain, and dizziness. The Veteran is also in receipt of a 20 percent rating for bilateral hearing loss, and a 10 percent rating for tinnitus. Service-connection has also been granted for lumbar spine and left and right lower extremity and hip disabilities related to falls that he sustained the result of his service-connected perforated tympanic membrane of the left ear At a December 2016 in-person VA examination of the ears, numerous ear conditions were listed, and it was specified that the Veteran’s (left) ear condition diagnosis was: Left tympanic membrane perforation. It was indicated that the Veteran had a perforated membrane with scarring, pain, and dizziness in the left ear. It was stated that the condition had stayed the same since the onset of symptoms in 1962. As to whether there were findings, signs, or symptoms attributable to Meniere’s syndrome or a peripheral vestibular condition the examiner responded in the negative. A history of a tympanoplasty with persistent left tympanic membrane perforation was reported. On examination the Veteran’s gait was described as normal. Romberg, Dix Hallpike for vertigo, and limb coordination tests were normal. It was stated that the Veteran did not have any other pertinent physical findings, complications, signs or symptoms related to his diagnosed condition. It reported that the Veteran’s ear condition did not impact his ability to work and the condition was described as active. In April and May 2017 statements from a physician at a public health agency, it was reported that the Veteran’s symptoms, included frequent dizziness, bilateral hearing loss, and instability that had progressively worsened. The symptoms contributed to his difficulty maintaining conversations, aggravated his back problem, and placed him at an increased fall risk. The examiner stated that his otalgic dizziness was related to his hearing damage. In a May 2017 statement, a friend of the Veteran reported that on numerous occasions the Veteran had been observed becoming dizzy and lost his balance. It was stated that at the grocery store the Veteran had to sit down or catch a hold of a shelf to keep from falling. The Veteran tried to lift things and he had problems with his back and straightening up which had occurred since he became dizzy and fell in February. It was reported that the Veteran’s dizziness was not constant and occurred at different times. In a May 2017 statement, the Veteran’s son reported that his father was very unstable or dizzy. He stated that on one occasion the Veteran was sitting on a stool and he had to grab a table to keep from falling. The Veteran stated he fell in the shower and injuring his back and hips. Guardrails were being built to aid the Veteran in getting into his house. In a May 2017 statement, the Veteran reported that he became dizzy two to three times a day and sometimes two to three times per week. He stated his dizzy spells made him unsteady. When dizzy spells happened in the shower, he had to keep one arm or elbow on the wall to steady himself. A June 2017 public health treatment entry reported the Veteran had recurrent dizziness was described as stable. The Veteran denied severe dizziness, it was indicated that he still had occasional episodes of lightheadedness. He denied recent falls. The recurrent dizziness was described as stable. In June 2017 intermittent and recurrent dizziness, chronic in nature was reported. In an August 2018 medical examination of the back, it was reported that vertigo caused the Veteran to fall in the shower 2018. His gait was described as abnormal due to muscle spasm and guarding. It was reported that the Veteran had vertigo and that he used a cane, a back support, and a walker for stabilization and pain. The examiner stated that the Veteran was at risk for falls and that his back condition was exacerbated by vertigo. The examiner referenced “NCBI-NIH” studies that have shown older adults with a history of dizziness and imbalance have a higher risk of falling. It was also stated that vertigo and unsteadiness lead to a fear of falling. Studies referencing the symptoms of vertigo and balance problems were also mentioned. In December 2020 a virtual Board hearing was held. The Veteran testified that he had fluid leaking in his left ear once in a while. He stated that he would get dizzy when just standing. He reported that he had (ear) pain and drainage at times. The Veteran testified that he fell once in a while, and he used a walker to stabilize. He stated that when he went to his five-acre pasture, he had to hold on to something. He stated that he staggered quite often, three or four times per week. The Veteran testified that he had not fallen in quite a while. He testified that he felt dizzy or disoriented when he was in motion. When queried as to whether the Veteran had any exceptional or unusual symptoms he testified that at times his heart would beat hard. The Veteran stated that he had constant ear pain and he had ringing in his ears all the time that sometimes coincided with dizziness. The Board has considered the entire evidence of record and concludes that the preponderance of the evidence is against the claim for a rating in excess of 30 percent for residuals of a perforated tympanic membrane of the left ear with scarring, pain, and dizziness. The Veteran's residuals of a perforated tympanic membrane of the left ear with scarring, pain, and dizziness is currently evaluated at 30 percent under DC 6204. A 30 percent rating is the maximum schedular evaluation that is available under DC 6204. It is permissible to rate under a closely related disease or injury where the anatomical localization and symptomatology are closely analogous. 38 C.F.R. § 4.20. The Board has considered another potentially applicable DC which provides a higher rating than 30 percent for the perforated tympanic membrane of the left ear with scarring, pain, and dizziness, notably DC 6205. As stated above, in order to receive a higher rating of 60 percent under DC 6205, as Meniere’s syndrome, the Veteran's perforated tympanic membrane of the left ear must equate to hearing impairment with attacks of vertigo and cerebellar gait occurring from one to four times a month, with or without tinnitus. It is noted though that an evaluation for hearing impairment, tinnitus, or vertigo combined with an evaluation under DC 6205 is inappropriate. 38 C.F.R. § 4.87; see also DC 6205 note. The evidence shows that the Veteran’s perforated tympanic membrane of the left ear results in dizziness that has caused him to fall in the past, and is recurrent and intermittent, but as recently described his vertigo or dizziness is stable. He uses assistive devices for stabilization as he ambulates, and his gait has been described on recent examination as abnormal, attributable to muscle spasms and guarding only. It is noteworthy that a cerebellar gait is defined as "a staggering ataxic gait, sometimes with a tendency to fall to one side, indicative of cerebellar lesions." Dorland’s Illustrated Medical Dictionary, at 753 (32d. ed. 2012). The Board has carefully considered the Veteran's contentions with respect to the severity of his service-connected perforated tympanic membrane of the left ear, to include dizziness or vertigo, instability, and ear pain. The Board notes that his lay testimony is competent to describe certain symptoms associated with this disability. The Veteran's history and symptom reports have been considered, including as presented in the medical evidence discussed above, and are noted to be contemplated by the criteria for the disability rating for which the Veteran has been found entitled by the Board. As such, while the Board accepts the Veteran's statements with regard to the matters he is competent to address, the Board relies upon the competent medical evidence with regard to the specialized evaluation of functional impairment, symptom severity, and details of clinical features of the service-connected condition at issue. The Veteran has recurrent vertigo that has caused falls in the past, ear pain, and drainage attributable to his perforated tympanic membrane of the left ear. However, the Veteran does not have an actual diagnosis of Meniere's disease and it is not apparent that his overall symptoms equate to the criteria necessary for a 60 percent rating under DC 6205, to include cerebellar gait occurring from one to four times a month, with or without tinnitus. The Board accepts that dizziness is part of the Veteran's disability picture for his service-connected perforated left eardrum. However, dizziness and occasional staggering are specifically contemplated by the 30 percent evaluation that is assigned pursuant to DC 6204. 38 C.F.R. § 4.87. The Veteran's perforation and vestibular disorder are listed in the rating schedule, under DCs 6211 and 6204, and when a condition is specifically listed in the Schedule, it may not be rated by analogy. See Copeland v. McDonald, 27 Vet. App. 333, 338 (2015) (pes planus is specifically rated under Diagnostic Code 5276; hence an analogous rating under DC 5284 was not permitted). Therefore for all of the foregoing reasons, a higher rating under DC 6205 is not available. The issue of an extraschedular rating for the service-connected perforated tympanic membrane of the left ear has been raised by the Veteran. An exceptional or unusual disability picture occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of a veteran's service-connected disability. Thun v. Peake, 22 Vet. App. 111, 115 (2008). If there is an exceptional or unusual disability picture, the Board must consider whether the disability picture exhibits other factors such as marked interference with employment and frequent periods of hospitalization. Id. at 115-116. When those two elements are met, the appeal must be referred for consideration of the assignment of an extraschedular rating to the VA Director of Compensation Service. 38 C.F.R. § 3.321 (b)(1). Extraschedular evaluations are not available where a disability is capable of evaluation under the rating schedule. Extraschedular consideration is not warranted unless the evidence shows a relationship between the allegedly unusual symptom or symptoms and the disability in question. Here, referral to the Director of Compensation Service for extraschedular rating consideration is not warranted. The evidence in this case does not show such an exceptional or unusual disability picture that the available schedular ratings for service-connected perforated tympanic membrane of the left ear with scarring, pain, and dizziness are inadequate. Considering, 38 C.F.R. § 3.321 (b) (1) it is clear that extraschedular evaluation is warranted only for "exceptional" cases and "unusual or exceptional disability pictures." The Board finds that the veteran’s disability is fully capable of evaluation under the rating schedule. The record is absent for evidence to support the contention that Veteran’s perforated tympanic membrane of the left ear results in exceptional or unusual disability. The record does not otherwise indicate that the perforated tympanic membrane of the left ear with scarring, pain, and dizziness with a history of falls presents an exceptional or unusual disability picture sufficient to warrant extraschedular consideration. It is apparent that the Veteran's disability picture is contemplated by the schedular evaluation of DC 6204 (peripheral vestibular disorders), and/or the other relevant Diagnostic Codes for tinnitus and hearing loss which are adequate. There is no indication that the Veteran has been hospitalized due to the perforated tympanic membrane of the left ear. There is no evidence of other related factors such as "marked interference with employment" and "frequent periods of hospitalization." The evidence does not suggest that the rating criteria are inadequate to warrant referral for an extraschedular rating. Thun, supra. As the preponderance of the evidence is against the claim for a rating in excess of 30 percent for a perforated tympanic membrane of the left ear with scarring, pain, and dizziness, to include on an extraschedular basis, the benefit of the doubt doctrine is not for application and the Veteran's appeal must be denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 4.3. S. L. Kennedy Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board William J. Jefferson III 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.