Citation Nr: 21041211 Decision Date: 07/08/21 Archive Date: 07/08/21 DOCKET NO. 17-28 959 DATE: July 8, 2021 ORDER Entitlement to a 10 percent disability rating for left otitis externa is granted. For the period prior to June 8, 2021, entitlement to a compensable disability rating for bilateral hearing loss is denied. From June 8, 2021, entitlement to a 10 percent disability rating for bilateral hearing loss is granted. FINDINGS OF FACT 1. Throughout the rating period on appeal, left otitis externa is manifested by serous discharge requiring frequent and prolonged treatment. 2. For the period prior to June 8, 2021, the Veteran has had no worse than level I hearing loss in both ears. 3. For the period from June 8, 2021, the Veteran has had no worse than level IV hearing loss in both ears. CONCLUSIONS OF LAW 1. Throughout the rating period on appeal, the criteria for a 10 percent disability rating for left otitis externa have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.87, Diagnostic Code 6210. 2. For the period prior to June 8, 2021, the criteria for a compensable disability rating for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321(b)(1), 4.3, 4.10, 4.85, Diagnostic Code 6100. 3. For the period from June 8, 2021, the criteria for a 10 percent disability rating for bilateral hearing loss have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321(b)(1), 4.3, 4.10, 4.85, Diagnostic Code 6100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Increased Ratings Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a question as to which of two evaluations apply, assigning a higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disability upon the person's ordinary activity, 38 C.F.R. § 4.10. When rating the Veteran's service-connected disability, the entire medical history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. (1991). In general, the degree of impairment resulting from a disability is a factual determination and the Board's primary focus in such cases is upon the current severity of the disability. Francisco v. Brown, 7 Vet. App. 55, 57-58 (1994); Solomon v. Brown, 6 Vet. App. 396, 402 (1994). However, staged ratings are appropriate in any initial rating/increased-rating claim in which distinct time periods with different ratable symptoms can be identified. Fenderson v. West, 12 Vet. App. 119, 126-127 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Left otitis externa The Veteran seeks a higher rating for service-connected left otitis externa. The Board notes that service connection has already been established for hearing loss and tinnitus. Service connection has also been established for perforated tympanic membrane, left ear associated with otitis externa, left ear. 38 C.F.R. §§ 4.14, 4.87, Diagnostic Code 6211. Symptoms from these other disabilities will not be considered when evaluating the service-connected left otitis externa. The Veteran's otitis externa has been rated as noncompensable pursuant to Diagnostic Code 6210. 38 C.F.R. § 4.87. Under Diagnostic Code 6210, a maximum 10 percent rating is assigned for chronic otitis externa with swelling, dry and scaly or serous discharge, and itching requiring frequent or prolonged treatment. In every instance where the rating schedule does not provide a zero percent evaluation for a diagnostic code, as in this case, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31. In January 2014, the Veteran filed an increased rating claim. A November 2012 VA treatment record reflects an assessment of chronic otitis media with effusion. 06/15/2016 CAPRI at 269. An October 2013 VA treatment record reflects the Veteran's report of some worsening pressure symptoms in the left ear over recent weeks. The left ear had debris suctioned out with A/I pe tube in place but blocked and with positive granulation tissue. The tube was removed with ME suctioned. The assessment was ETD. Id. at 261. A March 2014 C&P examination reflects a diagnosis of recurrent left otitis externa. The Veteran reported that he had a tube in his left ear removed the prior year. He reported recurrent left ear pain about every other month, consistent with otitis externa, which is effectively treated with Ofloxacin drops that he uses for several days when he is symptomatic and then stops their use. An examination of the ear canal was normal. A January 2015 VA treatment record reflects the Veteran's report of near constant otorrhea. He reported more drainage and pain from the left side. 06/15/2016 CAPRI at 235. A February 2015 VA treatment record reflects follow-up treatment for bilateral tympanic membrane perforation and CRS. At his last visit, he had been prescribed Amoxicillin and topical drops for a possible left otitis media. He complained of left ear pain. He has a "bad taste in his mouth" when he uses his ear drops. On examination, he had left TM with pinpoint anterior inferior perforation, dry. His pinna and canal were not tender. The assessment was known chronic rhinosinusitis and bilateral tympanic membrane perforations with recurrent infection and worsening left side headaches. With regard to his otolaryngologic problems, he was to stop ear drops and continue Flonase. 06/15/2016 CAPRI at 226. June and August 2015 VA treatment records reflect the Veteran's report that he had again developed some mild otorrhea that arises several times per month. He uses antibiotic drops and it resolves but it always comes back. Id. at 132, 138. An October 2015 VA treatment record reflects bilateral eustachian tube dysfunction, right tympanic membrane perforation, and medialized left tympanostomy tube with recrudescence of symptoms. The examiner's plan was to remove the left T tube with possible replacement of left T tube given that the tube had medialized and symptoms had worsened. Id. at 104. A November 2015 VA treatment record reflects left TM with t-tube in good position and mild purulent otorrhea surrounding the tube, suctioned with microscopy. He was to continue Ofloxacin drops for one week to the left ear for otorrhea. Id. at 53. A July 2016 C&P examination reflects the Veteran's report of frequent bilateral ear infections, treated with ear drops at least once a month for about a week. His ear canal was normal with bilateral tympanic membrane perforations. The July 2016 C&P audiological evaluation reflects reports of chronic otorrhea and persistent tympanic membrane perforation bilaterally. There was no otorrhea on culture at the time of the examination. Medical therapy for eustachian tube dysfunction would be restarted and he would be started on antibiotics due to recent left ear otorrhea. An August 2016 VA treatment record reflects the Veteran's report of having drainage in his left ear the prior week which seemed to have stopped. He denied any otorrhea, otalgia or aural pressure. 05/16/2017 CAPRI at 31. A March 2017 VA treatment record reflects the Veteran's denial of otorrhea, otalgia and vertigo and he reported that his left ear is dry. Id. at 2. After a review of the medical evidence of record and in consideration of the Veteran's subjective reports, the Board finds that the Veteran's left otitis externa more nearly approximated the rating criteria for a 10 percent rating under Diagnostic Code 6210, based on chronic otitis externa with serous discharge requiring frequent and prolonged treatment. 38 C.F.R. §§ 4.3, 4.7. As detailed, over the course of the appeal the Veteran has consistently reported left ear symptomatology with reports of otorrhea and he has required the use of antibiotics and ear drops to treat his symptoms. Thus, the Board finds that the criteria for a 10 percent rating have been met. The Veteran is now in receipt of the maximum schedular 10 percent rating for otitis externa throughout the rating period on appeal. A higher rating is not warranted under any other diagnostic code. Accordingly, the preponderance of the evidence is against assigning a rating in excess of 10 percent during the period on appeal. Bilateral hearing loss The Rating Schedule provides a table for ratings purposes (Table VI) to determine a Roman numeral designation (I through XI) for hearing impairment, established by a state-licensed audiologist including a controlled speech discrimination test (Maryland CNC), and based upon a combination of the percent of speech discrimination and the puretone threshold average which is the sum of the puretone thresholds at 1000, 2000, 3000 and 4000 Hertz, divided by four. 38 C.F.R. § 4.85. Table VII is used to determine the percentage evaluation by combining the Roman numeral designations for hearing impairment of each ear. The horizontal row represents the ear having the poorer hearing and the vertical column represents the ear having the better hearing. Id. When the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIa, whichever results in the higher numeral. Each ear will be evaluated separately. 38 C.F.R. § 4.86(a). When the puretone threshold is 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIa, whichever results in the higher numeral. That numeral will then be elevated to the next higher. 38 C.F.R. § 4.86(b). To evaluate the degree of disability from defective hearing, the rating schedule establishes eleven auditory acuity levels designated from "I" for essentially normal acuity, through "XI" for profound deafness. 38 C.F.R. § 4.85, Tables VI, VII. A noncompensable evaluation is provided where hearing in the better ear is I and hearing in the poorer ear is I through IX; where hearing in the better ear is II, and hearing in the poorer ear is II to IV; or where there is level III hearing in both ears. A 10 percent disability rating is warranted where hearing in the better ear is I, and hearing in the poorer ear is X to XI; or where hearing in the better ear is II, and hearing in the poorer ear is V to XI; or where hearing in the better ear is III, and hearing in the poorer ear is IV to VI. 38 C.F.R. § 4.85, Table VII, Diagnostic Code 6100. Pertinent case law provides that the assignment of disability ratings for hearing impairment are to be derived by the mechanical application of the Ratings Schedule to the numeric designations assigned after audiometry evaluations are rendered. Lendenmann v. Principi, 3 Vet. App. 345 (1992). In December 2013, the Veteran underwent an audiological evaluation. The specific pure-tone thresholds were not provided for the ears in a numerical format but were provided in a graph format. The pure tone average in the right ear was 28 and in the left ear was 33. Speech audiometry revealed speech recognition ability of 96 percent in both ears. Because the testing is not specified as being the Maryland CNC Word Recognition the examination is not valid for rating purposes. In any event, the findings translate to level I hearing in both ears. 38 C.F.R. § 4.85, Table VI. Applying Table VII, Diagnostic Code 6100, this equates to a 0 percent disability rating. A July 2014 VA otolaryngology treatment record reflects the examiner's comment that his previous audiogram demonstrated improved thresholds at all frequencies in both ears compared to his audiogram from one year prior. 06/15/2016 CAPRI at 240. In April 2015, the Veteran underwent an audiological evaluation. Pure-tone thresholds for the ears were as follows: HERTZ 1000 2000 3000 4000 RIGHT 30 35 45 55 LEFT 30 30 40 55 The pure tone average in the right ear was 41 decibels and 39 decibels in the left ear. Speech audiometry revealed speech recognition ability of 92 percent in both ears. Such findings translate to level I hearing in both ears. 38 C.F.R. § 4.85, Table VI. Applying Table VII, Diagnostic Code 6100, this equates to a 0 percent disability rating. In June 2016, the Veteran underwent an audiological evaluation. Pure-tone thresholds for the ears were as follows: HERTZ 1000 2000 3000 4000 RIGHT 30 35 35 50 LEFT 40 40 45 50 The pure tone average in the right ear was 38 decibels and 44 decibels in the left ear. Speech audiometry revealed speech recognition ability of 96 percent in the right ear and 94 percent in the left ear. Such findings translate to level I hearing in both ears. 38 C.F.R. § 4.85, Table VI. Applying Table VII, Diagnostic Code 6100, this equates to a 0 percent disability rating. A September 2015 audiogram showed mild to severe mixed hearing loss in the right ear and mild to severe sensorineural hearing loss in the left ear. The speech discrimination scores were 96 percent in the right ear and 100 percent in the left ear. 04/17/2019 CAPRI at 452. An October 2016 VA audiological evaluation reflects mild to severe sensorineural hearing loss in the right ear and mild to severe mixed hearing loss. Speech discrimination scores were 96 percent in the right ear and 88 percent in the left ear. There was a slight decrease in thresholds compared to the last test in September 2015. 04/17/2019 CAPRI at 301. A June 2017 VA audiogram reflects right moderate to moderate-severe mixed hearing loss and left sensorineural hearing loss to moderately-severe mixed hearing loss. Speech discrimination was 96 percent on the right and 92 percent on the left, compared with 96 percent on the right and 88 percent on the left in October 2016. The examiner commented that there was a slight decrease in pure tone thresholds in the right ear since last tested in November 2016. 04/17/2019 CAPRI at 205-206, 212. In June 2021, the Veteran underwent an audiological evaluation. The specific pure-tone thresholds were not provided for the ears in a numerical format but were provided in a graph format. The pure tone average in the right ear was 60 and in the left ear was 58. Speech audiometry revealed speech recognition (under the Maryland CNC testing format) ability of 78 percent in both ears. Such findings translate to level IV hearing in both ears. 38 C.F.R. § 4.85, Table VI. Applying Table VII, Diagnostic Code 6100, this equates to a 10 percent disability rating. Based on this audiological evaluation, the Board finds that a 10 percent disability rating is warranted for bilateral hearing loss, effective June 8, 2021, which corresponds to the date of the audiological evaluation. Based on the above, the Board finds that a compensable disability rating is not warranted prior to June 8, 2021, and a rating in excess of 10 percent is not warranted for the period from June 8, 2021. The rating criteria are intended to compensate for the impairment resulting from the hearing loss disability. 38 C.F.R. §§ 4.1, 4.85. Any manifestations of difficulty hearing or understanding speech are contemplated by the schedular criteria for hearing loss. Doucette v. Shulkin, 28 Vet. App. 366, 371-72 (2017). However, the pertinent and objective evidence of hearing impairment does not approximate the criteria for a compensable disability rating for the period prior to June 8, 2021, and for a rating in excess of 10 percent from June 8, 2021. Lendenmann, 3 Vet. App. at 349 (noting that when VA assigns a schedular disability rating to a veteran's hearing loss, it generally is required by law to base its decision entirely on audiometric testing results); 38 C.F.R. § 4.85, Tables VI and VII, Diagnostic Code 6100. Applying the audiologic test results most favorable to the Veteran to the regulatory criteria, the Board is compelled to conclude that the preponderance of the evidence is against a compensable rating for the period prior to June 8, 2021, and a 10 percent rating is warranted thereafter. The United States Court of Appeals for Veterans Claims (Court) discussed extraschedular consideration in the context of bilateral hearing loss: [T]he Court holds that the [schedular] rating criteria for hearing loss contemplate the functional effects of decreased hearing and difficulty understanding speech in an everyday work environment, as these are precisely the effects that VA's audiometric tests are designed to measure. Thus, when a claimant's hearing loss results in an inability to hear or understand speech or to hear other sounds in various contexts, those effects are contemplated by the schedular rating criteria. However, as the rating criteria do not otherwise discuss, let alone account for, other functional effects, such as dizziness, vertigo, ear pain, etc., the Court cannot conclude that the rating schedule, on its face, contemplates effects other than difficulty hearing or understanding speech. Doucette v. Shulkin, 28 Vet. App. 366, 369 (2017). The Court further noted that "a hearing loss claimant could provide evidence of numerous symptoms, includingfor purposes of example onlyear pain, dizziness, recurrent loss of balance, or social isolation due to difficulties communicating, and the Board would be required to explain whether the rating criteria contemplate those functional effects." Id. at 371. While recognizing any functional effects and limitations associated with his hearing loss, in consideration of Doucette, the Board finds that the schedular rating contemplates the effects of the Veteran's service-connected bilateral hearing loss as they are related to functional effects of decreased hearing. In summary, for the reasons and bases expressed above, the Board has concluded that a compensable disability rating is not warranted for the period prior to June 8, 2021, and a 10 percent rating, but no higher, is warranted from June 8, 2021. Eric S. Leboff Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M.W. Kreindler, 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.