Citation Nr: 1007646 Decision Date: 03/01/10 Archive Date: 03/11/10 DOCKET NO. 05-13 841 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUE Entitlement to service connection for left ear otitis media. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD H. Yoo, Associate Counsel INTRODUCTION The Veteran had active service from July 1996 to December 2002. This matter came before the Board of Veterans' Appeals (Board) on appeal from a decision of June 2004 by the Department of Veterans Affairs (VA) North Little Rock, Arkansas Regional Office (RO). The Veteran's claims file is in the jurisdiction of Indianapolis, Indiana RO. This matter was previously remanded by the Board for further development in June 2009. Such has been completed and this matter is returned to the Board for further consideration. See Stegall v. West, 11 Vet. App. 268 (1998). FINDINGS OF FACT The evidence of record does not demonstrate that the Veteran has otitis media, as defined by VA regulations. CONCLUSION OF LAW The criteria for service connection for otitis media have not been met. 38 U.S.C.A §§ 1101, 1110, 1112 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSION 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.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2007). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide. The notice requirements described above apply to all five elements of a service connection claim: (1) veteran status; (2) existence of disability; (3) connection between service and the disability; (4) degree of disability; and (5) effective date of benefits where a claim is granted. Dingess v. Nicholson, 19 Vet. App. 473, 484 (2006). In September 2003, January 2004, May 2005, February 2006, and October 2006 the agency of original jurisdiction (AOJ) sent a letters to the Veteran providing the notice required by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). In February 2006 and October 2008, the agency of original jurisdiction (AOJ) sent a letters to the Veteran providing the notice required by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), to include as interpreted by Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Although the notice letters postdated the initial adjudication, the claim was subsequently readjudicated without taint from the prior decision and no prejudice is apparent. See Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of fully compliant notification followed by readjudication of the claim, such as an SOC or SSOC, is sufficient to cure a timing defect). It is, therefore, the Board's conclusion that the Veteran has been provided with every opportunity to submit evidence and argument in support of his claims, and to respond to VA notices. In addition, the VA has also done everything reasonably possible to assist the Veteran with respect to his claim for benefits, such as obtaining medical records and providing VA examinations. Service Connection Service connection may be granted for a disability resulting from injury or disease incurred in or aggravated by active service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. To establish service connection for the claimed disorder, there must be medical evidence of a current disability; medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and medical evidence of a nexus between the claimed in-service disease or injury and the current disability. 38 C.F.R § 3.303 (2009); see also Hickson v. West, 12 Vet. App. 247, 253 (1999). Service connection may also be granted for chronic disorders when manifested to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. For the showing of a chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or diagnosis including the word "chronic." Continuity of symptomatology is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). According to the in-service treatment records, in December 2000 the Veteran was diagnosed with and treated for left ear otitis media. The separation examination is absent from the record. The post-service treatment records are absent of any complaint, diagnosis, or treatment for left ear otitis media. The RO requested the Veteran submit additional information regarding his claimed condition to include any additional medical evidence. However, the Veteran has not submitted any additional supporting documentation. In July 2007 Board remanded the Veteran's claims for a VA ear, nose, and throat (ENT) examination to: "determine the nature and etiology of any current residual from his in-service nasal fracture and/or otitis... For any current disability of the nose and/or left ear found to be present, the examiner must express an opinion as to whether it is at least as likely as not (50 percent or greater likelihood) that it is casually related to active service, to include either the in-service nasal fracture or otitis media." See Board Decision, dated July 2007. Subsequently, in November 2008 the VA examiner opined the Veteran's tinnitus was at least as likely as not caused by a nasal fracture that occurred during the Veteran's service. The VA examiner stated "nasal septal deviation from nasal fracture can cause obstruction of the Eustachian tube, and, in turn, cause Eustachian tube dysfunction resulting in middle ear effusion with aural fullness, tinnitus, and hearing loss." See VA ENT examination, dated November 2008. The Board determined that the November 2008 VA ENT examination record did not report on symptoms or a diagnosis of otitis media. It was unclear whether the symptoms that are described are relevant to otitis media without resorting to speculation. Therefore, the Board remand this appeal for another VA examination to clarify the Veteran's condition. The Veteran underwent another VA examination in September 2009. The Veteran stated he had a nose fracture during service and since this incident he would get pressure build up in his left ear. He reported having "drainage from the ear and a winding sound. The Veteran has a history of tinnitus, monthly vertigo or dizziness with duration of minutes or less, discharge in the ear approximately once or twice a year that would last days. There were no history of ear puritus, balance or gait problems, or ear infections. The were no evidence of auricle deformity, aural polyps, hearing loss, signs of stagger gait or imbalance, or middle or inner ear infection. There were normal findings for the tympanic membrane, mastoids, and the external canal. Upon examination, the VA examiner opined that the Veteran "does not presently have otitis media. Bilateral [tympanic membranes] are clear." See VA examination, dated September 2009. While the Veteran is competent to report his symptoms such a vertigo and dizziness, and ear drainage. However, he is not competent or qualified, as a layperson, to render a diagnosis or an opinion concerning medical causation. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Espiritu v. Derwinski, 2 Vet. App. 492 (1992). Specifically, where the determinative issue is one of medical causation or a diagnosis, only those with specialized medical knowledge, training, or experience are competent to provide evidence on the issue. See Jones v. Brown, 7 Vet. App. 134, 137 (1994); Espiritu, supra. Therefore, as there is no competent and probative evidence demonstrating that the Veteran has left ear otitis media, service connection for such disorder is not warranted. Without a disability, there can be no entitlement to compensation. See Degmetich v. Brown, 104 F.3d 1328 (1997); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for left ear otitis media. As such, that doctrine is not applicable in the instant appeal, and his claim must be denied. 38 U.S.C.A. § 5107. ORDER Service connection for left ear otitis media is denied. ____________________________________________ J. A. MARKEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs