Citation Nr: 1104669 Decision Date: 02/04/11 Archive Date: 02/14/11 DOCKET NO. 09-24 920 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to service connection for mastoiditis. 2. Entitlement to service connection for left ear hearing loss. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. J. In, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1951 to December 1951. This matter comes properly before the Board of Veterans' Appeals (Board) on appeal from a February 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office in Detroit, Michigan (RO). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2010). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. Mastoiditis was not noted on examination at the time of service enlistment. 2. Clear and unmistakable evidence demonstrates that mastoiditis existed at the time of the Veteran's enlistment into active military service. 3. Clear and unmistakable evidence demonstrates that the Veteran's preexisting mastoiditis was not aggravated by active service. 4. The Veteran's current left ear hearing loss is not related to his military service or to any incident therein. CONCLUSIONS OF LAW 1. Mastoiditis was not incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1111, 1153, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.306 (2010). 2. Left ear hearing loss was not incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.303 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS With respect to the Veteran's claims herein, VA has met all statutory and regulatory notice and duty to assist provisions under the Veterans' Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2010). Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. Quartuccio v. Principi, 16 Vet. App. 183 (2002). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In addition, the notice requirements of the VCAA apply to all five elements of a service-connection claim, including: (1) Veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. The RO's January 2008 and March 2010 letters advised the Veteran of the foregoing elements of the notice requirements. See Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); see also Bernard v. Brown, 4 Vet. App. 384, 394 (1993). With respect to the Dingess requirements, the RO's January 2008 letter provided the Veteran with notice of what type of information and evidence was needed to establish disability ratings, as well as notice of the type of evidence necessary to establish an effective date. Accordingly, with this letter, the RO effectively satisfied the remaining notice requirements with respect to the issues on appeal. In addition, the duty to assist the Veteran has also been satisfied in this case. The Veteran's service treatment records, as well as identified VA and private medical records have been obtained. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Pursuant to the Board's March 2010 remand, the RO obtained and associated with the claims file the record of a December 2009 hearing test conducted at a VA Medical Center. The RO also obtained and associated with the claims file the Veteran's treatment records from his private physician, Dr. R.S., dated from May 2009 to March 2010. Furthermore, the Veteran was provided with a July 2010 VA examination to determine the etiology of his mastoiditis and left ear hearing loss. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159; see McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006). In compliance with the Board's March 2010 remand, an additional VA medical opinion was obtained in August 2010 as to whether the Veteran's preexisting mastoiditis was permanently aggravated beyond its natural progression by his military service. The Board finds the July 2010 VA examination and the August 2010 VA medical opinion adequate as they were based upon a complete review of the Veteran's claims file, and the VA examiners provided written rationales for the conclusions reached. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Based on the foregoing, the Board concludes that there has been substantial compliance with its March 2010 remand. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all of the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (finding that the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show. The Veteran should not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (holding that the law requires only that the Board address its reasons for rejecting evidence favorable to the claimant). Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection may also be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 U.S.C.A. § 1113(b) (West 2002); 38 C.F.R. § 3.303(d); Cosman v. Principi, 3 Vet. App. 503, 505 (1992). The Veteran is presumed to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable (obvious and manifest) evidence demonstrates that an injury or disease existed prior thereto and was not aggravated by service. 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304(b). The burden then falls on the government to rebut the presumption of soundness by clear and unmistakable evidence that the Veteran's disability was both preexisting and not aggravated by service. See Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). Only such conditions as are recorded in examination reports are to be considered as noted. 38 C.F.R. § 3.304(b). A preexisting injury or disease will be considered to have been aggravated by active service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(a). Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. Id. Aggravation for purposes of entitlement to VA compensation benefits requires more than that a preexisting disorder become intermittently symptomatic during service; rather, there must be permanent advancement of the underlying pathology. Furthermore, temporary or intermittent flare-ups of a preexisting disease during service are not sufficient to be considered aggravation of the disease unless the underlying condition, as contrasted to symptoms, is worsened. See Jensen v. Brown, 4 Vet. App. 304, 306-07 (1993); Hunt v. Derwinski, 1 Vet. App. 292 (1991); Verdon v. Brown, 8 Vet. App. 529, 536-7 (1996). The Veteran's November 1951 service enlistment examination report noted a perforated tympanic membrane of the left ear. A December 1951 service treatment report noted that the Veteran had chronic mastoiditis, with undetermined organism, that was not incurred in the line of duty or due to misconduct. The Veteran stated that the condition existed prior to enlistment. The report reflects that the Veteran reported to sick bay requesting excuse from swimming because of an ear infection. According to the Veteran's statements, he had intermittent attacks of drainage from his left ear for as long as he could remember. He received penicillin and ear drops for the condition which promptly cleared. The physical examination was essentially negative except for scarred and thickened tympanic membrane on the left and there was slight amount of purulent exudates in the canal. However, the otolaryngology department at the Naval Hospital reported that x-ray revealed chronic mastoiditis of the left ear with perforation and drainage, which was found as non-acceptable for service. In December 1951, a Medical Board Report found that the Veteran had chronic mastoiditis, with undetermined organism, that was not the result of his own misconduct and was not incurred in line of duty. The Medical Board also found that the Veteran's mastoiditis existed prior to enlistment and was not aggravated by service. The Medical Board concluded that the Veteran did not meet the minimum standards for enlistment and that the Veteran's disability was considered not to be the proximate result of performance of active duty. It was also noted that the Veteran was informed of the findings and recommendation of the Board but did not submit a statement in rebuttal. Accordingly, the Veteran was found unfit for service and was discharged from military service in December 1951. The Veteran's service treatment records are negative for any complaints or diagnoses of hearing loss. After separation from military service, private medical records, dated in June 1952, indicate that the Veteran underwent a radical mastoidectomy of the left ear by Dr. A.C.F. The final diagnosis was chronic mastoiditis of the left ear. A December 1976 letter from Dr. C.F.D. stated that the Veteran received care and treatment relating to his left ear since 1965. Dr. D. noted that since his military discharge and subsequent radical mastoidectomy in 1952, the Veteran experienced periodic infection and required treatment and regular monitoring. It was also noted that the Veteran's left ear remained in the same condition since 1965 and the diagnosis was recurrent cavity infections. The prognosis was good but required periodic check- ups and cleaning out. In a December 2009 VA audiology consultation report, the Veteran reported bilateral hearing loss, with left ear being much more severe. The Veteran reported that he served in the Navy for only one and a half months and that he was medically discharged for mastoiditis during basic training. The Veteran's postservice occupations included typesetter and graphic artist. No recreational noise exposure was reported. The Veteran denied wearing a hearing aid. On an audiological evaluation, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 40 30 60 70 70 LEFT - 105+ 105+ 105+ 105+ Speech audiometry revealed speech recognition ability of 96 percent in the right ear. The VA audiologist stated that the Veteran's left ear could not be tested for speech recognition ability. Tympanogram results showed a normal right ear and a stiff left ear. The assessments were mild sloping to a severe sensorineural hearing loss in the right ear and profound sensorineural hearing loss ("dead ear") in the left ear. The Veteran was evaluated for a hearing aid for the right ear only. The Veteran was afforded a VA audiology examination in July 2010. The VA examiner stated that the claims file was reviewed. The Veteran reported hearing loss in the left ear and difficulty understanding in noise and locating sound source. He denied a history of military noise exposure. As to occupational noise exposure, the Veteran reported that he was a printer and did not use hearing protection throughout his whole career. History of recreational noise exposure was denied. He also denied any familial hearing loss, head trauma, or dizziness, but reported middle ear pathology in the left ear. On the audiological evaluation, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 45 35 65 65 65 LEFT 105+ 90 105+ 105+ 105+ Maryland CNC word list speech recognition test revealed excellent speech discrimination ability of 96 percent in the right ear and poor speech discrimination ability of 0 percent in the left ear. The diagnoses were moderate to moderately severe sensorineural right ear hearing loss and profound mixed left ear hearing loss. Tympanometry revealed a normal right ear and a left ear with no hermetic seal. The VA examiner opined that the Veteran's hearing loss in the left ear due to mastoiditis was not due to his military service. In support of this opinion, the examiner offered the following rationale: Based on pre-existing documentation of perforated tympanic membrane at induction, reported chronic drainage by [the] Veteran in [the claims] file for as long as he could remember and at discharge statement of mastoiditis not being service connected with the Veteran agreeing and stating no rebuttal would be made, this pathology must be considered as being present at time of induction and a prior medical condition before induction into the [m]ilitary. An additional VA medical opinion was obtained in August 2010. The examiner stated that the Veteran's claims file was reviewed. The examiner opined that the Veteran's mastoiditis was not permanently aggravated by active duty military service. In reaching this conclusion, the examiner stated that there was no indication based on review of the medical evidence of record, to include the Veteran's service treatment records, and his VA and private medical records, that this condition was aggravated by active duty military service. The examiner further explained "[m]astoiditis is a self limited condition. [The Veteran] has not required ongoing treatment for this condition since being treated prior to active duty military service." Mastoiditis Upon consideration of all of the evidence of record, the Board finds that clear and unmistakable evidence demonstrates that the Veteran's mastoiditis existed prior to service and clear and unmistakable evidence demonstrates that his pre-existing mastoiditis was not aggravated by service. 38 U.S.C.A. §§ 1111, 1153; 38 C.F.R. §§ 3.304, 3.306. Although the Veteran's service enlistment examination noted a perforated tympanic membrane of the left ear, mastoiditis was not shown at that time. Accordingly, the Veteran is presumed to have been in sound condition. However, the Veteran's own admission in service as to having intermittent attacks of drainage prior to service entrance from his left ear "for as long as he could remember." See Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992) (finding that lay assertions are competent evidence as to observable symptoms). Moreover, the contemporaneous medical records associated with the Veteran's service discharge clearly report the Veteran had chronic mastoiditis, which in the opinion of the Medical Board existed prior to enlistment, provide clear and unmistakable evidence that his mastoiditis pre-existed his military service. The Medical Board report found that the Veteran had chronic mastoiditis of the left ear, with perforation and drainage, that existed prior to service. The Veteran was found unfit for military service and was released from active duty service after a month. The Board also finds clear and unmistakable evidence that the Veteran's preexisting mastoiditis was not aggravated by his military service. The findings of the Medical Board made at the time of his service and an examination in service indicated chronic mastoiditis that was not incurred in line of duty and the Medical Board specifically found that this condition was not aggravated by service. The Board considered the Veteran's statements presented at his January 2010 hearing before the Board and through various written statements. The Veteran testified at the Board hearing that while in service he sought treatment for mastoiditis after he passed out in the dining hall from this condition. He stated that he was given no treatment and sent back to his barracks. The Veteran also contends that although he suffered chronic ear aches from an early age, there were no symptoms of an ear infection since he was age 12 until his enlistment in the Navy. See Layno v. Brown, 6 Vet. App. 465 (1994) (finding that a lay person is competent to attest to the factual matters of which he or she had first-hand knowledge). However, the competency of an individual to testify must be distinguished from the credibility of the testimony. The Board does not find these statements credible as they are inconsistent with the other evidence of record and the Veteran's other statements of record. See Caluza v. Brown, 7 Vet. App. 498, 511 (1995) (noting that credibility may be impeached by a showing of inconsistent statements, consistency with other evidence), aff'd, 78 F.3d 604 (Fed. Cir. 1996). When the Veteran was evaluated in service after he requested excuse from swimming because of an ear infection, he reported intermittent attacks of drainage from his left ear for as long as he could remember. Although postservice records reflects that the Veteran underwent a radical mastoidectomy on the left ear approximately six months following his military discharge, the medical evidence does not show that the Veteran's preexisting mastoiditis of the left ear was aggravated by military service. The August 2010 VA examiner opined that based on a complete review of the medical evidence of record, there was no indication that the Veteran's mastoiditis was aggravated by active duty military service. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (holding that the Board is prohibited from substituting its own medical judgment in place of the opinions of competent medical professionals). The Veteran claims that his mastoiditis preexisted military service but was aggravated during service. However, the Veteran's statements alone are not sufficient to prove that he experienced a permanent advancement of the underlying pathology of his preexisting mastoiditis during active military service. Espiritu, 2 Vet. App. at 495. Although the Veteran is capable of lay observation, his statements cannot be considered competent evidence that what he observed was a permanent worsening of the underlying disorder of mastoiditis. Accordingly, clear and unmistakable evidence shows that the Veteran's preexisting mastoiditis was not aggravated by military service. As such, service connection for mastoiditis is not warranted. Left Ear Hearing Loss After reviewing the evidence of record, the Board finds that the medical evidence of record does not show that the Veteran's current left ear hearing loss is related to his military service. There is a current left ear hearing disability for VA purposes. See Degmetich v. Brown, 104 F.3d 1328, 1333 (Fed. Cir. 1997) (holding that the existence of a current disability is the cornerstone of a claim for VA disability compensation); see also 38 C.F.R. § 3.385 (2010). However, the only medical opinion of record as to whether the Veteran's current left ear hearing loss is related to his active service is negative to his claim. See Colvin, 1 Vet. App. at 175. The July 2010 VA examiner opined that the Veteran's left ear hearing loss was due to mastoiditis, not due to his military service. However, the examiner found that the Veteran's mastoiditis pre-existed his military enlistment and the August 2010 VA examiner concluded that the Veteran's mastoiditis was not permanently aggravated by service. Accordingly, as service connection for mastoiditis is not warranted in this case, the claim for service connection for left ear hearing loss due to mastoiditis must also fail. To extent that the Veteran contends that his current left ear hearing loss was caused otherwise by his military service, the record reflects that the Veteran denied history of any military noise exposure. Moreover, the medical evidence of record does not relate in any way the Veteran's left ear hearing loss to his military service. The Board finds that the Veteran's statements as to medical causation are not competent evidence to establish service connection for left ear hearing loss. Espiritu, 2 Vet. App. at 494-95. The evidence of record does not demonstrate that the Veteran possesses the ability, knowledge, or experience to provide a competent etiological opinion that his left ear hearing loss was the result of his military service. Id. Accordingly, the Board finds that these statements as to medical causation are not competent evidence to establish service connection for left ear hearing loss. Upon review and consideration of the lay and medical evidence, the Board finds that the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for left ear hearing loss. In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran's claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for mastoiditis is denied. Service connection for left ear hearing loss is denied. ____________________________________________ JOY A. MCDONALD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs