Citation Nr: 1209482	
Decision Date: 03/14/12    Archive Date: 03/28/12

DOCKET NO.  05-10 703	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Houston, Texas


THE ISSUE

Entitlement to service connection for left ear otitis media and otitis externa.  


REPRESENTATION

Veteran represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

Veteran


ATTORNEY FOR THE BOARD

T. Blake, Associate Counsel


INTRODUCTION

The Veteran served on active duty from November 1989 to February 1997. 

This case comes before the Board of Veterans' Appeals (Board) on appeal from a September 1997 rating decision of the Seattle, Washington, Department of Veterans Affairs (VA) Regional Office (RO), which in pertinent part, denied service connection for otitis media and otitis externa.

A March 2011 report of contact, via a VA Form 21-0820, noted the Veteran clarified the issue on appeal as left ear otitis media and otitis externa, thus the issue has been recharactized on the title page accordingly.

In August 2011, the Veteran testified at a Board hearing held before the undersigned Veterans Law Judge at the local RO. A copy of the transcript is of record. 

During the course of the appeal, the Veteran's claims file was permanently transferred to the RO in Houston, Texas which now has jurisdiction over the claim on appeal.


FINDINGS OF FACT

1. All relevant evidence necessary for an equitable disposition of the Veteran's appeal has been obtained.

2. Left ear otitis media and otitis externa is shown to have its onset during active service and the competent and credible evidence of record shows a diagnosis during the appeal period and continuity of symptoms since service.  




CONCLUSION OF LAW

The criteria for service connection for left ear otitis media and otitis externa have been met. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2011).     


REASONS AND BASES FOR FINDINGS AND CONCLUSION

I. Duty to Notify & Assist

The Veterans Claims Assistance Act of 2000 (VCAA) imposes obligations on VA in terms of its duty to notify and assist claimants. When VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and the representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2011); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004), the United States Court of Appeals for Veterans Claims (Court) held that VA must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide.

Given the fully favorable decision discussed below, the Board finds that any issue with regard to the timing or content of the VCAA notice provided to the Veteran is moot or represents harmless error.  

II. Decision

The Veteran contends that service connection is warranted for left ear otitis media and otitis externa on the basis of continued symptoms relating to her in-service diagnoses of the claimed disorder since separation from service.

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A §§ 1110, 1131 (West 2002). Service connection may also be granted for any disease after service when all the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2011).

Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).

When there is a chronic disease in service, or within the presumptive period under 38 C.F.R. § 3.307, subsequent manifestations of the same chronic disease at any later date, however remote, is warranted to establish service connection, unless the subsequent manifestations are clearly attributable to intercurrent causes. See 38 C.F.R. § 3.303(b) (2011); see also Savage v. Gober, 10 Vet. App. 488, 498 (1997). A chronic disease in service requires 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 a diagnosis including the word 'chronic.' Id. When the disease identity is established, there is no requirement of evidentiary showing continuity; however, if a condition noted during service is not shown to be chronic or the diagnosis of chronicity may be legitimately questioned, then a showing of continuity of symptomatology after service is required to support the claim. Id.

The Court has held that the requirement of a current disability "is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim and that a claimant may be granted service connection even though the disability resolves prior to [VA's] adjudication of the claim." McClain v. Nicholson, 21 Vet. App. 319, 321 (2007).

When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  

After review of the evidentiary record, the Board concludes that service connection is warranted for left ear otitis media and otitis externa. 

Upon enlistment for active duty, an August 1989 examination report did not reveal abnormalities with regard to the Veteran's left ear. In March 1990, the Veteran complained of left ear pain and was diagnosed with left ear otitis media, and was assessed with otitis externa after she reported the same complaints in August 1993. Two years later in October 1995, she was assessed again with left ear otitis media. An April 1996 examination report for retention noted the Veteran's left ear was mildly retracted and slightly dull, and the summary of defects and diagnoses listed mild serious otitis of the left ear with no pseudoexfoliation syndrome (pxs).

Within one year of separation from service, the Veteran filed a March 1997 Application for Compensation and/or Pension Benefits, via a VA Form 21-526. In connection with the pending claims, she underwent a March 1997 VA general medical examination and was diagnosed with otitis externa, otitis media. In a November 1997 notice of disagreement, the Veteran reported that she "was never diagnosed with otitis externa/media prior to [her] entry on active duty [and] [t]his condition was also not found during [her] physical exam[ination] for entry on active duty." After issuance of a February 2005 statement of the case, the Veteran submitted a March 2005 substantive appeal, via a VA Form 9, and reported she "continue[s] to have problems associate[d] with the ear infections just as [she] did in service." 

Most recently, at the August 2011 Board hearing, the Veteran testified that during service, she sought treatment for otitis media and otitis externa at least three to five times and was treated with ibuprofen and amoxicillin each time to reduce the swelling and inflammation. Shortly after service, she had problems with her ears and sore throat, so sought treatment from Dr. J. P. in February 1997 and was treated with a medication other than amoxicillin. The treatment made her well, but the symptoms got twice as worse when she stopped it. The Veteran noted she continued to have problems with her ears and currently received treatment from Dr. Sanchez for the disorder on appeal. The Veteran's representative concluded that "there was treatment while [the Veteran] was on active duty, and there [is] a continuity of treatment after discharge from the service all the way to the present . . . and even though the otitis media clears up it still occurs within a short period."

When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. Reasonable doubt exists because the approximate balance of positive and negative evidence, either qualitatively and quantitatively, does not satisfactorily prove or disprove the claim. It is substantial doubt and one within the range of possibility as distinguished from pure speculation or remote possibility. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert, 1 Vet. App. at 53-56. 

In this case, the evidence of record shows that during active service the Veteran was assessed as having left ear otitis media in March 1990 and October 1995 and left ear otitis externa in August 1993. The Board recognizes that at the time of the March 2010 VA examination, a diagnosis of otitis externa and otitis media was not made.  The Veteran has credibly reported that she experienced symptoms relating to the disorder on appeal since separation from service and is currently seeking private outpatient treatment for currently diagnosed left ear otitis media and otitis externa. Moreover, within one year of separation from service and within the appeal period, she was diagnosed with otitis media and otitis externa at the March 1997 VA examination. See 38 C.F.R. §§ 3.307, 3.309 (2011); McClain, 21 Vet. App. at 321. As such, there is competent and credible evidence of a currently diagnosed disability, evidence of the disability in service and competent and credible evidence of continuity of symptoms since service. Given the facts of this case, and with resolution of all reasonable doubt in the Veteran's favor, the Board finds that service connection is warranted for left ear otitis media and otitis externa. 


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ORDER

Service connection for left ear otitis media and otitis externa is granted.  



_________________________________________________
K. J. ALIBRANDO
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs