Citation Nr: 1300263 Decision Date: 01/04/13 Archive Date: 01/11/13 DOCKET NO. 09-04 612 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to service connection for a disability manifested by bilateral ear pain. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD N. Holtz, Associate Counsel INTRODUCTION The Veteran had active duty service from June 1970 to June 1972, and from May 1973 to April 1975. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2007 rating decision of the Department of Veterans' Affairs (VA) Regional Office (RO) in Atlanta, Georgia, in which the RO denied service connection for bilateral ear pain. The Board notes that while a July 2007 rating decision indicates that the Veteran is only service-connected for left ear hearing loss, which was his original service-connected disability, he was granted entitlement to service connection for bilateral hearing loss in a September 2003 rating decision. The issue of entitlement to an increased rating for bilateral hearing loss has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over that issue, and it is referred to the AOJ for appropriate action. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND The Veteran's claim of entitlement to service connection for a disability manifested by bilateral ear pain must be remanded to obtain treatment records, and for an examination to determine whether the appellant has a current and distinct disability manifested by ear pain. 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; 38 C.F.R. § 3.303(a). Service connection generally requires credible and competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Currently, it is not clear whether the Veteran has a distinct disability manifested by ear pain that is separate from his service-connected bilateral hearing loss and tinnitus. Although it is evident that the Veteran considers the claim for ear pain to be separate from any claims for increased ratings for hearing loss or tinnitus, pain alone is not a disability for VA purposes. See Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999). Nevertheless, it is evident that the Veteran may have a disability manifested by ear pain that could warrant a separate grant of service connection, but as of now, there is insufficient medical evidence to address this question. The Veteran was treated for left ear pain in February 1975, and he has reported a history of bilateral, "needle-like" ear pain that has continued since service at his January 2006 and September 2012 Travel Board hearings. He indicates that private treatment providers have informed him that a "busted" (ruptured?) left eardrum may be responsible for his ear pain. Given this evidence an examination is warranted. See McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006) (holding that where there is evidence of a current disability, and an indication that the current disability may be related to an event or injury in service, but insufficient competent evidence on file to make a decision on the claim, an examination is warranted). Finally, the Veteran indicated that he received private ear treatment at Northlake Hearing Center, as well as treatment at VA Community-Based Outpatient Clinics. As part of VA's duty to assist, these records must be obtained. 38 C.F.R. § 3.159(c) (2012). Accordingly, the case is REMANDED for the following action: 1. Obtain and associate with the claims file or Virtual VA all outstanding VA treatment records related to hearing loss, tinnitus, and/or other ear problems, to include complaints of ear pain. All attempts to procure such records should be documented in the file. If the RO cannot locate any records that have not been previously added to the claims file it must specifically document the attempts that were made to locate them, and explain in writing why further attempts to locate or obtain any government records would be futile. The RO must then: (a) notify the claimant of the specific records that it is unable to obtain; (b) explain the efforts VA has made to obtain that evidence; and (c) describe any further action it will take with respect to the claims. The claimant must then be given an opportunity to respond. 2. Contact the Veteran and request that he complete a VA Form 21-4142 authorizing VA to request copies of any treatment records from any private medical providers who have treated him for his ear pain, including but not limited to, the Northlake Hearing Center. After the Veteran has any necessary releases, those records not already associated with the claims file should be obtained and associated therewith. All attempts to procure any outstanding treatment records should be documented in the claims file or on Virtual VA. If records identified by the Veteran cannot be obtained, a notation to that effect should be included in the claims file and the Veteran and his representative should be notified of unsuccessful efforts in this regard, in order to allow her the opportunity to obtain and submit those records for VA review. 3. After obtaining all available VA and private treatment records, schedule the Veteran for an examination by a physician with the appropriate expertise to determine the nature and etiology of his claimed bilateral ear pain. Based on review of the pertinent medical history, examination of the Veteran, including his claims file, Virtual VA file, and all other sources of relevant medical records, and with consideration of sound medical principles, the physician must address the following: (i) Are the Veteran's complaints of bilateral ear pain a manifestation of a distinct disability apart from his service-connected bilateral hearing loss and/or bilateral tinnitus? If so, what is that disability? Please note that for VA compensation purposes pain alone does not constitute a disability. (ii) If the Veteran does have a distinct disorder manifested by ear pain, the examiner must opine whether it is at least as likely as not, i.e., is there a 50/50 chance or greater, that any current such disability had its onset in service? The Board notes that the Veteran reported left ear pain in service in 1975, and he asserts that ear pain has continued since service. (iii) If the Veteran has a distinct disorder manifested by ear pain, but the disorder did not begin inservice, is it at least as likely as not that such disability was caused by or is aggravated (chronically worsened beyond the natural progression of the disease) by either or both a bilateral hearing loss and/or tinnitus? (iv) If a disability manifested by bilateral ear pain was not caused by, but is aggravated by, a service-connected disability, the examiner should identify the baseline level of severity of the disability manifested by bilateral ear pain prior to the onset of aggravation, and the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity. If some of the increase in severity of the disability manifested by bilateral ear pain is due to the natural progress of the disease process, the physician should identify the degree of increase in severity due to natural progression. The examiner must explain the rationale for any and all opinions expressed. If the examiner opines that the questions cannot be answered without resorting to speculation, then a detailed medical explanation as to why causation is unknowable must be provided. 4. After the development requested has been completed, the RO should review the examination reports to ensure that they are in complete compliance with the directives of this REMAND. The AMC/RO must ensure that the examiners documented their consideration of Virtual VA. If any report is deficient in any manner, the RO must implement corrective procedures at once. 5. The Veteran is to be notified that it is his responsibility to report for the examinations and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2012). In the event that the Veteran does not report for the aforementioned examinations, documentation should be obtained which shows that notice scheduling the examinations was sent to the last known address. It should also be indicated whether any notice that was sent was returned as undeliverable. 6. After completion of the above and any additional development deemed necessary, the issue on appeal must be readjudicated. All applicable laws and regulations must be considered. If the benefit sought remains denied, the Veteran and his representative must be furnished a supplemental statement of the case and be afforded the opportunity to respond. Thereafter, the case should be returned to the Board for appellate review. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). _________________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2012).