Citation Nr: 1307413 Decision Date: 03/05/13 Archive Date: 03/11/13 DOCKET NO. 11-25 543 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to service connection for chronic eczematous otitis externa. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Scott Shoreman, Counsel INTRODUCTION The Veteran had active military service from June 1954 to April 1956. This appeal comes to the Board of Veterans' Appeals (Board) from a January 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT There is not probative evidence that the Veteran's chronic eczematous otitis externa is causally or etiologically related to service. CONCLUSION OF LAW The criteria for service connection for chronic eczematous otitis externa have not been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duty to Notify and Assist Under the Veterans Claims Assistance Act (VCAA), when VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 C.F.R. § 3.159 (2012); see also Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Such notice must advise that a disability rating and an effective date for the award of benefits will be assigned if there is a favorable disposition of the claim. Id.; 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.159, 3.326; see also Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). Prior to initial adjudication of the Veteran's claims, a letter dated in January 2009 fully satisfied the duty to notify provisions of VCAA. 38 U.S.C.A. § 5103; 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). With respect to the duty to assist in this case, the Veteran's VA treatment records and private treatment records have been obtained and associated with the claims file. The Veteran's service treatment records were lost in an accidental 1973 fire at the National Personnel Records Center. In the absence of the presumed destroyed service medical records, the Board's obligation to explain its findings and conclusions, and to consider carefully the benefit-of-the-doubt rule, is heightened. See O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). The Veteran was also provided with a VA examination in September 2009, the report of which have been associated with the claims file, in conjunction with his claim. The examiner provided a well-reasoned rationale for his opinion. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). The Veteran and his representative have not made the RO or the Board aware of any additional pertinent evidence that needs to be obtained in order to fairly decide the issue addressed in this decision, and have not argued that any error or deficiency in the accomplishment of the duty to notify and duty to assist has prejudiced him in the adjudication of this issue. As there is no indication that there are additional records that need to be obtained that would assist in the adjudication of the claim, the duty to assist has been fulfilled. II. Service Connection 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. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77. The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002). Moreover, the Court has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). In determining the probative value to be assigned to a medical opinion, the Board must consider three factors. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The initial inquiry in determining probative value is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case. A review of the claims file is not required, since a medical professional can also become aware of the relevant medical history by having treated a Veteran for a long period of time or through a factually accurate medical history reported by a Veteran. See id. at 303-04. The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion. See id. A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The third and final factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis. The most probative value of a medical opinion comes from its reasoning. Therefore, a medical opinion containing only data and conclusions is not entitled to any weight. In fact, a review of the claims file does not substitute for a lack of a reasoned analysis. See Nieves-Rodriguez, 22 Vet. App. at 304; see also Stefl, 21 Vet. App. at 124 ("[A] medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."). The April 1956 discharge examination has been associated with the claims file. It shows that the Veteran's ears were normal, and the only abnormality with the skin was a scar on the scalp. At a March 1999 VA examination the Veteran's ears were examined and it was noted that the tympanic membranes were intact. No other abnormalities related to the ears were noted. A private doctor treated the Veteran in February 2004 and diagnosed him with otitis externa. The Veteran complained of itchy ears, and on examination his ears had dry skin. He was given Cortisporin drops and cortisone cream for otitis externa. At June 2008 private treatment with an ear, nose and throat specialist, the Veteran complained of dry, itchy ears with scaling and occasional drainage. It was noted that the Veteran wore hearing aids and that the symptoms were worse on the right. On examination the auditory canal was very dry and excoriated, consistent with an eczematous condition. The impression was chronic eczematous otitis externa, and the Veteran was prescribed Diprolene. At August 2008 VA otolaryngology treatment the Veteran complained of an itchy left ear, and he reported that his otitis had improved with desonide cream. On examination the ear drums were normal. The left ear canal was slightly indurated with dry skin and a minimal amount of cerumen. The right ear canal was normal. The Veteran was to continue using cream for his ears. The Veteran wrote in October 2008 that his ears got real dry and itchy, and that itching caused them to get sore and swell. He got drainage at night while sleeping and his ears became moist. The Veteran said that he had had these problems for a long time. At January 2009 VA dermatology treatment the ears had fine white scaling of conchae and the external ear canal and erythematous, scaly papule, on the right helix. The Veteran was to continue desonide cream for itching and could also apply it to the ear conchae with a cotton swab. In March 2009, a private internist wrote that the Veteran suffered from chronic eczematous otitis externa and required topical medication on a long-term basis. At an April 2009 VA examination the Veteran reported chronic eczematous otitis media, for which he used Desonide cream twice daily. The Veteran reported there was no discharge from the ears, but there was dampness at night. On examination there was slight scaling in the right distal ear canal. There was no discharge in either ear, tympanic membranes were clear, mastoids were negative for discharge or pain, and there was no evidence of cholesteatoma. A private physician wrote in September 2009 that he treated the Veteran for chronic eczematous otitis externa affecting the auditory canals, causing constant irritation and itchy, draining ears. The Veteran was using medication as prescribed and wore hearing aids. He had noticed drainage from the left ear and there had not been any recent or sudden changes to his hearing. On examination the ear canals appeared hydrated and healthy with no drainage. The assessment was chronic eczematous otitis externa and cerumen impaction of the left ear. The Veteran had a VA examination in September 2009 at which he reported chronic eczematous otitis externa since childhood that had gotten worse in the past 20 years due to wearing hearing aids. It was treated with Desonide cream without side effects. There was drainage and itching on a daily basis in both ears. A physical examination of the ears was normal. The diagnosis was chronic eczematous otitis externa controlled with a topical corticosteroid. The examiner felt that the current eczematous otitis externa was not related to service based on the history provided by the Veteran of having the condition since childhood. The Veteran wrote in his January 2010 Notice of Disagreement that he had had chronic eczematous otitis externa for 56 years and that it started in the Army. He asserted it was not correct that he had had it for his entire life. A private physician wrote in March 2012 that the Veteran has chronic eczematous otitis externa. The Board notes that this statement was submitted after the statement of the case (SOC) was issued. A supplemental statement of the case (SSOC) must be furnished to the appellant and his representative when additional pertinent evidence is received after an SOC is issued. 38 C.F.R. § 19.31 (2012). In the present case, the Board finds that the March 2012 statement is not pertinent to the issue of service connection, because an opinion as to etiology was not expressed, and the record already showed that the Veteran has chronic eczematous otitis externa. Therefore, it is not necessary to remand the claim for an SSOC. While the Veteran is competent to report that he has had symptoms related to chronic eczematous otitis externa since his active service, his reports to that effect are not credible. The April 1956 discharge examination did not indicate any abnormality regarding the ears. Furthermore, the March 1999 VA examination did not show any abnormalities regarding the ears. The treatment records do not show that the Veteran complained of otitis externa or was diagnosed with it prior to February 2004. While the record shows that the Veteran has been diagnosed with chronic eczematous otitis externa, the treatment records do not show a diagnosis for over 40 years after service. See Maxson v. West, 12 Vet. App. 453 (1999), aff'd, 230 F.3d 1330 (Fed. Cir. 2000) (to the effect that service incurrence may be rebutted by the absence of medical treatment for the claimed condition for many years after service). In view of this it is not reasonable to conclude the disability was incurred in service. Because the evidence preponderates against the claims of service connection for chronic eczematous otitis externa, the benefit-of-the-doubt doctrine is inapplicable, and the claims must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert, supra. ORDER Service connection for chronic eczematous otitis externa is denied. ____________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs