Citation Nr: 1309848 Decision Date: 03/22/13 Archive Date: 04/01/13 DOCKET NO. 04-41 686 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Albuquerque, New Mexico THE ISSUE Entitlement to service connection for cholesteatoma of the left ear, to include as secondary to service-connected left ear hearing loss. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD M. J. In, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1962 to April 1964. This matter comes before the Board of Veterans' Appeals (Board) from a March 2004 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in Albuquerque, New Mexico. The case was previously before the Board in April 2008 when it was remanded for further development. The case returned to the Board in September 2008, when the Board denied the Veteran's claim. The Veteran appealed the September 2008 Board decision to the United States Court of Appeals for Veterans Claims (Court). In a Memorandum Decision dated in April 2010, the Court vacated the Board's September 2008 decision and remanded the case to the Board. The issue was remanded for further development by the Board in October 2010, January 2012, April 2012 and August 2012 to obtain a supplemental medical opinion addressing the relationship between the Veteran's cholesteatoma of the left ear and his service-connected left ear hearing loss. In September 2012, a VA examiner provided the requested opinion. Therefore, a review of the record indicates that the Board's directives were substantially complied with. See Stegall v. West, 11 Vet. App. 268, 271 (1998). FINDING OF FACT The Veteran's cholesteatoma of the left ear was initially demonstrated many years after service, and has not been shown by competent clinical, or competent and credible lay, evidence to be causally related to the Veteran's active service, nor causally related to, or aggravated by, service-connected left ear hearing loss. CONCLUSION OF LAW Cholesteatoma of the left ear was not incurred in, or aggravated by, active service, may not be presumed to have been so incurred or aggravated, and is not proximately due to, or aggravated by, a service-connected disability. 38 U.S.C.A. §§ 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's 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); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). 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) (West 2002); 38 C.F.R. § 3.159(b) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice 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; and (3) that the claimant is expected to provide in accordance with 38 C.F.R. § 3.159(b)(1). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004); see also Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). In March 2006, the Court issued its decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Court in Dingess/Hartman holds that the VCAA notice requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a "service connection" claim. As previously defined by the courts, those five elements include: (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. Upon receipt of an application for "service connection," therefore, the Department of Veterans Affairs (VA) is required to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. This includes notice that a disability rating and an effective date for the award of benefits will be assigned in the award of the benefit sought. In this case, the Veteran did not receive a notice for service connection for cholesteatoma prior to the initial adverse decision. Under such circumstances, VA's duty to notify may not be "satisfied by various post-decisional communications from which a claimant might have been able to infer what evidence the VA found lacking in the claimant's presentation." Rather, such notice errors may instead be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The duty to notify was partially satisfied subsequent to the initial decision in correspondence in December 2004. This letter informed the Veteran of what evidence was required to substantiate the claim and of his and VA's respective duties for obtaining evidence. The letter did not address the criteria for assignment of a rating or effective date which was provided in correspondence from the Appeals Management Center in April 2008. Although the notice letters were not sent before the initial decision in this matter, the Board finds that this error was not prejudicial to the Veteran because the actions taken by VA after providing the notice have essentially cured the error in the timing of notice. Not only has the Veteran been afforded a meaningful opportunity to participate effectively in the processing of his claim and given ample time to respond, but the AMC also readjudicated the case in supplemental statements of the case in June 2008, October 2011, February 2012, March 2012 and January 2013 after the notice was provided. Furthermore, in August 2008, the Veteran indicated that he had no additional evidence to submit. For these reasons, it is not prejudicial to the Veteran for the Board to proceed to finally decide this appeal as the timing error did not affect the essential fairness of the adjudication. With regard to the duty to assist, the claims file contains the Veteran's service treatment records, VA and private treatment records, and VA examination reports. Additionally, the claims file contains the Veteran's statements in support of his claims. The Veteran was provided VA examinations in June 2008 and an addendum was obtained in September 2012. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). The claim was remanded by the Board in August 2012 to obtain a supplemental opinion addressing secondary service connection. In September 2012, a VA examiner provided the requested opinion. Aside from the June 2008 VA examiner failing to address the secondary service connection issue, the Board finds that the VA examination reports were adequate to decide the claim of service connection because the examiners were provided with an accurate history, the Veteran's history and complaints were recorded, the examination reports set forth detailed examination findings to include nexus opinions with adequate bases for the opinions. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate.) Thus, further examination is not necessary regarding the issue on appeal. Thus, based on the foregoing, the Board finds that all relevant facts have been properly and sufficiently developed in this appeal and no further development is required to comply with the duty to assist the Veteran in developing the facts pertinent to his claim. Essentially, all available evidence that could substantiate the claim has been obtained. The Board has reviewed all of the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to each claim. 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. § 1131; 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). Generally, in order to establish service connection for the claimed disorders, there must be (1) evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). In certain circumstances, lay evidence may also be competent to establish a medical diagnosis or medical etiology. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). Secondary service connection may also be granted for a disability, which is proximately due to, the result of, or aggravated by, an established service-connected disorder. 38 C.F.R. § 3.310 (2012). Secondary service connection includes instances in which an established service-connected disorder results in additional disability of another condition by means of aggravation. Allen v. Brown, 7 Vet. App. 439 (1995). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either caused or aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 488 (1995). The Board is to consider all lay and medical evidence as it pertains to the issues. 38 U.S.C.A. § 7104(a) ("decisions of the Board shall be based on the entire record in the proceeding and upon consideration of all evidence and material of record"); 38 U.S.C.A. § 5107(b) (VA "shall consider all information and lay and medical evidence of record in a case"); 38 C.F.R. § 3.303(a) (service connection claims "must be considered on the basis of the places, types and circumstances of his service as shown by service records, the official history of each organization in which he served, his medical records and all pertinent medical and lay evidence."). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify."). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). The Veteran served as a communications technician in U. S. Army artillery units. He contends that a cholesteatoma of the left ear and residuals of surgery for the disease are related to acoustic trauma in service or are secondary to service-connected hearing loss in the left ear. Service treatment records are silent for any symptoms, diagnosis, or treatment for perforation of the tympanic membrane or any organic ear disease in service. There was no evidence of impact trauma to the ear by a foreign body. On each of three physical examinations in April 1962, April 1964, and an undated examination for "rotation," the Veteran checked a medical history box entitled "ear, nose, and throat problems." Examiners commented only on a history of tonsillitis or that the problems were not clinically significant. Service personnel records showed that the Veteran was exposed to acoustic trauma during his service with artillery units. In correspondence in October and November 2004, the Veteran stated that he worked in proximity to artillery crews during peacetime firing for training. He was not in combat or exposed to artillery round detonations, shrapnel, or other impact debris. A September 1994 private audiometric testing revealed that the Veteran experienced sensorineural hearing loss in the left ear that met the requirements for a hearing disability. The examiner noted a negative history of tympanic membrane perforation and normal middle ear function. In August 2001, the RO granted service connection for hearing loss in the left ear, effective in September 1994. In December 2000, a private physician examined the veteran and noted normal tympanic membranes. He assessed the Veteran's hearing acuity and diagnosed sensorineural hearing loss in the left ear but made no clinical comments regarding an organic ear disease or dysfunction. In July 2001, a VA examiner reviewed the claims file and noted that a tympanogram was normal bilaterally. The examiner conducted audiometric testing and diagnosed sensorineural hearing loss in the left ear but no organic ear diseases. Neither examiner noted any symptoms of vertigo or nausea. However, in November 2001, the same VA examiner noted cerumen deep in the external ear canal and an irregular tympanic surface in the left ear. A tympanogram was consistent with a perforation. She diagnosed mixed sensorineural and conductive hearing loss in the left ear caused by a tympanic perforation or cerumen. In a January 2002 consultation, a VA otolaryngologist noted the Veteran's reports of recent symptoms of vertigo and that the Veteran had not undergone previous ear surgery. The examiner noted a large left ear tympanic membrane perforation and a cholesteatoma which was partially debrided during the examination. In a November 2002 substantive appeal for an increased rating for hearing loss, the Veteran described the series of vertigo episodes that he experienced the day of his January 2002 VA examination. In August 2002, a VA examiner noted a large left tympanic membrane perforation. In October 2002, the presence of a cholesteatoma was verified by a computed tomography (CT) scan. The growth was again partially debrided. In December 2003, a VA primary care examiner noted that the Veteran sought to establish primary care at his facility. The examiner noted the history of chronic vertigo and hearing loss but that the Veteran had not followed up on a plan for ear surgery and a hearing aid for over a year. In January 2004, a VA physician noted the Veteran's history of a cholesteatoma and the Veteran's reports of increased hearing loss in the left ear and continued episodes of vertigo. In February 2004, another VA CT scan showed the left ear cholesteatoma was present but stable and that the tympanic membrane thickened. There are no clinical records of left ear surgery. A VA examiner in 2008 noted a review of medical records not in the file and that the Veteran underwent surgery to remove the cholesteatoma in May 2004. In January 2004, the Veteran submitted Internet articles that discussed the etiology of cholesteatoma including that the growth can be cause by direct trauma. In a May 2004 statement, the Veteran contended that he was exposed to direct trauma from the noise of artillery bombardments in service without proper training or safety equipment. In June 2008, a VA otolaryngologist noted a review of the claims file including the service medical records, the history of private and VA treatment and left ear surgery, and the Internet articles submitted by the Veteran. The VA examiner noted the Veteran's reports of recurrent headaches, episodes of dizziness, a recent history of ear infection, and increased hearing loss in the left ear. The examiner noted the Veteran's reports of acoustic trauma but no foreign body impact injury or tympanic perforation in service. The examiner reviewed the results of concurrent audiometric testing that showed no hearing disability in the right ear and moderate to profound sensorineural hearing loss in the left ear. The left tympanic membrane was thickened consistent with the surgical procedure. The VA examiner stated that the cholesteatoma was not caused by or etiologically related to acoustic trauma. The examiner noted that the Internet article discussed three pathologies for the formation of a cholesteatoma: congenital defect; perforation of the eardrum because of chronic infection or direct trauma; and malfunction of the Eustachian tube causing a negative pressure in the middle ear. The examiner noted that there was no medical evidence of a congenital defect or a perforation of the tympanic membrane prior to an abnormal tympanogram in November 2001. The examiner explained that the reference to direct trauma in the article was to trauma that caused a membrane perforation. Acoustic trauma that resulted in sensorineural hearing loss but no perforation of the membrane was not a cause for cholesteatoma. The examiner also noted that the May 2004 surgical report showed that the cholesteatoma was located in a retraction pocket, indicative of negative pressure in the middle ear. The examiner concluded that the most likely cause for the cholesteatoma was Eustachian tube dysfunction. A March 2004 VA otolaryngology (ENT) report stated that the repeat CT showed stable disease with no progression from October 2001. A March 2004 VA audiology consultation report noted a significant progression of the left ear hearing loss. The VA audiologist noted that some of the progression of the left hear loss appeared to be due to poorer cochlear function. The left ear tympanogram was consistent with perforation of the tympanic membrane. The Veteran underwent a left ear tympanomasteroidectomy in May 2004 with a diagnosis of left ear cholesteatoma. VA operative report noted that the Veteran had a longstanding history of otorrhea and otalgia of the left ear. On physical examination in the otology clinic, he was found to have a large tympanic membrane perforation with pars flaccids retraction pocket containing cholesteatoma. The Veteran also had significant conductive hearing loss. In a May 2004 VA ENT follow-up note, the Veteran had no complaints one week status post left ear surgery. Packing was removed from the ear and no infection was shown. A June 2004 VA ENT postoperative follow-up note stated that the Veteran's left ear was healing well status post tympanomasteroidectomy. In an August 2004 VA audiology report, the Veteran reported that his hearing was worse in the left ear since his surgery in May 2004. Objectively, moderate to profound mixed hearing loss was shown in the left ear. Tympanometry was within normal limits, bilaterally, and there was excellent speech discrimination, bilaterally. Significant cerumen was removed from the left ear. An August 2004 VA ENT follow-up note stated that the Veteran complained of still having decreased hearing and tinnitus as well as occasional dizziness. He denied recent ear drainage. On examination, the left ear was dry with no evidence of active drainage and the tympanic membrane was intact. A November 2004 VA ENT follow-up note stated that the Veteran's hearing was still very poor but there was no pain or drainage. Dizziness was slowly resolving from the pre-operative level but he still had occasional episodes. On examination, the Veteran's tympanic membrane appeared normal. In a November 2006 VA audiology clinic report, the Veteran reported recent episode of extreme pain in the right ear. He also noted the same thing in the left ear but not as severe. Tympanometry was within normal limits, bilaterally. The VA audiologist therefore noted that there was indication of tympanic membrane perforation or excessive negative pressure. VA outpatient treatment reports dated in March 2008 and February 2011 reflect the Veteran's complaints of left ear pain and assessments of left ear otitis externa. A September 2008 VA primary care note also shows an assessment of left ear otitis media. The Veteran continued to complain of left ear pain in March 2009 and June 2010. In a November 2011 VA audiology clinic report, the Veteran complained that his hearing aid was not working. Left ear canal was examined with otoscope and it was impacted with cerumen. In a November 2011 VA ENT consultation report, the Veteran was seen for cerumen management. He had no acute otologic complaints. Microscopic examination allowed removal of cerumen with a wire loop, suction, forceps; the external auditory canals were patent and without lesions, and the tympanic membranes were intact, translucent, and without retraction or effusion. No cerumen was present in either ear. In May 2012, a VA examiner, after reviewing the Veteran's claims file, opined that it was less likely as not that the Veteran's diagnosed cholesteatoma was related to treatment in service. The examiner stated that cholesteatoma was not related to noise trauma, or to diagnosed hearing loss. He further stated that it could develop after perforation but not in this case. The Board accords little probative value to this opinion because the examiner provided no explanation of the basis for such opinion. See Stefl v. Nicholson, 21 Vet. App. 120, 125 (2007) (finding that a medical opinion "must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"). Thus, the Board remanded the case to obtain another VA opinion. In September 2012, a new VA medical opinion was obtained. The September 2012 VA examiner opined that "[i]t is LESS than 50% likely (SMALLER than 50% likelihood) that [V]eteran's hearing loss, attributed to noise exposure from howitzers firing while serving in the military, would have caused his cholesteatoma. It is also LESS than 50% likely likely (SMALLER than 50% likelihood) that his hearing loss aggravates the cholesteatoma." The examiner stated that in fact, the reverse was likely, that is, it was the cholesteatoma that caused the worsening hearing loss. In support of this opinion, the examiner noted that repetitive loud noise damages the nerve endings in the inner ear whereas cholesteatoma caused deterioration of conductive hearing loss due to damping the vibratory mechanical movements of the tympanic membrane. He explained that the November 2001 audiology note supported the development of conductive hearing loss over the preceding four months, which was consistent with development of cholesteatoma as well as hypothesized tympanic membrane perforation. He further stated that mixed left ear hearing loss with conductive component was shown in the air/bone gaps, absent reflexes and tympanogram, which was consistent with tympanic membrane perforation. Therefore, in comparison to the July 2010 results, the right ear hearing remained unchanged but the left ear was mixed loss rather than purely sensorineural hearing loss as previously. With regard to the etiology of cholesteatoma, the examiner referred to various medical treatises explaining the possible causes of cholesteatoma as follows: A cholesteatoma is a pocket of epithelial cells which have been sloughed off the tympanic membrane, which could arise either from congenital abnormality or acquired. Acquired cholesteatomas are either from cells displaced during surgery (such as insertion of PE tubes), from inflammatory middle ear infections (either Acute Otitis Media [AOM] or Chronic Otitis Media with Effusion [OME]) or from eustacheon tube dysfunction causing constant retraction of the tympanic membrane. ... Literature makes no mention of repetitive acoustic trauma as being a cause of cholesteatoma. After considering the totality of the evidence of record, the Board concludes that service connection is not warranted for a cholesteatoma of the left ear and residuals of middle ear surgery because the growth first manifested many years after service and is not related to any aspect of service. Service treatment records showed no ear disease or incidents of tympanic perforation. The first medical evidence of an abnormality of the left tympanic membrane was in November 2001. Symptoms of the presence of the cholesteatoma and vertigo were first noted by medical examiners in January and February 2002. As such, there is no demonstration of any event in service to which the current disability may be etiologically linked. Furthermore, the aggregate of the opinions of the VA examiners in June 2008 and September 2012, who reviewed the entire claims file including the service records and medical treatises submitted by the Veteran, concluded that the cholesteatoma was not related to military service, including acoustic trauma. Both VA examiners thoroughly discussed the possible pathologies for a cholesteatoma. In addition, the medical evidence of record does not establish that the Veteran's left ear cholesteatoma is proximately due to, the result of, or aggravated by the Veteran's service-connected left ear hearing loss. In fact, the September 2012 VA examiner opined that it was the cholesteatoma that caused worsening left ear hearing loss. His conclusion was based on the Veteran's history, a review of the medical literature, and a review of the Veteran's claims file, and was supported by a well-reasoned rationale. Thus, the medical evidence of record does not show that that the Veteran's left ear cholesteatoma was either caused or aggravated by his service-connected left ear hearing loss. The Board finds that the June 2008 and September 2012 VA opinions to be competent, highly probative medical evidence as to whether the Veteran's current cholesteatoma was caused by service or his service-connected left ear hearing loss. They are also consistent with the other medical evidence of record. The Veteran contends that his left ear cholesteatoma is secondary to his service-connected left ear hearing loss. However, the Veteran has not demonstrated that he has expertise in medical matters. While there is no bright line exclusionary rule that a lay person cannot provide opinion evidence as to a nexus between an in-service event and a current condition, not all medical questions lend themselves to lay opinion evidence. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). In Davidson, the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) referred to Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) for guidance. In footnote 4 of Jandreau, the Federal Circuit indicated that the complexity of the claimed disability is to be considered in determining whether lay evidence is competent. As to a nexus opinion relating his current cholesteatoma to his service or his left hearing loss, the Board finds that the etiology of the Veteran's cholesteatoma is too complex an issue, one typically determined by persons with medical training, to lend itself to lay opinion evidence. Additionally, the Board attaches a greater probative value to the opinions provided by the VA examiners in June 2008 and September 2012 than to the Veteran's unsubstantiated lay contention as to the etiology of his left ear cholesteatoma. The Veteran is certainly competent to testify as to symptoms that are non-medical in nature, such as ear pain or dizziness; however he is not competent to render a medical diagnosis or etiology of cholesteatoma in this case. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (lay testimony is competent to establish the presence of observable symptomatology that is not medical in nature); see also Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (certain disabilities are not conditions capable of lay diagnosis). However, the evidence does not show, and the Veteran has not alleged, continuity of symptomatology of his left ear cholesteatoma since service. As such, the Board is not required to address his credibility in this regard. Based on the evidence of record, the Board finds that a preponderance of the evidence is against the claim for service connection for cholesteatoma of the left ear, to include as secondary to service-connected left ear hearing loss. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable, and the claim must be denied. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER Entitlement to service connection for cholesteatoma of the left ear, to include as secondary to service-connected left ear hearing loss, is denied. ____________________________________________ L. M. BARNARD Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs