Citation Nr: 1311975 Decision Date: 04/10/13 Archive Date: 04/19/13 DOCKET NO. 08-19 853 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUE Entitlement to service connection for residuals of bilateral ear infections, to include ear fungus. REPRESENTATION Appellant represented by: New York State Division of Veterans' Affairs WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD John Kitlas, Counsel INTRODUCTION The Veteran served on active duty from July 1948 to July 1951. This matter is before the Board of Veterans' Appeals (Board) on appeal from a July 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York, which, in pertinent part, confirmed and continued a prior denial of service connection for ear fungus. 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). The Veteran provided testimony at a hearing before a former Veterans Law Judge (VLJ) in September 2010, and before the undersigned VLJ in August 2012. Transcripts from both hearings have been associated with the record. This case was previously before the Board in November 2010, October 2011, April 2012 and September 2012. In November 2010, the Board, in pertinent part, found that new and material evidence to reopen the ear infection residuals claim had been received, but remanded the underlying service connection claim for further development to include a VA examination in regard to the current claim. Such an examination was accomplished in March 2011, with an April 2011 addendum. However, the Board found this examination to be deficient, and requested a medical expert opinion from a member of the Veterans Health Administration (hereinafter, "VHA opinion") in October 2011 pursuant to VHA Directive 20006-019 (April 3, 2006), 38 U.S.C.A. §§ 5103A, 7109 and 38 C.F.R. § 20.901. The requested opinion was subsequently promulgated in January 2012, the Veteran was provided with a copy of this opinion, and was given 60 days in which to send any additional evidence or argument regarding the case pursuant to 38 C.F.R. § 20.903. In April 2012, the Board remanded the case to comply with the Veteran's hearing request. As already noted, he testified before the undersigned VLJ in August 2012. In September 2012, the Board again remanded the case for a VA examination. Thereafter, a new VA examination was accorded to the Veteran in October 2012 which, as detailed below, the Board finds is adequate for resolution of this case. All other development directed by the prior remands appears to have been accomplished. In view of the foregoing, the Board finds that a new remand is not required in order to comply with the holding of Stegall v. West, 11 Vet. App. 268 (1998). See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (Remand not required under Stegall where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). As an additional matter, the Board notes that the Veteran also perfected an appeal to the July 2007 rating decision's denial of service connection for hearing loss. However, service connection was established for bilateral hearing loss by an August 2011 rating decision. In view of the foregoing, this issue has been resolved and is not on appeal before the Board. See generally Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997), and Barrera v. Gober, 122 F.3d 1030 (Fed. Cir. 1997). Moreover, as service connection is in effect for hearing loss, the Board's adjudication of the present claim of service connection for residuals of ear infection(s) does not include this disability. FINDINGS OF FACT 1. The preponderance of the competent medical and other evidence of record is against a finding that the Veteran incurred chronic residuals as a result of in-service ear infection(s) to include ear fungus. 2. The preponderance of the competent medical and other evidence of record is against a finding that the Veteran currently has a chronic ear disability that was caused or aggravated by his service-connected hearing loss. CONCLUSION OF LAW The criteria for a grant of service connection for residuals of bilateral ear infections, to include ear fungus, are not met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Preliminary Matters The Board notes at the outset that, in accord with the Veterans Claims Assistance Act of 2000 (VCAA), VA has an obligation to notify claimants what information or evidence is needed in order to substantiate a claim, as well as a duty to assist claimants by making reasonable efforts to get the evidence needed. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A and 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012); see also Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The notice requirements of the VCAA require VA to notify the Veteran of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, VA will attempt to obtain. 38 C.F.R. § 3.159(b) (2012). The United States Court of Appeals for Veterans Claims (Court) has indicated that VCAA notice requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between the veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VA must provide a claimant VCAA notice before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction. Dingess/Hartman, supra; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). In this case, the Veteran was sent VCAA-compliant notification via an April 2007 letter, which is clearly prior to the July 2007 rating decision that is the subject of this appeal. This letter, in pertinent part, informed the Veteran of what was necessary to substantiate a service connection claim, what information and evidence he must submit, what information and evidence will be obtained by VA, the need for the Veteran to advise VA of or to submit any evidence in his possession that was relevant to the case, as well as what information and evidence is used by VA to determine disability rating(s) and effective date(s) should service connection be established. In view of the foregoing, the Board finds that the Veteran was notified and aware of the evidence needed to substantiate his appellate claim and the avenues through which he might obtain such evidence, and of the allocation of responsibilities between himself and VA in obtaining such evidence. Accordingly, there is no further duty to notify. In any event, the Veteran has not demonstrated any prejudice with regard to the content or timing of any notice. See Shinseki v. Sanders, 129 S.Ct.1696 (2009) (Reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination). In addition, the Board finds that the duty to assist a claimant in the development of his or her case has been satisfied. The Veteran's service treatment records are on file, as are various post-service medical records. Further, the Veteran has had the opportunity to present evidence and argument in support of his claims, to include at the September 2010 and August 2012 Board hearings. Nothing indicates he has identified the existence of any relevant evidence that has not been obtained or requested. For example, he has not identified any outstanding evidence that indicates he has incurred a chronic disability as a result of in-service ear infection(s) and/or as secondary to his service-connected hearing loss. With respect to the aforementioned hearings, the Court held in Bryant v. Shinseki, 23 Vet. App. 488 (2010), that 38 C.F.R. 3.103(c)(2) requires that the RO official or VLJ who conducts a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, both the September 2010 VLJ and the undersigned VLJ in August 2012 accurately noted the current appellate claim, and asked questions to clarify the Veteran's contentions. Moreover, the testimony of the Veteran, as well as his other statements of record, demonstrated that he had actual knowledge of the elements necessary to substantiate his claim. Finally, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. 3.103(c)(2), nor has he identified any prejudice in the conduct of either hearing. As such, the Board finds that, consistent with Bryant, the duties set forth in 38 C.F.R. 3.103(c)(2) have been satisfied. The Board further notes that the Veteran was accorded VA medical examinations in March 2011 (with an April 2011 addendum) and October 2012, the latter of which included an opinion that addressed whether he currently has any chronic disability as a result of in-service ear infection(s). The January 2012 VHA opinion also addressed this matter. As these opinions were based upon an accurate understanding of his medical history based upon review of his VA claims folder, the Board finds they are supported by an adequate foundation. The Board notes that this case was remanded for a new examination in September 2012 in order to comply with the requirement that a claimant is entitled to an adequate examination. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board also remanded the case to address whether the Veteran currently has a chronic ear disorder secondary to his service-connected hearing loss, which was addressed by the October 2012 VA examination. Moreover, as detailed below, both the January 2012 VHA opinion and October 2012 VA examiner supported their opinions by stated rationale that is consistent with the documented medical history. No competent medical evidence is of record that specifically refutes the findings of the these VA clinicians, and the Veteran has not otherwise identified any prejudice therein. Accordingly, the Board finds that this evidence is adequate for resolution of this case. In view of the foregoing, the Board finds that the duty to assist the Veteran has been satisfied in this case. The Board notes that it has thoroughly reviewed the record in conjunction with this case. 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 submitted by the appellant or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (The Board must review the entire record, but does not have to discuss each piece of evidence). Rather, the Board's analysis below will focus specifically on what the evidence shows, or fails to show, on the claims. See Timberlake v. Gober, 14 Vet. App. 122, 129 (2000) (Noting that 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). 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). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C.A. § 5107(b). When a reasonable doubt arises regarding service origin, such doubt will be resolved in the favor of the claimant. Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102. The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied. Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). Legal Criteria and Analysis 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). Service connection may also be granted for disability that is proximately due to, the result of, or aggravated by, a service-connected disability. 38 C.F.R. § 3.310(a); Allen v. Brown, 7 Vet. App. 439 (1995). The Veteran essentially contends that he has had recurrent ear infections since service. He has testified in the years following service he went to his doctors for "flare-ups" of his ears, and the doctor would irrigate the ears or administer drops in the ears. He also reported that he had to wear ear plugs when swimming because of ear fungus. The Board notes that the Veteran, as a lay person, is competent to describe visible ear symptoms. However, the ear is an internal organ, not subject to lay observation. Moreover, the Veteran has indicated intermittent/recurrent symptoms as opposed to chronic/continuous symptoms. As such, it is not clear that his complaints are of the same etiology. Therefore, the Board finds that competent medical evidence is required to resolve this case. In regard to the issue of whether the Veteran has a chronic ear disorder secondary to his service-connected hearing loss, the effect one disability has upon another involves complex medical issues, particularly in a case such as this where the record indicates hearing loss developed after service and the Veteran has a documented in-service ear infection. Therefore, competent medical evidence is required to make such a determination. Moreover, this finding is supported by Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010) in which the Federal Circuit held that in the context of a claimant contending secondary service connection that a claimant's own conclusory generalized statement that his service illness caused his present medical problems was not enough to entitle him to a medical examination. As such a contention is not enough to warrant a medical examination, it clearly is not enough to substantiate a service connection claim. Here, nothing on file shows that the Veteran has the requisite knowledge, skill, experience, training, or education to render a medical opinion. Consequently, his contentions cannot constitute competent medical evidence. 38 C.F.R. § 3.159(a)(1). The Board acknowledges that the record confirms the Veteran was treated for ear infections while on active duty. For example, he was admitted to the U.S. Marine Hospital in July 1949 with pain in the left ear of 5 days duration. It was noted that he had been working around and assisting with the firing of large guns for several days, which hurt his ears considerably. His hearing acuity had gradually decreased, and pain had increased, until one morning he woke up and noticed discharge from his ear on the pillow. On physical examination, the external auditory canal was inflamed and swollen with a purulent discharge and increased opacity of the eardrum. Assessment was acute suppurative otitis media and blasto perforation of the left eardrum, and he was given penicillin and a solution of boric acid and alcohol for his ear. Examination of the right ear was negative. He was discharged in August 1949. The Board notes, however, that the Veteran's ears and drums were clinically evaluated as normal on his July 1951 discharge examination. As such, this provides competent medical evidence that no ear infection or other ear disability was present at the time of his separation from service. Granted, post-service records such as a June 2008 note from Dr. S.S.S. note that the Veteran had a history of impacted cerumen requiring ear irrigation as well as chronic progressive hearing loss. Nevertheless, these records are dated decades after the Veteran's separation from service. The Court has indicated that the normal medical findings at the time of separation from service, as well as the absence of any medical records of a diagnosis or treatment for many years after service is probative evidence against the claim. See Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (Affirming Board where it found that veteran failed to account for the lengthy time period after service for which there was no clinical documentation of low back condition); see also Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (A prolonged period without medical complaint can be considered, along with other factors concerning a claimant's health and medical treatment during and after military service, as evidence of whether an injury or a disease was incurred in service which resulted in any chronic or persistent disability.). The Board notes that while the Veteran underwent a VA audiology examination in March 2011 and there was an April 2011 addendum, the addendum was completed by a clinician other than the March 2011 VA audio examiner and based solely on a review of the claims folder. Moreover, the April 2011 opinion addressed the etiology of the Veteran's hearing loss, to include the opinion that the hearing loss was not related to the in-service left ear infection. However, it does not appear that the opinion addressed whether the Veteran had any other residuals of the in-service ear infection(s). The January 2012 VHA opinion, in pertinent part, summarized the Veteran's documented in-service treatment for ear infection, his account of recurrent "flare-ups," and the findings of the March 2011 VA audio examination. Based on the foregoing, the opinion concluded that the recurrent ear infections, fungus, and cerumen impaction were unlikely related to the Veteran's initial ear infection. It was noted that, based on the records at hand, the recurrent ear infection described as "flare-ups" appeared to be external ear infections rather than middle ear infections, and that in the absence of a perforated drum, middle ear infections are not related to external ear infections. Although a perforated drum of the left ear was noted in the 1949 records, the VHA opinion stated that a chronic perforation was not apparent based on the March 2011 VA audiologic examination report showing normal tympanic membranes. As detailed in the September 2012 remand, the Veteran's hearing testimony was to the effect that a continuity of symptoms since separation included not only fungus and cerumen impaction but also scarring of the tympanic membrane. In other words, he provided testimony that went to the basis of the VHA opinion's conclusion, which was one of the reasons for the Board's remand for a new examination. The October 2012 VA examination diagnosed the Veteran with history of hearing loss, chronic otitis externa and earwax. It was noted that his ears were cleaned and that there was no evidence of infection. Further, on physical examination, the canal and tympanic membrane of both ears appeared normal. The examiner concluded that the claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event or illness. In support of this opinion, the examiner stated that after review of the claims folder and history and physical examination he did not believe that the Veteran's current ear symptoms were related to his in-service ear infection or caused by or aggravated by his service-connected hearing loss. In summary, both the January 2012 VHA opinion and October 2012 VA examiner's opinion are against the Veteran having any current residuals of his in-service ear infection(s). 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 v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."). In this case, the Board has already determined that these opinions are based upon an accurate understanding of the Veteran's medical history, and supported by stated rationale. No speculative or equivocal language is contained in the stated rationale. As noted above, the January 2012 VHA opinion essentially contended that the documented in-service infection was not the same as the post-service ear infections. Moreover, the VHA opinion emphasized that there was no indication of a chronic perforated ear drum noting the findings of normal tympanic membrane on the March 2011 VA examination. Although the Veteran testified he had scarring of the tympanic membrane, his canal and tympanic membranes were also found to be normal on the more recent October 2012 VA examination. In short, it does not appear he actually has any scarring thereof. The Board notes that the tympanic membranes are internal, and not subject to lay observation. Moreover, the Board reiterates that the Veteran's drums were evaluated as normal on his separation from service, which further supports a finding that he did not have a chronic perforation as a result of the in-service ear infection(s). The Board also notes that while the October 2012 VA examiner did not provide as much detail in the rationale as the VHA opinion, it was indicated that review of the record and findings on physical examination were against there being a current disability due to service or as secondary to a service-connected disability. Further, the Board reiterates that it has already determined that the Veteran's contentions do not constitute competent medical evidence, and that no competent medical evidence is of record which specifically refutes the findings of the January 2012 VHA opinion or the October 2012 VA examiner. Consequently, the competent medical evidence is against the claim. In view of the foregoing, the Board finds that the preponderance of the competent medical and other evidence of record is against a finding that the Veteran incurred chronic residuals as a result of in-service ear infection(s) to include ear fungus; and that it is against his currently having a chronic ear disorder secondary to his service-connected hearing loss. As the preponderance of the evidence is against this claim, the benefit of the doubt doctrine is not for application in the instant case. See generally Gilbert, supra; see also Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). Therefore, the benefit sought on appeal must be denied. ORDER Service connection for residuals of bilateral ear infections, to include ear fungus, is denied. ____________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs