Citation Nr: 1314097 Decision Date: 04/29/13 Archive Date: 05/15/13 DOCKET NO. 97-01 887 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for bilateral Eustachian tube dysfunction, to include as secondary to right otitis externa. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD S. Grabia, Counsel INTRODUCTION The Veteran had active service from March 1974 to March 1980 and from June 1984 to February 1994. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 1995 decision by the Department of Veterans Affairs (VA), Regional Office (RO), in St. Petersburg, Florida. The matter was previously before the Board in August 2005 and September 2006, at which time the Board denied the issues of service connection for right otitis media and bilateral Eustachian tube dysfunction. The Veteran appealed the September 2006 denials of service connection to the United States Court of Appeals for Veterans Claims (Court). Pursuant to a December 2008 Memorandum Decision, the Court, in a January 2009 Judgment, vacated the denials and remanded the case to the Board. In September 2009, the Board remanded these issues for further development. Subsequently, in a September 2010 rating decision, the RO granted service connection for right otitis externa and awarded a 10 percent disability rating, effective March 1, 1994. As this represents a complete grant of the benefit sought on appeal, this issue is no longer before the Board. In December 2010, the Board remanded the issue of entitlement to service connection for bilateral Eustachian tube dysfunction for further development including VA examination. In August 2012, the Board requested the opinion of a medical specialist from the Veterans Health Administration (VHA) regarding the Veteran's claim. The requested opinion was received in December 2012, and the Veteran was provided with a copy of such opinion for review and response later that month. The case is now returned to the Board. In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim. A review of the documents in such file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal. FINDINGS OF FACT 1. The Veteran's service treatment records demonstrate diagnosis of bilateral Eustachian tube dysfunction during service associated with several middle and inner ear infections. 2. Resolving all reasonable doubt in the Veteran's favor, a Eustachian tube dysfunction disability is related to active service, to specifically include several middle and inner ear infections that were incurred during service. CONCLUSION OF LAW The criteria for establishing service connection for a bilateral Eustachian tube dysfunction have been met. 38 U.S.C.A. §§ 1131, 5103, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.304, 3.306 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA's Duty to Notify and Assist VA has specified duties to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits. The Board has considered whether further development and notice under the Veterans Claims Assistance Act of 2000 (VCAA) or other law should be undertaken. However, given the results favorable to the Veteran, further development under the VCAA or other law would not result in a more favorable outcome or be of assistance to this inquiry. Service connection Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated during service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2012). In order to prevail on the issue of service connection for any particular disability, there must be evidence of a current disability; evidence of in-service occurrence or aggravation of a disease or injury; and medical evidence, or in certain circumstances, lay evidence, of a nexus between an in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board"). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007); see Savage v. Gober, 10 Vet. App. 488, 495-97 (1997); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage, 10 Vet. App. at 495-96; see Hickson, 12 Vet. App. at 253 (lay evidence of in-service incurrence sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303(b). Moreover, the provisions of 38 C.F.R. § 3.303(b) apply only to chronic diseases listed in 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013)). For the showing of chronic disease in service, there is required 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." Continuity of symptomatology is required only where the condition noted during service is not, in fact, shown to be chronic, or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303 (2012). Additionally, the provisions of 38 C.F.R. § 3.303(b) have been determined to apply only to the specifically enumerated chronic diseases under 38 C.F.R. § 3.309(a). Walker, 708 F.3d 1331 (Fed. Cir. 2013)). Service connection may be granted for any disease diagnosed after service when all the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2012). The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. Evans v. West, 12 Vet. App. 22, 30 (1998); Owens v. Brown, 7 Vet. App. 429, 433 (1995). In relevant part, 38 U.S.C.A. § 1154(a) (West 2002) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a 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." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence"). "Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology." Savage, 10 Vet. App. at 496 (citing Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991)). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno v. Brown, 6 Vet. App. 465, 469 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted")). In the Board's December 2010 remand, a VA examination was scheduled to determine whether any current disability of the Eustachian tubes had their onset in service or were otherwise etiologically related to the Veteran's two periods of active service, to include any ear infections manifested therein. This examination was ordered because the Court in a January 2009 decision determined that a February 2006 VA examination had been inadequate. Unfortunately the subsequent January 2011 VA examination was also deemed inadequate as was a March 2012 addendum to the January 2011 VA examination. Subsequently the Board in August 2012 requested an expert medical opinion. The Board noted that the basis of the claim for Eustachian tube dysfunction was that it initially manifested in service or was caused by or was aggravated by the now service connected right otitis externa. Service treatment records show that the Veteran was treated several times in service for otitis media and otitis externa affecting each ear, which resolved each time with treatment. The Veteran's January 1994 separation examination report noted a history of recurrent Eustachian tube dysfunction and occasional otitis media. However examination of the ears was normal at the time of separation. VA examinations in April and May 1994 were negative for any active ear infections or disease of the middle and inner ears. VA treatment records in September 1996 diagnosed otitis externa, worse on left. A June 1998 VA record indicated a diagnosis of right otitis media. In a February 2006 VA examination a subminimal otitis externa of the right ear and unremarkable right ear auricle was noted. The left ear was normal. A December 2009 VA examination did not reveal any current otitis or Eustachian tube dysfunction existed but opined that it was less likely than not that current ear disease was related to the Veteran's active service. No basis for the opinion was provided by the examiner. A March 2010 VA examiner opined that any current right ear otitis externa was at least as likely as not related to in-service ear complaints; but because the Veteran experienced left sided otitis externa only one time during service, in November 1984, and because 15 years passed before reoccurrence, that any connection between current left sided otitis externa or media and the in-service complaints was unlikely. Service connection for right ear otitis externa was subsequently granted. A January 2011 VA examiner summarized the instances of post service ear infections and noted that the most recent was in July 2010. He rendered an opinion that the Veteran's Eustachian tube dysfunction was at least as likely as not caused by the otitis media, and that, while Eustachian tube dysfunction was not present on the date of examination, it was likely present during ear infection. In an April 2012 addendum opinion the examiner noted that otitis externa does not cause Eustachian tube dysfunction, but otitis externa can become worse and eventually progress to the middle ear. The Board's August 2012 request for an expert medical opinion, inquired as to the following: 1. At any time since the inception of the claim in March 1994, even if now resolved, has the Veteran had right and/or left Eustachian tube dysfunction? 2. If so, is it as likely as not that right or left or bilateral Eustachian tube dysfunction is causally related to the in-service treatment of the ears? 3. If so, is it as likely as not that right or left or bilateral Eustachian tube dysfunction was caused by or aggravated by the service connected right otitis externa. If bilateral Eustachian tube dysfunction was noted to be present during the course of the appeal then the examiner was to opine whether the right otitis externa as likely as not caused or aggravated both right and left Eustachian tube dysfunction. In the subsequent expert medical opinion received in December 2012, the medical expert noted in responding to the questions that; 1. From March 1994 to 2010, there were nine episodes of ear infections. These included three episodes of acute otitis media. It was noted that acute otitis media was most commonly the result of a viral and or bacterial infection of the middle ear and one of the most common factors associated with acute otitis media was Eustachian tube dysfunction that temporarily prevents normal aeration of the inner ear. Once the infection is treated the Eustachian tube dysfunction resolves in most patients. The Veteran was, therefore, assumed to have had Eustachian tube dysfunction associated with his acute otitis media. The record contained examination reports which found the ears to be normal with no signs of persistent or chronic Eustachian tube dysfunction. During this period the Veteran also had six episodes of otitis externa. 2. During service from 1974 and 1994 there were nine episodes of ear related problems. These were two episodes of otitis media; three episodes of serous otitis media; and, four of otitis externa. It was noted that with serous otitis media there was fluid in the middle ear but it was not clearly infected as with otitis media. serous otitis media was also associated with Eustachian tube dysfunction. Therefore, the medical expert opined that the Veteran was more likely than not to have had Eustachian tube dysfunction associated with his otitis media and serous otitis media in service. However, this was not so for his four episodes of otitis externa. The otitis media and serous otitis media in service were treated with antibiotics. Because of the several months to several years between episodes during service the medical expert opined that these episodes were acute and resolved with treatment. The otitis externa episodes were treated with otic antibiotics ear drops and because of the interval between episodes were determined to have been resolved as well. 3. The medical expert noted that otitis externa affects the external ear while Eustachian tube dysfunction affects the middle ear. The external and middle ears are separated by the tympanic membrane. As such, Eustachian tube dysfunction and otitis externa for the most part had different etiologies. In summation the medical expert noted that despite the one previous examiner indicating that otitis externa can lead to middle ear disease and Eustachian tube dysfunction, "I feel that this is rare and perhaps occurs only in episodes of a very severe otitis externa that at times can develop into a necrotizing otitis media with associated skull base osteomyelitis. The appellant has no findings in his record that would indicate that his episodes of otitis externa have caused such an infection and thus his right otitis externa cannot be considered as causative or aggravating for his right or left Eustachian tube dysfunction." The question of entitlement to service connection, thus, turns on whether the evidence demonstrates that the Veteran's Eustachian tube dysfunction was aggravated by his period of active service, caused by his numerous ear infections during service or otherwise caused by service. The VA and private treatment and examination reports also clearly show that he had multiple inner and middle ear infections subsequent to service. The remaining question is whether the Veteran's Eustachian tube dysfunction was aggravated by his period of active service, caused by his numerous ear infections during service, or otherwise caused by service. The evidence associates Eustachian tube dysfunction with his multiple inner and middle ear infections during service. Eustachian tube dysfunction was also associated with his multiple inner and middle ear infections post service. The Board concedes based on the expert medical opinion provided that the Veteran likely had episodes of Eustachian tube dysfunction associated with his in-service otitis media and serous otitis media episodes. The Board has also considered the Veteran's lay statements, to the effect that he had Eustachian tube dysfunction in service which condition continued throughout the time period after discharge from service. The medical expert did not disagree with the January 2011 VA examiner's opinion that the Veteran's Eustachian tube dysfunction was associated with otitis media. The January 2011 VA examiner's opinion noted that the Veteran's Eustachian tube dysfunction was at least as likely as not caused by the otitis media, and Eustachian tube dysfunction was likely present during ear infections. Under the benefit of the doubt rule, where there exists "an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter," the Veteran shall prevail upon the issue. Ashley v. Brown, 6 Vet. App. 52, 59 (1993); see also Massey v. Brown, 7 Vet. App. 204, 206-207 (1994). Accordingly, resolving doubt in favor of the Veteran, service connection is warranted for bilateral Eustachian tube dysfunction. See 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for bilateral Eustachian tube dysfunction is granted. ____________________________________________ DEMETRIOS G. ORFANOUDIS Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs