Citation Nr: 1315858 Decision Date: 05/14/13 Archive Date: 05/15/13 DOCKET NO. 10-31 380 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUE Entitlement to service connection for chronic otitis media. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Shauna M. Watkins, Associate Counsel INTRODUCTION The Veteran had active military service from December 1958 to December 1960. This matter is before the Board of Veterans' Appeals (Board) on appeal from a January 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York. In March 2011, the Veteran withdrew his request for a hearing before a Veterans Law Judge traveling to the RO. 38 C.F.R. § 20.704(e) (2012). In September 2012, the Board remanded this appeal for further development. 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 1. There is clear and unmistakable medical evidence that the Veteran entered active duty with pre-existing otitis media. 2. There is clear and unmistakable medical evidence that the Veteran's active duty did not aggravate his pre-existing otitis media. CONCLUSION OF LAW Chronic otitis media was not aggravated by active service. 38 U.S.C.A. §§ 1111, 1131, 1137, 1153, 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.103, 3.156(a), 3.159, 3.303, 3.304, 3.306 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Under 38 U.S.C.A. § 5102 VA first has a duty to provide an appropriate claim form, instructions for completing it, and notice of information necessary to complete the claim if it is incomplete. Second, under 38 U.S.C.A. § 5103(a), VA has a duty to notify the claimant of the information and evidence needed to substantiate and complete a claim, i.e., existence of a current disability, the degree of disability, and the effective date of any disability benefits. The appellant must also be notified of what specific evidence he is to provide and what evidence VA will attempt to obtain. Third, VA has a duty to assist claimants in obtaining evidence needed to substantiate a claim. This includes obtaining all relevant evidence adequately identified in the record and, in some cases, affording VA examinations. 38 U.S.C.A. § 5103A. In Dingess v. Nicholson, 19 Vet. App. 473, 490 (2006), the United States Court of Appeals for Veterans Claims (Court) observed that a claim of entitlement to service connection consists of five elements, of which notice must be provided prior to the initial adjudication: (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. See 38 U.S.C. § 5103(a). Initially, the Board finds that there is no issue as to whether the Veteran was provided an appropriate application form or issue as to whether the claimant has veteran status. Next, the Board finds that letters dated in July 2007, March 2008, and September 2012 provided the Veteran with notice that fulfills the provisions of 38 U.S.C.A. § 5103(a) including notice of the laws and regulations governing disability ratings and effective dates as required by the Court in Dingess. While the Veteran may not have been provided adequate 38 U.S.C.A. § 5103(a) notice prior to the adjudication of the claim, the Board finds that providing the Veteran with adequate notice in the above letters followed by a readjudication of the claims in the February 2013 supplemental statement of the case "cures" any timing problem associated with inadequate notice or the lack of notice prior to the initial adjudication. Mayfield v. Nicholson, 20 Vet. App. 537 (2006) (Mayfield III), citing Mayfield II, 444 F.3d at 1333-34. The Board also finds that even if VA had an obligation to provide the Veteran with additional 38 U.S.C.A. § 5103(a) notice and failed to do so this notice problem does not constitute prejudicial error in this case because the record reflects that a reasonable person could be expected to understand what was needed to substantiate the claim after reading the above letters and the rating decision, the statement of the case, the supplemental statements of the case, and Board remand. See Shinseki v. Sanders, 129 S.Ct. 1696 (2009). As to the duty to assist, the Board finds that VA has secured all available and identified pertinent in-service and post-service evidence including all available service treatment records and his post-service records including all of his VA treatment records in substantial compliance with the Board's remand instructions. See 38 U.S.C.A. § 5103A(b); Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict compliance with the terms of a remand request, is required); Dyment v. West, 13 Vet. App. 141, 146-47 (holding that there was no Stegall violation when the examiner made the ultimate determination required by the Board's remand, because such determination more than substantially complied with the Board's remand order). In this regard, the remand directed the AMC to obtain the Veteran's January 1959 in-service hospitalization records from the United States Army Hospital in Fort Dix, NJ. In responses from the National Personnel Records Center (NPRC) dated in June 2010, September 2012, and October 2012, it was determined that the Veteran's inpatient clinical records from this hospitalization could not be obtained. Therefore, the Board finds that adjudication of this claim may go forward without these records. See Gobber v. Derwinski, 2 Vet. App. 470, 472 (1992) (the "'duty to assist' is not a license for a 'fishing expedition' to determine if there might be some unspecified information which could possibly support a claim . . . [and] this duty is limited to specifically identified documents that by their description would be facially relevant and material to the claim"). The record also shows that in October 2012 the Veteran was afforded a VA examination in connection with his appeal which examination is adequate to adjudicate the claim and substantially complies with the Board's remand instructions because after a review of the record on appeal and after an examination, the examiner provided an opinion as to the origins of his disability which opinion was based on citation to relevant evidence found in the claims file. See 38 U.S.C.A. § 5103A(d); Barr v. Nicholson, 21 Vet App 303 (2007); Stegall, supra; D'Aries, supra; Dyment, supra. In summary, the facts relevant to this appeal have been properly developed and there is no further action to be undertaken to comply with the provisions of 38 U.S.C.A. §§ 5103(a), 5103A or 38 C.F.R. § 3.159. Therefore, the Veteran will not be prejudiced as a result of the Board proceeding to the merits of the appeal. See Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993). In adjudicating the claim below, the Board has reviewed all of the evidence in the Veteran's claims file including those found in virtual VA. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that all the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the Veteran's claims folder shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). The Claim The Veteran seeks service connection for otitis media. It is also requested that the Veteran be afforded the benefit of the doubt. Service connection is warranted where the evidence of record establishes 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 thereby. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303. Every veteran shall be taken to have been in sound condition when examined, accepted and enrolled for service, except as to defects noted at the time of the examination, acceptance and enrollment, or where clear and unmistakable evidence demonstrates that the disease or injury existed before acceptance and enrollment and was not aggravated by service. 38 U.S.C.A. §§ 1111, 1137. The term "noted" denotes only such disorders that are recorded in examination reports. The existence of disorders prior to the active military service reported by the Veteran as medical history do not constitute a notation of such disorders, but it will be considered together with all of the other evidence in question as to the commencement of the disease or disorder. 38 C.F.R. § 3.304(b)(1). Determinations of whether a disorder pre-existed the active military service should be based on a thorough analysis of the evidentiary showing and careful correlation of all medical facts, with due regard to manifestations, clinical course and character of the particular injury or disease or residuals thereof. Id. Additionally, in determining whether there is clear and unmistakable evidence to rebut the presumption of soundness, all evidence of record must be considered, including post service medical opinions. Harris v. West, 203 F.3d 1347 (Fed. Cir. 2000) and Adams v. West, 13 Vet. App. 453 (2000). In July 2003, the VA General Counsel issued a precedent opinion which held that, to rebut the presumption of sound condition under 38 U.S.C. § 1111, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service. VAOPGCPREC 3-03 (July 16, 2003). The claimant is not required to show that the disease or injury increased in severity during service before VA's duty under the second prong of this rebuttal standard attaches. Id. In its decisions, the Board is bound to follow the precedent opinions of the General Counsel. 38 U.S.C.A. § 7104(c). In deciding a claim based on aggravation, after having determined the presence of a preexisting condition, the Board must thereafter determine whether there has been any measured worsening of the disability during service and then whether this constitutes an increase in disability. See Browder v. Brown, 5 Vet. App. 268, 271 (1993); Hensley v. Brown, 5 Vet. App. 155, 163 (1993). In this regard, a preexisting injury or disease will be considered to have been aggravated by active service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 C.F.R. § 3.306(a). Temporary or intermittent flare-ups during service of a preexisting injury or disease are not sufficient to be considered "aggravation in service" unless the underlying condition, as contrasted to symptoms, is worsened. Crowe v. Brown, 7 Vet. App. 238, 247-48 (1994); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). The presumption of aggravation is applicable only if the pre-service disability underwent an increase in severity during service. Hunt, 1 Vet. App. at 292, 296 (1991); See also Beverly v. Brown, 9 Vet. App. 402, 405 (1996). Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during and subsequent to service. 38 C.F.R. § 3.306(b). In evaluating the evidence in any given appeal, it is the responsibility of the Board to weigh the evidence and decide where to give credit and where to withhold the same and, in so doing, accept certain medical opinions over others. Schoolman v. West, 12 Vet. App. 307, 310-11 (1999). In this regard, the Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000). 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). With the above criteria in mind, the Board will first address the presumption of soundness. In this regard, on the September 1958 Report of Medical History at the pre-induction examination, the Veteran marked that he had a history of "ear, nose, or throat trouble" and the examiner noted that he had a history of ear infections. However, on examination, the Veteran's ear drums were normal. Additionally, at the October 2012 VA examination, the Veteran reported having several ear infections as a child. After a full examination of the Veteran and a review of the claims file, the examiner diagnosed the Veteran with chronic suppurative otitis media. The examiner then determined that the Veteran's otitis media clearly and unmistakably pre-existed his active military service. The examiner reasoned that the Veteran's ear infections predated his military service, as documented on his entrance record and in his lay statements. This opinion is not contradicted by any other medical opinion of record. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (VA may only consider independent medical evidence to support its findings and is not permitted to base decisions on its own unsubstantiated medical conclusions) Given the above history, the Board finds that the clear and unmistakable medical evidence of record shows that that the Veteran entered active duty with pre-existing otitis media. 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304; VAOPGCPREC 3-03. The Board will next consider whether there has been any measured worsening of the disability during service as well as whether this constitutes an increase in disability. See Browder, supra; Hensley, supra. In this regard, January 1959 service treatment records document the Veteran's complaints of ear pain with a history of frequent ear infections. The Veteran was diagnosed with "acute" otitis media of the right ear. No further pertinent complaints or treatment for otitis media are documented in the service treatment records. In fact, while at the November 1960 separation examination the Veteran reported a history of "ear, nose, or throat trouble," on examination his ear drums were normal. Furthermore, while the Veteran testified that his ear problems during service became worse after being near a land mine explosion, this injury is not documented in his service treatment records. The first post-service relevant complaint of otitis media was in a January 1985 private treatment record which documented that the Veteran had recurrent otitis media. In this regard, the Veteran's active duty ended in December 1960 and the Board finds that this 25 year gap without treatment for the disorder weighs heavily against the claim. See Maxson v. West, 12 Vet. App. 453 (1999), aff'd, 230 F.3d 1330 (Fed. Cir. 2000) (holding that service incurrence may be rebutted by the absence of medical treatment of the claimed disorder for many years after the military discharge). Additionally, the October 2012 VA examiner after a full examination and review of the claims file opined that the Veteran's pre-existing otitis media clearly and unmistakably was not aggravated beyond its natural progression by an in-service injury, event, or illness. As support for his opinion, the examiner reasoned that the Veteran had only one right ear infection treatment recorded in service, with the treatment record clearly stating that the infection had been cured. The examiner noted that the Veteran also had a normal exit examination. The examiner further pointed out that there were no left ear infections documented in the Veteran's service treatment records. The examiner found that the medical evidence does not show that the one infection in service was severe enough to worsen the Veteran's ear disorder, especially since his ears were normal at his military separation. There is no contrary medical evidence in the claims file. See Colvin, supra. In fact, the Board finds that the opinion is consistent with the Veteran's service and post-service treatment records. See Bloom v. West, 12 Vet. App. 185, 187 (1999) (the probative value of a physician's statement is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support his opinion"). Moreover, the Board finds that while the Veteran is competent to describe his subjective symptoms of his otitis media, ascertaining whether a permanent worsening of a preexisting disorder occurred during service requires special medical training that the Veteran does not have and therefore it is a determination "medical in nature" and not capable of lay observation. See Davidson, supra. Accordingly, any lay opinions found in the record regarding the Veteran's military service causing a permanent worsening of his preexisted otitis media is not competent evidence and is not accorded any probative value. Routen v. Brown, 10 Vet. App. 183, 186 (1997), aff'd sub nom. Routen v. West, 142 F.3d 1434 (Fed. Cir. 1998), cert. denied, 119 S. Ct. 404 (1998); see also Bostain v. West, 11 Vet. App. 124, 127 (1998). The Board also finds more competent and credible the opinion provided by the expert at the October 2012 VA examination than any lay claims to the contrary found in the claims file. See Black v. Brown, 10 Vet. App. 284 (1997) (in evaluating the probative value of medical statements, the Board looks at factors such as the individual knowledge and skill in analyzing the medical data). Therefore, the Board finds that the most competent and credible evidence of record shows that the Veteran's pre-existing otitis media was not aggravated beyond its natural progress by any in-service injury, event, or illness. See Colvin, supra. Accordingly, since a condition precedent for establishing service connection for a pre-existing disability is (1) a measured worsening of the disability during service and (2) this measured worsening constituting an increase in disability (see Browder, supra; Hensley, supra.) and the Veteran's otitis media did not undergo an increase in disability despite the one documented incident of treatment while on active duty, the Board finds that service connection for otitis media must be denied. See 38 U.S.C.A. §§ 1111, 1131, 1137; 38 C.F.R. § 3.303, 3.304, 3.306. In adjudicating the current appeal, the Board has also considered the doctrine of reasonable doubt. However, as the most competent and credible evidence is against the Veteran's claim, the doctrine is not for application. 38 U.S.C.A. § 5107(b) (West 2002); see also, e.g., Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for chronic otitis media is denied. ____________________________________________ NEIL T. WERNER Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs