Citation Nr: 1317993 Decision Date: 06/03/13 Archive Date: 06/11/13 DOCKET NO. 09-44 191 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to service connection for residuals of left ear otitis media with tympanoplasty, mastoidectomy, ossiculoplasty, and otalgia. 2. Entitlement to service connection for residuals of an epidermal inclusion cyst over the left mandible. REPRESENTATION Appellant represented by: Missouri Veterans Commission ATTORNEY FOR THE BOARD D. Cherry, Counsel INTRODUCTION The Veteran served on active duty from August 1993 to June 1994 with two months and 17 days of prior inactive service. This case comes before the Board of Veterans' Appeals (Board) on appeal from an April 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. In May 2011 and May 2012, the Board remanded the Veteran's claims. In a December 2012 rating decision, the Appeals Management Center (AMC) granted service connection for left ear hearing loss effective August 11, 2008, and assigned a zero percent disability rating that same date. The Veteran has not expressed disagreement with the effective date of the grant of service connection or the assignment of a zero percent disability rating. Therefore, the issue regarding left ear hearing loss is no longer in appellate status. FINDINGS OF FACT 1. The Veteran underwent an entrance examination for his period of active duty from August 1993 to June 1994, and the examination report shows that the Veteran had a history of left ear reconstructive surgery. 2. Competent medical evidence reveals that preexisting residuals of left ear otitis media with tympanoplasty, mastoidectomy, ossiculoplasty, and otalgia increased in severity during active duty, and there is no clear and unmistakable evidence showing that the increase in disability was due to the natural progress of the disease. 3. The weight of the evidence is against a finding that the Veteran has or has had any residuals of an epidermal inclusion cyst over the left mandible during the appellate term. CONCLUSIONS OF LAW 1. Residuals of left ear otitis media with tympanoplasty, mastoidectomy, ossiculoplasty, and otalgia were aggravated by service. 38 U.S.C.A. §§ 1110, 1111, 1153, 5103, 5103A, 5107 (West 2002 & Supp 2012); 38 C.F.R. §§ 3.304, 3.306 (2012). 2. Residuals of an epidermal inclusion cyst over the left mandible were not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 The requirements of the 38 U.S.C.A. §§ 5103 and 5103A have been met. There is no issue as to providing an appropriate application form or completeness of the application. VA notified the Veteran in August 2008, June 2011, and June 2012 of the information and evidence needed to substantiate and complete a claim, to include notice of what part of that evidence is to be provided by the claimant, and notice of what part VA will attempt to obtain. In the August 2008 letter, VA notified the appellant of how VA determines the disability rating and effective date. The claims were most recently readjudicated in a January 2013 supplemental statement of the case. VA has fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate a claim, and as warranted by law, affording a VA examination. The RO obtained the service treatment records and the AMC afforded the appellant VA examinations pursuant to both remands. The Veteran submitted a statement from a private doctor. The Board notes that the VA examinations provided sufficient clinical findings so as to allow the Board to address whether the residuals of left ear otitis media with tympanoplasty, mastoidectomy, ossiculoplasty, and otalgia were aggravated by service, and whether the claimant has residuals of an epidermal inclusion cyst of the left mandible. Therefore, the Board finds that these examinations are adequate on which to base a decision. In short, the AMC fully complied with the directives of the two Board remands. Stegall v. West, 11 Vet. App. 268 (1998). Governing Law and Regulation Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110. In order to establish service connection for a claimed disorder, 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). The provisions of 38 U.S.C.A. § 1111 provide that every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. This presumption attaches only where there has been an induction examination in which the later complained-of disability was not detected. Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991). A pre-existing injury or disease will be considered to have been aggravated by active service where there is an increase in disability during such service, unless clear and unmistakable evidence shows that the increase in disability is due to the natural progress of the disease. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306. The provisions of 38 C.F.R. § 3.306(b) provide that aggravation may not be conceded unless the pre-existing condition increased in severity during service. The existence of a current disability is the cornerstone of a claim for VA disability compensation. Degmetich v. Brown, 104 F. 3d 1328 (1997). To be present as a current disability, the claimed condition must be present at the time of the claim for benefits, as opposed to sometime in the distant past. Gilpin v. West, 155 F. 3d 1353 (Fed. Cir. 1998). The Gilpin requirement that there be a current disability is satisfied when the disability is shown at the time of the claim or during the pendency of the claim, even though the disability subsequently resolves. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Analysis Entitlement to service connection for residuals of left ear otitis media with tympanoplasty, mastoidectomy, ossiculoplasty, and otalgia Prior to service, the Veteran in 1984 underwent a left ear tympanoplasty with mastoidectomy and ossiculoplasty for left ear otitis media. In March 1990, it was noted that he had persistent otitis media. The Veteran underwent an entrance examination in November 1991 for the Marine Corps Reserves. That examination report reflects that a well-healed status post left tympanoplasty was noted on examination. The Veteran's entrance examination report done on August 11, 1993, just two days after he entered active duty reflects that the assessment was status post reconstructive surgery of the left ear with a prosthetic incus bone in the middle ear. Because a left ear disorder was noted at entry, the presumption of soundness does not apply to this disorder. Hence, the issue before the Board is whether the pre-existing left ear disorder was aggravated during the Veteran's service. The service treatment records show that the Veteran received treatment for his left ear disorder in service and administrative separation was recommended. An April 2012 VA examiner noted that an examination of the left ear revealed scarring and retraction of the left eardrum. The examiner noted that the residuals were scarring and hearing loss. The Board notes that service connection has been granted for left ear hearing loss. That examiner opined that the preexisting left ear disability worsened during active service and that it was at least as likely as not that the preexisting left ear disability was worsened beyond the normal progression of the previous left ear surgery. There is no other medical evidence that indicates that the preexisting left ear disorder did not undergo an increase in severity during service or that there is clear and unmistakable evidence that the increase in disability is due to the natural progress of the disease. Hence, service connection is in order. 38 U.S.C.A. §§ 1110, 5107. Entitlement to service connection for residuals of an epidermal inclusion cyst over the left mandible The Veteran's service treatment records show that in October 1993 he had a probable epidermal inclusion cyst over the left mandible that was small and resolving. The Board has reviewed all of the evidence of record, to include the statement from a private doctor, service treatment records, and VA examination reports. These records do not show that the Veteran currently has, or has had residuals of an epidermal inclusion cyst over the left mandible since he filed his claim in August 2008. The July 2012 VA examiner noted that based on the Veteran's reporting that he had had no further problems since the treatment of the mass in service. The examiner diagnosed status post epidermal inclusion cyst over the mandible, which spontaneously drained. The examiner noted that the appellant was well healed and asymptomatic from that cyst. The examiner opined that it was at least as likely as not that the claimant does not suffer any residuals from the epidermal inclusion cyst over the mandible. There is no other medical evidence that indicates that the claimant has or has had residuals of an epidermal inclusion cyst over the left mandible since he filed his claim in August 2008. As to the lay evidence of record, the Veteran reported to the July 2012 VA examiner that he had had no further problems since the treatment of the mass in service. In a January 2013 statement, the appellant indicated that he had not had a continual problem with cysts in the area of his face. The Veteran is competent to report skin symptomatology or lack thereof, and the Board finds him credible. Therefore, the most probative lay evidence also provides no evidence of a current disability. In summary, for the reasons and bases set forth above, the Board concludes that the most credible and probative evidence weighs strongly against finding that the Veteran has or has had residuals of an epidermal inclusion cyst over the left mandible during the appellate term. Therefore, the preponderance of the evidence is against the claim, and it is denied. ORDER Entitlement to service connection for left ear otitis media with tympanoplasty, mastoidectomy, ossiculoplasty, and otalgia, is granted. Entitlement to service connection for residuals of an epidermal inclusion cyst of the left mandible is denied. ____________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs