Citation Nr: 1319113 Decision Date: 06/12/13 Archive Date: 06/21/13 DOCKET NO. 08-29 696 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota THE ISSUE Entitlement to service connection for residuals of otitis media (also claimed as serous otitis). REPRESENTATION Veteran represented by: The American Legion WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD C. Kedem, Counsel INTRODUCTION The Veteran served on active duty from June 1955 to October 1976. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a January 2008 rating decision by which the RO, in pertinent part, denied entitlement to service connection for otitis media (also claims as serous otitis). In May 2008, the Veteran and his spouse testified at a hearing before RO personnel. A transcript of the hearing is of record. In May 2010 and in March 2011, the Board remanded the issue on appeal to the RO for additional development of the evidence that, in the aggregate, has been accomplished satisfactorily. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (Fed. Cir. 2002). The Board notes that it has recharacterized the issue on appeal in order to effectuate the result most beneficial to the Veteran. See, e.g., Clemons v. Shinseki, 23 Vet. App. 1, 5-6 (2009); see also Brokowski v. Shinseki, 23 Vet. App. 79, 85 (2009) (a claimant's identification of the benefit sought does not require any technical precision), citing Ingram v. Nicholson, 21 Vet. App. 232, 256-57 (2007) (it is the pro se claimant who knows what symptoms he is experiencing and that are causing him disability); see, too, Robinson v. Nicholson, 21 Vet. App. 545, 552 (2008) (the Board is required to consider all issues raised either by the claimant or the evidence of record). FINDING OF FACT The Veteran has slight right tympanic membrane abnormalities (scarring) that are etiologically related to his active service. CONCLUSION OF LAW Residuals of otitis media were incurred in service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West Supp. 2002); 38 C.F.R. §§ 3.102, 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) VCAA, Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2012)) redefined VA's duties to notify and assist a claimant in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). In light of the favorable determination being reached, the Board finds that no further discussion of VCAA compliance is necessary as any error that was committed as to either the duties to notify or assist is harmless. Standard of Review After the evidence has been assembled, it is the Board's responsibility to evaluate the entire record. 38 U.S.C.A. § 7104(a) (West 2002). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102 (reasonable doubt to be resolved in veteran's favor). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeal for Veterans Claims (Court) stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Law and Regulations Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. §§ 110, 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The Board notes that service connection based on continuity of symptomatology is not available herein because the disability claimed is not one of the "chronic disabilities" enumerated in 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Establishing service connection generally requires (1) medical 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) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Court has held that "Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. In the absence of proof of a present disability there can be no valid claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992). 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 (1997); Layno v. Brown, 6 Vet. App. 465 (1994); Cartwright v. Derwinski, 2 Vet. App. 24 (1991) (although interest may affect the credibility of testimony, it does not affect competency to testify). A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses. See Layno, 6 Vet. App. 465. The Board is charged with the duty to assess the credibility and weight given to evidence. Wensch v. Principi, 15 Vet. App. 362, 367 (2001); Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. Caluza v. Brown, 7 Vet. App. 498 (1995). The Board may weigh the absence of contemporaneous medical evidence against the lay evidence in determining credibility, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of the veteran's claims file. Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale, as well as a basis in objective supporting clinical data. Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005) (rejecting medical opinions that did not indicate whether the physicians actually examined the veteran, did not provide the extent of any examination, and did not provide any supporting clinical data). The Court has held that a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). Medical evidence that is speculative, general or inconclusive in nature cannot support a claim. Obert v. Brown, 5 Vet. App. 30, 33 (1993); see also Beausoleil v. Brown, 8 Vet. App. 459, 463 (1996); Libertine v. Brown, 9 Vet. App. 521, 523 (1996). A physician's statement framed in terms such as "may" or "could" is not probative. See Warren v. Brown, 6 Vet. App. 4, 6 (1993). A significant factor to be considered for any opinion is the accuracy of the factual predicate, regardless of whether the information supporting the opinion is obtained by review of medical records or lay reports of injury, symptoms and/or treatment. See Harris v. West, 203 F.3d 1347, 1350-51 (Fed. Cir. 2000) (examiner opinion based on accurate lay history deemed competent medical evidence in support of the claim); Kowalski v. Nicholson, 19 Vet. App. 171, 177 (2005) (holding that a medical opinion cannot be disregarded solely on the rationale that the medical opinion was based on history given by the veteran); Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that the Board may reject a medical opinion based on an inaccurate factual basis). The Board has reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by a veteran or obtained on a veteran's 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 claims file shows, or fails to show, with respect to the claim. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Discussion The Veteran contends that he is entitled to service connection for the residuals of otitis media, which he describes as fluid in his ears and scarring. The record reflects treatment for otitis media in service and treatment for otitis media after service. Following service, the Veteran had some episodes of otitis media. These seemed to have resolved, and he does not appear to have suffered from otitis media for many years to include since filing his claim of service connection for that disability in September 2007. The Veteran and his wife both indicated that ear drainage had been present since service. A review of the record suggests that such drainage in more recent years, and since the filing of his claim for service connection herein, was due to his hearing aids and that the drainage resolved in short order once the Veteran removed the hearing aids. Of great import, the Veteran underwent three right tympanoplasties since service separation, the last taking place in August 2001, which is again predates his claim by several years. On VA examination in February 2009, the examiner concluded that there was no evidence of otitis media. On VA examination in July 2010, the examiner indicated that there was no evidence of either chronic or acute otitis media. As to the tympanic membranes, they were intact and were neither scarred nor perforated. On VA examination in April 2011, the Veteran noted that since the last right tympanoplasty in 2001, his right ear had been relatively if not completely asymptomatic. His ear symptoms were limited to tinnitus and hearing loss, which are both disabilities that the Veteran is already in receipt of service connection. On objective examination, the right tympanic membrane was intact. Approximately 30 percent of the right tympanic membrane was hypermobile compared with the rest of the eardrum, which was mildly to moderately scarred. There was no perforation present, and the right tympanic membrane as a whole moved well. There was minimal right ear inflammation that was related to the hearing aid. On the left, the tympanic membrane was clear and mobile. The examiner opined that given the in-service history of otitis media and likely right tympanic membrane perforation in service or shortly thereafter, it was at least as likely as not, in pertinent part, that the Veteran's right tympanic membrane perforation was related to otitis media in service. The Board notes that service connection would not be available for otitis media, as the Veteran does not appear to have suffered any episodes for many years and none since the filing of his claim or proximately related thereto. The presence of a current disability is again the cornerstone of establishing a claim for service connection. See Brammer; see also McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (the requirement of the existence of a current disability is satisfied when the Veteran has a disability at the time he files his claim for service connection or during the pendency of that claim); Romanowsky v. Shinseki, No. 11-3272 (Vet. App. May 9, 2013) (held that when the record contains a recent diagnosis of disability prior to a veteran filing a claim for benefits based on that disability, the report of diagnosis is relevant evidence that the Board must address in determining whether a current disability existed at the time the claim was filed or during its pendency). Nevertheless, the Veteran does have some right tympanic membrane abnormalities resulting from three right tympanoplasties necessitated by right eardrum perforations caused by otitis media in service. Indeed, while not necessarily debilitating or even compensable, the fact remains that the Veteran has some scarring of the tympanic membrane that has been attributed to his active service. Service connection is warranted for these residuals. 38 C.F.R. § 3.303; see also 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert, supra. ORDER Service connection for residuals of otitis media is granted. ____________________________________________ MICHAEL A. HERMAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs