Citation Nr: 1321020 Decision Date: 06/28/13 Archive Date: 07/05/13 DOCKET NO. 12-02 479A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to service connection for an ear disability (other than bilateral defective hearing). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Carole Kammel, Counsel INTRODUCTION The Veteran had active military service in the United States Army from January 1951 to January 1954. This matter is before the Board of Veterans' Appeals (Board) on appeal from a June 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan, that, in pertinent part, determined that new and material evidence had not been received to reopen a previously denied claim for connection for an ear condition (originally claimed as an ear problem with hearing loss). In a March 2013 decision, the Board granted the Veteran's petition to reopen his previously denied claim for service connection for an ear disability. The Board remanded the underlying claim for service connection for an ear disability to the RO for additional development. As discussed in the Board's March 2013 Decision/Remand, the claim for an increased disability rating in excess of 10 percent for a bilateral hearing loss disability was raised in a January 2013 Informal Hearing Presentation but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). The Board therefore does not have jurisdiction over it. The issue is again referred to the AOJ for appropriate action. This appeal has been advanced on the Board's docket pursuant to 38 U.S.C.A. § 7107(a)(2) (West 2002); 38 C.F.R. § 20.900(c) (2012). FINDING OF FACT A chronic bilateral ear disorder, other than sensorineural hearing loss, has not been demonstrated at any time during the pending appeal. CONCLUSION OF LAW A chronic ear disorder was not incurred in or aggravated by service, and is not currently shown. 38 U.S.C.A. §§ 1110, 1131, 5103(a), 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.159, 3.102, 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. §§ 3.159, 3.326(a). Proper notice from VA must inform the claimant and his representative, if any, prior to the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ) of any information and any medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). These 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 v. Nicholson, 19 Vet. App. 473 (2006). Information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded must be included. Id. Neither the Veteran nor his representative has alleged prejudice with respect to notice, as is required. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009). None is found by the Board. Indeed, VA's duty to notify has been more than satisfied. The Veteran was notified via August 2005 and April 2010 letters of the criteria for establishing service connection, the evidence required in this regard, and his and VA's respective duties for obtaining evidence. These letters addressed all notice elements and predated the initial adjudication by the AOJ/RO in June 2010. Nothing more was required. Via an April 2010 letter, the Veteran was notified of how VA determines disability ratings and effective dates if service connection is awarded. VA has also fulfilled its duty to assist the Veteran with respect to his claim on appeal. Aside from the Veteran's January 1951 and January 1954 enlistment and separation examination reports, respectively, and a few dental records and laboratory reports, there are no additional service treatment records (STRs). In December 2005, the National Personnel Records (NPRC) indicated that no additional service records, to include Surgeon General Office records, were available because they had been destroyed in a fire at that facility in 1973. The Veteran was advised of this negative development. The Veteran and a fellow servicemate have submitted statements to VA in support of the claim. This matter was remanded by the Board in March 2013 for further development. The RO was directed to contact the Veteran in order to identify any care provider who had treated him for his claimed ear disorder and to assist him obtaining copies of any identified records. The Board also determined that a June 2006 VA examination was incomplete, and that another VA examination was needed to identify/diagnose any ear disorder diagnosed during the pendency of the appeal and to address the etiology of the same. In early April 2013, the RO sent the Veteran a letter, wherein it notified him that a local VA Medical Center (VAMC) in Detroit, Michigan would be scheduling him for an ENT examination in connection with his claim. He was asked to identify any VA health care provider who had treated him for his ear disorder. A similar request was made with regard to non-VA health care provider, which included enclosing a VA Form 21-4142, Authorization and Consent to Release Information. To date, the Veteran has not responded to this information request. In late April 2013, the RO received notification from the above-cited VAMC that the Veteran had failed to report for his scheduled ENT examination. The VAMC indicated that it had contacted the Veteran and requested that he attend his scheduled examination. The Veteran informed the above-cited VAMC that it was too far, and that he was too old to travel that distance. The Veteran maintained that he did not wish to attend the scheduled VA ENT examination. As the Veteran failed to report for the scheduled VA ENT examination without good cause, and he has expressed his intent not to report for any scheduled future examination, his service connection claim will be decided based on the evidence of record. 38 C.F.R. § 3.655 (2012). The RO issued a supplemental statement of the case later in May 2013, wherein it informed the Veteran of the consequences of the failure to report for his examination; namely that his claim would be decided on the basis of the evidence of record. In view of the foregoing, the Board finds that a further remand for an additional VA ENT examination is not warranted. In considering whether the RO's actions constitute substantial compliance, the Board is not without sympathy with regard to his assertion that traveling for the scheduled VA examination was too physically draining for him. However, under VA regulations, it is incumbent upon the veteran to submit to a VA examination if he is applying for, or in receipt of, VA compensation or pension benefits, see Dusek v. Derwinski, 2 Vet. App. 519 (1992), and must be prepared to meet his obligations by cooperating with VA efforts to provide an adequate medical examination. See Olson v. Principi, 3 Vet. App. 480 (1992). It should be emphasized that the duty to assist is not a one-way street. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Indeed, the Board underscores the fact that VA requested that the Veteran identify any recent treatment for his claimed ear disorder, and that he has not responded, despite being advised that his failure to report would mean considering his claim based on the limited evidence of record. Accordingly, the Board finds that VA's duty to assist with respect to obtaining outstanding private medical records and scheduling the Veteran for a VA ENT examination with respect to the issue on appeal has been met. In this case, although the Board's remand directives were not completed, a diligent effort was made by the RO to fulfill its obligations. 38 C.F.R. § 3.159(c) (4). 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). No further notice or assistance is required to fulfill VA's duty to assist in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). II. Legal Criteria Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). 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). In addition, certain chronic diseases may be presumed to have been incurred during service if they become manifested to a compensable degree within one year of separation from active duty. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307 , 3.309; see also 67 Fed. Reg. 67792 -67793 (Nov. 7, 2002). In this case, the presumption does not apply because the Veteran does not have one of the listed chronic diseases. See 38 C.F.R. §§ 3.307, 3.309. The second and third elements may be established by showing continuity of symptomatology. Continuity of symptomatology may be shown by demonstrating "(1) that a condition was 'noted' during service or any applicable presumption period; (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." Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); see also Davidson, 581 F.3d at 1316; 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"). However, the Federal Circuit recently held that the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic 38 C.F.R. § 3.309(a). However, the Federal Circuit recently held that the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic 38 C.F.R. § 3.309(a). As the Veteran does not have a recognized chronic disease, the tenets of 38 C.F.R. § 3.303(d) have not been invoked. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). If there is at least an approximate balance of positive and negative evidence regarding any issue material to the claim, the claimant shall be given the benefit of the doubt in resolving each such issue. 38 U.S.C.A. § 5107; Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); 38 C.F.R. §§ 3.102. On the other hand, if the Board determines that the preponderance of the evidence is against the claim, it has necessarily found that the evidence is not in approximate balance, and the benefit of the doubt rule is not applicable. Ortiz, 274 F.3d at 1365. III. Merits Analysis The Veteran seeks service connection for an ear disability. He contends that he has had itchy ears since he served in Panama in the fall of 1952 and spring of 1953, respectively. (See VA Form 21-526, Veterans Application for Compensation and/or Pension, received by the RO in July 2005). He presently service connected for bilateral sensorineural hearing loss. The Veteran's sparse STRs included his January 1951 and January 1954 enlistment and separation examination reports, respectively, and a few dental records and laboratory reports. At service separation in January 1954, the Veteran's ears were evaluated as "normal." In December 2005, the NPRC indicated that no additional service records, to include Surgeon General Office records, were available because they had been destroyed in a fire at that facility in 1973. The United States Court of Appeals for Veterans Claims (Court) has held that in cases where records once in the hands of the government are lost, the Board has a heightened obligation to explain its findings and conclusions and to consider carefully the benefit-of-the-doubt rule where applicable. See O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). Because of missing records, the analysis below has been undertaken with this heightened duty in mind. The case law does not, however, lower the legal standard for proving a claim for service connection but rather increases the Board's obligation to evaluate and discuss in its decision all of the evidence that may be favorable to the claimant. See Russo v. Brown, 9 Vet. App. 46 (1996). The Veteran's DD 214 reflects that he served in the United States Army from January 1951 to January 1954. His service awards and decorations included, in part, the Korean Service Medal. The Veteran has consistently reported that he has had an ear disability (other than bilateral defective hearing) as a result of having been exposed to hot and humid environments and water during his military service in Panama. See VA Form 21-526, Veterans Application for Compensation and/or Pension, received by the RO in July 2005, VA Form 21-4138, Statement in Support of Claim, dated and signed by the Veteran in August 2005, and June 2006 VA audio examination report. The June 2006 VA examiner seemed to relate the Veteran's in-service complaints of itchy ears to this environment and poor water treatment for fungus. The Board thereby finds sufficient evidence he was exposed to hot and humid environments while serving on active military service in Korea that resulted in him experiencing itchy ears. 38 U.S.C.A. § 1154(a) (West 1991). Although the Veteran was exposed to humid and hot environments during his period of active military service, and that he may have experienced itchy ears at that time, the post-service medical record does not reflect any treatment for, or diagnosis of, chronic ear disability since VA received his original claim for VA compensation in July 2005 or proximate thereto. See 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); see 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). VA examined the Veteran in June 2006 to determine, in part, the etiology of any currently diagnosed ear condition. After a claims file review, to include the Veteran's history with respect to the onset of his ear condition that is consistent with that previously reported herein, and a physical evaluation of his ears, the VA audiologist diagnosed him with rule out (italics added for emphasis) EAC externam otitis or fungus. Put another way, the VA audiologist did not diagnose the Veteran with a chronic disability of the ears, other than sensorineural hearing loss. Id. The VA audiologist only opined that it was as least as likely as not that the because the Veteran had served in areas, such as Panama and Korea where water treatment in the 1950s might not have been controlled for fungus, that it was as least as likely as not that his complaints of itchy ears were service related. Indeed, given her presumed lack of medical knowledge in this area, she referred the Veteran to an ENT specialist in order to rule out any retrocochlear pathology. As noted previously herein, the Veteran did not report for an April 2013 ENT examination that could have determined whether or not he currently had an underlying ear disability that was related to his period of military service. The remainder of the evidence of record does not contain a definitive diagnosis of an ear condition. Without a current disability, service connection for an ear disability is not warranted. See McClain v. Nicholson, 21 Vet. App. 319 (2007). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition (e.g., a broken leg), (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. However, competent medical evidence is necessary where the determinative question is one requiring medical knowledge. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Although the Veteran, as well as a fellow service member, "Jack," are competent to give evidence about what they experienced during military service, such as having itchy ears while serving in humid environments, they have not been shown to possess the requisite medical training, expertise, or credentials needed to render a diagnosis or a competent opinion as to an ear disability. Nothing in the record demonstrates that the Veteran or "Jack" have received any special training or acquired any medical expertise in evaluating and determining causal connections for an ear disability. See King v. Shinseki,700 F.3d 1339 (Fed. Cir. 2012). Overall, there is no evidence of a distinct and definitive ear disability that is related to the Veteran's complaints of itchy ears since VA received his petition to reopen a previously denied claim for service connection for an ear disability in April 2010. (See VA Form 21-4138, Statement in Support of Claim, received by the RO in mid-April 2010). Thus, the Board concludes that service connection for an ear disability is not warranted. As such, the Board finds that the preponderance of the evidence is against the Veteran's claim for service connection for an ear disability. Consequently, the benefit-of-the-doubt rule does not apply. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). ORDER Service connection for an ear disability is denied. ____________________________________________ MICHAEL A. HERMAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs