Citation Nr: 1325464 Decision Date: 08/12/13 Archive Date: 08/16/13 DOCKET NO. 07-03 203A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to service connection for ear infections and/or cholesteatoma, including as secondary to residuals of a left tympanic membrane perforation. 2. Entitlement to service connection for a disability manifested by earaches, including as secondary to residuals of a left tympanic membrane perforation. 3. Entitlement to service connection for a peripheral vestibular disorder (claimed as loss of balance and motion sickness), including as secondary to residuals of a left tympanic membrane perforation. 4. Entitlement to service connection for right ear hearing loss, due to acoustic trauma in service and/or secondary to residuals of a left tympanic membrane perforation. ATTORNEY FOR THE BOARD S.K.C. Boyce, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1959 to February 1963. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio, which granted service connection for perforation of the left tympanic membrane and assigned a noncompensable disability rating, effective February 2, 2006, under 38 C.F.R. § 4.87, Diagnostic Code (DC) 6211. On appeal, the Board denied entitlement to a compensable disability rating for perforation of the left tympanic membrane in November 2010 for the reasons that DC 6211 does not provide for compensable ratings for tympanic membrane perforations and the Veteran did not appeal the January 2007 rating decision denying all other possible residual symptoms. In a June 2011 Order granting a Joint Motion for Partial Remand, the Court of Appeals for Veterans Claims (Court) found that the claim for an increased initial rating for a left tympanic perforation on appeal allowed the Board to take jurisdiction of all symptoms allegedly related to that disability regardless of any action taken, or not taken, in response to other rating decisions denying benefits for those symptoms and remanded the claim for a higher initial rating for a perforation of the left tympanic membrane to the Board for action consistent with the memorandum decision. The Board took jurisdiction over the claimed manifestations of hearing loss, tinnitus, a peripheral vestibular disorder (claimed as loss of balance and motion sickness), ear infections, and earaches in a December 2011 decision and remand order; recharacterized those issues as claims for entitlement to service connection, secondary to left tympanic membrane perforation; denied entitlement to an initial compensable rating for residuals of a left tympanic membrane perforation; granted service connection for left ear hearing loss and tinnitus, and remanded service connection on a secondary basis for right ear hearing loss, a peripheral vestibular disorder (claimed as loss of balance and motion sickness), ear infections, and earaches for further development. The Board explained that recharacterization of these issues from part of the Veteran's claim for an increased initial rating for residuals of a left perforated tympanic membrane to claims for service connection secondary to residuals of a left perforated tympanic membrane best recognized the complexity of the those issues and more accurately reflected the nature of the benefits, and theory of entitlement to those benefits, sought by the Veteran. The issue of service connection for an ear infection has been recharacterized to include the alternative diagnosis of cholesteatoma. Young v. Shinseki, 25 Vet. App. 201, 202 (2012) (where evidence indicates that the symptoms reported may be caused by a diagnosed disorder other than the disorder claimed by the Veteran, the claim is for a general condition based on the symptoms alleged and includes both diagnoses); Clemons v. Shinseki, 23 Vet. App. 1, 5-6 (2009) (a claimant does "not file a claim to receive benefits only for a particular diagnosis, but for the affliction suffered"). The issue of entitlement to service connection for right ear hearing loss is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC) in Washington, DC. FINDINGS OF FACT 1. The Veteran does not have a current disability of ear infections and/or cholesteatoma. 2. The Veteran does not have a current disability manifested by earaches. 3. The Veteran does not have a current peripheral vestibular disorder and any symptoms of loss of balance and/or motion sickness were not manifested during service, are not otherwise related to service, and are not proximately caused or aggravated by the Veteran's service-connected left tympanic membrane perforation or any other service-connected disorder. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for ear infections and/or cholesteatoma, including as secondary to a service-connected left tympanic membrane perforation, or any other service-connected disorder, have not been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2012). 2. The criteria for entitlement to service connection for a disability manifested by earaches, including as secondary to a service-connected left tympanic membrane perforation, or any other service-connected disorder, have not been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2012). 3. The criteria for entitlement to service connection for peripheral vestibular disorder (claimed as loss of balance and/or motion sickness), including as secondary to a service-connected left tympanic membrane perforation, or any other service-connected disorder, have not been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. The Veterans Claims Assistance Act of 2000 (VCAA) As provided by the Veterans Claims Assistance Act (VCAA), the Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2012). A. Duty to Notify Upon receipt of a substantially complete application for benefits, VA must notify the claimant of the information and evidence needed to substantiate the claim, the information and evidence VA will obtain, and the information and evidence the claimant is expected to provide, prior to an initial unfavorable decision on the claim. 38 U.S.C.A. § 5103(a); Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002); 38 C.F.R. § 3.159(b); see also Mayfield v. Nicholson, 444 F.3d 1328, 1333 (Fed. Cir. 2006). In Dingess v. Nicholson, 19 Vet. App. 473, 484 (2006) the Court held that VCAA notice requirements apply to all five elements of a service connection claim: Veteran status, existence of a disability, nexus, disability rating, and effective date. However, this decision denies the claims for service connection adjudicated below and there can be no possibility of prejudice to the Veteran under the holding in Dingess as no disability rating or effective date can be assigned. See 19 Vet. App. at 487-88; see also Grantham v. Brown, 114 F.3d 1156, 1158 (Fed.Cir.1997) (noting that downstream elements not part of appeal of denial of service connection). A VCAA notice letter dated February 2006 informed the Veteran of the information and evidence required to establish service connection on a direct basis, including evidence of a current disability. In September 2006, the RO sent an additional notice letter to the Veteran informing him of the need to submit evidence from service linking the additional disabilities claimed in his September 2006 notice of disagreement to his service-connected tympanic membrane perforation of the left ear. In December 2011, the Board recharacterized the claims on appeal as claims for service connection on a secondary basis. The February 2006 and September 2006 letters did not specifically inform the Veteran of the information and evidence needed to establish a claim for service connection on a secondary basis. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.310. However, there is no prejudice to the Veteran from the lack of notice as the preponderance of the evidence is against finding the existence of currently diagnosed disability of ear infections or cholesteatoma, earaches, or a vestibular disorder, claimed as loss of balance and motion sickness, as discussed below. The Veteran was fully notified of the need to submit evidence of current disability in the letters dated February 2006 and September 2006 and his claims were not substantiated on that basis. Shinseki v. Sanders, 129 S. Ct. 1696, 1704-05 (2009) (harmless error should be determined by case-specific application of judgment, based upon examination of the record, of whether the error affected the parties' "substantial rights"). Additionally, a reasonable person could be expected to understand what was needed to substantiate the claim from reading the Board's December 2011 remand order and the December 2012 supplemental statement of the case. Goodwin v. Peake, 22 Vet. App. 128, 133 (2008). The Board's December 2011 remand order clearly explained that the manifestations of chronic ear infections, earaches, loss of balance, and motion sickness claimed to be related to the left ear tympanic membrane perforation would be developed as individual and separate claims for service connection on secondary basis to best address the Veteran's specific contention that the additional claimed "residuals" of his perforated left ear tympanic membrane resulted from that service-connected disability. Additionally, the December 2012 supplemental statement of the case specifically outlined the elements of a claim for service connection on a secondary basis. Lastly, the Veteran's statements specifically alleged arguments and evidence in support of the contention that his symptoms of chronic ear infections, earaches, loss of balance, and motion sickness are related to his service-connected left ear tympanic membrane perforation demonstrating actual knowledge of the evidence required to link those disabilities to his service-connected tympanic membrane perforation; in fact, the scope of the June 2011 Joint Remand is premised on the clarity of the Veteran's enumerated allegations. Goodwin, 22 Vet. App. at 133; see also Sanders, 129 S. Ct. at 1707 ("the specific factual circumstances in which the error arises may well make all the difference" in a harmless error determination). Consequently, the Veteran was not prejudiced by any technical notice deficiency during the development and adjudication of this claim. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). B. Duty to Assist VA has a duty to assist a claimant in obtaining the evidence necessary to substantiate the claim. 38 U.S.C.A. § 5103A(a)(1); 38 C.F.R. § 3.159(c). To fulfill this duty, VA must make reasonable efforts to obtain all potentially relevant records that the claimant adequately identifies and, where necessary, authorizes the Secretary to obtain and, when necessary, provide a VA examination. See 38 U.S.C.A. § 5103A(a)(1), (b)(1); 38 C.F.R. § 3.159(c). Here, the RO has obtained the Veteran's service records and all post-service treatment records the Veteran adequately identified and authorized VA to obtain. In September 2006, the Veteran submitted an authorization form listing three different medical providers. In a letter dated October 2006, the RO informed the Veteran that separate authorization forms are required for each individual provider. Accordingly, the RO advised the Veteran that his records had been requested from his current primary medical care provider only, and asked him to either return additional separate authorization forms for the two retired doctors identified in the September 2006 authorization form or obtain the outstanding private records himself and submit them to VA. In a November 2006 letter, despite VA's explanation, the Veteran refused to submit separate authorization forms for the two retired doctors identified in September 2006. He stated that he had already provided VA with all the forms and information necessary to locate his records and enclosed one signed generic catch-all authorization form purportedly authorizing VA to obtain "all" of his medical records. Consequently, even though these records may be relevant to the claims on appeal, VA has no further duty to attempt to obtain these records as they cannot be obtained without proper signed authorization to release the forms to VA from the Veteran. In other words, the duty to assist is not a one-way street; the Veteran cannot refuse to provide the authorization forms needed to obtain the records and subsequently argue that VA should have obtained those records. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). The Board notes that the Veteran has reported a history of medical treatment with VA, but did not provide the identifying information needed to obtain these records. See id.; 38 C.F.R. § 3.159(c)(2)(i). Furthermore, in February 2007 he explicitly limited his history of VA medical treatment to medical issues unrelated to the claims on appeal. Consequently, as the Veteran has not provided the necessary identifying information upon request and the most recent statement indicates that any VA records are not relevant to the claims on appeal, there is no duty to obtain these records. 38 C.F.R. § 3.159(c)(2)(i). The Veteran has not identified any other relevant records that VA failed to obtain. Therefore, VA has fulfilled its duty to make reasonable efforts to assist the Veteran in obtaining his relevant records. See 38 U.S.C.A. § 5103A(b), (c); 38 C.F.R. § 3.159 (c)(1)-(3). The duty to assist may include obtaining an adequate medical examination report or medical opinion. 38 U.S.C.A. § 5103A(d)(1); 38 C.F.R. § 3.159(c)(4); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). The Board questions the adequacy of the January 2012 VA examination report as the VA examiner did not review the Veteran's claims file and, consequently, provided opinions that were not fully informed by the relevant medical facts, but the October 2012 VA examination report, November 2012 addendum, March 2013 VA medical opinion, and May 2013 supplemental opinion are adequate as the October 2012 VA examination report and November 2012 addendum were based upon consideration of the Veteran's prior medical history, including the history reported by the Veteran and his wife, and, in combination with the March 2013 VA medical opinion and May 2013 supplemental opinion, describe his disabilities in sufficient detail. Stefl v. Nicholson, 21 Vet. App. 123, 123 (2007) (quoting Ardison v. Brown, 6 Vet. App. 405, 407 (1994)). The text of the March 2013 VA medical opinion clearly shows that the otolaryngologist thoroughly reviewed the evidence of record, focusing on the Veteran's descriptions of his symptoms, in accordance with the Board's request. D'Aries v. Peake, 22 Vet. App. 97, 104 (2008). Lastly, both the October 2012 VA examination report and November 2012 addendum and the March 2013 and May 2013 VA medical opinions contain clear conclusions and supporting data, as well as "a reasoned medical explanation" connecting the data and conclusions. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). The duty to assist has been satisfied as there is no reasonable possibility that any further assistance to the Veteran by VA would develop the evidence necessary to substantiate his claim. See 38 U.S.C.A. § 5103A(a)(2); 38 C.F.R. § 3.159(d); Canlas v. Nicholson, 21 Vet. App. 312, 317 (2007); Forcier v. Nicholson, 19 Vet. App. 414, 421-22 (2006); see also Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (holding that there is no basis for a remand when no benefit would flow to the Veteran). C. Substantial Compliance with Remand Orders VA also has a duty to ensure compliance with the terms of remand orders. Stegall v. West, 11 Vet. App. 268, 271 (1998). However, it is substantial compliance, not perfect compliance, which is required. Dyment v. West, 13 Vet. App. 141, 146-47 (1999); see also Donnellan v. Shinseki, 24 Vet. App. 167, 176 (2010); D'Aries, 22 Vet. App. at 105. In December 2011, the Board directed the RO/AMC to provide the Veteran with a VA examination with an otolaryngologist, or ear nose and throat specialist, for identification of all medical conditions affecting the inner, middle and external ear regions, and medical opinions on the etiology of all identified disorders, including whether any diagnosed disorder was caused or chronically aggravated by his service-connected tympanic membrane perforation. Additionally, the Board directed the RO to review the medical obtained and to readjudicate the Veteran's claim. The Veteran was provided with full VA examinations of his inner, middle and external ear and all ear disorders were identified. Furthermore, the October 2012 examination report and November 2012 supplemental examination report were signed by a surgeon board-certified in otolaryngology and otology/neurotology and the March 2013 and May 2013 medical opinions were obtained from a VA otolaryngologist. The claims were readjudicated in a December 2012 supplemental statement of the case. Therefore, the Board is satisfied that the RO has substantially complied with the Board's February 2013 remand directives and there is no prejudice to the Veteran will result from adjudicating the claims for service connection for ear infections and/or cholesteatoma, earaches, and a peripheral vestibular disorder (claimed as loss of balance and motion sickness) adjudicating this appeal. II. Evidentiary Standards As factfinder, it is the Board's responsibility to determine the credibility and weight of the evidence. See Washington v. Nicholson, 19 Vet. App. 362, 367-68 (2005). The Board will determine whether the disability claimed is the type for which lay evidence is competent and evaluate the credibility of that evidence. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 133-437 (Fed. Cir. 2006). If lay evidence is competent and credible, its probative value will be weighed against the other evidence of record. Kahana v. Shinseki, 24 Vet. App. 428, 433 (2011). When all the evidence is assembled, the Board will determine whether the evidence either supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or a preponderance of the evidence is against a claim, in which case the claim is denied. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990); 38 C.F.R. § 3.102. The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons or bases for its findings and conclusions on all material issues of fact and law, there is no need to discuss each piece of evidence submitted by the Veteran, or on his behalf, in exhaustive detail. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (explaining that the Board must review the entire record, but need not explicitly discuss every individual piece of evidence in the record). Accordingly, the analysis below will focus on an evaluation of the material evidence of record and whether this evidence substantiates the claims on appeal. Therefore, the Veteran should not assume that the Board has overlooked evidence that is not explicitly mentioned in the following discussion. See generally Timberlake v. Gober, 14 Vet. App. 122, 128-29 (2000) (holding that the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). III. Service Connection A. Governing Law and Regulations When determining whether service connection is warranted, all potential theories of entitlement must be considered. See Szemraj v. Principi, 357 F.3d 1370, 1371 (Fed. Cir. 2004). Therefore, this decision considers entitlement to service connection for ear infections and/or cholesteatoma, earaches, and a peripheral vestibular disorder (claimed as loss of balance and motion sickness) under the theories of entitlement to direct, presumptive, and secondary service connection. See Robinson v. Shinseki, 557 F.3d 1355, 1361-62 (2009); Kent v. Nicholson, 20 Vet. App. 1, 16 (2006) (holding that a claim "includes all theories under which service connection may be granted"). Service connection is established where the Veteran is disabled during active service as the result of injury or disease. 38 U.S.C.A. §§ 1110; 1131; 38 C.F.R. §3.4(b). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). To establish service connection on a direct basis, the evidence must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service." Morris v. Shinseki, 678 F.3d 1346, 1353 (Fed. Cir. 2012) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). A Veteran who has 90 days or more of service is entitled to presumptive service connection for a chronic disease listed under 38 C.F.R. § 3.309(a), including organic diseases of the nervous system, where the evidence establishes the existence of that chronic disease in service or the chronic disease becomes manifest to a degree of 10 percent or more within one year from service, absent affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013); 38 C.F.R. §§ 3.303(b), 3.307. To show the existence of a chronic disease in service under 38 C.F.R. § 3.303(b), there must be a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. 38 C.F.R. § 3.303(b). Where a chronic disease listed under 38 C.F.R. § 3.309(a) was noted during service or the presumptive period, but the notation does not establish the diagnosis beyond legitimate question, service connection may still be presumptively established where there is evidence of continuity of symptomatology. See Walker, 708 F.3d at 1337-39; 38 C.F.R. §§ 3.303(b), 3.307. Service connection may be granted on a secondary basis where the evidence establishes the existence of a current disability that is either (1) proximately due to or the result of, a service-connected disability or (2) aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc); 38 C.F.R. § 3.310; see also Kyhn v. Shinseki, 24 Vet. App. 228, 240 (2011); Smith v. Shinseki, 24 Vet. App. 40, 49 (2010). B. Ear infections and/or cholesteatoma The Veteran contends that he has experienced continued ear infections ever since he perforated his left ear drum in service and that he has to use ear plugs when showering and avoid swimming altogether to avoid infection. In November 2006, he explained that he did not seek treatment every time he had trouble with his left ear but had cultures done at Marietta Memorial Hospital for two different bacterial infections to determine the proper prescription for treatment. His service treatment records document recurrent chronic ear infections in service. At a January 2012 VA examination, the Veteran reported his problems with ear infections following any left ear exposure to water, but stated that it had been several years since it had happened. In October 2012, a second VA examiner noted that the Veteran stated he began using ear plugs when showing and avoiding swimming about twenty years prior and no longer experienced chronic ear infections. Neither examination showed objective evidence of current ear infections. Private treatment records dating from January 2006 document the existence of a perforated tympanic membrane of the left ear with ringing but history or symptoms of ear infection. In September 2006, the Veteran reported past treatment for two ear infections after service. Lastly, in a March 2013 VA medical opinion requested by the Board, a VA otolaryngologist determined that the Veteran's records of physical examination and CT report in the claims file did not support a diagnosis of chronic ear infection. The January 2012 examiner, however, diagnosed the Veteran with cholesteatoma, a cyst-like mass or benign tumor filled with desquaminating debris associated with chronic infection of the middle ear, on the basis of examination findings and found that the Veteran had suffered from left ear cholesteatoma for several years. See Dorland's Illustrated Medical Dictionary 356 (28th ed. 1994) [hereinafter Dorland's]. The January 2012 examiner also stated that cholesteatoma would contribute to the Veteran's vertigo, imbalance, and hearing loss. The examination report shows that this diagnosis was given without obtaining diagnostic imaging or other diagnostic procedure data. The VA examiner explained that cholesteatoma usually occurs because of poor Eustachian tube function and middle ear infection; because the Eustachian tube conveys air from the back of the nose to the middle ear to equalize pressure, poorly functioning Eustachian tubes will cause the air in the middle ear to be absorbed by the body, creating a partial vacuum in the ear. The resulting vacuum pressure can create a sac that can develop into a cholesteatoma by stretching the eardrum, especially in areas weakened by previous infection. If untreated, cholesteatoma can eat into the three small bones located in the middle ear, the malleus, incus, and stapes, collectively called the ossicles, resulting in nerve deterioration, deafness, imbalance, and vertigo. However, in October 2012, the second VA examiner found no evidence of cholesteatoma or signs of infection. Examination showed intact ossicles, no cholesteatoma, and no mucopus or acute infection. External ear and ear canal examination was normal. The October 2012 examiner noted the Veteran's history of chronic ear infections in service, and noted that mastoid films in service showed clouding of the left mastoid air cells but no bony erosion. The Veteran denied symptoms of otorrhea, or discharge from the ear. See Dorland's, at 1372. The examiner, a nurse practitioner, reviewed these results with a supervising VA physician who recommended a CT scan to conclusively rule out cholesteatoma. A CT scan of the temporal bones was ordered and showed a few strand-like densities in the bilateral auditory canals likely representing retained wax secretions, partial opacification of the left mastoid air cells, suspected perforation within the central aspect of the left tympanic membrane, mild bony thinning along the superior wall of the right superior semicircular canal, and no evidence of cholesteatoma. The nurse practitioner reviewed the CT scan with the supervising VA physician, a surgeon board-certified in otolaryngology and otology/neurotology, and both agreed there was no evidence of cholesteatoma or signs of infection on examination or on the CT scan report. In March 2013, the Board obtained an expert medical opinion from a VA otolaryngologist in order to assist with the Board's understanding and resolution of the medical opinions of record due to the complexity of the medical issues involved. The otolaryngologist, upon review of the relevant evidence, including the Veteran's statements and his spouse's statements, did not find that there was a medical basis for establishing a current disability of chronic ear infections because physical examination records and the CT report did not support a diagnosis of chronic ear infection. Further, the otolaryngologist determined that there is no physical examination evidence or CT evidence to support the January 2012 diagnosis of cholesteatoma. The specialist stated that "[i]n my opinion, this diagnosis is unsupported and unwarranted." The Board finds that the preponderance of the evidence is against finding a current disability of ear infections at any time during the appellate period. See Gilpin v. West, 155 F. 3d 1353, 1356 (Fed. Cir. 1998); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). The Veteran's own testimony indicates that his trouble with ear infections ended long before he filed the claim currently on appeal, he did not report any symptoms of ear infections to his private physician in January 2006, the examination and imaging data shows no evidence of ear infection, and there is no evidence of a recent diagnosis of ear infections prior to the time he filed the claim. Cf. Romanowsky v. Shinseki, No. 11-3272, 2013 WL 1907369 (Vet. App. May 9, 2013), vacated and reconsidered No. 11-3272, 2013 WL 3455655 (Vet. App. July 10, 2013). The Board does not doubt the sincerity of his testimony regarding the existence of his history of ear infections after discharge from service, but service connection may not be granted on the basis of a disability related to service that resolved well before the pending claim was filed. See Degmetich v. Brown, 104 F.3d 1328, 1330-32 (Fed.Cir.1997). Furthermore, the preponderance of the evidence is against finding a current disability of cholesteatoma. Rather, the greater weight of the medical evidence indicates that the diagnosis provided by the January 2012 VA examiner, a nurse practitioner without supervision by a physician, was in error. Review of the examiner's rationale shows that it is not based on the examination findings or diagnostic testing, but largely concerns the plausibility of the existence of cholesteatoma for a patient with the Veteran's reported symptoms and medical history. Conversely, the negative conclusion of the October 2012 VA examiner, a nurse practitioner supervised by a physician, and the March 2013 opinion provided by the VA otolaryngologist, a specialist, is premised upon relevant examination data and, critically, the CT scan report. As the January 2012 examiner was not aware of the these critical medical facts, and does not have the benefit of the knowledge of the physician supervising the October 2012 VA examiner or the VA otolaryngologist, the Board finds that the negative findings in the October 2012 VA examination report, November 2012 VA examination report addendum, and March 2013 VA expert medical opinion outweigh the diagnosis of cholesteatoma provided by the VA examiner. Nieves-Rodriguez, 22 Vet. App. at 302; Stefl, 21 Vet. App. at 123; Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993) ("The probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion that the physician reaches."). C. Earaches In September 2006, the Veteran reported symptoms of ear pain in cold weather and continuous ear aches starting one year after discharge from service. He also reported ear aches at a June 2007 VA audiological examination. In September 2011, his spouse submitted a statement describing the pain that results from any water in the Veteran's left ear, causing many sleepless nights. At the January 2012 VA examination of the ears, the Veteran reported ear pain three times a month. He stated that he did not seek medical attention for this ear pain. His service records also show multiple reports of ear pain associated with his chronic ear infections. However, his private physician noted no reported symptoms of ear pain upon examination and evaluation of the Veteran's ear disorders in January 2006 and the October 2012 VA examination report shows that the Veteran denied symptoms of ear pain, or otalgia. Dorland's, at 1371. In the March 2013 VA medical opinion, the otolaryngologist found that there was no physical examination or CT evidence of an identifiable source of ear pain, like infection or inflammation. The Board does not doubt the Veteran's reported history of ear pain and earaches after service, but the evidence does not establish the existence of ear pain or earaches during the period on appeal. See Degmetich, 104 F.3d at 1330-32. The Veteran's statements on the existence of any ear pain or earaches during the period on appeal are contradictory, and, as explained in the March 2013 VA medical opinion, there is no physical examination or CT scan evidence of an identifiable source of ear pain, particularly as the diagnosis of cholesteatoma is unwarranted, as discussed above. Consequently, the Veteran's statements on his symptoms of ear pain are outweighed by the medical evidence of record, particularly the finding of a lack of evidence establishing an identifiable source of ear pain in the March 2013 VA medical opinion. As the evidence does not establish the existence of a present disability of earaches during the appellate period, the requirement of a present disability needed to establish a claim for service connection is not met. See Gilpin, 155 F. 3d at 1356; McClain, 21 Vet. App. at 321. D. Peripheral vestibular disorder (claimed as loss of balance and motion sickness) In September 2006, the Veteran alleged symptoms of loss of balance and motion sickness as "side effects" of his service-connected tympanic membrane perforation. He also reported balance problems at a June 2007 VA audiological examination. At a January 2012 VA examination, the Veteran reported symptoms of dizziness and nausea with quick movements on fifteen separate occasions over the past year. The January 2012 VA examiner diagnosed the Veteran with benign paroxysmal positional vertigo (BPPV), with symptoms of hearing impairment with vertigo, tinnitus, vertigo, staggering, and hearing impairment and/or tinnitus. However, upon examination, the examiner found that the Veteran's gait was steady and Romberg test results were normal or negative without unsteadiness, results from the Dix Hallpike test (or Nylen-Barany test) for vertigo were normal without vertigo or nystagmus, and limb coordination testing (finger-nose-finger) was also normal. The examination report shows that the diagnosis was given without diagnostic imaging or other diagnostic procedures and the claims file was not reviewed. The examiner provided no rationale addressing the diagnosis of BPPV; rather, symptoms of vertigo are attributed to "residuals from ear perforation and cholesteatoma." In October 2012, the second VA examiner noted that the Veteran reported a history of three to five episodes dizziness per week, associated with quick movements such as climbing a ladder or standing or bending too quickly. He described these symptoms as feeling "off balance" with nausea, with symptoms resolving with about 10 minutes of sitting. The Veteran said that his primary doctor prescribed motion sickness pills for these symptoms which reduced the frequency of the episodes, though he reported ongoing occasional symptoms of dizziness if he moves too quickly with the last episode occurring a few months ago. He denied symptoms of visual changes, headaches, or increasing tinnitus associated with the episodes of dizziness. The October 2012 examination report also shows that the Veteran denied symptoms of vertigo, i.e., dizziness specifically resulting from an illusory sense that either the environment or one's own body is revolving. See Dorland's, at 2080 (The term is sometimes erroneously used to mean any form of dizziness). On examination in October 2012, the Veteran had a normal gait and his Romberg test was normal or negative for unsteadiness. During balance testing, the Veteran had difficulty using information from the vestibular system to maintain upright balance control, likely becoming more apparent when the Veteran is on irregular surfaces when visual cues are essentially absent or in low light conditions. Balance testing results include abnormal sensory organization abilities and evidence of an irritative peripheral vestibular lesion on the left side. Rotary chair diagnostics results were within normal limits, which could indicate a compensated vestibular weakness. The summary also contained the opinion that the Veteran is currently suffering very little disability. In November 2012, the VA examiner noted that balance testing reviewed with the supervising physician showed that BPPV was not present on balance testing-posturography examination. Consequently, the examiner provided the opinion that it is unlikely that the Veteran has a peripheral vestibular disorder or BPPV due to his left tympanic membrane perforation on the basis of the balance testing performed by audiology. In March 2013, the VA otolaryngologist noted the Veteran's reported history of dizziness with quick movements while, for example, climbing a ladder or standing too quickly, his description of feeling "off balance," and his reported symptoms of motion sickness, but found that these symptoms were not related to acoustic trauma in service or due to or aggravated by the Veteran's left tympanic membrane perforation, left ear hearing loss, and/or tinnitus. Motion sickness was also determined to be less likely than not related to acoustic trauma in service or due to or aggravated by the Veteran's left tympanic membrane perforation, left ear hearing loss, and/or tinnitus. The opinion explains that motion sickness is not expected with a history or presence of tympanic membrane perforation but that the exact etiology of the reported motion sickness is unclear. The otolaryngologist also determined that the Veteran's medical history and physical examinations do not support the January 2012 diagnosis of BPPV. In April 2013, the Board requested additional explanation for this opinion in order to facilitate the Board's understanding of the facts and rationale underlying the medical opinions on the Veteran's claimed symptoms of loss of balance and motion sickness. Specifically, the Board asked the VA medical specialist to explain whether the October 2012 balance testing report constitutes evidence of a current left side peripheral vestibular lesion or other vestibular disorder. The specialist reviewed the October 2012 balance testing report a second time and explained that the phrase "could indicate a compensated vestibular weakness" is confusing, and the conjecture that there "could be a problem that could be compensated for" is hypothetical. Neither of these findings, the specialist explained, are as important as the fact that rotary chair findings were within normal limits and that no abnormality was found. Therefore, while the balance testing report and opinion are "somewhat confusing," the conclusion that it is unlikely that the Veteran has a peripheral vestibular disorder or BPPV as noted on balance testing due to his left ear tympanic membrane perforation is both clear and correct. The specialist explained that the precise nature of any identified vestibular concern was unclear, but that testing failed to demonstrate any significant disability. Consequently, if there is a left-sided peripheral vestibular weakness, it is less likely than not related to acoustic trauma in service, or related to or aggravated by the left tympanic membrane perforation. Although a peripheral vestibular of BPPV was diagnosed by the January 2012 VA examiner and balance testing noted evidence of an irritative peripheral vestibular lesion on the left side, the October 2012 VA examination report and November 2012 addendum, as well as the March 2013 medical opinion and May 2013 addendum provided by the VA otolaryngologist, clearly state that the diagnosis of BPPV is unwarranted and the evidence weighs against the existence of any peripheral vestibular disorder due to the lack of significant abnormal findings on balance testing. The Board finds that the latter medical opinions, premised on review of balance testing data, physical examination data, and CT scan, outweigh the diagnosis provided by the October 2012 VA examiner, particularly as the examiner did not cite to any objective factual findings to support the diagnosis provided and all relevant tests administered were negative. Nieves-Rodriguez, 22 Vet. App. at 302; Stefl, 21 Vet. App. at 123. Consequently, as the greater weight of the evidence does not support the existence of a currently diagnosed disability of a peripheral vestibular disorder, including BPPV, service connection cannot be established for these erroneously identified disabilities. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (holding that Congress has specifically limited entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability). Furthermore, the Veteran's identified symptoms of loss of balance and motion sickness are not corroborated by the available objective medical findings. As noted above, the medical experts determined that any evidence of a balance disorder from balance testing was insignificant and all tests performed during examination were negative. Consequently, while the Veteran is competent to report symptoms of loss of balance and motion sickness, his lay testimony is outweighed by the objective medical findings in the record. Further, even if the Board conceded, for the purpose of this discussion, that the Veteran's reported symptoms of a balance disorder were credible and consistent with the medical evidence, the medical evidence shows that any such symptoms would nevertheless be less likely than not related to any acoustic trauma in service or due to or aggravated by the Veteran's service-connected disabilities of a left tympanic membrane perforation, left ear hearing loss, and tinnitus. Accordingly, the preponderance of the evidence is against finding the existence of a chronic balance disorder or motion sickness-related disorder in service, continuous symptoms of loss of balance and/or motion sickness since service or within a year after service, a link between any subjective complaints of loss of balance and motion sickness and the acoustic trauma experienced in service, or that any subjective complaints of loss of balance and motion sickness are due to or aggravated by the Veteran's service-connected perforated tympanic membrane, left ear hearing loss, or tinnitus. See Shedden, 381 F.3d at 1167; Walker, 708 F.3d at 1337-39; Allen, 7 Vet. App. at 448. Consequently, service connection for a peripheral vestibular disorder, or any subjective symptoms of loss of balance and/or motion sickness, is not warranted on a presumptive, direct, or secondary basis. E. Conclusion The preponderance of the evidence does not establish the existence of a current disability of ear infections, cholesteatoma, earaches, or any diagnosed peripheral vestibular disorder. Furthermore, the greater weight of the evidence is against finding that either the Veteran's symptoms of loss of balance and motion sickness resulted from acoustic trauma in service or that the Veteran's left ear tympanic membrane perforation, left ear hearing loss, or tinnitus, caused or aggravated any symptoms of loss of balance and motion sickness. Consequently, the claims for service connection for ear infections and/or cholesteatoma, earaches, and a vestibular disorder, claimed as loss of balance and motion sickness, must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. See 38 U.S.C.A. § 5107(b); Gilbert, 1 Vet. App. 53-56; 38 C.F.R. § 3.102. However, as the preponderance of the evidence weighs against the claims, that doctrine is not applicable. ORDER Service connection for ear infections and/or cholesteatoma is denied. Service connection for a disability manifested as earaches is denied. Service connection for a peripheral vestibular disorder (claimed as loss of balance and motion sickness) is denied. REMAND The claim for service connection for right ear hearing loss must be remanded for further development as no opinion has yet been obtained on whether right ear sensorineural hearing loss is related to acoustic trauma in service. See Robinson, 557 F.3d at 1361-62; McLendon, 20 Vet. App. at 81; see also 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). On remand, the Veteran should also be provided with appropriate VCAA notice of the evidence and information needed to substantiate this claim. See 38 U.S.C.A. § 5103(a), 38 C.F.R. §§ 3.159(b) Accordingly, the case is REMANDED for the following action: 1. Send the Veteran appropriate VCAA notice on the issue of entitlement to service connection for right ear hearing loss due to acoustic trauma in service. See 38 U.S.C.A. § 5103(a), 38 C.F.R. §§ 3.159(b), 3.310. 2. Schedule the Veteran for a VA audiological examination. The claims file and a copy of this remand must be made available to and reviewed by the examiner in conjunction with the examination. Appropriate testing, including a controlled speech discrimination test (Maryland CNC) and a puretone audiometry test, should be conducted. The results of puretone threshold testing for 500, 1000, 2000, 3000, and 4000 Hertz and speech recognition testing using the Maryland CNC test are to be reported. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any right ear hearing loss had its onset during active service or is related to any in-service disease, event, or injury, including acoustic trauma from standing in close proximity to 5"/38 caliber naval guns without hearing protection. If any requested information cannot be provided without resort to speculation, indicate whether the inability to provide a definitive opinion is due to a need for further information, because the limits of medical knowledge have been exhausted, or for some other reason. The examiner must identify the facts relied on in reaching any opinion provided and provide a full explanation as to why those particular facts support the examiner's conclusions. 3. Finally, readjudicate the claim on appeal. If the claim remains denied, provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate time for response. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ K. Parakkal Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs