Citation Nr: 1327073 Decision Date: 08/23/13 Archive Date: 08/29/13 DOCKET NO. 07-29 245 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Providence, Rhode Island THE ISSUE Entitlement to service connection for a left ear disability, other than hearing loss, to include otitis externa and otitis media. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Emily L. Tamlyn, Counsel INTRODUCTION The Veteran served on active duty from December 1965 to December 1968. He also had various periods of active duty for training (ACDUTRA) with the Army Reserve. This matter initially came before the Board of Veterans' Appeals (Board) from an August 2007 rating decision of the Department of Veterans' Affairs (VA) Regional Office (RO) in Providence, Rhode Island. In that decision, the RO denied entitlement to service connection for chronic otitis media of the left ear. The Veteran testified before the undersigned at a May 2009 hearing at the RO (Travel Board). A transcript of the hearing is associated with his claims folder. In September 2009 and December 2011, the Board remanded this matter for further development. Other issues involved in this appeal included service connection for a psychiatric disability and bilateral hearing loss; the former was granted in the December 2011 Board decision and the latter was granted by the Appeals Management Center in November 2012. These issues are no longer on appeal. FINDING OF FACT A left ear disability, other than hearing loss, to include otitis externa and otitis media, is not related to service. CONCLUSION OF LAW The criteria for service connection for a left ear disability, other than hearing loss, to include otitis externa and otitis media, are not met. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION VCAA As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), 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. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Proper notice from VA must inform the claimant of any information and 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 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim, including the degree of disability and the effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. VCAA notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by re-adjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). The Veteran was sent a letter in April 2007 that provided information as to what evidence was required to substantiate the claim and of the division of responsibilities between VA and a claimant in developing an appeal. The letter also explained what type of information and evidence was needed to establish a disability rating and effective date. No further development is required with respect to the duty to notify. Next, VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting the Veteran in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The claims file contains the Veteran's service treatment records, as well as post-service reports of VA and private treatment and examination. Social Security Administration (SSA) records are also in the file. Moreover, the statements in support of the claim are of record, including testimony provided at a May 2009 Board hearing before the undersigned. The Board has carefully reviewed such statements and concludes that no available outstanding evidence has been identified. The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claim. Several VA medical examinations were undertaken and several opinions were in file. For reasons explained further below, the Board finds the January 2013 VA opinion is fully adequate and takes into account all pertinent aspects of this case. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The Court has held that the provisions of 38 C.F.R. § 3.103(c)(2) (2012) impose two distinct duties on VA employees, including Board personnel, in conducting hearings: The duty to explain fully the issues and the duty to suggest the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488 (2010) (per curiam). Here, the transcript of the May 2009 Board hearing shows the Veteran gave information regarding his left ear disability claim and responded to questions aimed at determining whether further information was needed to substantiate the claim. (Transcript, pp 21-30.) The Veteran and his representative (who was present at the hearing) have not raised complaints regarding the conduct of the hearing. The Board's previous remands were for efforts to verify all periods of service, obtain treatment and SSA records; and afford the Veteran adequate examinations. This development has been completed. Extensive personnel records were received and pertinent periods of service were verified; the SSA and private records were obtained, and the Veteran was afforded adequate examinations. There has been substantial compliance with the remand. See Stegall v. West, 11 Vet. App. 268 (1998). For the above reasons, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant 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). Service Connection Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2012). 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); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); see also Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology if the disability claimed qualifies as a chronic disease listed in 38 C.F.R. § 3.309(a); otitis media and otitis externa are not qualifying chronic diseases. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). As a result, service connection via the demonstration of continuity of symptomatology does not apply here. Due consideration shall be given to the places, types, and circumstances of a veteran's service as shown by such veteran's service record, the official history of each organization in which a veteran served, a veteran's treatment records, and all pertinent medical and lay evidence. 38 U.S.C.A. § 1154(a)(1) (West 2002). The Board must determine the value of all pertinent lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006). The evaluation of evidence generally involves a three step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible; in determining whether documents submitted by a veteran are credible, the Board may consider internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza, 7 Vet. App. 498. The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2) (West 2002). Lay evidence may be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition (i.e., when the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer); (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. Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009) (a medical opinion was not required to prove a nexus between a service-connected mental disorder and drowning which caused death). Lay evidence may be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." See Charles v. Principi, 16 Vet. App. 370 (2002). Laypersons have generally been found to not be competent to provide evidence in more complex medical situations. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (concerning rheumatic fever). The Veteran asserts he has a left ear disease disability that is related to an incident that occurred during his Army Reserve service. In a November 2004 statement, the Veteran stated that in summer 1991, the Veteran stated he was on Reserve unit training when a drop of gas fell in his left ear canal after he had crawled underneath a vehicle to evaluate it. It felt like it burned and he attempted to flush his ear with water. After a couple days his ear became blocked and uncomfortable. He went to Cutler Army Hospital for sick call and was given antibiotic. He had repeated infections in this ear and felt his hearing loss in that ear had worsened as a result. At the May 2009 Board hearing, the Veteran essentially described the same situation as he reported in 2004 (Transcript, p 21). He believed his hearing loss was worse in his left ear (Transcript, p 22). When asked about the date the gas went in his ear, he responded that it happened in the early 1990s, possibly 1991 (Transcript, p 29). Service records do document that the Veteran was on a period of active duty for training (ACDUTRA) when there was an incident where gas spilled into one of his ears. Orders show Annual Training from April 8, 1991 for a period twelve days and an April 12, 1991 service treatment record shows the Veteran complained of "R ear [with] gasoline in ear." He complained of irritation. A right tympanogram was normal but the canal was irritated and red. The assessment was otitis externa. VA did not receive this particular Reserve record until April 2010, when the Veteran submitted it. It was not included with his service personnel and treatment records provided by the service department. Service treatment records show the Veteran entered his first period of active duty service in January 1965 with essentially normal hearing. At separation in October 1968, the report of medical examination (RME) showed normal hearing as well; high frequency hearing loss (not for VA purposes under 38 C.F.R. § 3.385) was noted in the right ear. The records from the Reserve period of service (which the Veteran reported as dating from about April 1984 to 2003-see initial August 2004 claim form) show initially the Veteran denied ear trouble or loss of hearing. He had a 25 at 4000 Hertz for the left ear and reported nose trouble only. In March 1985, a report of medical history showed he checked ear, nose and throat (ENT) trouble, but only reported a past septoplasty. A March 1988 RME showed the ears were normal but on the December 1988 report of medical history (RMH), the Veteran reported ENT and hearing loss; only allergies were noted. Service department records dated after the 1991 gasoline incident do not report any residual disability or document further ear infections. The RME in February 1992 showed the ears were normal and hearing was within normal limits. A RMH shows ENT trouble was reported, but there was no explanation. In July 1995, the RME again showed that clinical evaluation of the ears was normal and the RMH again showed the Veteran reported ENT trouble, but only the past septoplasty was noted. The same was reported on the November 1999 RMH; the RME noted both ear drums were occluded with cerumen (ear wax). He had a 40 decibel loss in the right ear and 45 decibel loss in left ear at 4000 Hertz. A record with part of the date cut off (reading 04 MAR 0) shows 35 decibel loss in the right ear and 30 decibel loss in the left ear at 4000 Hertz; the record states his hearing was "averaging" normal. Some post-service records were not submitted by the Veteran until September 2012; this includes some records from Dr. A.D. and Dr. W.S. At that time, the Veteran stated that it appeared some chronological records from Dr. A.D. were missing from what he received from this clinician; this is because a September 2000 chief complaint sheet is the first record and then treatment notes do not start until 2004. In September 2000 the Veteran stated his problem started in 1991 or 1992 as an infection in the left ear. He stated gas dripped in the ear and it was treated with antibiotic drops. Other records of Dr. A.D. from February 2004 to September 2005 show the Veteran had treatment for problems in both ears, but predominantly the left ear; it was intermittently treated, checked and cleared for ear wax and problems. Other records from Dr. C.K. show that in 2001 the Veteran stated that ever since 1993 he had had problems with his ears. "He says once he had some gasoline accidentally poured in his ear." Dr. C.K. stated one year earlier he had seen an ENT and was put on an antibiotic. He complained of a symptomatic left ear only. A January 2004 record shows he complained of otitis externa with symptoms in both ears. In November, he went to VA and reported that he had frequent otitis media/externa since ACDUTRA. His ears appeared normal at the time. In March 2005, a VA audiology record noted the Veteran had never been seen by VA audiology before. He reported hearing loss, worse in the left ear, which he had noticed for many years. His audiogram results were inconsistent and he was to be recalled. He reported that while in the reserves a drop of gasoline entered his left ear. Later that month, he attended a VA audiology examination and reported the same. Records from Dr. W.S. start in December 2005, when Dr. C.K. referred the Veteran. It was noted that the Veteran had a long history of left-sided ear problems which dated back to "early military days when he had significant sound exposures and even had an accident where gasoline leaked into his left ear, causing irritation." The right ear was noted to be healthy but the left ear needed treatment. In January 2006, private laboratory reports show the Veteran was diagnosed as having an infection of methicillin-resistant Staph aureus (MRSA). In March, Dr. W.S. noted bilateral wax impaction and the MRSA finding. Dr. W.S. referred the Veteran to Dr. H.C. because of the MRSA finding. Dr. H.C. explained, in a March 2006 record, the Veteran told him that several years ago he had a gasoline burn when it leaked into his ear. He then had multiple episodes of otitis media. He was treated local and systemic microbial therapy; the culture eventually grew MRSA. It was noted the left ear had crusting with no otitis. The right ear was unremarkable. In March 2007, Dr. H.C. wrote a letter in support of the Veteran's claim stating that he had MRSA and had apparently sustained an inner ear gasoline "burn" while on active military duty in 1992 resulting in hospitalization. He stated: Since this incident this gentleman reports a hearing deficit and recurrent inner ear infections. I have not seen any reports of the initial injury but feel, as reported by the patient, the occurrence of his symptoms are probably due to his 1992 injury. From November 2004, about the same time the Veteran filed his claim, VA records show the Veteran complained of ear itching, draining, sensitivity and pain. He was given ear plugs to use while showering and generally noted to have an otitis externa (See November 2008 to June 2009 VA, to include VA ENT, records). Dr. W.S. continued to treat the Veteran for otitis externa through February 2012. In a March 2010 record, a moderate amount of wax was noted in both ears. The Veteran complained his perception of sound was different in the left versus the right. Dr. W.S. explained that his left ear was shaped slightly different with a slightly narrower opening, which could affect perception of sound. In an April 2011 record, Dr. W.S. stated the Veteran had "known eczema." VA examiners prior to January 2013 not have the benefit of all of the Veteran's private records and the April 1991 service treatment record for review. The March 2010 VA ear disease examination report again noted the Veteran's contentions, his treatment for his left ear and the more recent MRSA infection. The examiner noted he was seen by VA ENT clinicians in June 2009 and had no symptoms. The examiner stated chronic otitis externa was less likely as not caused by or a result of an accident or infections which started on active duty at least partially because there was no documentation of the gasoline incident as described by the Veteran; no treatment records from Dr. W.S. The Veteran also did not have conductive hearing loss that could occur from repeated ear infections. Without further evidence the examiner could not make a connection between the Veteran's report of chronic otitis externa and the gas incident in reserve training without resorting to mere speculation. A follow up opinion from July 2011 shows that the examiner reviewed the newly received April 1991 service treatment record, but pointed out that it was for the right, not left, ear. This was in conflicted with what the Veteran had claimed. The examiner noted that Dr. W.S.'s records were still not of record. In January 2012, another VA examiner noted the Veteran's contention that a clinician wrote "right ear" instead of "left ear" on the April 1991 record. The examiner saw Dr. H.C.'s March 2007 opinion that there was a probable nexus to service. The January 2012 VA audiology examination results (which provided a nexus between bilateral hearing loss and service) were noted as well as the Veteran's symptoms (the left ear was noted to be symptomatic). It was noted the Veteran had a history of recurrent ear infections-otitis media and externa. He had an active infection the day of the examination. The examiner stated: If the veteran is able to produce records that show the chronicity of such ear infections, a decision connecting he ear infections to military service could be reached. Based on his history and symptoms alone, it is very possible that the initial physician who evaluated him in 1991 erroneously documented the wrong affected ear in the note. In January 2013, a VA examiner reviewed the file and provided a new opinion. She noted the absence of a service treatment record showing gas in the left ear in service, but referenced the service treatment record showing gas in the right ear. She noted the Veteran stated this happened to his left ear, but stated she was not able to find a record showing that gas was in the left ear. The examiner summarized Dr. W.S.'s records which began in 2005 and were submitted by the Veteran. The 2012 VA examination reports were also noted. The examiner stated it was less likely than not that a left ear condition (to include otitis media and externa) was related to service. The examiner initially noted "no active duty medical records to substantiate the gas event or ear conditions in service." She stated the post-service ear records did not indicate left ear otitis media conditions. The examiner went on to state that there was no clinical evidence of structural or anatomical damage to the external ear canal and no indication the ear was damaged by exposure to gasoline or caustic agents. She explained there was no scientific evidence based literature pertaining to physiologic or functional changes in the production of cerumen secondary to an acute, transient exposure of gasoline or caustic agent. Otitis externa was due to a buildup of ear was in the canal; it was a bacterial or fungal infection of the outer ear canal. The buildup of wax caused an increase in moisture that allowed germs to harbor which caused localized infection. For these reasons, the examiner provided a negative opinion and concluded it was at least as likely as not that the recurrent ear infections were caused by the aging process as well as the Veteran's inability to keep his ears clear of ear wax and moisture. The examiner went to state that there was scant medical evidence in the service records to substantiate this ear condition and there was normal but narrowing ear canals and similar hearing loss bilaterally. Analysis The Veteran's statements regarding left ear symptoms are competent because itching, discharge and ear pain are within his own personal experience. See 38 C.F.R. § 3.159(a). He would also be competent to say that he got gasoline in the left ear and that he had recurrent symptoms in following years. Regarding credibility, the Veteran initially reported to a private physician in September 2000 that he had had a left ear infection in 1991 or 1992, when gasoline had dropped in that ear. He believed his disability had begun at that time. He has subsequently reported without specificity that he had experienced recurrent infections since the gasoline exposure in service. His reports are contradicted by the April 1991 treatment record, which shows that the gasoline entered the right ear and that diagnostic testing was performed on the right ear. His reports are also contradicted by the intervening service department RMHs in July 1995 and November 1999 showing no pertinent complaints, history, or current disability. The Veteran has not reported any specific treatment for left ear infections between 1991 and 2000. This is significant because in the years since 2000, it appears he regularly sought treatment when he experienced symptoms of an ear infection. For these reasons, the Board finds the reports of gasoline in the left ear with recurrent infections since, to lack credibility. See Buchanan Nicholson, 451 F.3d 1331, 1336 (Fed.Cir.2006) (While the lack of contemporaneous medical records may be a fact that the Board can consider and weigh against a veteran's lay evidence, the lack of such records does not, in and of itself, render lay evidence not credible). As a result, the Board assigns the Veteran's assertions less weight. In any case, continuity of symptomatology is not an avenue to service connection in this case. See Walker, 708 F.3d 1331. There are varying medical opinions in this case. To determine the probative value of medical opinions the Board considers three factors. See Nieves-Rodriguez, 22 Vet. App. 295. The initial inquiry in determining probative value is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case. A review of the claims file is not required, since a medical professional can also become aware of the relevant medical history by having treated a Veteran for a long period of time or through a factually accurate medical history reported by a Veteran. Id. at 303-04. The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion. Id. A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The third and final factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis. The most probative value of a medical opinion comes from its reasoning. Therefore, a medical opinion containing only data and conclusions is not entitled to any weight. In fact, a review of the claims file does not substitute for a lack of a reasoned analysis. See Nieves-Rodriguez, 22 Vet. App. at 304; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion...must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."). Dr. H.C. provided a supportive nexus opinion; but this opinion was not fully informed because he did not have access to the report of the in-service injury. The report of the in-service injury contained information contrary to the history considered by Dr. H.C., and would need to be considered for a fully informed opinion. In addition while Dr. H.C. stated that the Veteran reported a greater hearing deficit on the left, he did not report any actual finding of greater hearing loss on the left. Subsequent examinations were interpreted as showing no significant difference in hearing in the left ear versus the right. The January 2013 VA audiology examination shows the hearing loss was found to be very similar bilaterally. Accordingly, Dr. H.C.'s opinion is of limited probative value. VA examinations prior to January 2013, are also of limited probative value because they did not consider the complete record; and they appear to have been based on the absence supporting service treatment records alone. Cf. Dalton v. Nicholson, 21 Vet. App. 23 (2007). One VA examiner posited a number of hypothetical circumstances that could lead to a favorable opinion, but those circumstances have not been shown, inasmuch as the record does not show frequent recurrent left ear infections in the years immediately after the 1991 gasoline incident. The January 2013 opinion was fully informed in that the examiner discussed all of the relevant evidence. The opinion is definitive and it explains causes of otitis externa and relies on science-based literature. Even if it was accepted that the Veteran's left ear had gasoline in it in service, the examiner pointed out there was no indication of structural/anatomic damage to the ear; there was no science based evidence showing that gas in the ear could cause wax to build up; and the cause of localized infection is wax build up in the ear which "allows germs to harbor." Due to its above finding regarding the veracity of the April 1991 record, the Board finds the examiner was correct in stating there was no showing the left ear was impacted by gasoline in service. The examiner also noted that post-service ear records did not indicate otitis media conditions; this is supported by the records which for the most part note a history of otitis media and generally only found otitis externa. The Board assigns more weight to the January 2013 VA opinion because, in contrast to Dr. H.C.'s opinion, it appears to be the most informed piece of evidence in the file, the opinion is fully articulated and it is supported by reasons that are based on an accurate reading of the record and medical knowledge. Hence, it is fully articulated. See Nieves-Rodriguez, 22 Vet. App. at 304. The evidence is against finding a link between a left ear disability other than hearing loss, to include otitis externa and otitis media, and service. Because the weight of the evidence is against the claim, reasonable doubt does not arise and the claim is denied. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. ORDER Service connection for a left ear disability, other than hearing loss, to include otitis externa and otitis media, is denied. ____________________________________________ Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs