Citation Nr: 1328655 Decision Date: 09/09/13 Archive Date: 09/17/13 DOCKET NO. 10-16 004 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to service connection for residuals of a right ear cyst. 2. Entitlement to service connection for right ear hearing loss. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Catherine Cykowski, Counsel INTRODUCTION The Veteran had active duty service from July 1982 to May 1986. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. In February 2011, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the claims file and has been reviewed. FINDINGS OF FACT 1. The Veteran had otitis media of the right ear during service. 2. The Veteran was exposed to acoustic trauma in service, including noise from firearms. 3. Right ear hearing sensorineural hearing loss did not manifest to a compensable degree within one year of separation from service in May 1986. 4. Symptoms of right ear hearing loss have not been continuous since service. 5. Current right ear hearing loss is not related to service. 6. Current residuals of a right ear cyst are not related to service. CONCLUSIONS OF LAW 1. The criteria for service connection for residuals of a right ear cyst are not met. 38 U.S.C.A. §§ 1131, 5103, 5103A, 5107 (West 2002); 38 C.F.R. § 3.303 (2012). 2. The criteria for service connection for right ear hearing loss are not met. 38 U.S.C.A. §§ 38 U.S.C.A. §§ 1101, 1112, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating a claim for VA benefits, as codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2012). For the reasons to be discussed, the Board finds that VA has satisfied its duties to the appellant under the VCAA. A VCAA notice consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. See Quartuccio v. Principi, 16 Vet. App. 183 (2002). VCAA notice requirements apply to all five elements of a service connection claim (1) veteran status; (2) existence of disability; (3) connection between service and the disability; (4) degree of disability; and (5) effective date of benefits where a claim is granted. Dingess v. Nicholson, 19 Vet. App. 473, 484 (2006). VA has made all reasonable efforts to assist the Veteran in the development of his claims, has notified him of the information and evidence necessary to substantiate the claims, and has fully disclosed VA's duties to assist him. In a May 2009 letter, the Veteran was notified of the information and evidence needed to substantiate the claims on appeal. Additionally, the May 2009 letter provided him with the general criteria for the assignment of an effective date and initial rating. Id. The Board notes that, in the present case, initial notice was issued prior to the adverse determination on appeal; thus, no timing issue exists with regard to the notice provided the claimant. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). The Board further finds that VA has complied with the duty to assist by aiding the appellant in obtaining evidence. It appears that all known and available records relevant to the pending appeal have been obtained and are associated with the Veteran's claims files. The RO has obtained the Veteran's service treatment records, as well as VA and non-VA medical records and Social Security records. He has also been afforded a VA medical examinations in May 2010 and July 2010, and a VHA medical opinion was obtained in May 2013. The Board notes that the VA medical evidence contains sufficiently specific clinical findings and informed discussion of the pertinent history and clinical features of the disability on appeal and is adequate for purposes of this appeal. The Board is not aware, and the Veteran has not suggested the existence of, any additional pertinent evidence not yet received. In February 2011, the Veteran was afforded the opportunity to testify before a Veterans Law Judge. During the hearing, the Veterans Law Judge clarified the issue on appeal and asked about the possibility of forgotten records. Such actions supplement the VCAA and comply with 38 C.F.R. § 3.103. The Board is not aware, and the Veteran has not suggested the existence of, any additional pertinent evidence not yet received. Based on the foregoing, the Board finds that the Veteran has not been prejudiced by any failure of VA in its duties to notify and assist him, and that any such violations could be no more than harmless error. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). In any event, the Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of VA's notices or other development. See Shinseki v. Sanders, 129 U.S. 1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination). Thus, adjudication of his claims at this time is warranted. Service Connection for Residuals of Right Ear Cyst and Right Ear Hearing Loss Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. § 1131 (West 2002 & Supp. 2012); 38 C.F.R. § 3.303(a) (2012). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b) (2012). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2012). Where a veteran who served for ninety days or more during a period of war (or during peacetime service after December 31, 1946) develops certain chronic diseases, such as sensorineural hearing loss, to a degree of 10 percent or more within one year from separation from service, such diseases may be presumed to have been incurred in service even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. See 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.307, 3.309. In Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013), the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) held that 38 C.F.R. § 3.303(b) does not apply to any condition that has not been recognized as chronic under 38 C.F.R. § 3.309(a). Sensorineural hearing loss is recognized as a chronic disorder by 38 C.F.R. § 3.309(a). Cholesteatoma is not recognized as a chronic disorder by 38 C.F.R. § 3.309(a). In cases involving service connection for hearing loss, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385 (2012). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). When there is an approximate balance of positive and negative evidence regarding any matter material to the claim, the claimant shall be given the benefit of the doubt. 38 U.S.C.A. § 5107 (West 2002). The Veteran asserts that he developed a right ear cyst while on active duty. He asserts that, as a result of the cyst not being diagnosed, hearing loss of the right ear developed. The Veteran had active duty service from July 1982 to May 1986. Regarding injury in service, the DD Form 214 reflects that the Veteran received a marksman badge and a sharpshooter badge. Therefore, the Veteran's exposure to acoustic trauma from gunfire is demonstrated. During service, in October 1985, the Veteran reported a sore throat. He was diagnosed with otitis media. Service treatment records do not reflect complaints or findings of right ear hearing loss or a right ear cyst. Right ear sensorineural hearing loss did not manifest, including to a compensable degree, within one year of service separation in May 1986. As findings or diagnosis of sensorineural hearing loss of the right ear is not shown within one year of service separation in May 1986, there is no basis for presumptive service connection for sensorineural hearing loss of the right ear as a chronic disease manifesting to a compensable degree within one year of service separation. 38 C.F.R. §§ 3.307, 3.309. A private treatment record dated in September 2002 reflects that the Veteran complained of intermittent otorrhea from the right ear over the past four months. He noted a plugged sensation in the right ear and slightly reduced hearing. In November 2002, the Veteran was diagnosed with cholesteatoma. He underwent modified radical tympanomastoidectomy in November 2002. A post-service diagnosis of right ear hearing loss is initially shown in private medical records dated in November 2002. His current diagnoses include right sensorineural hearing loss and sclerosing of the tympanic membrane. The Veteran had a VA examination in July 2010. The Veteran reported right ear drainage while in service. He reported that the ear was cleaned out with a curette, and he was told it was "punctured" and they allowed it to drain. He reported that had had no recurrence of the drainage until several years ago. Then he had an x-ray, which showed a cyst. The Veteran reported that he had surgery to remove the cyst in 2000. He stated that, since then, he had not had any drainage, but he had hearing loss in the right ear. The examining VA physician opined that it is less likely than not that his current sclerosing of the tympanic membrane as a residual of the surgery he had to remove the soft tissue mass, is related to his one occurrence of otitis media in service in 1985, as there is no evidence showing chronicity of this disease and no evidence of him being seen until 2000. The Veteran had a VA audiology examination in May 2010. An audiogram performed in conjunction with that examination reflects right ear hearing loss as defined by § 3.385. The VA examiner diagnosed right ear hearing loss. The examiner opined that the Veteran's right ear hearing loss is less likely than not related to service. The examiner reasoned that audiometry in service does not show any hearing loss in either ear. The examiner noted that service treatment records show one treatment for otitis media, not ear specific. The Veteran had right middle ear surgery many years post service. The VA examiner opined that middle ear problems can develop at any time and are not related to noise exposure or secondary to service. A VA treatment record dated in March 2011 reflects a VA physician's opinion regarding the etiology of the current right ear disorder. The physician noted right ear issues began during service in the 1980's. The physician opined that these issues seem to be at least as likely as not related to military service. The physician further noted that the Veteran's ear infections have been causing problems since 1985. The Veteran testified at a hearing before the Board in February 2011. The Veteran testified that he was treated for an ear infection in October 1985. He stated that his ear was drained at that time. The Veteran stated that his ears hurt after that. The Veteran also noted that he had hearing problems during service. He stated that his job was to go and clean weapons and go to the rifle range and watch troops qualify. He stated that he could not hear at that time. The Veteran also testified that, in 2000 and 2002, he noticed the same type of drainage from his ear that he had when he was in service. In May 2013, a VA otolaryngologist reviewed the claims file and provided a VHA medical opinion. The VA examiner reviewed the treatment history in detail. The VA examiner opined that the Veteran's right ear hearing loss is not related to service. The VA examiner opined that right ear hearing loss is most likely caused by or a result of the otologic disease and cholesteatoma the Veteran had and was treated for in 2002. The VA examiner noted that the Veteran reported hearing loss, otorrhea (ear drainage), and otalgia (ear pain) symptoms that prompted him to seek medical attention in 2002. The VA examiner indicated that these descriptions in conjunction with a lack of audiometric data make it difficult to discern when his hearing dropped to a severe level. From review of the descriptions of his medical issues, the examiner opined that the Veteran was treated for a minor ear infection while in service, as opposed to being treated for a large, erosive cholesteotoma in 2002. The VA examiner opined that a right ear cholesteatoma was not caused by or the result of an in-service right ear infection. The VA examiner opined that the right ear cholesteotoma did not have its onset during military service in 1985, as this does not fit with the medical history as reported in the documentation within the claims file. The VA examiner opined that, furthermore, current medical knowledge and evidence of development, pathophysiology, and natural history of cholestoatoma of the ear does not support the formation of 10 years or more prior to presentation and exhibition of symptoms. The examiner indicated that it is known that a history of otologic disease or infection can be associated with subsequent development of cholesteatoma. The VA examiner noted that there is no record of repeated medical visits or interventions or treatments for ear disease between the issue in 1985 and the otologic surgery in 2002. The VA examiner stated that, therefore, there is insufficient evidence to conclude whether the Veteran did in fact have chronic ear disease and/or infection, which could have contributed to the formation of cholesteatoma. The VA examiner opined that further opinion as to this connection would be speculative as there are no supporting medical documents. In this case, the Board concludes that continuity of sensorineural hearing loss disability since service is not shown. A sensorineural hearing loss disability was first shown in 2002, some 16 years after separation from service. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (lengthy period of absence of medical complaints for condition can be considered as a factor in resolving claim); see also Mense v. Derwinski, 1 Vet. App. 354, 356 (1991). In addition, the Veteran's testimony of hearing loss since service is inconsistent with the history provided in private treatment records and the 2010 VA examination. Private treatment records dated in 2002 do not reflect that the Veteran reported a history of right ear hearing loss since service. In September 2002, the Veteran denied chronic problems with his ears. The July 2010 VA examination reflects that the Veteran reported that he had hearing loss in his right ear since the ear surgery to remove a cyst. For these reasons, the Board concludes that right ear sensorineural hearing loss has not been continuous since service. The record in this case contains conflicting opinions regarding the issue of a medical nexus. The probative value of medical evidence is based on the physician's knowledge and skill in analyzing the data, and the medical conclusion the physician reaches; as is true of any evidence, the credibility and weight to be attached to medical opinions are within the province of the Board. See Guerrieri v. Brown, 4 Vet. App. 467, 470-471 (1993). When reviewing such medical opinions, the Board may appropriately favor the opinion of one competent medical authority over another. See Owens v. Brown, 7 Vet. App. 429, 433 (1995). However, the Board may not reject medical opinions based on its own medical judgment. Obert v. Brown, 5 Vet. App. 30 (1993); see also Colvin v. Derwinski, 1 Vet. App. 171 (1991). The factors for assessing the probative value of a medical opinion include the physician's access to the claims folder and the Veteran's history, and the thoroughness and detail of the opinion. Prejean v. West, 13 Vet. App. 444 (2000). The weight of a medical opinion is diminished where that opinion is ambivalent, based on an inaccurate factual premise, based on an examination of limited scope, or where the basis for the opinion is not stated. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993); Sklar v. Brown, 5 Vet. App. 140, 146 (1993); Guerrieri, 4 Vet. App. at 470-71. ] The record in this case contains conflicting medical opinions regarding the issue of a medical nexus. The medical evidence in favor of the claim includes the March 2011 VA treatment record. Although the opinion was provided by a physician, it was less detailed than the other medical opinions of record, and importantly, it did not address the treatment history for the claimed conditions. The May 2010, July 2010 and May 2013 medical opinions were all based upon a review of the claims file. The examiners provided detailed rationales for the conclusions reached, which included a discussion of the Veteran's service treatment records and post-service medical records. The Board finds the 2011 VA outpatient treatment record of lower probative value regarding the etiology of right ear cyst and right ear hearing loss. Therefore, the Board finds that the weight of the competent medical evidence is against a finding of a nexus between the Veteran's current right ear cyst and right ear hearing loss and his service. The Board has considered the Veteran's statements and testimony. Lay testimony is competent to establish the presence of observable symptomatology and may provide sufficient support for a claim of service connection. Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Veteran is competent to describe what he experienced, such as having problems with his right ear in service and experiencing problems with his hearing. However, a lay person such as the Veteran, lacks the medical training and expertise to be able to provide a complex medical opinion regarding the etiology of his current right ear hearing loss and related symptoms. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). The Board finds that any such statements made by the Veteran are of less probative weight when compared to the remainder of the evidence of record, both lay and medical. As discussed above, multiple competent medical examiners have stated, based on review of the pertinent medical history, that the current right ear disorder and hearing loss are unrelated to the Veteran's in-service acoustic trauma and diagnosed otitis media. For the reasons set forth above, the Board finds that there is a preponderance of the evidence against the claims for service connection for residuals of a right ear cyst and right ear hearing loss. As there is a preponderance of the evidence against the claims, reasonable doubt may not be resolved in the Veteran's favor, and the claims must be denied. 38 U.S.C.A. § 5107. ORDER Service connection for residuals of a right ear cyst is denied. Service connection for right ear hearing loss is denied. ____________________________________________ T. D. JONES Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs