Citation Nr: 1330284 Decision Date: 09/20/13 Archive Date: 09/25/13 DOCKET NO. 05-36 464 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUE Entitlement to service connection for a chronic ear disorder, other than hearing loss and tinnitus. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD K. L. Wallin, Counsel INTRODUCTION The Veteran served on active duty from September 1979 to February 1980. He also had a period of Reserve service. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota. The Veteran withdrew all requests for hearing in January 2008. As such, there are no outstanding hearing requests of record. In September 2009, the Board reopened a previously denied claim of entitlement to service connection for an ear disorder, including hearing loss. The Board remanded the underlying claim for additional development and adjudication. In January 2011, the Board granted service connection for right ear hearing loss and denied service connection for left ear hearing loss. The Board would note that service connection for tinnitus was previously granted by the RO in December 2005. The claim for a chronic ear disorder has been recharacterized accordingly on the cover page of the instant decision. The Board remanded the claim for a chronic ear disorder other than hearing loss in January 2011 and October 2012. In April 2013, the Board sought a medical expert opinion as set forth in VHA Directive 1602-01 (February 4, 2013). In June 2013, the Veteran was provided a copy of the May 2013 VHA opinion and given 60 days to review the opinion and send any additional evidence or argument. The Veteran waived the remainder of the 60 days in August 2013 and requested the claim be submitted to the Board for review. FINDING OF FACT The Veteran's chronic ear disorder, other than hearing loss and tinnitus, pre-existed his active duty military service; there was no increase in disability during such service beyond the natural progression of the disease. CONCLUSION OF LAW The Veteran does not have chronic ear disorder, other than hearing loss and tinnitus, due to disease or injury that was incurred in or aggravated by active service. 38 U.S.C.A. §§ 1101, 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.306 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Notice and Assistance Upon receipt of a complete or substantially complete application for benefits and prior to an initial unfavorable decision on a claim by an agency of original jurisdiction, VA is required to notify the appellant of the information and evidence not of record that is necessary to substantiate the claim. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159; Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The notice should also address the rating criteria or effective date provisions that are pertinent to the Veteran's claims. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The RO provided the Veteran pre-adjudication notice by letter dated in August 2004. Additional letters were sent to the Veteran in March 2006 (containing notice pursuant to Dingess decision), July 2008, and October 2012. VA has obtained service treatment records, assisted the Veteran in obtaining post-service records (VA and private outpatient treatment records), afforded the Veteran VA examinations, and sought a VHA opinion. The Veteran withdrew his request for hearing. The Board notes that a formal finding on the unavailability of service treatment records dated between 1979 and 1980 was made in April 2007; however, these records have obtained and associated with the claims folder. There has been no allegation of any missing records by the Veteran. All known and available records relevant to the issue on appeal have been obtained and associated with the Veteran's claims file; and the Veteran has not contended otherwise. VA has substantially complied with the notice and assistance requirements and the Veteran is not prejudiced by a decision on the claim at this time. II. Analysis The Board has reviewed all the evidence in the Veteran's paper claims file and virtual record. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis will focus specifically on what evidence is needed to substantiate each claim and what the evidence in the claims file shows, or fails to show, with respect to each claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Establishing service connection generally requires medical evidence or, in certain circumstances, lay evidence of the following: (1) A current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) nexus between the claimed in-service disease and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed.Cir.2007); Hickson v. West, 12 Vet. App. 247 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table). In this decision, the Board has considered all lay and medical evidence as it pertains to the issue. 38 U.S.C.A. §§ 5107(b), 7104(a); 38 C.F.R. § 3.303(a). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). In determining whether statements submitted by a veteran are credible, the Board may consider internal consistency, facial plausibility, consistency with other evidence, and statements made during treatment. Caluza v. Brown, 7 Vet. App. 498 (1995). The Veteran claims that he is entitled to service connection for a chronic ear disability other than hearing loss and tinnitus. Notably, he claims that his pre-existing chronic ear condition (chronic secretory otitis media), for which he has had multiple insertions of ventilation tubes in his ear drum prior to and post-service, was aggravated beyond the natural progression of the disease in service. To VA providers, he claimed exposure to traumatic firearms noise in service. Every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C.A. § 1111. To rebut the presumption of sound condition under section 1111 of the statute for disorders not noted on the entrance or enlistment examination, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service. VAOPGCPREC 3-2003 (July 16, 2003). Clear and unmistakable evidence is a more formidable evidentiary burden than the preponderance of the evidence standard. See Vanerson v. West, 12 Vet. App. 254, 258 (1999) (noting that "clear and convincing" burden of proof, while a higher standard than a preponderance of the evidence, is a lower burden to satisfy than clear and unmistakable evidence). It is an "onerous" evidentiary standard, requiring that the no-aggravation result be "undebatable". Cotant v. West, 17 Vet. App. 116, 131 (2003) (citing Laposky v. Brown, 4 Vet. App. 331, 334 (1993) (citing Akins v. Derwinski, 1 Vet. App. 228, 232 (1991)) and Vanerson, 12 Vet. App. at 258, 261; Id. at 263 (Nebeker, C.J., concurring in part and dissenting in part). Concerning clear and unmistakable evidence that the disease or injury was not aggravated by service, the second step necessary to rebut the presumption of soundness, a lack of aggravation may be shown by establishing that there was no increase in disability during service or that any increase in disability was due to the natural progress of the preexisting condition. Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); 38 U.S.C.A. § 1153. Where a preexisting disease or injury is noted on the entrance examination, section 1153 of the statute provides that "[a] preexisting injury or disease will be considered to have been aggravated by active military, naval, or air service, where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease." 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(a). For veterans who served during a period of war or after December 31, 1946, clear and unmistakable evidence is required to rebut the presumption of aggravation where the pre-service disability underwent an increase in severity during service, and clear and unmistakable evidence includes medical facts and principles which may be considered to determine whether the increase is due to the natural progress of the condition. 38 C.F.R. § 3.306(b). Temporary or intermittent flare-ups of symptoms of a preexisting condition, alone, do not constitute sufficient evidence for a non-combat veteran to show increased disability for the purposes of determinations of service connection based on aggravation under section 1153 unless the underlying condition worsened. Davis v. Principi, 276 F. 3d 1341, 1346-47 (Fed. Cir. 2002); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). After careful consideration of all procurable and assembled data, the Board finds that service connection for a chronic ear condition other than hearing loss and tinnitus is not warranted. At the outset, the Veteran's service treatment records, show that six months prior to service pressure equalizing (PE) tubes were inserted in the Veteran's ear drum. They were removed one month prior to service. The insertion of PE tubes was noted on the September 1979 enlistment examination. (Emphasis added). The Veteran's ears were evaluated as abnormal on the corresponding physical examination. Chronic serous otitis media was again noted in December 1979. The provider noted PE tubes in the past and found the Veteran not suitable for induction. In January 1980, chronic serous otitis media was found to exist since childhood. The provider indicated the Veteran had 4 PE tubes inserted in the past. The tympanic membrane was sclerosed with multiple retraction pockets. The Veteran was found unfit for enlistment and separation from service was recommended. Medical separation was processed. Thus, a chronic ear disorder (chronic serous otitis media) pre-existed the Veteran's period of active duty service. 38 C.F.R. § 3.304(b). In the case of aggravation, a pre-existing disease or injury will be considered to have been aggravated during service where there is an increase in disability during service, unless there is a specific finding that the increase is due to the natural progress of the disease. See 38 U.S.C.A. § 1153; 38 C.F.R. §§ 3.304, 3.306(a). Here, there has been no showing that the chronic ear disorder underwent an increase in disability during service. Wagner, 370 F.3d at 1096; 38 U.S.C.A. § 1153. Notably, the VA April 2011 VA examiner opined the Veteran joined the service with a history of "very significant middle ear disease that started at childhood, which [was] most likely related to congenital Eustachian tube dysfunction." The examiner then indicated that the Veteran's ear condition gradually deteriorated, which was the natural progression of the disease, and occurred primarily after 1980 when he developed chronic middle ear disease that required surgical management. The examiner opined that the Veteran's progression of right ear disease was not a service connected problem. It was less likely than not that there was progression of middle ear disease between 1979 and 1980, if indeed it occurred, and it was not a service-related problem. The examiner indicated the vast majority of the Veteran's problems were two decades later starting in 2005 when he required mastoid surgery. The examiner concluded that it was highly unlikely that any significant progression occurred between 1979 and 1980. The examiner explained it was a negligible period in the whole process and therefore could not be considered as a significant progression of the disease while in service. The May 2013 VHA expert opined it was less likely than not that chronic secretory (a.k.a. serous) otitis media increased in severity during the Veteran's period of active service beginning in September 1979 and ending February 1980. The VHA expert noted the Veteran had a history of chronic secretory otitis media for which at least four myringotomies with insertion of ventilation tubes in his eardrums were performed prior to his induction in the military service, most recently six months prior to service. The examiner indicated that the openings in the eardrums for the ventilation tubes had apparently healed but fluid had not yet reformed in the middle ears on the day of examination for induction in September 1979. This conclusion was based on the facts that no perforation of the eardrums was reported and audiometry did not show a conductive hearing loss at the induction examination. The examiner noted findings on audiometry in December 1979 were compatible with secretions again pooling in the middle ears. The VHA expert noted the Veteran was examined by an otolaryngologist in December 1979 and diagnosed him with secretory otitis media. In January 1980, another examiner found the tympanic membranes to be sclerosed with multiple retraction pockets. The Veteran was diagnosed with chronic secretory otitis media. The scarring and multiple atrophic sites in the eardrums were compatible with chronic secretory otitis media that had been treated with multiple myringotomies. The VHA expert found the Veteran to have a history of chronic secretory otitis media prior to induction and at the examination in January 1980. The VHA expert concluded that the findings delineated above represented a "continuation of chronic secretory otitis media." He found no evidence of "progression" or "deterioration" to a more severe ear disease during the five months of service in question. Chronic secretory otitis media was found to be the result of poorly or nonfunctioning Eustachian tubes. Other than the Veteran's statements that his pre-existing chronic ear disorder was aggravated during service, there is no competent or probative evidence to support his claim. Although lay evidence is acceptable to prove the occurrence of an injury during active duty or symptomatology over a period of time when such symptomatology is within the purview of or may be readily recognized by lay persons, lay testimony is not competent to prove a matter requiring medical expertise. The essential question in this case is whether the preexisting chronic ear disorder other than hearing loss and tinnitus increased in severity during service beyond the natural progress of the disease. The Board views this question as clearly medical in nature as it requires medical knowledge as to what would constitute the natural progress of the disease. Therefore, the Veteran's statements as a layperson that his chronic ear disorder was aggravated beyond the normal progress of the disease during service do not constitute competent evidence of a medical nexus opinion. This requires specialized training for a determination as to diagnosis and causation and is not susceptible of lay opinions on etiology. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (unlike varicose veins or a dislocated shoulder, rheumatic fever is not a condition capable of lay diagnosis); Jandreau, 492 F.3d at 1377, n. 4 ("sometimes 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"). Therefore, the Board cannot give decisive probative weight to the opinions of the Veteran about aggravation of his chronic ear disorder because he is not qualified to offer such opinions. Likewise, his representative is not competent to provide a probative opinion on the question of etiology, either. In sum, the competent evidence does not establish that the pre-existing chronic ear disorder, other than hearing loss and tinnitus, was aggravated beyond the natural progression of the disease during service. Wagner, 370 F.3d at 1096; 38 U.S.C.A. § 1153. Thus, the Board finds service connection is not warranted for the claimed chronic ear disorder. The evidence is not in relative equipoise. Thus, the preponderance of the evidence is against the claim, and the appeal must therefore be denied. 38 U.S.C.A § 5107(b). ORDER Entitlement to service connection for a chronic ear disorder, other than hearing loss and tinnitus, is denied. ____________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs