Citation Nr: 1330331 Decision Date: 09/20/13 Archive Date: 09/25/13 DOCKET NO. 10-41 920 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for a right ear disability other than hearing loss. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD Jennifer R. White, Counsel INTRODUCTION The Veteran had active service from February 1948 to June 1952. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio, as a Tiger Team effort to expedite processing of benefits claims. In the November 2011 decision, the Board determined that new and material evidence sufficient to reopen the Veteran's claim had been received, and reopened the Veteran's claim for service connection for a right ear disability, to include right ear hearing loss. The Board subsequently remanded this issue for additional evidentiary development and due process considerations. Claims seeking entitlement to service connection for an acquired psychiatric disability and right ear hearing loss were also remanded. With respect to the Veteran's right ear condition, the Board specifically instructed the Agency of Original Jurisdiction (AOJ) to schedule the Veteran for another ear, nose and throat (ENT) examination to determine the nature and etiology of the Veteran's right ear condition, and specifically to determine whether the Veteran has a right ear condition, in addition to hearing loss, that is causally or etiologically related to service. Based on additional development undertaken, and by way of the September 2012 rating action, the RO granted service connection for an acquired psychiatric disability (anxiety disorder), and evaluated it as 50 percent disabling, effective December 15, 2008, and further granted service connection for hearing loss in the right ear, combining it with the already service-connected left ear hearing loss, and evaluating it as noncompensably disabling prior to January 14, 2012, and 60 percent disabling effective January 14, 2012. The required development has been completed, in the form of a competent and complete medical opinion as discussed more thoroughly below, and this case is appropriately before the Board. See Stegall v. West, 11 Vet. App. 268 (1998). Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT The preponderance of the evidence indicates that the Veteran does not have a current right ear disability other than hearing loss which is related to active service. CONCLUSION OF LAW Entitlement to service connection for a right ear disability other than hearing loss is not warranted. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.304 (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. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2010). 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. Accordingly, 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. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). 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 readjudication 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). Here, the Veteran was sent a letter in November 2011 that fully addressed all notice elements. The letters provided information as to what evidence was required to substantiate the claims and of the division of responsibilities between VA and a claimant in developing an appeal. Moreover, the letter informed the Veteran of what type of information and evidence was needed to establish a disability rating and effective date. Accordingly, no further development is required with respect to the duty to notify. The Board acknowledges that, in the present case, complete notice was not issued prior to the adverse determination on appeal. However, fully compliant notice was later issued in a November 2011 communication, and the claim was thereafter readjudicated, most recently, in August 2013. Accordingly, any timing deficiency has here been appropriately cured. Mayfield, 444 F.3d 1328 (Fed. Cir. 2006). Next, VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting him 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 Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). The claims file contains the Veteran's service treatment records, as well as post-service reports of VA and private treatment and examination. 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. 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). Regulations and Analysis Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection also may be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In general, direct service connection may not be granted without medical evidence of a current disability; medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. See Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). In evaluating the claim, the Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a 3-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, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303 at 308 (2007) (Observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). 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. 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) (where widow seeking service connection for cause of death of her husband, the Veteran, the Court holding that medical opinion not required to prove nexus between service connected mental disorder and drowning which caused Veteran's death). In ascertaining the competency of lay evidence, the Courts historically had held that a layperson is not capable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183 (1997). In certain instances, however, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." See, e.g., Barr v. Nicholson, 21 Vet. App. 303 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398 (1995) (flatfeet). 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). Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this function, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 511-512 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table); see Madden v. Brown, 125 F.3d 1447 (Fed Cir. 1997) (holding that the Board has the "authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence"). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2002); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Turning to the evidence of record, the Veteran's service treatment records indicate treatment for otitis externa in January and March 1949 in the Veteran's left ear. The January 1949 treatment note, indicating acute otitis media of the left ear additionally noted that the Veteran right ear canal and drum were essentially normal. An additional treatment note in March 1949 indicates mild bilateral otitis externa with drainage from the left ear only. A May 1949 treatment note indicates chronic otitis media with a history of intermittent drainage of both ears for six years duration; further noting the past episode of drainage from the right ear was about one year prior to admission. A treatment note dated December 1951 indicates otitis externa left ear but noted drainage from the right ear for the previous three weeks, with frequent similar episodes since childhood. On examination, there was marked swelling of the left external auditory canal. A January 1952 treatment note indicates that the right ear was okay and the Veteran had an intermittent drainage from the left ear since childhood. A February 1952 treatment note indicates chronic mastoiditis of the left ear with a large perforation of the left ear drum. The Veteran was discharged in April 1952 due to his left ear disability. The April 1952 note concerning the discharge indicates that the Veteran's right eardrum examination was negative. The April 1952 Clinical Board documentation indicates chronic drainage of the left ear since age six; further noting both ears drained during childhood but the right ear cleared and has not been any source of trouble. A June 1952 discharge examination indicated a normal clinical evaluation of the Veteran's right ear. The Veteran underwent a VA ear examination in November 1952. The Veteran's right ear canal was normal with a normal tympanic membrane and a normal light reflex. VA ear examinations in March 1964, January 1967 and January 1968 noted the same normal results. A March 1967 VA treatment record indicated that the Veteran underwent a left myringoplasty. A September 1972 private medical note indicates the Veteran had been receiving treatment for chronic right otitis media since August 1972 with a radical right mastoidectomy in September 1972. VA treatment records indicate an additional radical right mastoidectomy in April 1979 with treatment for right ear infections with drainage. A May 1981 VA note indicates mastoiditis in the right ear; a January 1990 VA examination report indicates bilateral chronic otitis with drainage from the right ear. A January 1990 private medical statement indicates that the Veteran had a history of chronic ear problems which the Veteran attributed to acoustic trauma in-service. A March 1995 VA examination report indicates that the Veteran stated he developed hearing loss, tinnitus and drainage from both canals when being stationed directly beside heavy guns in-service. The Veteran indicated that his right ear became acutely infected in 1967 and had continued this way ever since despite extensive treatment. The Veteran's right ear canal was completely filled with thick green pus. A VA medical examination was afforded the Veteran in September 2000. The examiner reiterated the Veteran's contentions and diagnosed him with right mastoid cavity, active disease present. A medical opinion letter, by C. C.-O., AuD, dated in November 2008, notes the Veteran's exposure to Naval large gun noise while aboard a ship engaged in Naval bombardment of land targets during the Korean War, and opines that current right ear hearing loss is causally related to such noise exposure. The Veteran was afforded a VA audiology examination in January 2012. The examiner indicated that the Veteran's hearing loss is related to service but did not comment on his right ear disease. The Veteran was provided with a VA ear disease examination in January 2013, where the examiner provided a negative etiology opinion. In support of that opinion, the examiner stated that the service treatment record was silent for any right ear condition and that the Veteran failed to produce new and material evidence to support his continued claim of a right ear condition due to illness, injury, or event shown during active duty service. He specifically found that a December 5, 1951, treatment record, which noted right ear treatment in the first sentence, was actually mistaken, as the rest of the treatment note, as well as treatment just three days prior, referenced the left ear. The examiner also stated that while he did not think the Veteran was intentionally mistaken about his reports of in-service right ear treatment and symptoms, he did not find his reports to be credible as the service medical records were silent for such treatment. An additional opinion was issued in April 2013, wherein the same VA examiner who provided the January 2013 opinion, concluded that based on the January 2013 physical examination results, there was no objective evidence of a chronic right ear disability. With regard to evidence of in-service right ear treatment, the examiner once again only addressed the service treatment report dated on December 5, 1951, noting that the Veteran's complaints of right ear drainage was a typographical error, "as this note is a follow-up (continuation of treatment) initiated on 2 December 1951 for left ear pain and discharge" and the remainder of the treatment report reflects treatment for the left ear. According to the examiner, "there is no history contained within the service medical record of treatment for a right ear condition." Indeed, it appears as though the VA examiner reiterated the same exact conclusion and explanation provided in January 2013 opinion, when rendering his second opinion in April 2013. The Veteran submitted a statement dated May 2013 that he never had drainage in his ear prior to 1949 and never prior to his enlistment in the Navy. Most recently, the original January 2013 examiner offered an additional opinion with in-person examination concerning the etiology of the Veteran's right ear condition. The Veteran was diagnosed with right ear mastoiditis which was noted as beginning in 1981. The examiner noted that the Veteran himself reviewed his service treatment records at his most recent examination appointment. The Veteran indicated that he guessed that he remembered in-service treatment for his right ear wrongly as he could not find any evidence of treatment for a chronic right ear condition in-service. The examiner indicated that it is less likely than not that the Veteran's current right ear condition was related to or aggravated by active service or any incident of active service. His rationale was the long period of time between the Veteran's active service and the onset of his chronic right ear condition. The examiner noted that the Veteran was treated for bilateral mild otitis externa in-service but indicated that was an acute and transitory event that resolved without residual due to appropriate treatment at the time. In conclusion, the Board finds that service connection for the Veteran's right ear disability excluding hearing loss must be denied as the preponderance of the evidence is against a finding that the disability is related to active service, any incident of active service or is secondary to any service-connected disability. Indeed, there is a lack of competent evidence linking the Veteran's right ear disorder to any incident of active service. Rather, the clinical record reveals no treatment or diagnosis for such problems for years after discharge. In fact, clinical records dating to the Veteran's separation and just after separation from service expressly indicate a lack of problems with the Veteran's right ear. In this regard, evidence of a prolonged period without medical complaint, and the amount of time that elapsed since military service, can be considered as evidence against the claim. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). Thus, the probative medical evidence of record, to include the opinions of a VA medical examiner, indicates that it is less likely than not that the Veteran's current right ear disability is related to service. The examiner reviewed the claims file when rendering the opinions and provided a rationale for the conclusions. As such they are entitled to great probative value. See Owens v. Brown, 7 Vet. App. 429, 433 (1995) (an opinion that is based on review of the medical evidence is more probative than an opinion that is based on the veteran's reported history). Conversely, the only medical evidence favorable to the claim was a January 1990 private medical statement which indicates that the Veteran had a history of chronic ear problems which the Veteran attributed to acoustic trauma in-service; merely reiterating the Veteran's contentions and it did not include claims file review. Such statements are entitled to little, if any, probative value. See Godfrey v. Brown, 8 Vet. App. 113, 121 (1995) (a medical opinion that is based on the veteran's recitation of medical history and unsupported by clinical findings is not probative); see also LeShore v. Brown, 8 Vet. App. 406, 409 (1995) (a bare transcription of a lay history is not transformed into competent medical evidence merely because the transcriber is a medical professional). Thus, the Board finds that the probative medical evidence of record fails to show a relationship between the Veteran's current right ear disability and any incident of active service or a service-connected disability. The Board notes the very recently decided Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In the decision, the Federal Circuit held that the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic 38 C.F.R. § 3.309(a). In this case, the claimed disability, ear disease excluding hearing loss, is not a decidedly chronic disability. Thus, a discussion of whether there has been continuity of symptomatology since service cannot stand as a basis for an award of service connection in this case. The Veteran himself believes that his right ear disorder excluding hearing loss is related to active service. In this regard, the Board acknowledges Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007), in which it was held a lay person may speak as to etiology in some limited circumstances in which nexus is obvious merely through lay observation, such as a fall leading to a broken leg. Here, however, due to the passage of time, the reported delayed onset of diagnosis, and the systemic nature of ear disease, the question of causation extends beyond an immediately observable cause-and-effect relationship. As such, the Veteran is not competent to address etiology in the present case. In sum, taking into account all of the evidence of record, the Board finds that the preponderance of the evidence is against a finding that the Veteran's right ear disorder excluding hearing loss is related to active service, to any incident of active service, or is secondary to any service-connected disability. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). ORDER Entitlement to service connection for a right ear disability other than hearing loss is denied. ____________________________________________ J.A. MARKEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs