Citation Nr: 1332412 Decision Date: 10/18/13 Archive Date: 10/24/13 DOCKET NO. 10-00 283 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Providence, Rhode Island THE ISSUE Entitlement to service connection for ear pain, including as secondary to service-connected bilateral hearing loss. REPRESENTATION Appellant represented by: James J. Mullen, Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D.J. Drucker, Counsel INTRODUCTION The Veteran had active military service from September 1958 to August 1961. This matter initially came to the Board of Veterans' Appeals (Board) on appeal from a May 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Providence, Rhode Island. In May 2011, the Veteran testified during a hearing at the RO before the undersigned Veterans Law Judge. A transcript of the hearing is of record. In February 2012 and January 2013, the Board remanded the Veteran's case to the RO via the Appeals Management Center (AMC) in Washington, D.C., for further development. Thereafter, in June 2013, the Board requested a medical opinion, pursuant to 38 U.S.C.A. § 7109 and as set forth in a designated Veterans Health Administration (VHA) Directive, in response to the appellant's claim of entitlement to service connection for ear pain. See 38 U.S.C.A. § 7109(a) (West 2002) and 38 C.F.R. § 20.901 (2013). See generally Wray v. Brown, 7 Vet. App. 488, 493 (1995). A VHA medical opinion was rendered in August 2013. In its January 2013 remand, the Board referred the Veteran's claim for service connection for a temporomandibular joint disorder (TMJ) to the agency of original jurisdiction (AOJ) for adjudication. However, there is no indication that the issue has yet been considered by the AOJ and it is, again, referred for adjudication. FINDING OF FACT Resolving all doubt in the Veteran's favor, otalgia (ear pain) cannot be dissociated from his military service, including as proximately due to treatment (hearing aid use) for service-connected bilateral hearing loss. CONCLUSION OF LAW The criteria to establish service connection for otalgia have been met. 38 U.S.C.A. §§ 1131, 5103, 5107 (West 2002 & Supp. 2013): 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION As the Board's decision to grant service connection for otalgia herein constitutes a complete grant of the benefits sought on appeal, no further action is required to comply with the Veterans Claims Assistance Act of 2000 and the implementing regulations. In written statements and oral testimony in support of his claim, the Veteran asserts that he has ear pain that is due to military service or to his service-connected bilateral hearing loss. He stated that he has ear pain when he wore his hearing aids and the ears were painful to the touch upon examination. Service connection for bilateral hearing loss and tinnitus was granted in a December 2002 rating decision and he is currently assigned 40 per cent and 10 percent disability ratings for those disabilities, respectively. Thus, he maintains that service connection is warranted for ear pain. Upon review of the record, the Board finds that the evidence is in relative equipoise. As such, affording the Veteran the full benefit of the doubt, the Board finds that service connection is warranted for otalgia (ear pain). When a veteran seeks benefits and the evidence is in relative equipoise, the Veteran prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). A veteran is entitled to disability compensation for disability resulting from personal injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303. To establish a right to compensation for a present disability, a veteran 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" - the so-called "nexus" requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). This is a direct service connection theory of entitlement. In addition, secondary service connection may be granted for a disability that is proximately due to, or the result of, a service-connected disease or injury. 38 C.F.R. § 3.310(a) (2013). With regard to the matter of establishing service connection for a disability on a secondary basis, the court has held that there must be evidence sufficent to show that a current disability exists and that the current disability was either caused or aggravated by a service-connected disability. See Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Additionally, when aggravation of a non-service-connected disability is proximately due to or the result of a service-connected condition, such disability shall be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. Id.; see also 38 C.F.R. § 3.310(b) (2012). With regard to a claim for secondary service connection, the record must contain competent evidence that the secondary disability was caused by the service-connected disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998); Reiber v. Brown, 7 Vet. App. 513, 516-17 (1995). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (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, 1377 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the appellant's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011). Where the determinative issue involves medical causation or a medical diagnosis, there must be competent evidence to the effect that the claim is plausible. However, although the Veteran is competent in certain situations to provide a diagnosis of a simple condition such as a headache, varicose veins, or tinnitus, the Veteran is not competent to provide evidence as to more complex medical questions, such as the etiology of ear pathology, as is the case here. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). In this regard, the Board must assess the credibility and probative value of evidence, and, provided that it offers an adequate statement of reasons or bases, the Board may favor one medical opinion over another. See Owens v. Brown, 7 Vet. App. 429, 433 (1995); Wood v. Derwinski, 1 Vet. App. 190 (1991). Service treatment records do not discuss complaints of, or treatment for, ear pain. On a Report of Medical History, completed in June 1961, when he was examined prior to separation, the Veteran checked yes to having ear, nose, or throat trouble and the examiner noted tonsillitis that was asymptomatic. An ear abnormality was not found on clinical evaluation at that time. The post service evidence includes results of a magnetic resonance image (MRI) of the Veteran's brain performed by VA in July 2006 that showed no acoustic neuroma/vestibular schwannoma. An October 2006 private treatment record reveals complaints of right-sided ear pain going down to the throat and was treated for allergic rhinitis. In January 2009, the Veteran was evaluated in the VA outpatient audiology clinic and complained that he was barely able to use his hearing aids since being fit in 2006, due to significant pain with the ear molds. Two sets of ear molds were made since, including hypo allergic ones. However, he reported that, after 20 minutes of use, he had a burning sensation in his ears "like sunburn" and even felt it in his throat. Results of a computed tomography (CT) scan reportedly did not show any physical cause (for his complaints). The Veteran had the same problem with other custom-made hearing aids fit in 2003. In a February 20, 2009 written statement, E.M.V., M.D., an ear, nose, and throat (ENT) specialist, reported that the Veteran complained of brief stabbing pain in his right ear that occurred sporadically but was more prominent that day. His ear exam was normal. Dr. E.V. saw no reason for the Veteran's ear pain with the exception of probably some referred cervical root pain that led to the stabbing sensation. When evaluated by Dr. E.V. on May 29, 2009, the Veteran complained of an inability to wear his hearing aids due to ear pain. Previous testing revealed no evidence of acoustic neuroma. Modification of his hearing aids was advised. In an undated signed statement received by VA in June 2009, M.L., D.O., the Veteran's treating physician, opined that the Veteran's ear pain was a "direct result of his hearing loss" that required him to wear painful hearing aids. In March 2012, a VA nurse practitioner examined the Veteran and concluded that he did not have a TMJ disorder but did have otalgia. The VA examiner stated that the Veteran's "ear pain is...at least as likely as not related to his service connected hearing loss" and explained that the Veteran had ear pain only when he used his hearing aids. In a May 2012 electronic message, the VA examiner added that "[t]he pain is a symptom only when [the Veteran] uses his hearing [aids], and for no other reason." VA outpatient medical records indicate that, in April 2012, the Veteran was referred for an ENT consultation and evaluated by a nurse practitioner for his ear discomfort. He complained of right ear pain for several weeks that radiated to his jaw and sometimes occurred on the left side. His hearing aids caused pain when he wore them, so he used them only as needed. The Veteran's ear pain was relieved when his hearing aids were removed, but his current ear pain was unrelated to hearing aid use. He also had tinnitus. The clinical impression included otalgia. Results of a CT scan of the Veteran's temporal bone were normal and a CT of his sinuses showed maxillary sinus retention cysts with no acute abnormality. The clinician speculated that, perhaps, the new onset of the Veteran's ear pain was related to nasal congestion/Eustachian tube dysfunction and that treatment of allergy symtoms might help. A June 2012 VA audiology examination revealed worsening of the Veteran's service-connected hearing loss. In July 2012, a VA dental examiner concluded that the Veteran did not have TMJ. In a July 3, 2012 signed statement, Dr. M.L. reiterated that the Veteran was unable to wear his hearing aids due to severe ear pain when he used them. On August 21, 2012, Dr. E.V., the ENT specialist, reevaluated the Veteran for several issues, including ear pain that he experienced when using hearing aids. The Veteran's tympanic membranes were within normal limits and his ear canal was clear of wax. He had some tenderness and jumped when the physician palpated the TMJ joint space anteriorly on his face. His nasal cavity was clear anteriorly, his oral cavity and orophyarynx were normal, and a neck exam showed no adenopathy or masses. The clinical impression included ear pain, that was notable for the Veteran's pronounced ear canal sensitivity that Dr. E.V. speculated "may be secondary to TMJ given [the Veteran'] marked tenderness on palpation." The Veteran was referred to a TMJ specialist for further evaluation. In an August 24, 2012 signed statement, Dr. M.L. stated that the Veteran experienced "extreme painful sensitivity during examination of his external ear canals...[and] literally jumped in his seat...during an otoscopic and annual external ear canal exam." The Veteran reported having the same painful experiences during dental and ENT evaluations. According to Dr. M.L., the Veteran had otalgia, bilaterally, of unknown etiology, and was unable to hear because he cannot wear his hearing aids. A September 11, 2012 private audiology record reflects the opinion that the Veteran's ear molds were not causing his pain. Although his ears hurt after wearing them, there appeared to be an underlying issue that caused such sensitivity. It was noted that, if the ear molds were the cause of his pain, then a Q-tip or ear examination would not cause a problem. On September 13, 2012, the Veteran was evaluated by M.P.J., M.D., a specialist in oral and maxillofacial surgery. He complained of bilateral ear pain when he inserted his hearing aids and used multiple hearing aid types with no improvement. When he did not wear his hearing aids, the pain was minimal, and sometimes resolved. Upon examination, the assessment was myofascial pain disorder, bilaterally. It was noted that the Veteran likely had nocturnal bruxism. A February 5, 2013 VA medical report was prepared by the nurse practitioner who evaluated the Veteran in outpatient ENT clinic in April 2012. The clinician discussed the Veteran's condition and history with the Chief of ENT at the Providence VA medical center. It was noted that "[a]lthough it is unusual to have such severe sensitivity in the ear canals, some people do report it. Prior to 2005, when [the Veteran] first received hearing aids, he did not have ear pain. It is unlikely that the hearing aids caused the discomfort, but rather that the discomfort was more noticeable when he began to wear hearing aids on a regular basis." Further, an oral surgeon diagnosed bruxism and myofascial pain disorder. There was no documentation within service medical records of ear pain or bruxism while on active duty. It was noted that ear pain was not service related and hearing loss and tinnitus do not cause ear pain. The examiner stated that ear pain may be affecting the Veteran's perceived ability to wear amplification, but he could choose to explore other options if he desired. In June 2013, the Board requested a VHA opinion as to when the Veteran had a diagnosed ear disorder, including chronic otalgia, or another ear disability, other than bilateral hearing loss and tinnitus. The Board also asked if it was as likely as not (50 percent probability or greater) that the Veteran's diagnosed ear disorder, including otalgia, was related to his active service or the result of his service-connected bilateral hearing loss or tinnitus. If not, the Board asked if it was as likely as not that the Veteran's ear disorder, including otalgia, was aggravated by his service-connected bilateral hearing loss or tinnitus disability. If so, to the extent possible, the examiner was asked to identify the baseline severity of the Veteran's diagnosed ear disorder, including otalgia, prior to the aggravation. In the August 29, 2013 VHA report, a VA physician, who is an associate professor of otolaryngology, reviewed the Veteran's medical records and noted that the Veteran clearly reported pain with hearing aid use. While the VHA expert did not "necessarily call that chronic otalgia" the expert stated that "otalgia does mean ear pain and [the Veteran] does have ear pain at least intermittently with hearing aid use." The VHA medical specialist opined that the Veteran's ear pain with hearing aid use was not directly related to his active service or the result of bilateral hearing loss or tinnitus. According to this physician, the Veteran's ear pain "appears to be directly related to hearing aid use," although he did not know why. The VHA physician further opined that the Veteran's pain with hearing aid use was not aggravated by his service-connected bilateral hearing loss or tinnitus disability. In the VHA examiner opinion "it is aggravated by treatment for bilateral hearing loss or tinnitus which is hearing aid use." The examiner noted his specific choice of words but believed he was correct. Again, secondary service connection may be granted for a disability that is proximately due to, or the result of, a service-connected disease or injury. 38 C.F.R. § 3.310(a). With regard to the matter of establishing service connection for a disability on a secondary basis, there must be evidence sufficent to show that a current disability exists and that the current disability was either caused or aggravated by a service-connected disability. 38 C.F.R. § 3.310(b); see Allen v. Brown, 7 Vet. App. at 448. Here, the medical evidence is in equipoise. While the VHA examiner concluded that that the Veteran reported ear pain at least intermittently with hearing aid use, and otalgia meant ear pain, the medical specialist opined that the Veteran's pain with hearing aid use was not aggravated by service-connected bilateral hearing loss or tinnitus disability. However, the VHA examiner also opined that the Veteran's ear pain was aggravated by treatment for bilateral hearing loss or tinnitus, that was hearing aid use. Given the medical expertise of the VHA examiner, that clearly associates the Veteran's otalgia (ear pain) with treatment for service-connected bilateral hearing loss (hearing aid use), the Board is persuaded that the evidence supports the Veteran's claim and service connection may be granted. As such, affording the Veteran all benefit of the doubt, service connection for ear pain diagnosed as otalgia is warranted and the Veteran's claim will be granted. 38 U.S.C.A. §§ 1131, 5107; 38 C.F.R. § 3.303, 3.310. ORDER Service connection for otalgia is granted. ____________________________________________ ERIC S. LEBOFF Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs