Citation Nr: 1442575	
Decision Date: 09/23/14    Archive Date: 09/30/14

DOCKET NO.  10-23 374	)	DATE
	)
	)


On appeal from the
Department of Veterans Affairs Regional Office in San Diego, California



THE ISSUE

Entitlement to service connection for right ear otalgia.



ATTORNEY FOR THE BOARD

Y. Curtis, Associate Counsel











INTRODUCTION

The Veteran, who is the appellant, served on active duty from February 1969 to November 1970.

This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision in November 2007 of a Department of Veterans Affairs (VA) Regional Office (RO).

While on appeal, the RO granted service connection for bilateral hearing loss and tinnitus and the claims are no longer before the Board. 

In April 2012, the Board remanded the case for further development, which has been completed.  Stegall v. West, 11 Vet. App. 268, 271 (1998).


FINDING OF FACT

Referred right ear otalgia, pain that originates outside the ear, is related to an injury in service.


CONCLUSION OF LAW

The criteria for service connection for right ear otalgia have been met.  38 U.S.C.A. §§ 1110, 5107(b) (West 2002); 38 C.F.R. § 3.303 (2013).








The Veterans Claims Assistance Act of 2000 (VCAA)

The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R. § 3.159, amended VA's duties to notify and assist a claimant in developing information and evidence necessary to substantiate a claim.

As the Board is granting the claim, VCAA compliance need not be addressed further.


REASONS AND BASES FOR FINDING AND CONCLUSION

Principles and Theories of Service Connection

A Veteran is entitled to VA disability compensation if there is a disability resulting from personal injury suffered or disease contracted in line of duty in active military service, or for aggravation of a preexisting injury suffered or disease contracted in line of duty in active military service.  38 U.S.C.A. § 1110 (wartime service). 

Generally, to establish a right to compensation for a present disability, a Veteran must show: (1) a present disability; (2) an 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, also referred to as the "nexus" requirement.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed.Cir. 2004).

Service connection may also be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred in service.  38 C.F.R. § 3.303(d). 






Evidentiary Standards

VA must give due consideration to all pertinent lay and medical evidence in a case where a veteran is seeking service connection.  38 U.S.C.A. § 1154(a). 

Competency is a legal concept in determining whether lay or medical evidence may be considered, in other words, whether the evidence is admissible as distinguished from credibility and from the weight of the evidence.  Rucker v. Brown, 10 Vet. App. 67, 74 (1997).

Competency is a question of fact, which is to be addressed by the Board.  Jandreau v. Nicholson, 492 F.3d 1372, 1377 (2007).

When the evidence is admissible, the Board must then determine whether the evidence is credible. "Credible evidence" is that which is plausible or capable of being believed.  See Caluza v. Brown, 7 Vet. App. 478, 511 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (the determination of credibility is a finding of fact to be made by the Board in the first instance). 

If the evidence is credible, the Board, as fact finder, must determine the weight or probative value of the admissible evidence, that is, does the evidence tend to prove a material fact.  Washington v. Nicholson, 19 Vet. App. 362, 369 (2005).  If the evidence is not credible, the evidence has no probative value. 

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 Veteran.  38 U.S.C.A. § 5107(b).






Evidence

The service treatment records show that the Veteran sustained shrapnel wounds to the right side of his face. 

After service private medical records show that in October 2005 the Veteran complained of ear problems.  The assessment was otalgia.  

On VA examination in September 2007, the Veteran gave a history of right ear pain during service and after service.  He stated that there was a nodule above his right ear that was the source of discomfort if he compresses the area by wearing eye wear.  The VA examiner noted the presence of possible residual shrapnel above the right ear, but did not comment on the Veteran's previously assessed otalgia.  

On VA examination in March 2010, the Veteran complained of a mass behind his right ear.  The VA examiner noted a subcutaneous mass distending the skin that was very tender on palpation and concealed when the ear was in the normal position.  The assessment was a retained foreign body of the scalp behind the external ear.

On VA examination in March 2013 the Veteran continued to complain of pain and tenderness behind his right ear from shrapnel.  The VA examiner assessed a retained shrapnel injury and the VA examiner expressed the opinion that the right-sided otalgia was at least as likely as not incurred in or caused by an in-service injury and was likely caused by complications of retained shrapnel behind the ear directly over the shrapnel.

Analysis

Otalgia is defined as ear pain. Two separate and distinct types of otalgia exist. Pain that originates within the ear is primary otalgia.  Pain that originates outside the ear is referred otalgia. 




The typical sources of primary otalgia are external otitis, otitis media, mastoiditis, and auricular infections.  Referred otalgia is the sensation of ear pain originating from a source outside the ear.

The Veteran currently has otalgia, also known as ear pain, which satisfies one element of service connection, namely, a present disability.  As for the second element of service connection, in-service incurrence of an injury, the Veteran's service treatment records describe shrapnel wounds he sustained to the right side of his face.

As for the third element of service connection, a causal relationship between the currently assessed otalgia and the in-service shrapnel wounds, there is evidence in support of the claim.  In May 2013, the VA examiner expressed the opinion that the right-sided otalgia was at least as likely as not caused by or related to injuries sustained during service based on a history of an in-service shrapnel wound.

Competent medical evidence connects the right ear otalgia to service, and as there is no evidence against the claim; the Board finds that the evidence establishes service connection for right ear otalgia.


ORDER

Service connection for right ear otalgia is granted.



____________________________________________
George E. Guido Jr.
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs