Citation Nr: 1640977 Decision Date: 10/19/16 Archive Date: 11/08/16 DOCKET NO. 12-25 999 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for otitis media. 2. Entitlement to service connection for otitis externa. 3. Entitlement to service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: Florida Department of Veterans Affairs WITNESSES AT HEARING ON APPEAL Appellant & His Wife ATTORNEY FOR THE BOARD J.E. Tracy, Associate Counsel INTRODUCTION The Appellant served on active duty for training while in the Army National Guard from June 12, 1955 to June 26, 1955, July 1, 1956 to July 15, 1956, June 8, 1957 to June 23, 1957, July 19, 1958 to August 3, 1958, June 6, 1959 to June 21, 1959, July 16, 1960 to July 31, 1960, August 5, 1961 to August 20, 1961, June 30, 1962 to July 15, 1962, and July 27, 1963 to August 11, 1963. In February 2016, the Appellant testified at a Board hearing before the undersigned; a transcript is included in the record. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2015). 38 U.S.C.A. § 7107(a)(2) (West 2014). FINDINGS OF FACT 1. The preponderance of the evidence is against a finding that the Appellant has a current diagnosis of otitis media that is related to an event, injury, or disease in service. 2. The preponderance of the evidence is against a finding that the Appellant has a current diagnosis of otitis externa that is related to an event, injury, or disease in service. 3. Bilateral hearing loss was not manifested during service or within one year of service; the preponderance of the evidence is against a finding that the Appellant's current bilateral hearing loss is etiologically related to an event, injury, or disease in service. CONCLUSIONS OF LAW 1. The criteria for service connection for otitis media have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1131, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.304 (2015). 2. The criteria for service connection for otitis externa have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1131, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.304 (2015). 3. Bilateral hearing loss was not incurred in or aggravated by active service, nor may it be presumed to have been incurred therein. 38 U.S.C.A. §§ 1101, 1110, 1112, 11315103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.304, 3.307, 3.309, 3.385 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist With respect to the claim herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2015); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). Relevant to the duty to assist, some of the Appellant's service treatment records are associated with the claims file. However, in a June 2013 memorandum, VA made a formal finding that the Appellant's complete STRs from his various periods of ACDUTRA are unavailable. The memorandum found that all procedures to obtain these records have been correctly followed, all efforts to obtain the records have been exhausted, and any further attempts would be futile. The Board agrees with the memorandum's findings. All of the relevant development requested by the Board's April 2016 remand was fully completed as the AOJ scheduled a VA examination that was conducted in May 2016. The Board concludes that its remand orders were fully complied with. See Stegall v. West, 11 Vet. App. 268 (1998). Factual Background, Legal criteria and Analysis The Board has reviewed all of the evidence in the claims file. 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 claimant or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122 (2000). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107 (b); 38 C.F.R. § 3.102. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). In order to establish service connection on a direct basis, the record must contain: (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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Entitlement to service connection on the basis of a continuity of symptomatology after discharge under 38 C.F.R. § 3.303 (b) is only available for the specific chronic diseases listed in 38 C.F.R. § 3.309 (a), including organic diseases of the nervous system (sensorineural hearing loss). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Active service includes any period of ACDUTRA during which the individual was disabled from a disease or an injury incurred in the line of duty, or a period of inactive duty training during which the veteran was disabled from an injury incurred in the line of duty or from an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident occurring during such training. 38 U.S.C.A. § 101(24); 38 C.F.R. § 3.6(a). In other words, with respect to Reserve service, service connection may only be granted for disability resulting from disease or injury incurred or aggravated while performing ACDUTRA, or an injury incurred or aggravated while performing inactive duty training. Service connection is generally not legally merited when a disability incurred on inactive duty training results from a disease process. See Brooks v. Brown, 5 Vet. App. 484, 487 (1993). ACDUTRA includes full-time duty in the Armed Forces performed by the Reserves for training purposes. 38 U.S.C.A. § 101(22); 38 C.F.R. § 3.6(c). Inactive duty training includes duty, other than full-time duty, prescribed for the Reserves. 38 U.S.C.A. § 101(23) (A). Reserves include the National Guard. 38 U.S.C.A. § 101(26), (27). Certain evidentiary presumptions -- such as the presumption of sound condition at entrance to service, the presumption of aggravation during service of preexisting diseases or injuries which undergo an increase in severity during service, and the presumption of service incurrence for certain diseases, which manifest themselves to a degree of disability of 10 percent or more within a specified time after separation from service--are provided by law to assist veterans in establishing service connection for a disability or disabilities. 38 U.S.C.A. §§ 101, 1112; 38 C.F.R. §§ 3.304(b), 3.306, 3.307, 3.309. However, the advantages of these evidentiary presumptions do not extend to those who claim service connection based on a period of ACDUTRA or inactive duty training. Paulson v. Brown, 7 Vet. App. 466, 470-71 (1995) (noting that the Board did not err in not applying presumptions of sound condition and aggravation to appellant's claim where he served only on ACDUTRA and had not established any service-connected disabilities from that period); McManaway v. West, 13 Vet. App. 60, 67 (citing Paulson, 7 Vet. App. at 469-70, for the proposition that, "if a claim relates to period of [ACDUTRA], a disability must have manifested itself during that period; otherwise, the period does not qualify as active military service and claimant does not achieve veteran status for purposes of that claim."). For purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies at 500, 1000, 2000, 3000, and 4000 Hertz is 40 decibels or greater; when the auditory thresholds for at least three of the frequencies at 500, 1000, 2000, 3000, and 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. The Appellant has asserted both that entitlement to hearing loss is based on exposure to acoustic trauma during a period of service, and, alternatively, that his hearing loss is based on episodes of otitis externa and otitis media in July 1962 and August 1963 that are documented in his service treatment records (STR) that are included in the claims file. The claims file shows that the Appellant served in the Army National Guard and had several periods of ACDUTRA between 1955 and 1963. The Appellant first underwent a VA examination in August 2010. He was diagnosed with bilateral sensorineural hearing loss. Regarding the infections, the Appellant stated that he got ear infections every summer while on active duty to the point he would sometimes bleed from his ears. The Appellant said that he last got an infection a year before the examination. He put drops in his ears and had no further problems. He has been wearing hearing aids for approximately 1 year. He said he has chronic post nasal drip and rhinorrhea. He was not taking any medication at the time of the examination. He reported feeling congested most time. He also said his ear feels full most of the time. He had tubes put in his ears because he had to pop them all the time. The examiner concluded that the infections during service and the one a year before the examination were "one-time events". The examiner also opined that there was no evidence of an active disease or residuals from otitis externa or otitis media at the time of the examination. The examiner gave the following detailed explanation of the Appellant's ears and alleged conditions: "There are 3 separate chambers to the ear: outer ear, which captures and directs the sound; [the] middle ear, which contains the bones that move to conduct the sound from the tympanic membrane to the inner ear, [which] is the third chamber and contains the structures that turn the movement from the middle ear into sound which then travels to the auditory nerve and is transmitted to the brain, which converts it into actual sound. Hearing loss associated with problems with the middle ear is termed 'conductive hearing loss,' while problems with the inner ear is called 'sensorineural hearing loss.' Most adults will acquire sensorineural hearing loss as a normal part of the ageing process... Otitis externa usually develops as a result of local trauma along with exposure to bacteria or occasionally fungi after swimming, bathing, or in extremely humid conditions. The only way this affects hearing is if a large amount of debris or swelling occurs that blocks the canal so that sound can no longer travel down the canal. This is usually temporary. Conductive hearing loss can occur because fluid filling the middle ear space prevents the TM from vibrating adequately, thereby diminishing movement of the ossicular chain involving the middle ear. This may last for 6-8 weeks until the fluid is resorbed. Otosclerosis is a bony overgrowth that involves the footplate of the stapes. As the overgrowth develops, the stapes can no longer function as a piston, but rather rocks back and forth and eventually becomes totally fixated. Conduction gradually becomes worse until a maximal conductive hearing loss of 60 dB is reached. Treatment is either surgical stapedectomy or hearing amplification. Inner ear or sensorineural hearing loss is associated with [the] white race, older age, diabetes mellitus, cerebrovascular disease, smoking, poorer cognitive status, occupations exposure, hypertension, and low bone density. This [Appellant] has sensorineural hearing loss, so it would not follow that this type would be related to his 3 documented episodes of otitis media or externa, otherwise it would be a conductive hearing loss. In addition, since otitis media and externa are related to infectious processes, having an incident or two of this in the military does not predispose someone to develop further incidents of infection, especially not after almost 50 years without an episode." Therefore, the examiner opined that the Veteran's hearing loss was not related to any infection. The examiner noted that private medical records were not reviewed in providing the opinion. However, there are private medical records dated in 2009 from a Dr. R.C.L. regarding an ear infection and procedures performed on the Appellant's ears a year prior to the 2010 examination. Also, service connection on the basis of experiencing acoustic trauma in service and the Appellant's reports of experiencing declining hearing loss since service were not considered by the examiner. Therefore, the Board found that another examination was necessary. Subsequent to the Appellant's last period of ACDUTRA, the first post-service treatment records concerning the ears are from Dr. R.C.L. dated in 2009. There are records dated February 3, 2009, March 9, 2009, May 4, 2009, June 8, 2009 and August 4, 2009. There is also a signed consent form for the Appellant to undergo the placement of the bilateral pressure equalizing tube dated May 19, 2009. The surgical record is dated June 1, 2009. The surgical record provides the following history: The Appellant "is a 73 year old gentleman complaining of aural fullness. He is constantly having to equalize his ears by nasal Valsalva. He has also noted a decreased muffled quality to his sounds. He has failed the Afrin regimen. He has a history of working in the trucking business and is exposed to very noisy environments. Audiogram demonstrates bilateral symmetrical high frequency sensorineural hearing loss. The tympanograms show evidence of decreased compliance. I recommended the aforementioned procedure." Dr. R.C.L. reported that the Appellant "tolerated the procedure well without any complications." Following the procedure, the June 8, 2009 record noted no problems with the surgery. The only current diagnosis circled on the report is the tubes. Otitis externa/media are not circled, nor is any other condition. On the August 4, 2009 record, the tubes and hearing loss are noted. However, otitis externa/media is not circled, nor is any other condition. There are no other post-service treatment records of note. The Appellant underwent a second VA examination in May 2016 and was again diagnosed with bilateral sensorineural hearing loss. The May 2016 VA examiner opined that the Appellant's bilateral ear hearing loss is not at least as likely as not (50% probability or greater) caused by or a result of an event in military service. The examiner explained that there was no enlistment audio evaluation completed, so any pre-service hearing loss would not have been documented. The medical note dated July 13, 1962 is an individual sick slip that shows the Appellant had otitis media at that time. A medical note dated August 8, 1963 shows that the Appellant had otitis externa. As noted by the prior VA examiner, the Veteran reported that he did not have another ear infection until 2009. The examiner noted that unfortunately there was no separation audio testing completed. Given that there is no separation examination report, the Board exercised a heightened obligation to carefully apply the benefit-of-the-doubt rule. See O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). However, the threshold for allowance of a claim is not lowered and the need for probative medical nexus evidence causally relating the current disability at issue to service is not eliminated. Russo v. Brown, 9 Vet. App. 46 (1996). The examiner discussed the various audio testing results since 2010 that show bilateral hearing loss. The examiner also noted the records from the private physician, Dr. R.C.L., dated in 2009 that were discussed in detail above. The 2016 VA examiner concluded that the Appellant's hearing loss cannot be attributed to the 2009 condition and surgery. The examiner explained, "There was no evidence of a conductive component to [the Appellant's] current hearing loss or the hearing loss noted by Dr. R.C.L. If there was a conductive component it would support to otitis media or otitis external as a contributing factor to his current hearing loss. [At] today's evaluation, [the] Appellant has no evidence of Eustachian tube dysfunction..." This rationale mirrors the earlier VA examination. That is, the type of hearing loss the Appellant suffers from is not indicative of it having been caused by or related to otitis externa or otitis media. Regarding service connection for hearing loss on a direct basis, the examiner noted that although the Appellant "had noise exposure while on active duty in the [National Guard], his occupational and recreational noise exposure far exceeds the military noise exposure... In civilian life the Appellant has 40 years of occupational industrial noise exposure and a significant history of recreational/vocational noise exposure. His exposure to hazardous noise in civilian life was far greater than his 10 years of NG duty (1 per month and two weeks of the year) of hazardous noise in the military. Therefore, the nexus with military service was far less than a 50/50 probability relationship compared to his exposure to hazardous noise in civilian life." This opinion is supported by the records from Dr. R.C.L. wherein the Appellant's occupational noise exposure as a truck driver was noted; however, his history in the military was not discussed as a source of noise exposure in Dr. R.C.L.'s records. The 2016 VA examiner concluded that the record reflects that the Appellant has had an ear infection or residuals from an ear infection, including otitis externa and otitis media. However, the examiner also found that there is no current diagnosis of otitis media or otitis externa. Specifically, the examiner reported that there is "no clinical evidence" of either condition and that the "Eustachian tube dysfunction [was] resolved [with] surgery." The examiner did note some scarring from the procedure but no other residuals. The Appellant stated "he gets recurrent ear canal infections and uses [over the counter] drops which helps. He states he had middle ear infections in the past but haven't had any in years. He states that he had bilateral tympanostomy tubes placed [in] 2009. He states he was not treated with any antibiotics for any ear infection since his last [VA] exam. He states he mostly has difficulty hearing. He states he had to use [over the counter] ear drops 2 months ago for itching, soreness, and discharge [in the] left ear. [The] Appellant states he does not have any symptoms today." The examiner reported that the Appellant's current treatment plan does not include taking continuous medication. The Appellant does not have any findings, signs or symptoms attributable to Meniere's syndrome (endolymphatic hydrops), a peripheral vestibular condition, otitis media or otitis externa. He does not have any of the following findings, signs or symptoms attributable to chronic ear infection, inflammation, or cholesteatoma. The examiner noted that there are no residuals from the 2009 surgery. Upon examination, the external ear and the ear canal were normal. Again, the only item of note was the scarring from the surgery. The 2016 VA hearing loss examiner noted that a "minimal" amount of the Appellant's sensorineural hearing loss could be attributed to the 2009 surgery (before the current claim was filed) to correct middle ear pathology (otitis media); however, the preponderance of the evidence is against a finding that the 2009 surgery is related to service as the VA examiner noted that the Veteran did not report ear infections for many years between his last period of ACDUTRA in 1963 and his 2009 infection. The preponderance of the evidence is against the claim. The medical evidence submitted in support of the Appellant's claims is less probative and persuasive than the negative VA opinion in 2016 which fully explained the conclusions reached after a review of all the evidence of record. First, there is a one sentence note from a Dr. M.A.C. dated in May 2011 that reads: "Fungal infections of the ear can cause hearing loss." However, there is no rational for the opinion provided. Nor does the brief statement indicate that the opinion was the result of an examination or review of the Appellant's records. The Board gives greater probative weight to the VA examiner's opinion which was provided after an examination and a review of the entire claims file. Further, the VA examiner provided medical reasoning and facts for the opinions offered; whereas the private opinion offers only assertions that hearing loss can result from infections. After weighing the medical opinions in the record, the Board finds the VA audiological examination more probative than the private opinion from Dr. M.A.C. See Nieves-Rodriguez, 22 Vet. App. at 304; see also Stefl v. Nicholson, 21 Vet. App. 120 (2007). Second, the Appellant submitted several articles from the Internet about various fungal infections and hearing loss. These documents are too general in nature to provide, alone, the necessary evidence to show that the Appellant has had ear infections that caused his hearing loss. See Sacks v. West, 11 Vet. App. 314, 316-17 (1998). The medical treatise must provide more than speculative, generic statements not relevant to the appellant's claim. Wallin v. West, 11 Vet. App. 509, 514 (1998). The documents in the current case do not provide information regarding the facts of the appellant's specific case. Therefore, the Board concludes that they do not show to any degree of specificity that the Appellant has had any ear infections that caused his hearing loss. Based on the medical evidence of record, service connection for bilateral hearing loss, otitis externa, and otitis media are not warranted. With respect to the claims for service connection for otitis externa and otitis media, the medical evidence and the Appellant's lay statements indicate that the Appellant has not had an ear infection during the pendency of the current appeal, which was filed in July 2009. In the absence of proof of a present disability, there is no valid claim of service connection. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Regardless, the preponderance of the evidence of record is against a finding that any currently diagnosed otitis externa and/or otitis media is related to service. The 2016 examiner opined that there was "far less" than a 50 percent probability that the Appellant's hearing loss is related to noise exposure in service and that there were no current residuals of ear infections that occurred during service. The Board notes that there is no indication for many years following service of any hearing loss or ear infection complaints. See Maxson v. West, 12 Vet. App. 453 (1999), aff'd, 230 F.3d 1330 (Fed. Cir. 2000). There is no indication for many years after service of complaints for these conditions, and they were first made over several decades after service. The Appellant's lay statements have also been considered. He testified at the hearing that he was exposed to loud noises during his periods of service, including mortar rounds being fired. He also testified that he went to the infirmary due to bleeding from his ears. He said he was given medicine and it cleared up. However, the same thing would happen every year he returned to the firing range. He also testified that he started experiencing hearing loss after being on the firing range. His wife also testified that the Appellant experienced ear infections and bleeding beginning many years ago. In his July 2012 VA Form 9, the Appellant wrote that his hearing loss was impacted by the artillery rounds fired during his periods of service and the otitis media/externa he had during service. He also disagreed with Dr. R.C.L.'s statement that the Appellant's job of being a truck driver was "very loud." The Appellant explained that he transported automobiles from one point to another and it was "not loud." On his Notice of Disagreement submitted in July 2009, the Appellant disagreed with the 2010 examiner who had also indicated that driving a truck was a source of noise exposure. The Appellant argued that insinuating that truck drivers have to wear hearing protection is not reasonable. While the VA examiner's and Dr. R.C.L. did note that driving a truck was a source of noise exposure that was not the sole basis for the opinions from the VA examiners that the Appellant's hearing loss was not related to service. Instead, the 2010 examiner provided a detailed explanation that sensorineural hearing loss "is a normal part of the ageing process." Further, the 2016 examiner acknowledged the Appellant's noise exposure while on active duty but found that there was "far less" than a 50 percent probability that the Appellant's hearing loss is related to noise exposure in service. The examiner supported his conclusions by noting that the exposure that the Appellant experienced in the National Guard was limited to periods of two weeks to one month, one time a year. The disagreements between the Appellant and the two examiners feature essentially medical questions which the Appellant is not shown to be competent to resolve. The Board acknowledges that laypersons are competent to provide evidence of matters within their personal knowledge, like difficulty hearing. See e.g., Washington v. Nicholson, 19 Vet. App. 362 (2005); Layno v. Brown, 6 Vet. App. 465, 470 (1994). However, the source and etiology of hearing loss and ear infections falls outside the realm of common knowledge of a layperson. See Kahana v. Shinseki, 24 Vet. App. 428 (2011); see Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). The medical evidence of record does not relate the Appellant's current bilateral hearing loss to service. The VA examiners' conclusions are based upon an accurate factual foundation and supported by sound reasoning. The 2016 examiner acknowledged and accepted that the Appellant reported a positive history of unprotected military noise exposure, specifically, artillery fire, but opined that his current hearing loss were not related to service. This conclusion was based upon factors featuring the known pertinent medical principles, the details of the configuration of the current hearing loss, the details of the Appellant's history, and the identification of more likely etiologies. Accordingly, the opinion is highly probative. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). There is no adequate medical opinion or other competent medical evidence to the contrary, and the Board finds that uncontradicted medical opinion is persuasive. The preponderance of the evidence is also against a finding of service connection for hearing loss based on continuity of symptomatology as the preponderance of the evidence is against a finding of continuous hearing loss since service. Also, there is no medical evidence that the Appellant has a current ear infection diagnosis, such as otitis media or otitis externa. While the Board acknowledges that the Appellant was treated for two ear infections during service and one in 2009, there is no indication in the record that he has been diagnosed with a chronic condition or has a current condition. The examiners both concluded that these were unrelated events. As there is no current disability, there is no valid claim of service connection for otitis media or otitis externa. Brammer v. Derwinski, 3 Vet. App. 223 (1992). Accordingly, service connection is denied for those disabilities. The Board understands the Appellant's belief that his hearing loss is attributable to his experiences in military service, but the Board must conclude that the medical question of determining the most likely cause of the Appellant's current hearing loss is most probatively resolved by the professional VA audiology opinion presented in the May 2016 VA examination report. In the absence of any otherwise persuasive and probative evidence that the Appellant's current bilateral hearing loss is etiologically related to active service, service connection is not warranted and the claim must be denied. In summary, the preponderance of the evidence of record is against a finding that the Appellant's current hearing loss became manifest in service or within a year of service or that any such disability is related to service. Also, the preponderance of the evidence of record is against a finding that the Appellant has a current diagnosis of otitis media or otitis externa. Accordingly, the preponderance of the evidence is against the claims of service connection. ORDER Entitlement to service connection for otitis media is denied. Entitlement to service connection for otitis externa is denied. Entitlement to service connection for bilateral hearing loss is denied. ____________________________________________ M.C. GRAHAM Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs