Citation Nr: 1754034 Decision Date: 11/27/17 Archive Date: 12/07/17 DOCKET NO. 09-30 124 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for residuals of acute left ear otitis media. 2. Entitlement to service connection for residuals of a back injury. ATTORNEY FOR THE BOARD A. Boal, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1943 to March 1946. He passed away in February 2014. The Appellant is his daughter. In October 2017 the RO informed the appellant that she was substituted in the Veteran's place for purposes of adjudicating these pending claims. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. Although the Veteran originally requested a hearing in this matter, in May 2013, the Veteran submitted a written request to cancel the hearing. The claims were previously considered by the Board in August 2013. At that time, the Board reopened the claims for the left ear otitis media and a back injury and remanded the reopened claims for further development. The RO was instructed to contact the Veteran to identify any VA or non-VA medical providers who treated him for the claimed disabilities and attempt to obtain any VA or non-VA medical records and to schedule the Veteran for a VA examination related to the claimed disabilities. In September 2013, VA sent a letter to the Veteran notifying him that it has obtained all available treatment records from the El Paso VA Medical Center and requesting that the Veteran identify any other health care provider who treated the Veteran for the claimed disabilities. The record does not reflect that the Veteran responded to the September 2013 letter. The Veteran subsequently attended a VA examination for the disabilities on appeal in November 2013, and the examination results are associated with the claims file. The Board is therefore satisfied that there has been substantial compliance with the remand's directives regarding the claims on appeal and will proceed with review. See Stegall v. West, 11 Vet. App. 268 (1998). FINDINGS OF FACT 1. The Veteran's acute left ear otitis does not constitute a disability or chronic condition. 2. The Veteran's congenital spinal stenosis has been classified as a congenital defect by the medical evidence of record. 4. There was no superimposed injury or disease in service that resulted in additional back disabilities. 5. The Veteran's other back disabilities are age related and not related to service. CONCLUSIONS OF LAW 1. The criteria for establishing entitlement to service connection for residuals of left ear otitis media have not been met. 38 U.S.C §§ 1110, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 3.303 (2017). 2. The criteria for entitlement to service connection for a low back disability have not been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty of Assist and Notify The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). The United States Court of Appeals for Veterans Claims (Court) issued a decision in the appeal of Dingess v. Nicholson, 19 Vet. App. 473 (2006), which held that the notice requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim, including the degree of disability and the effective date of an award. Those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Upon receipt of the Veteran's claim, VA issued VCAA notices in the form of March 2008, May 2008, and September 2010 letters which informed the Veteran of the evidence generally needed to support the claims on appeal. The September 2010 notice included information regarding the assignment of an increased evaluation and effective date; what actions he needed to undertake; and how VA would assist him in developing the claim. The notice was also issued to the Veteran prior to the rating decision from which the instant appeal arises; therefore, there was no defect with respect to timing of the VCAA notice. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). Regarding the duty to assist in this case, VA has secured or attempted to secure all relevant documentation required by the VCAA or identified by the Veteran. The Veteran's service treatment records, VA treatment records, and any identified private treatment records have all been obtained. The Veteran was afforded multiple VA medical examinations for the disabilities on appeal, the most recent occurring in November 2013. The medical evidence contains sufficiently specific clinical findings and informed discussion of the pertinent history and clinical features of the disability on appeal and is adequate for purposes of this appeal, as it is competent medical evidence pertaining to the existence and etiology of the claimed current disability sufficient to decide the claim. The Board is not aware of, and the Veteran has not suggested the existence of, any additional pertinent evidence not yet received. All identified and available relevant documentation has been secured and all relevant facts have been developed. There remains no question as to the substantial completeness of the claims. 38 U.S.C. §§ 5103, 5103A, 5107 (2012); 38 C.F.R §§ 3.102, 3.159, 3.326(a) (2017). For these reasons, the Board finds that the VCAA duties to notify and to assist have been met. Law and Regulations Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303(a) (2017). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Service connection 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) (2017). Certain chronic diseases (including arthritis) may be service connected on a presumptive basis if manifested to a compensable degree in a specified period of time post-service (one year for arthritis). 38 U.S.C. §§ 1112, 1113 (2012); 38 C.F.R. §§ 3.307, 3.309 (2017). The presumptive service connection provision of 38 C.F.R. § 3.303 (b) apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Furthermore, VA's Office of General Counsel has distinguished between congenital or developmental defects, for which service connection is precluded by regulation, and congenital or hereditary diseases, for which service connection may be granted, if initially manifested in or aggravated by service. See VAOPGCPREC 82-90, VAOPGCPREC 67-90. The VA General Counsel draws on medical authorities and case law from other federal jurisdictions and concludes that a defect differs from a disease in that a defect is "more or less stationary in nature," while a disease is "capable of improving or deteriorating." See VAOPGCPREC 82-90 at para. 2. Defects are defined as "structural or inherent abnormalities or conditions which are more or less stationary in nature." VAOPGCPREC 82-90 (July 18, 1990). Congenital or developmental "defects" automatically rebut the presumption of soundness and are therefore considered to have pre-existed service. 38 C.F.R. §§ 3.303(c), 4.9. Service connection is generally precluded by regulation for such "defects," because they are not "diseases" or "injuries" within the meaning of applicable legislation. 38 C.F.R. §§ 3.303 (c), 4.9, 4.127; accord Terry v. Principi, 340 F.3d 1378, 1383-84 (Fed. Cir. 2003); Palczewski v. Nicholson, 21 Vet. App. 174, 179 (2007). In short, service connection is available for congenital diseases, but not defects, that are aggravated in service. Quirin, 22 Vet. App. at 394; Monroe v. Brown, 4 Vet. App. 513, 515 (1993). In cases where the appellant seeks service connection for a congenital condition, the Board must indicate whether the condition is a disease or defect. Quirin, 22 Vet. App. at 394-397. It follows that in such cases where a congenital condition is at issue, a VA medical opinion may be needed to determine whether the condition is a congenital disease or defect, and if so whether there was aggravation or superimposed disability during service. Id. at 395. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102 (2017); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). Residuals of acute left ear otitis media The Veteran claimed that his residuals of acute left ear otitis were related to his service as a "Frogman" in World War II. The Veteran further reported that his ear was damaged during an explosion that occurred near him. The Board notes that the Veteran was previously service-connected for bilateral hearing loss and tinnitus. The Veteran's service treatment records reflect that he suffered from one instance of acute media otitis in November 1943. The service medical records further show that there was a small opening in the left tympanic membrane. In December 1943, the service medical records show that the tympanic membrane healed and the Veteran was determined to be fit for duty. The Veteran's service medical records are silent for additional instances of media otitis of the left ear. On his separation examination in March 1946, the Veteran's ears were examined and reported to be "normal." The Veteran's post-service medical records show incidences of acute otitis and removal of cerumen. In May 1956, September 1960, June 1962, and December 1968, the Veteran sought medical attention for removal of cerumen in both ears. In a December 1979 VA Examination, the Veteran's ear canal was clear, a small amount of cerumen in the left ear, no evidence of drainage, and the tympanic membranes were intact. There was no evidence of inflammation in the ears. In October 2006, VA medical records showed that the left ear canal had a very slight off-white hue, the ear canals were clear, and the tympanic nerve was pearly gray. In December 2006 the Veteran's ear examination was normal. In October 2012 records reflect that the Veteran had a mild cerumen buildup which was a normal occurrence that did not impede sound transmission. In October 2013, the Veteran underwent another VA examination related to his claim for service connection to residuals of acute media otitis. At the time of the examination, the Veteran had no signs of acute or chronic inflammatory or infectious process. The VA examiner opined that the post-service incidences of cerumen buildup were normal, and that the coloration noted in the VA treatment records was not a sign of infection or fungus in the ears, and the incidences of cerumen buildup were a common occurrence in everyone. The VA examiner opined that the Veteran did not suffer from recurrent acute otitis media because that would have required three episodes within six months or four episodes within twelve months. He opined that the in-service otitis media was resolved and that the incidences of otitis media that occurred after service were acute in nature and unrelated to any in-service injury, event, or illness. For these reasons, the Board finds that the weight of the evidence demonstrates that the Veteran did not have a disability of chronic otitis media during the pendency of the appeal. In the absence of a disability during the appeal period, there can be no claim. Brammer, 3 Vet. App. at 225. The Board recognizes that the Court has held that the presence of a chronic disability at any time during the claim process can justify a grant of service connection, even where the most recent diagnosis is negative. McClain v. Nicholson, 21 Vet. App. 319 (2007). However, in this case, the record shows only isolated instances of unrelated acute otitis media, and no diagnosis of a chronic disability. Furthermore, all of the diagnoses of otitis media predated the present claim by years. As indicated above, there was only one instance of otitis media in service, which was resolved with no sequelae. There is no medical evidence of record that the post-service incidences of acute otitis media were related to the in-service otitis media. Finally, the October 2013 VA examiner noted that at the time of the exam there were no signs of acute or chronic inflammatory or infectious process in his ears and that the Veteran's in-service episode of otitis media was fully resolved. The existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C. § § 1110 ,1131; see Degmetich v. Brown, 104 F.3d 1328, 1332 (1997) (holding that interpretation of sections 1110 and 1131 of the statute as requiring the existence of a present disability for VA compensation purposes cannot be considered arbitrary). Evidence must show that the Veteran had a chronic otitis media disability for which benefits are claimed during his lifetime. In this case, the evidence shows that the in-service acute otitis media was fully resolved and that the Veteran did not have a disability related to the otitis media upon which to predicate a grant of service connection at any time during the Veteran's lifetime. Therefore, there can be no valid claim for that benefit. See Brammer 3 Vet. App. at 225; Rabideau, 2 Vet. App. at 143-44. To the extent to which the Veteran had cerumen buildup and discoloration, there is no competent evidence that these symptoms are related to the Veteran's service. The VA examiner reviewed the claims file and examined the Veteran and concluded the cerumen buildup and discoloration were not indicative of an ear disability. The examiner explained that the description of the color did not represent any form of infection or fungus and further noted that every ear canal differs in color, shape and size. Concerning the cerumen, the examiner explained that simply meant there was ear way and indicated this was a common occurrence in everyone. To the extent the cerumen was indicative of any condition, the examiner opined it resolved without any antibiotics or antifungal treatment. The examiner further opined that as subsequent examinations noted only mild cerumen or normal ears the condition would not constitute a disability. The examiner further opined that the condition was not related to service as the Veteran did not require chronic longer term treatment. The Board finds this medical opinion highly probative of a negative nexus between the Veteran's current condition and service because it not only contains a clear conclusion with supporting data, but also a reasoned medical explanation connecting the two. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). For these reasons, the Board finds that a preponderance of the evidence is against the Veteran's claim of service connection for chronic otitis media, and the claim must be denied. As the preponderance of the evidence is against the claim of service connection for chronic otitis media, the benefit of the doubt doctrine is not for application. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Back disability The Veteran claimed that his back disabilities were caused by an injury he received when a rubber sling was used to retrieve him from a body of water. He also claimed that he was injured during an explosion as he was thrown back by the explosion. He said he felt back pain ever since service, and that he received injections during service to treat his back pain. Service treatment records are silent for treatment of a back injury, and scoliosis was noted on his separation examination. The Veteran's post-service medical records reflect that he suffered from degenerative joint disease of the lumbar spine with multiple degenerative disc disease, moderate to severe spinal stenosis at L4-L5 due to facet joint disease, bulging disc and thickening of the ligament flavum, congenital spine stenosis in the lower lumbar spine, and compression of deformity of 12. The Veteran underwent a VA examination in October 2013. The VA examiner opined that the Veteran's congenital spinal stenosis was a defect and not a disease. The VA examiner further opined that there was no superimposed injury in service that resulted in additional back disability. As discussed above, service connection is not available for a congenital defect unless there is additional disability due to disease or injury superimposed upon a defect during service. VAOPGCPREC 82-90 (1990). The VA examiner further noted that additional stenosis was age related or caused by overuse, and not caused by an in-service injury or event. The VA examiner opined that the Veteran suffered from several other forms of arthritis. The VA examiner opined that the Veteran's arthritis was not related to any in-service injury or event, but rather was age related in etiology. The examiner noted that there are no medical records indicating that the Veteran sought treatment for his arthritis during service or within one year of service, and that there are no medical records indicating that the Veteran sought treatment for his arthritis until several decades after he separated from service. Although the entrance examination did not note a preexisting back disorder, the exit examination clearly noted a diagnosis of scoliosis and the VA examiner explained this was a congenital defect. As noted above, the presumption of soundness does not apply to congenital defects because such defects "are not diseases or injuries" within the meaning of 38 U.S.C.A. §§ 1110 and 1111. See 38 C.F.R. § 3.303 (c); see also Quirin, 22 Vet. App. at 397; Terry, 340 F.3d at 1385-86 (holding that the presumption of soundness does not apply to congenital defects); Winn v. Brown, 8 Vet. App. 510, 516 (1996) (holding that a non-disease or non-injury entity such as a congenital defect is "not the type of disease- or injury-related defect to which the presumption of soundness can apply"). The examiner further explained that there was no superimposed disease or injury. The examiner reviewed the file, examined the Veteran and gave a clear rationale for the opinions. As such the Board finds the opinion to be highly probative and service connection for the stenosis is not warranted. However, as noted above, the Veteran had several other diagnoses of the low back. As one of the Veteran's current low back disabilities is a chronic disease under 38 C.F.R. § 3.309 (a), the Board will consider whether chronic symptoms in service or continuity of symptomatology since service have been shown. In this case, the Board finds that the weight of the evidence demonstrates that the Veteran did not experience chronic symptoms of a low back disability in service or continuous symptoms of a low back disability since service to warrant presumptive service connection under 38 C.F.R. § 3.303 (b). As there is no evidence that the Veteran was diagnosed with arthritis of the back within one year of his March 1946 separation from active service, service connection pursuant to the chronic disease presumption for arthritis is not warranted. 38 U.S.C. §§ 1101, 1112 (2012); 38 C.F.R. §§ 3.307, 3.309 (2017). However, what remains for consideration, is whether the Veteran's back disabilities are otherwise related to his active service. The separation examination in March 1946 did not note any diagnosis other than the scoliosis. Post-service, the first mention of any back condition was a report of a back ache in August 1976, nearly 30 years after his separation from service. No diagnosis was provided at that time. An August 1978 statement of his physician noted complains of pain in his neck and diabetes mellitus but did not mention anything about the lumbar spine. Degenerative changes in the lumbar spine were first noted in 2003. An October 2003 private hospital record noted the Veteran was injured after a fall from a ladder and x-rays showed lumbar transverse process on the right and possible compression fractures. Review of the x-rays reflects they diagnose osteoarthritis spicules L2-L5 and degenerative change of L4-5 facet joints. Another x-ray noted fractures of the right L3 and L4 transverse processes but were noted to be acute. An October 2004 x-ray of the lumbar spine was normal. An April 2006 private hospital record reflects the Veteran was seen for his back after falling out of a truck six days prior. The record noted that a lumbar series was done and showed no evidence of fractures or dislocation, although it did refect osteoporosis, osteophytes and degenerative joint disease. The hospital records do reflect that the first reading of the x-ray suggested a compression fracture but further review by the radiologist confirmed there was no compression fracture. Another April 2006 imaging study showed degenerative changes and mild diffuse compression fractures. Given the gaps in treatment and lack of reports of continued pain until he filed his claim, the Board finds the preponderance of the evidence is against a finding of continuity of symptoms. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). Nonetheless, as a low back disability is currently shown and the evidence reflects a possible in-service low back injury, the next question is whether there is a causal relationship between the current complaints and the in-service injury. After a review of all the evidence, both lay and medical, the Board finds that the weight of the evidence is against a finding of a nexus between the Veteran's current low back disability and service. On VA examination in October 2013, the examiner reviewed the record, considered the Veteran's subjective history, examined the Veteran and concluded the conditions were not related to service. The examiner explained the presentation of the condition was age-related. The Board finds this medical opinion highly probative of a negative nexus between the Veteran's current condition and service because it not only contains a clear conclusion with supporting data, but also a reasoned medical explanation connecting the two. See Nieves-Rodriguez, 22 Vet. App. at 301. In this regard, the Veteran was sincere in his belief that his back disabilities were related to his active service. The Board notes that lay persons such as the Veteran are competent to provide opinions on some medical issues. However, in this case, the question of whether the Veteran had a back disability that is related to his active service falls outside the realm of common knowledge of a lay person. Kahana v. Shinseki, 24 Vet. App. 428 (2011); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The intricacies in diagnosing back disabilities and opining regarding the etiology of such disabilities are issues that require the expertise of a medical professional, particularly where, as in this case, there has been a significant passage of time without any documentation of any symptomatology and subsequent injuries to the spine. Therefore, the Veteran was not competent to provide an opinion on those issues. While the Veteran could report symptoms that he experienced, he did not have the necessary training to make medical opinions. The medical evidence of record indicates that the Veteran's diagnoses were either congenital or age-related, and not related to any in-service injury or event. The Veteran provided no evidence to support his assertion that the back disabilities were related to active service. Accordingly, the Board finds that the preponderance of the evidence is against the claims of entitlement to service connection for residuals of acute left ear otitis media entitlement and for residuals of a back injury and that the claims must be denied. 38 U.S.C. § 5107 (b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for residuals of acute left ear otitis media is denied. Service connection for residuals of a back injury is denied. ____________________________________________ H. SEESEL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs