Citation Nr: 1755052	
Decision Date: 11/30/17    Archive Date: 12/07/17

DOCKET NO.  13-00 576	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUES

1.  Entitlement to service connection for chronic ear infections.

2.  Entitlement to a total disability rating based on individual unemployability (TDIU) for the period prior to September 16, 2013. 


REPRESENTATION

Appellant represented by:	Florida Department of Veterans Affairs


ATTORNEY FOR THE BOARD

R. Maddox, Associate Counsel




INTRODUCTION

The Veteran served on active duty from January 1967 to December 1970.

This matter comes to the Board of Veterans' Appeals (Board) on appeal from a November 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Providence, Rhode Island which denied service connection for chronic ear infections and TDIU.

In May 2010, the Veteran filed his notice of disagreement, was issued a statement of the case in November 2012, and in December 2012 perfected his appeal to the Board.

In April 2015, the Board remanded the claim for additional treatment records, to determine if the Veteran's ear infections were due to his sinus condition, and to determine the Veteran's service connected posttraumatic stress disorder's (PTSD) impact on his employability.

In September 2016, the Board granted the TDIU effective September 16, 2013 and remanded the claim for chronic ear infections to determine if his service connected sinus disorder caused or aggravated his ear infections.


FINDINGS OF FACT

1.  The Veteran does not have a current diagnosis of a chronic ear infection for VA compensation purposes.

2.  Prior to September 16, 2013, the Veteran's service-connected disabilities have not rendered him unable to secure of follow substantially gainful occupation.





CONCLUSIONS OF LAW

1.  The criteria for service connection for a chronic ear infection have not been met.  38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2016).

2.  Prior to September 16, 2013, the criteria for a TDIU have not been met.  38 U.S.C.A. §§ 1155, 5107, 5110 (West 2014); 38 C.F.R. §§ 3.102, 3.321, 3.340, 3.341, 3.400, 4.15, 4.16 (2016).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

With respect to the Veteran's claims herein, VA has met all statutory and regulatory notice and duty to assist provisions.  See generally, 38 U.S.C.A. §§ 5103, 5103A (West 2014); 38 C.F.R. § 3.159, 3.326 (2016); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015).


I.  Chronic Ear Infections

Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service.  See 38 U.S.C.A. §1110; 38 C.F.R. § 3.303 (a).  "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. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).

Additionally, service connection may be granted, on a secondary basis, for a disability, which is proximately due to, or the result of an established service-connected disorder.  38 C.F.R. § 3.310 (2016).  Similarly, any increase in severity of a non-service connected disease or injury that is proximately due to or the result of a service connected disease or injury, and not due to the natural progress of the nonservice connected disease, will be service connected.  Allen v. Brown, 7 Vet. App. 439 (1995).  In the latter instance, the non-service connected disease or injury is said to have been aggravated by the service connected disease or injury.  38 C.F.R. § 3.310.  In cases of aggravation of a veteran's nonservice-connected disability by a service-connected disability, such veteran shall be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation.  38 C.F.R. § 3.322 (2006).

VA received the Veteran's claim that led to this appeal in June 2009.  The Veteran contends that he suffered from severe chronic ear infections due to his service connected sinusitis which required prescription antibiotics.  He has also stated that his service caused his chronic ear infections as he was never offered ear protection while in service.

The Veteran's service treatment records are silent as to any complaints, treatment, or diagnosis for a chronic ear infection.

September 2007 private treatment records show that the Veteran underwent nasal septoplasty and bilateral submucosal inferior trubinoplasty to treat his chronic sinusitis.  November 2007 private treatment records show that the Veteran was treated for bilateral ear drainage, an itch, a blockage, and an "echo sound".  January 2008 private treatment records show the Veteran's fungal ear infections had improved as a result of his prescribed medication.

A May 2012 audiology consult report noted that the Veteran had ear infections until he underwent surgery four years earlier, and an otoscopy revealed a clear ear canal and intact tympanic membrane.

In January 2017 the Veteran was afforded a VA examination.  The Veteran stated that he developed chronic sinusitis, ear infections and tinnitus during active duty service, but he does not remember receiving treatment during service and there is no evidence of treatment for, or a diagnosis of an ear condition in his service treatment records.  The examination report noted that the Veteran's breathing and ear infections cleared after he underwent sinus surgery in 2007, and at the time of the examination, the Veteran was not suffering from an ear condition.  The examination report noted that the Veteran does not have inflammation, cholesteatoma, or benign neoplasm of the ear, and concluded that both ears were normal.

After weighing all of the evidence, the Board finds the January 2017 VA examiner's report most probative.  The evidence shows that the Veteran has not had a chronic ear infection disability from any time contemporaneous to when he filed his claim to the present.  The examination report includes statements from the Veteran who acknowledged that he has not had any issues with ear infections since his surgery in 2007, and the examiner found no evidence of a current ear infection.  While there is evidence of complaints of chronic ear infections in the Veteran's private and VA treatment records, the infections had resolved by the time the Veteran filed his claim for service connection in June 2009.

The Board acknowledges the Veteran's contentions that his chronic ear infections were a result of his service connected sinusitis.  However, while the Veteran is competent to provide testimony or statements relating to symptoms or facts of events that he has observed and is within the realm of his personal knowledge, he is not competent to establish that which would require specialized knowledge or training, such as medical expertise.  Layno v. Brown, 6 Vet. App. 465, 469-70 (1994).  The record does not show, nor does the Veteran contend, that he has specialized education, training, or experience that would qualify him to render a medical opinion on this matter.  Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), the issue in this case is outside the realm of common knowledge of a lay person because it involves a complex medical issue that goes beyond a simple and immediately observable cause-and-effect relationship.  See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007).

Considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the Veteran is not entitled to service connection for chronic ear infections.  The Board notes that in order for the Veteran's claim of service connection for chronic ear infections to be granted either on a direct or secondary basis, the record would have to contain evidence of a current diagnosis.  The most probative evidence shows that the Veteran has not had a disability involving chronic ear infections since, or contemporaneous to, when he filed his claim of entitlement to service connection for a lung disability.  McLain v. Nicholson, 21 Vet. App. 319 (2007) (holding that the requirement of a current disability is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim, even if no disability is present when the claim is adjudicated.); Romanowsky v. Shinseki, 26Vet. App. 289 (2013) (holding "that when the record contains a recent diagnosis of disability prior to a veteran filing a claim for benefits based on that disability, the report of diagnosis is relevant evidence that the Board must address in determining whether a current disability existed at the time the claim was filed or during its pendency"). 

As discussed above, the Veteran's evidence of record shows that once the Veteran underwent treatment for his service connected sinusitis in 2007, his chronic ear infections resolved.  The May 2012 audiologist found the Veteran's ears to be clear,  and the January 2017 VA examiner determined that the Veteran no longer suffered chronic ear infections after providing the Veteran with a thorough examination and a review of the record.  As the preponderance of evidence is against a finding that the Veteran has had the claimed ear infection disability at any time since or contemporaneous to when he filed his claim, the appeal must be denied.  See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (stating that "[i]n the absence of proof of a present disability there can be no valid claim").  There is no reasonable doubt to be resolved as to this issue.  See 38 U.S.C.A. § 5107 (b); 38 C.F.R. §3.102.

II.  TDIU

Total disability ratings will be assigned when there is impairment of mind or body which renders it impossible for the average person to follow a substantially gainful occupation.  38 C.F.R. § 3.340 (a).  A TDIU rating may be assigned to a veteran who meets certain disability percentage thresholds and is "unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities."  38 C.F.R. § 4.16 (a).  If there is only one such disability, this shall be ratable at 60 percent or more, and if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent disability or more.  38 C.F.R. § 4.16 (a).  For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, (2) disabilities resulting from common etiology or a single accident, (3) disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric, (4) multiple injuries incurred in action, or (5) multiple disabilities incurred as a prisoner of war.  38 C.F.R. § 4.16 (a).

If a veteran fails to meet the percentage standards set forth in 38 C.F.R. § 4.16 (a) but is unemployable by reason of service-connected disabilities, the RO should submit the claim to the Director for extraschedular consideration.  38 C.F.R. § 4.16 (b).

An award of TDIU does not require a showing of 100 percent unemployability.  See Roberson v. Principi, 251 F.3d 1378, 1385 (2001).  The central inquiry is whether a veteran's service-connected disabilities alone are of sufficient severity to produce unemployability.  Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993).  In the determination, VA may not consider non-service-connected disabilities or advancing age.  38 C.F.R. §§ 3.341 , 4.19; see also Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993).

The Veteran contends that his service connection PTSD precludes him from being able to follow a substantially gainful occupation.   As mentioned above, in September 2016, the Board granted the Veteran a TDIU for the period from September 16, 2013 which represents a partial grant of the benefits sought on appeal.

Prior to September 16, 2013, the Veteran service connection was in place for PTSD, tinnitus, partial amputation of the left big toe, a sinus condition, and bilateral hearing loss with a combined disability rating of 60 percent.  Although his PTSD was rated at 50 percent, he did not meet the disability rating threshold as he lacked the additional disabilities necessary to bring the combined disability rating to 70 percent or higher.  38 C.F.R. § 4.16 (a).  However, as previously discussed, if the Veteran is unemployable by reason of service-connected disabilities, he may still qualify for a TDIU. 

The Veteran's application for increased compensation based on unemployability shows that he last worked as a manager for Walmart in January 2008 and was released due to a violation of personnel policy. 

In January 2011, the Veteran was afforded a VA examination for his PTSD.  The Veteran stated he was fired from Walmart due to a conflict with management and after he was fired he had more time to think about what occurred while he was in the service.  The Veteran stated he found himself standing in a room crying, and he began having nightmares again.  The examiner noted that while the Veteran is unemployed, he does not contend that it is due to the effects of a mental disorder, but instead feels he cannot find a job due to the economy and his age.  The examination report noted that the Veteran does not want to be around crowds and that he sometimes feels panicky in stores and other public places.  The examiner reported that the Veteran wanted to work and denied having difficulty maintaining daily living activities or routine responsibilities.  The examiner concluded that the Veteran was not unemployable.

The Board finds the January 2011 VA examination to be the most probative evidence of record as to whether or not prior to September 16, 2013 the Veteran was able to follow a substantially gainful occupation.  The Veteran acknowledged during his examination that he was able to maintain his daily living activities, was currently looking for employment, and while he suffered from nightmares and felt panicky in stores and public places, the Board finds that would not preclude him from seeking employment in a more solitary environment.  The Veteran stated that while he was no longer employed at Walmart due to a dispute with management, he believed he was having difficulty finding employment due to his age and the economy, not due to his service connected disabilities.  It was not until medical evidence created after September 16, 2013 that it was ascertainable that his PTSD had become more disabling.  Therefore, the Board finds that for the period prior to September 16, 2013, the Veteran was able to secure and follow a substantially gainful occupation, thus referral to the Director, Compensation Service for consideration of TDIU on extraschedular basis is not warranted and the Veteran's claim of entitlement to TDIU must be denied.


ORDER

Entitlement to service connection for chronic ear infections is denied.

For the period prior to September 16, 2013, entitlement to TDIU is denied.



____________________________________________
JAMES G. REINHART
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs