Citation Nr: 18149382 Decision Date: 11/09/18 Archive Date: 11/09/18 DOCKET NO. 14-07 770 DATE: November 9, 2018 ORDER Entitlement to service connection for an ear condition (claimed as left ear aches), to include as secondary to service-connected major depressive disorder (MDD), is denied. FINDING OF FACT The preponderance of the evidence is against entitlement to service connection for an ear condition (claimed as left ear aches), to include as secondary to service-connected MDD. CONCLUSION OF LAW The criteria for entitlement to service connection for an ear condition (claimed as left ear aches), to include as secondary to service-connected MDD, have not been met. 38 U.S.C. § 1110, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159(c). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1997 to July 2007. This matter was previously before the Board in November 2017, on appeal from an October 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California. 1. Entitlement to service connection for an ear condition (claimed as left ear aches), to include as secondary to service-connected Major Depressive Disorder (MDD) The Veteran contends that her ear condition (claimed as left ear aches) was incurred in or as a result of service or was aggravated beyond its normal progression or caused by her service-connected MDD. After a review of the evidence, the Board finds that the preponderance of the evidence is against the Veteran’s claim and that the claim must be denied. The Veteran’s service treatment records (STRs) are negative for treatment, complaints, or diagnosis of any ear condition. The Veteran’s post-service VA treatment records reflect complaints and treatment for ear aches, but no etiology opinions. In April 2009 VA treatment records, the Veteran stated that she had suffered from ear aches in her left ear since 2001 and 2002 during her time serving England. In the report of the Veteran’s August 2010 VA examination, the examiner opined that he believed much of the Veteran’s ear condition was due to her temporomandibular joint (TMJ) dysfunction and bruxing and “could be” related to her MDD. In August 2011, the same VA examiner rendered an addendum opinion, during which the examiner stated that, having reviewed the Veteran’s entire medical record of the time, he found no evidence of complaints of ear pain in service. Consequently, he stood by his original impression of the earache being secondary to TMJ dysfunction and not related to military duty. In the report of the Veteran’s January 2014 VA examination, the examiner concluded that the Veteran’s ear condition was less likely than not incurred in or caused by in-service injury, event, or disease, or caused by her service-connected MDD. However, in November 2017, the Board found that another examination was necessary prior to adjudication of the claim, as the examiner had not addressed whether the Veteran’s ear condition was aggravated by her MDD. According to the September 2018 Supplemental Statement of the Case (SSOC), from March 2018, the RO was notified by the Houston VA Medical Center (VAMC) that the Veteran had failed to report for the examination scheduled for her. Consequently, evidence expected from the examination could not be used to consider the Veteran’s case or to potentially render a different decision. As no new evidence was before the RO, the Veteran’s claim was denied again. The Veteran should understand that VA’s duty to assist is not always a one-way street. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Rather, the Veteran must cooperate in obtaining the evidence necessary to adjudicate the Veteran’s claim, including attending VA exams. See 38 C.F.R. §§ 3.159(c). The Veteran should be aware that a failure to appear at a scheduled examination without good cause will result in a determination based on the record. Consequently, no medical opinion supports the Veteran’s ear condition being incurred in or as a result of service, nor does any medical opinion adequately support the Veteran’s claim that her service-connected MDD caused her ear condition or aggravated it beyond its normal progression. The Board would point out that the opinion from August 2010 that the ear condition ”could be” related to MDD lacks probative value, as it is indefinite and speculative in nature. Obert v. Brown, 5 Vet. App. 30, 33 (1993). Such opinion is substantially outweighed by the more definite opinion as to secondary causation from the January 2014 VA examination report. In considering the Veteran’s contentions, the Board notes that she is competent to observe lay symptoms but does not have the medical training or credentials to provide a competent opinion as to a diagnosis, the onset date of such diagnosis, or the effect of a service-connected disability upon a nonservice-connected disability. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Her lay contentions are thus of lower probative value than, and are outweighed by, the August 2010 and January 2014 examination opinions. Consequently, the Board finds that the preponderance of the evidence is against the Veteran’s claim. Accordingly, the Veteran’s claim must be denied. A. C. MACKENZIE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Evan Thomas Hicks