Citation Nr: 18156592 Decision Date: 12/11/18 Archive Date: 12/10/18 DOCKET NO. 15-10 144 DATE: December 11, 2018 ORDER Entitlement to service connection for residuals of perforated ear drum is denied. REMANDED Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for otitis media with otitis externa is remanded. FINDING OF FACT There is no competent evidence of record that reflects the Veteran suffers from residuals of perforated ear drum. CONCLUSION OF LAW The criteria for service connection for residuals of perforated ear drum have not been met. 38 U.S.C. § 1110 (2012); 38 C.F.R. §§ 3.303 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1969 to November 1969. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. At the outset, the Board notes that since the Board issued the June 1971 decision denying service connection for bilateral hearing loss and otitis media with otitis externa, and the June 2010 RO rating decision denying service connection for residuals of perforated ear drum, relevant service treatment records (STRs) have been associated with the claims folder. Pursuant to 38 C.F.R. § 3.156 (c), VA must reconsider the service connection claims, notwithstanding the prior finally adjudicated claims. Accordingly, the petitions to reopen the claims have been recharacterized as service connection claims. The Board notes that the Veteran has not undergone a VA examination in connection with his claim for residuals of perforated ear drum. Generally, a VA medical examination is required for a service connection claim only when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain disease manifesting that an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran’s service or with another service-connected disability, but (4) there is insufficient competent medical evidence on file for the VA to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). As noted below, there no evidence of a current disability. Therefore, a VA examination is not required for the Veteran’s claim of service connection for residuals of perforated ear drum. Entitlement to service connection for residuals of perforated ear drum Service connection may be granted for any current disability that is the result of a disease contracted or an injury sustained in the line of duty during active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a). Service connection may be granted for a disease diagnosed after discharge, when the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303 (d). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a link between the claimed in-service disease or injury and the present disability. Romanowsky v. Shinseki, 26 Vet. App. 289, 293 (2013). Service connection may not be granted without evidence of a current disorder. 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); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Under the applicable regulation, the term “disability” means impairment in earning capacity resulting from diseases and injuries and their residual conditions. 38 C.F.R. § 4.1 (2015); see Hunt v. Derwinski, 1 Vet. App. 292, 296 (1991). Lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability, or symptoms of disability, susceptible of lay observation. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). When a claimant seeks benefits and the evidence for and against the claim is in relative equipoise, the claimant prevails. 38 U.S.C. § 5107 ; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for a claim to be denied. Alemany v. Brown, 9 Vet. App. 518 (1996). Regarding the first element of service connection, the existence of a present disability, the evidence of record does not establish that the Veteran has residuals of perforated ear drum. Upon review of the record, the Veteran complained of and was treated for hearing loss issues and otitis media with otitis externa; however, there is no diagnosis in the record for residuals of perforated ear drum. In addition, service treatment records and post-service treatment records have not noted any diagnosis for the Veteran’s residuals of perforated ear drum. At most, in a September 1969 service treatment record, the Veteran was seen to get his ear irrigated. The physician noted that his ear drum was very blood stained. However, the physician diagnosed the Veteran with otitis media. The Board recognizes the recent decision in Saunders v. Wilkie that “pain alone can serve as a functional impairment and therefore qualify as a disability.” No. 2017-1466, 2018 U.S. App. LEXIS 8467 (Fed. Cir. Apr. 3, 2018). However, the Court in Saunders cautioned that a Veteran cannot demonstrate service connection simply by asserting subjective pain. Id. Rather, the Court stated “[t]o establish the presence of a disability, the veteran will need to show that [his or] her pain reaches the level of functional impairment of earning capacity.” Id. In this case, the Board finds that the Veteran has not asserted any subjective difficulties regarding residuals of perforated ear drum. Therefore, there are no symptoms to measure whether they are severe enough to reach the level of functional impairment of earning capacity. Here, the medical evidence of record only refutes the Veteran’s claim, and does not support his statement that he currently suffers from residuals of perforated ear drum. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not for application and the claim must be denied. REASONS FOR REMAND Entitlement to service connection for bilateral hearing loss and entitlement to service connection for otitis media with otitis externa are remanded. Every Veteran who served in the active military, naval, or air service after December 31, 1946, shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C. § 1111; see also 38 C.F.R. § 3.304 (b); Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004); VAOPGCPREC 3-2003 (July 16, 2003) (holding that to rebut the presumption of sound condition under 38 U.S.C. § 1111, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service). A pre-existing disease or injury will be considered to have been aggravated by military service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C. § 1153 (2012); 38 C.F.R. § 3.306 (2017). Clear and unmistakable evidence is required to rebut a presumption of aggravation where the pre- service disability underwent an increase during service. 38 C.F.R. § 3.306. Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. Falzone v. Brown, 8 Vet. App. 398 (1995). Temporary or intermittent flare-ups during service of a pre-existing injury or disease are not sufficient to be considered “aggravation in service” unless the underlying condition, as contrasted to symptoms, is worsened. Jensen v. Brown, 4 Vet. App. 304, 306-07 (1993), citing Hunt v. Derwinski, 1 Vet. App. 292 (1991). The Board finds that there is a competent indication that the Veteran’s bilateral hearing loss and otitis media with otitis externa may be associated with his service. In his July 1969 enlistment examination, hearing loss was noted and a history of otitis externa from childhood was noted. However, the Veteran’s hearing loss was found to be mild and nondisqualifying and he was overall determined to be fit for duty. Service treatment records show numerous accounts of complaints and treatment for hearing problems and otitis media with otitis externa. Recent VA treatment records also reflect current hearing and ear problems. The Board notes that the threshold for finding a link between current disability and service is low. Accordingly, a VA examination determining whether his claimed hearing loss and otitis media with otitis externa was aggravated beyond its natural progression by service is warranted. Additionally, the Veteran argues that he did not have any hearing problems or ear conditions prior to service. Therefore, the VA examiner should determine whether the Veteran had pre-existing hearing loss or otitis media with otitis externa, and if found to not be pre-existing, the examiner should make a determination on a direct service connection basis as well. See McLendon, 20 Vet. App. at 83. The matters are REMANDED for the following actions: 1. Obtain any outstanding private or VA treatment records. Request that the Veteran assist with locating these records, if possible. Associate these records with the claims file. 2. Then, schedule the Veteran for a VA examination with an appropriate examiner to determine the nature and etiology of the Veteran’s claimed bilateral hearing loss. The claims folder and a copy of this remand must be made available to the examiner for review in connection with the examination, and the examiner must acknowledge such review in the examination report. The examiner must provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the claimed bilateral hearing loss condition was caused or aggravated by his service. In rendering the opinion, the examiner must, first, determine whether the claimed bilateral hearing loss pre-existed service. If so, then the examiner must determine whether the bilateral hearing loss increased in severity during service. If the examiner determines that the Veteran’s bilateral hearing loss did not pre-exist service, then the examiner must determine whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s bilateral hearing loss was caused by service. The examiner is advised that the Veteran is competent to report injuries and symptoms and that his reports must be considered in formulating the requested opinions. If the Veteran’s reports are discounted, the examiner should provide a reason for doing so. The examiner must provide a clear and complete rationale for all opinions and conclusions expressed. If the examiner cannot provide an opinion without resort to speculation, the examiner should provide an explanation as to why this is so and whether there is additional evidence that would permit the opinion to be provided. 3. Also, schedule the Veteran for a VA examination with an appropriate examiner to determine the nature and etiology of the Veteran’s otitis media with otitis externa. The claims folder and a copy of this remand must be made available to the examiner for review in connection with the examination, and the examiner must acknowledge such review in the examination report. The examiner must provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the claimed otitis media with otitis externa was caused or aggravated by his service. In rendering the opinion, the examiner must, first, determine whether the claimed otitis media with otitis externa clearly and unmistakably pre-existed service. If so, then the examiner must determine whether the otitis media with otitis externa increased in severity during service. The examiner must address whether it is clear and unmistakable evidence that the disability was not aggravated beyond the natural progress of the disability. If the examiner determines that the Veteran’s otitis media with otitis externa did not pre-exist service, then the examiner must determine whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s otitis media with otitis externa was caused by service. The examiner is advised that the Veteran is competent to report injuries and symptoms and that his reports must be considered in formulating the requested opinions. If the Veteran’s reports are discounted, the examiner should provide a reason for doing so. The examiner must provide a clear and complete rationale for all opinions and conclusions expressed. If the examiner cannot provide an opinion without resort to speculation, the examiner should provide an explanation as to why this is so and whether there is additional evidence that would permit the opinion to be provided. 3. Thereafter, readjudicate the claims on appeal. If the benefit sought remains denied issue the Veteran and his representative a supplemental statement of the case and provide a reasonable opportunity to respond before returning the matter to the Board for further appellate review. MICHAEL MARTIN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Saudiee Brown, Associate Counsel