Citation Nr: 20005913 Decision Date: 01/23/20 Archive Date: 01/23/20 DOCKET NO. 12-32 756 DATE: January 23, 2020 ORDER Entitlement to service connection for chronic bilateral otitis externa (claimed as bilateral ear sores) to include as secondary to service-connected bilateral hearing loss is denied. FINDING OF FACT The Veteran does not have a current disability of chronic bilateral otitis externa (claimed as bilateral ear sores). CONCLUSION OF LAW The criteria for entitlement to service connection for chronic bilateral otitis externa (claimed as bilateral ear sores), to include as secondary to the Veteran's service-connected bilateral hearing loss have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from December 1971 to December 1975 and in the United States Navy from March 1976 to December 1976. This matter comes to the Board of Veterans’ Appeals (Board) from a July 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington. This case was remanded to Agency of Original Jurisdiction (AOJ) by the Board in December 2015 and November 2017 for additional development. On February 2019, the RO issued a Supplemental Statement of the Case (SSOC) denying the Veteran’s claim of entitlement to service connection for chronic bilateral otitis externa (claimed as bilateral ear sores) after a VA examiner reviewed all of the evidence of record, examined the Veteran and found no medical history or basis to diagnose this condition. Duty to Notify and Assist The Veteran 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; 38 C.F.R. §§ 3.102, 3,156(a), 3.159, 3.326(a). Neither the Veteran nor his representative has not referred to any deficiencies in either the duties to notify or assist; therefore, the Board may proceed to the merits of the claim. See Scott v. McDonald, 789 F. 3d 1375, 1381 (Fed. Cir. 2015, cert. denied, S.Ct. Oct. 3, 2016) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board….to search the record and address procedural arguments when the [appellant] fails to raise them before the Board”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to an appellant’s failure to raise a duty to assist argument before the Board). Service Connection Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be established for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection is granted on a direct basis when there is competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). In Gilbert v. Derwinski,1 Vet. App. 49, 53 (1990), the Court stated that “a veteran need only demonstrate that there is an ‘approximate balance of positive and negative evidence’ in order to prevail.” To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996) (citing Gilbert, 1 Vet. App. at 54). Additionally, for certain chronic diseases with potential onset during service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. If chronicity in service is not established, a showing of continuity of symptoms after discharge may support the claim. 38 C.F.R. §§ 3.303(b), 3.309; Walter v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The threshold question in any claim seeking service connection is whether there is a current disability at any point during the appeal period. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). In the absence of proof of a current disability, service connection is not warranted. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Entitlement to service connection for chronic bilateral otitis externa (claimed as bilateral ear sores) to include as secondary to the Veteran's service- connected bilateral hearing loss. The Veteran contends that his chronic bilateral otitis externa (claimed as bilateral ear sores) associated with bilateral hearing loss is due to a period of his military service. See Veteran’s Informal Hearing Presentation (IHP). Thus, the question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event or disease. The Board concludes that the objective evidence of record does not show a current diagnosis or disability related to chronic otitis externa (claimed as bilateral ear sores). Thus, the preponderance of the evidence is against finding that the Veteran has a current disability as a result of his chronic bilateral otitis externa. The Board has reviewed all of the evidence in the Veteran’s claim file—to include the Veteran’s lay statements, treatment records, a June 2018 Disability Benefits Questionnaire (DBQ) report. The Veteran asserts that his usage of hearing aids which were provided for his service-connected hearing loss caused chronic bilateral otitis externa—to include “crusted old blood” in his right ear canal. See June 2009 treatment record and May 2010 treatment record. The Board acknowledges that the Veteran, as a lay person, is competent to report his observable symptoms. See Layno v. Brown, 6 Vet. App. 465, 467-69 (1994). The Board also acknowledges that under certain circumstances, lay persons are competent to provide opinions of medical matters such as diagnosis and etiology. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). However, the determination of whether specific symptoms are attributable to otitis externa, is not the type of question that is readily amenable to mere lay diagnosis or nexus opinion as testing and other specific findings are needed to properly make such a finding. The existence of a current disability is the cornerstone of a claim for service connection and 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). In the absence of a current diagnosis of otitis externa, service connection for such disability cannot be granted. Congress has specifically limited entitlement to service-connected benefits to cases where there is a current disability. In the absence of proof of a present disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223 (1992). In the instant matter, the record contains the Veteran’s statements complaining of ear sores as a result of wearing his hearing aids. See Veteran’s December 2011, February 2011, and June 2009 Statements. The Board has considered the Veteran’s statements and finds them credible pursuant to Layno v. Brown. 6 Vet. App. 467-69. The Veteran is competent to present his observations and symptoms of ear sores as a lay person. However, the Veteran cannot opine on whether his symptoms are attributable to otitis externa. Notably during the Veteran’s physical examinations, there was no evidence of bilateral lesions or sores in his ears consistent with a diagnosis of otitis externa. During a June 2018 VA examination, there was no evidence of bilateral otitis externa was found. The VA examiner noted that the Veteran could not explain anything regarding his alleged ear lobe lesions or sores. The VA examiner specifically noted “…[p]hysical examination reveals No ear lobe sore or lesion with either ear (left or right).” During the VA examination, the Veteran complained about his hearing loss and other physical ailments; however, the Veteran indicated that he does not know anything regarding his ear sores. The VA examiner thoroughly reviewed the Veteran’s claims file and opined that the record does not provide objective evidence of ear lobe sores or lesions since February 2011. Thus, the record does not evidence that the Veteran has a current otitis externa disability. Moreover, the VA examiner opined that Veteran’s physical examination did not provide objective evidence of bilateral ear lobe sores. The primary abnormality found during the Veteran’s physical examination was ear wax blockage in both of his ears. The VA examiner determined that no medical opinion or diagnosis was warranted regarding the Veteran’s claims of otitis externa, ear lobe sores and lesions, because of the lack of objective evidence documenting such condition. Therefore, the VA examiner determined that a service connection opinion was not warranted for the Veteran’s claims of lesions and sores on his ears; furthermore this “non-existing condition” did not warrant a medical opinion related to the Veteran’s service-connected bilateral hearing loss. As a service connection claim requires, at minimum, evidence of a current disability, the Veteran’s claim for service connection for chronic bilateral otitis externa unfortunately must be denied since he has not met this proof requirement. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). A current disability means a disability shown by competent and credible evidence to exist. There is no evidence that the Veteran has had current symptoms or a diagnosis of chronic bilateral otitis externa during the pendency of this claim. The existence of a current disorder is a required element of a claim for VA disability compensation. 38 U.S.C. §§ 1110, 1131; See Degmetich v. Brown, 104 F.2d 1328, 1332 (1997); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). The Board finds that the June 2018 medical opinion and findings are supported. The record evidences no finding of a current diagnosis of bilateral chronic otitis externa (claimed as bilateral ear sores) to include as secondary to the Veteran’s service-connected bilateral hearing loss. Based on the foregoing, the evidence does not demonstrate a current diagnosis of bilateral otitis externa at any time during the appeal period or within close proximity thereto. The Board finds that the preponderance of the evidence is against the Veteran’s service connection claim for bilateral otitis externa. Therefore, the benefit of the doubt doctrine is not available for application. See 38 U.S.C. § 5107, 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Kristy L. Zadora Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Kimberly N. Henderson, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.