Citation Nr: 21005531 Decision Date: 02/01/21 Archive Date: 02/01/21 DOCKET NO. 15-21 166 DATE: February 1, 2021 ORDER Entitlement to service connection for an ear condition is denied. Entitlement to service connection for bilateral hearing loss is denied. REMANDED Entitlement to a total disability rating due to individual unemployability (TDIU) based upon service-connected disabilities is remanded. FINDINGS OF FACT 1. The Veteran’s ear condition clearly and unmistakably preexisted service, and the ear condition clearly and unmistakably was not aggravated by service or was otherwise related to service. 2. The Veteran’s bilateral hearing loss did not incur during, was not caused by active duty service, and did not manifest to a compensable degree within one year of separation from active duty. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for an ear condition have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304. 2. The criteria for entitlement to service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1995 to December 1997. In July 2018, June 2019, and March 2020, the Board of Veterans’ Appeals (Board) remanded the matters on appeal for further development. In September 2020, VA granted service connection for degenerative arthritis of the spine. The September 2020 rating decision represents a full grant of the benefits sought; and therefore, the appeal was granted in full and is no longer before the Board. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). To prevail on the issue of service connection, there must be (1) medical evidence of a current disability; (2) medical, or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Alternately, service connection may be established under 38 C.F.R. § 3.303(b) by (a) evidence of (i) the existence of a chronic disease in service or during an applicable presumption period under 38 C.F.R. § 3.307 and (ii) present manifestations of the same chronic disease, or (b) when a chronic disease is not present during service, evidence of continuity of symptomatology. Certain chronic diseases, including arthritis, may be service connected if manifested to a degree of 10 percent disabling or more within one year after separation from service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. A layperson is competent to report on the onset and continuity of his or her current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). 1. Entitlement to service connection for an ear condition The Veteran’s December 1994 entrance examination was negative for any diagnoses or complaints of ear conditions. In May 1995, the Veteran reported pressure equalizing tubes as a baby, and episodes of otitis media since age 12. The Veteran was diagnosed with otitis media and otitis externa of the left ear, and chronic otitis changes of the right ear. In the May 1997 separation examination, the Veteran reported a history of ear trouble, and the ear drums were marked as abnormal, to include entrance and separation examinations are negative for complaints of hearing loss. In the April 2012 VA 21-4142, the Veteran reported severe ear pain and infections for years since boot camp. The Veteran contends that his ear condition is related to his documented ear conditions during active duty. The Veteran was afforded a VA examination in November 2012. The Veteran was diagnosed with cholesteatoma. The Veteran felt the problem began while on active duty. No opinion was provided because the Veteran’s claims folder was not available for review. A VA addendum opinion was provided in February 2013 after review of the Veteran’s claims file. The examiner found no evidence of appropriate diagnosis or treatment for chronic otitis media during active duty, and therefore provided a negative nexus opinion. The Veteran was provided a VA examination in October 2018. No opinion was provided. A new VA examination was provided in September 2019. The Veteran was diagnosed with suppurative otitis media and cholesteatoma. Based upon the documented history of ear conditions prior to active service in the service treatment records (STRs), the examiner found the Veteran’s chronic otitis media clearly and unmistakably existed prior to service. There was no evidence that service made the otitis media any worse. The significant change of the right ear condition occurred following cholesteatoma surgery in 2010, which is when the chronic suppurative condition began. There was no evidence that active duty aggravated the chronic otitis media problems that he experienced prior to entrance into service. Additionally, there was no evidence of cholesteatoma during active duty, or for 13 years after separation. Therefore, there is no evidence of cholesteatoma incurring during or being caused by active duty. In the August 2020 VA addendum opinion, the examiner noted the Veteran’s middle ear disease dated back to childhood. Development of cholesteatoma and perforated tympanic membrane are all part of the natural process of poorly controlled middle ear disease. There was no evidence of any shifts in hearing, or development of perforation while in service; and therefore, it was clear that active duty did not aggravate the preexisting middle ear disease. The Veteran contends that his ear condition incurred during service. Lay persons are competent to provide opinions on some medical issues. That said, the diagnosis of a cholesteatoma is medically complex, and accordingly, the Board assigns greater weight to the opinion of the VA examiner than to the Veteran’s own lay opinion. The Veteran has not been shown to possess the training, credentials, or other expertise to render a diagnosis that is of comparable probative value to that of the VA examiner’s opinion. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Board notes the Veteran’s entrance examination was negative for any evidence of an ear condition. When an issue is raised as to whether the disorder claimed by a veteran preexisted service, the governing law provides that every veteran 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 examination, acceptance, and enrollment into service, or where clear and unmistakable (obvious or manifest) evidence demonstrates that (1) an injury or disease existed before acceptance and enrollment into service (2) and was not aggravated by such service. See 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b); Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991). This statutory provision is referred to as the “presumption of soundness.” Horn v. Shinseki, 25 Vet. App. 231, 234 (2012). In Smith v. Shinseki, 24 Vet. App. 40, 45 (2010), it was clarified that the presumption applies when a Veteran has been “examined, accepted, and enrolled for service,” and where that examination revealed no “defects, infirmities, or disorders.” 38 U.S.C. § 1111. Plainly, the statute requires that there be an examination prior to entry into the period of service on which the claim is based. See Crowe v. Brown, 7 Vet. App. 238, 245 (1994). Only such conditions as are recorded in examination reports are considered as “noted.” 38 C.F.R. § 3.304(b). History of pre-service existence of conditions recorded at the time of examination does not constitute a notation of such conditions but will be considered together with all other material evidence in determinations as to inception. 38 C.F.R. § 3.304(b)(1). Therefore, where there is evidence showing that a disorder manifested or was incurred in service, and this disorder is not “noted” on the Veteran’s entrance examination report, this presumption of soundness operates to shield the Veteran from any finding that the unnoted disease or injury preexisted service. See Gilbert v. Shinseki, 26 Vet. App. 48 (2012); see also 38 C.F.R. § 3.304(b). The presumption of soundness is only rebutted where the evidence clearly and unmistakably shows that the Veteran’s disability (1) existed before acceptance and enrollment into service and (2) was not aggravated by service. See Wagner, 370 F.3d at 1096; Bagby, 1 Vet. App. at 227. The two parts of this rebuttal standard are referred to as the “preexistence prong” and the “aggravation prong.” Horn, 25 Vet. App. at 234. The collective VA examinations and nexus opinions of record meet the two-prong test to rebut the presumption of soundness. The Board finds that the Veteran’s otitis media clearly and unmistakably preexisted active service, and active service clearly and unmistakably did not aggravate the otitis media. The Veteran’s cholesteatoma did not preexist service, and therefore the presumption of soundness does apply to cholesteatoma. However, the examiners found the cholesteatoma did not incur during and was not caused by active service. The collective VA opinions show the examiners reviewed the Veteran’s entire record, and provided rationales to support the opinions. The record is negative for probative medical opinions indicating a positive nexus between the Veteran’s cholesteatoma and active service, or in-service aggravation of preexisting otitis media. Based on this evidentiary posture, the Board concludes that the preponderance of the evidence is against the Veteran’s claim for service connection for an ear condition. As the preponderance of the evidence is against this claim, the benefit-of-the-doubt rule does not apply, and the Veteran’s claim for service connection for an ear condition is denied. See 38 U.S.C. § 5107. 2. Entitlement to service connection for bilateral hearing loss The Veteran’s December 1994 entrance examination was negative for any diagnoses or complaints of hearing loss. In May 1995, the Veteran reported decreased hearing. The Veteran was diagnosed with otitis media and otitis externa of the left ear, and chronic otitis changes of the right ear. In the May 1997 separation examination, the Veteran reported a history of ear trouble, and the ear drums were marked as abnormal; however, the Veteran provided a negative history for hearing loss. In February 2009 private treatment notes, the Veteran reported one year of hearing loss. In the April 2012 VA 21-4142, the Veteran reported severe ear pain and infections for years since boot camp. The Veteran was provided a VA examination in December 2012. The Veteran was diagnosed with bilateral conductive hearing loss. The Veteran’s claims file was not reviewed by the examiner. An addendum opinion was provided in March 2013. The Veteran’s audiometric thresholds were within normal limits during the entrance and separation examinations, and, therefore, the examiner provided a negative nexus opinion regarding the Veteran’s hearing loss being connected to active service. A VA examination was afforded to the Veteran in October 2018. The Veteran was diagnosed with bilateral mixed hearing loss. The Veteran’s STRs showed subjective complaints of reduced hearing associated with otitis media, but hearing loss was not diagnosed in service. The audiometric evidence in the STRs show the hearing was within normal limits. Based on a review of the Veteran’s claims file, the examiner found it was less likely than not that hearing loss began in service or was related to in-service disease, injury, or noise exposure. A new VA examination was provided in September 2019. The examiner diagnosed the Veteran with bilateral sensorineural hearing loss. Based on a review of the claims file, clinical expertise, related literature, and the present degree of hearing loss; the examiner provided a negative nexus opinion. The entrance and separation examinations showed normal hearing in both ears with no significant threshold shifts. There was no objective evidence of acoustic trauma in either ear. The examiner noted that medical literature does not provide a sufficient scientific basis for the existence of delay-onset hearing loss. In a May 2020 VA addendum opinion, the examiner noted that hearing loss was not related to service. The Veteran had normal enlistment and separation examinations. The Veteran worked in construction and race cars without hearing protection. The Veteran’s preexisting middle ear disease led to the conductive component of the Veteran’s hearing loss. The Veteran showed no hearing loss within 2 years of separation from active service. Although some papers have suggested delayed onset hearing loss, that is not an accepted position based upon the body of literature, and, therefore, it is less likely than not that the current hearing loss is related to military service. Although noise exposure was conceded, auditory damage and hearing loss could not be conceded based on noise alone. Additionally, the onset was reported to be 12 years after active service in 2009, and the Veteran reported occupational noise exposure. The VA examiners provided the negative nexus opinions based upon an audiological examination and a complete review of the Veteran’s claim file. The Veteran contends that his hearing loss was caused by otitis media in service. Lay persons are competent to provide opinions on some medical issues. That said, the diagnosis of a bilateral hearing loss disability as defined by VA is medically complex, requiring specified audiological testing, and, accordingly, the Board assigns greater weight to the testing performed by, and the opinion of, the VA examiner than to the Veteran’s own lay opinions or that of the private examiner. The Veteran has not been shown to possess the training, credentials, or other expertise to render a diagnosis that is of comparable probative value to that of the VA examiner’s opinion. See Jandreau, 492 F.3d at 1372. The record is negative for findings indicative of hearing loss until 2009, approximately 12 years after separation from active service. See February 2009 private treatment records. Collectively, the VA examiners reviewed the Veteran’s entire record, and provided rationales to support the opinions. Based on this evidentiary posture, the Board concludes that the preponderance of the evidence is against the Veteran’s claim for service connection for bilateral hearing loss. As the preponderance of the evidence is against this claim, the benefit-of-the-doubt rule does not apply, and the Veteran’s claim for service connection for bilateral hearing loss is denied. See 38 U.S.C. § 5107. REASONS FOR REMAND In the July 2012 Report of General Information, the Veteran reported that he had been out of work since October 2011. He last submitted a TDIU application in September 2012, and he reported last working full-time in April 2010. The Board notes that VA treatment records in August 2019, November 2019 and January 2020 show the Veteran reported that he was currently working. Although the Veteran currently meets the schedular criteria for consideration for a TDIU, based upon multiple service-connected musculoskeletal disabilities, remand is necessary for a new and updated VA Form 21-8940 to provide VA with relevant information such as his work schedule and his level of income. The matters are REMANDED for the following action: 1. Furnish the Veteran with a 38 C.F.R. § 3.159(b) notice letter and a VA Form 21-8940 as to the TDIU claim. 2. Then, complete any additional development of the evidentiary record deemed necessary, before readjudicating the Veteran’s claim. A. C. MACKENZIE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. N. Quarles, 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.