Citation Nr: 21007904 Decision Date: 02/11/21 Archive Date: 02/11/21 DOCKET NO. 15-15 922 DATE: February 11, 2021 ISSUE Entitlement to service connection for otalgia (claimed as painful ears) to include as due to undiagnosed illness. ORDER Entitlement to service connection for otalgia (claimed as painful ears) to include as due to undiagnosed illness is denied. FINDING OF FACT The preponderance of competent and credible evidence weighs against a finding that otalgia was demonstrated in service, that there is a nexus between otalgia and service, or that otalgia was due to undiagnosed illness and medically unexplained chronic multi-symptom illnesses. CONCLUSION OF LAW The criteria for service connection for otalgia have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.159, 3.303(2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1982 to November 1982, and from November 1990 to May 1991. This case comes to the Board of Veterans’ Appeals (Board) on appeal from a January 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO).  In July 2020 the Board remanded this claim for further development. The Board finds that the RO fully complied with the remand instructions and that this case is properly before the Board for further adjudication. Stegall v. West, 11 Vet. App. 268, 271 (1998). During the pendency of this appeal, service connection for Sjogren's syndrome with sialadenitis, dry mouth, and swollen parotid glands was granted in a September 2020 rating decision. As such, this issue is no longer before the Board. Service Connection Claims The Veterans 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 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). The Veteran in this case 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, U.S.C. 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). The Board has reviewed all of the evidence in the Veteran’s claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on her behalf be discussed in detail. Rather, the Board’s analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-130 (2000). Generally, service connection may be granted for disability or injury incurred in or aggravated by active military service. See 38 U.S.C. §§ 1110, 1131 (West 2014); 38 C.F.R. § 3.303 (2017). For veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C. §§ 1101, 1112, 1137 (West 2014); 38 C.F.R. §§ 3.307, 3.309 (2017). In the instant case, there is no presumed service connection because the Veteran’s claimed disability did not manifest to a compensable degree within one year of separation from service and is not considered a chronic disability. In order to establish service connection for the claimed disorder, there must be (1) competent 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) competent evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). The Veteran asserts that she has otalgia as a result of her time spent in Iraq during the Gulf War. Specifically, she has claimed that while there she was potentially exposed to environmental irritants such as burn pits and sandstorms. The Veteran had active service in the Southwest Asia theater of operations during the Persian Gulf War. For a Veteran who had active service in the Southwest Asia theater of operations during the Persian Gulf War (a Persian Gulf veteran), presumptive service connection may be established for a qualifying chronic disability, which specifically includes a medically unexplained chronic multi-symptom illness that is defined by a cluster of signs or symptoms. See 38 U.S.C. §§ 1117, 1118 (2012); 38 C.F.R. § 3.317 (2018). Objective indications of a chronic disability include both “signs,” in the medical sense of objective evidence perceptible to an examining physician, and other, non-medical indicators that are capable of independent verification. 38 C.F.R. § 3.317 (a)(3). Disabilities that have existed for six months or more and disabilities that exhibit intermittent episodes of improvement and worsening over a six-month period will be considered chronic. The six-month period of chronicity will be measured from the earliest date on which the pertinent evidence establishes that the signs or symptoms of the disability first became manifest. 38 C.F.R. § 3.317 (a)(4). Signs or symptoms which may be manifestations of an undiagnosed illness include, but are not limited to, fatigue, signs or symptoms involving the skin, headaches, muscle pain, joint pain, neurologic signs or symptoms, neuropsychological signs or symptoms, signs or symptoms involving the respiratory system (upper or lower), sleep disturbances, gastrointestinal signs or symptoms, cardiovascular signs or symptoms, abnormal weight loss, or menstrual disorders. 38 C.F.R. § 3.317 (b). As noted above, service connection may be established on a presumptive basis for a Persian Gulf Veteran who exhibits objective indications of chronic disability resulting from undiagnosed illness that became manifest either during active service in the Southwest Asia theater of operations during the Persian Gulf War or to a degree of 10 percent or more not later than December 31, 2021, and which by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis. Here, service in the Southwest Asia theater of operations is indicated by the record. 38 C.F.R. § 3.317 (e)(1). If signs or symptoms have been medically attributed to a diagnosed (rather than undiagnosed) illness, the Persian Gulf War presumption of service connection does not apply. VAOPGCPREC 8-98. Notwithstanding the foregoing presumptive provisions, the Veteran is not precluded from establishing service connection for a disease averred to be related to Gulf War service, as long as there is proof of such direct causation. See generally Combee v. Brown, 34 F.3d 1039, 1043-1044 (Fed. Cir. 1994). At the outset, the Board notes that a January 2013 VA Gulf War examination shows that the examiner opined the Veteran’s disability pattern is neither an undiagnosed illness, a diagnosable but medically unexplained chronic multi-symptom illness of unknown etiology, a diagnosable chronic multi-symptom illness with a partially explained etiology, nor a disease with a clear and specific etiology and a diagnosis that can be related to a specific exposure event experienced during the Veteran’s service in Southwest Asia. The examiner took into account the Veteran’s symptoms of angioedema, sialadenitis, otalgia, and sinus infection. The examiner opined there was no evidence that the Veteran’s illnesses are due to toxic exposure in Southwest Asia. The Board notes that the Veteran admitted at the examination that she did not recall having any personal exposure to environmental toxins or smoke in Iraq. Based the competent and credible evidence of record, the Board finds that the claimed otalgia has not been competently and credibly associated with any known etiology or medical diagnosis, and therefore service connection based on the law and regulations pertaining to a possible medically unexplained chronic multi-symptom illness or undiagnosed illness incurred due to Persian Gulf service is not warranted. 38 C.F.R. § 3.317. There is no probative evidence to the contrary. Turning to the direct service connection analysis, in this case, the Veteran has been diagnosed with otalgia, and the Board finds that Hickson element (1) is satisfied. As to Hickson element (2), the Veteran argues that her otalgia is related to her service in Southwest Asia. As such, Hickson element (2) is at least arguably met. In response to the Board’s July 2020 remand, an addendum VA-contracted opinion was obtained in August 2020 in which the examiner opined that it was less likely that the Veteran’s medical record supported that any currently diagnosed conditions related to her claimed otalgia were incurred in or etiologically related to service. The examiner stated that review of the Veteran's service treatment records showed no documentation of complaints of otalgia or ear pain during her active duty service dates. In May 1985, while off active duty, the Veteran was seen for allergies, but there was no mentioning in this visit of otalgia. The examiner stated that given there was no documentation of symptoms of otalgia until many years after the Veteran’s active duty service it was less likely that her otalgia was occurring in or was etiologically related to service. As to Hickson element (3), the Board notes that the August 2020 examiner opined that it was less likely that the Veteran’s medical record supported that any currently diagnosed conditions related to her claimed otalgia were incurred in or etiologically related to service. The Board finds the VA examination reports and opinions to be of great probative value. Indeed, the examiners considered the Veteran’s contention, the claims file, and clinical medical evidence before providing negative etiological opinions. The Board notes that medical reports must be read, and the Board is permitted to draw inferences based on the overall report so long as the inference does not result in a medical determination. Acevedo v. Shinseki, 25 Vet. App. 286, 294 (2012). To this point, the August 2020 VA examiner found that it was less likely that her otalgia was occurring in or was etiologically related to service. The examiners’ negative opinions were supported by a medical rationale. There are no other etiological opinions of record. Based upon review of the evidence of record, with regard to Hickson element (3), evidence of a nexus between the claimed in-service disease or injury and the current disability, the Board finds that this element is not met for the claim of service connection. The Board also acknowledges that the Veteran is competent to testify as to her beliefs. However, there is nothing in the record to suggest that the Veteran has the appropriate training, experience, or expertise to render a medical diagnosis or opinion regarding etiology. See 38 C.F.R. § 3.159 (a)(1) (2017) (setting forth that competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions). While the Veteran is competent to report what she has experienced, she is not competent to ascertain the diagnosis or etiology of any current condition, as such are not readily subject to lay observation. Charles v. Principi, 16 Vet. App. 370, 374-75 (2002); Layno v. Brown, 6 Vet. App. 465 (1994). In short, the preponderance of the evidence weighs against a finding that the Veteran’s claimed otalgia is a manifestation of a medical unexplained or undiagnosed chronic multi-symptom illness. Additionally, the Board has specifically considered that Saunders clarified that evidence of pain alone which results in functional impairment, even if there is no identified underlying diagnosis, can constitute a disability. See Saunders v. Wilkie, 886 F.3d 1356 (2018). Here, otalgia is ear pain, and VA examiners have stated that there is no link to service (nexus) for this condition. Since the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C. § 5107 (b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990); 38 C.F.R. § 3.102. For these reasons, service connection for otalgia is not warranted. MICHAEL A. PAPPAS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R.M.K., 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.