Citation Nr: 21009291 Decision Date: 02/22/21 Archive Date: 02/22/21 DOCKET NO. 13-11 261 DATE: February 22, 2021 ORDER Entitlement to service connection for a disability manifested by earaches is granted. FINDING OF FACT The evidence is at least in equipoise as to whether an earache disorder due to osteomas resulting in ear pain are the likely result of his hearing aids used to treat his service-connected bilateral hearing loss. CONCLUSION OF LAW The criteria for service connection for a disability manifested by earaches have been met. 38 U.S.C. §§ 1131, 5107(b); 38 C.F.R. § 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1972 to May 1977. This matter comes before the Board of Veterans’ Appeals (Board) from a July 2011 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). Following a remand in November 2015, the Board denied this claim in a November 2016 decision. Following appeal of this decision to the Court of Appeals for Veterans Claims (CAVC) the Court in a June 2018 memorandum decision, vacated a portion of this decision for further appellate review consistent with the decision, which in part found that the Board had relied on a medical opinion that provided an insufficient rationale. The Board remanded this matter in February 2019 and again in December 2019 for additional development in accordance with the CAVC’s decision. While the matter was pending on remand status, the RO granted service connection for bilateral hearing loss which had also been remanded, thereby removing this claim from appellate status. See Grantham v. Brown, 114 F.3d 1156, 1158 (Fed. Cir. 1997). The record currently before the Board contains no indication that the Veteran initiated an appeal as to the ratings or effective date assigned. Thus, this matter is no longer in appellate status. Grantham, 114 F.3d at 1158 (holding that a separate notice of disagreement must be filed to initiate appellate review of “downstream” elements such as the disability rating or effective date assigned). The remaining issue on appeal is returned to the Board for further consideration. Service connection for a disability manifested by earaches The Veteran contends that service connection is warranted for a disability manifested by earaches. In his June 2015 hearing, he alleged that he had earaches in service, which have continued to the present. He also described exposures to noise from explosions in service, with symptoms that included earaches. Transcript pg. 15, 16. Service connection generally requires evidence of (1) a current disability;(2) lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); 38 C.F.R. § 3.303. Under 38 C.F.R. § 3.303 (b), an alternative method of establishing the second and third Shedden element is through a demonstration of continuity of symptomatology if the disability claimed qualifies as a chronic disease; such diseases are listed in 38 C.F.R. § 3.309 (a) (including psychoses). See Walker v. Shinseki, 708 F.3d 1331, 1337 (Fed. Cir. 2013). 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; 38 C.F.R. §§ 3.307, 3.309. Service connection may also be granted for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). This permits service connection not only for a disability caused by a service-connected disability, but for the degree of disability resulting from aggravation of a disability by a service-connected disability. See Allen v. Brown, 7 Vet. App. 439, 448 (1995). Having reviewed the evidence and affording the Veteran the benefit of the doubt, the Board finds that service connection for a disability manifested by ear pain is warranted on a secondary basis. As noted in the introduction, service connection has been granted for bilateral hearing loss. The evidence further shows that the Veteran uses hearing aids on a long-term basis to treat his bilateral hearing loss. In his June 2015 hearing he testified buying hearing aids privately in the late 1970s and then started buying the hearing aids from the VA around 2003 or 2004. Transcript pg. 5, 6. The VA records dated in June and July of 2005 note significant hearing loss for which amplification was recommended and ordered. In December 2009 he was seen by an otolaryngology consult for left ear pain when inserting hearing aids. He was assessed with osteoma of the left external auditory canal and a much smaller one on the right side also. He was given the option to be refitted for a hearing aid or to possibly have the mass excised; he chose at this time to pursue refitting the hearing aid. He continued to wear hearing aids for bilateral hearing loss, as shown in records in November 2011, December 2011, and December 2012, with the December 2012 also noting issues with the left ear being plugged up and requiring flushing every two weeks. He has continued to use hearing aids as shown in a July 2020 treatment note. The report of a September 2019 VA examination included an unfavorable opinion regarding the etiology of any earache disorder as well as an unfavorable opinion regarding etiology of hearing loss. The examiner reasoned that there was no audiological problem that could be attributed to service, and given that the STR did not give information suggesting significant ear problems while in service, and given that ear aches are most likely secondary to acute infections which can readily be treated and resolve promptly, it is unlikely that there was significant functional loss from this problem. Later, a November 2020 VA examination provided favorable etiology opinions linking his bilateral hearing loss disability to service, supporting the RO’s grant of service connection for bilateral hearing loss in November 2020. A November 2020 VA examination opinion further addressed the etiology of his claimed disability manifested by earaches/ear pain. Although this opinion determined that it was not as likely as not that such a disability was directly related to service, it did provide a favorable opinion on a secondary basis to his service connected hearing loss, to specifically include the hearing aids used to treat his hearing loss. In the rationale, the examiner opined that the most likely cause of the Veteran’s ear pain is due to the osteomas noted bilaterally in previous examinations. On this examination only the left-sided osteoma is noted, and the right external auditory canal is somewhat flattened possibly consistent with extra bone formation. The examiner noted that the etiology of osteomas is unknown, and would not be expected to occur from acoustic trauma decades previously. However, they can be painful as they do replace normal bone with hardened bone. This could be aggravated by placing hearing aids in the external auditory canals. The Veteran did not appear to have external otitis media, mastoiditis or a nerve condition causing ear pain. The Veteran reported subjective symptoms of ear pain with cold exposure. However, this could not be objectively confirmed, and records at the time of exit from service were negative for pain, as was his initial auditory examination in 2005. This suggests that the placement of the hearing aids playing a role with the ear pain. The examiner noted that Veteran associates the ear pain with the hearing loss itself, but there is no known pathophysiological relationship between osteomas and the hearing loss he describes. However, the examiner stated that it is more likely that the osteomas are a result of the hearing aids versus unknown etiology. The Board finds that the November 2020 VA examiner’s opinion determining that the Veteran’s osteomas resulting in ear pain are the likely due to his hearing aid usage supports a grant of service connection for a claimed disorder manifested by earaches and/or ear pain as proximately due to the service connected hearing loss, and more specifically the use of the hearing aids to treat this service connected disability. This opinion was supported by adequate rationale and was further supported by medical evidence showing left ear pain reported in December 2009 while wearing hearing aids, with diagnosis of osteomas made. Regarding the unfavorable opinion from the VA examiner in September 2019, the Board lends this little probative weight. The rationale provided by this examiner was premised on there being no audiological problem which could be attributed to service, which was later reversed in November 2020 when hearing loss was determined to have been linked to acoustic trauma in service. At the very least the favorable evidence is in equipoise that the Veteran’s osteomas resulting in ear pain are proximately due to his service-connected hearing loss requiring the use of hearing aids. Eric S. Leboff Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Eckart 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.