Citation Nr: 21012300 Decision Date: 03/04/21 Archive Date: 03/04/21 DOCKET NO. 12-08 849 DATE: March 4, 2021 ORDER Entitlement to service connection for otitis externa is denied. REMANDED Entitlement to service connection for a genitourinary disability, to include benign prostatic hypertrophy, epididymitis, overactive bladder, neurogenic bladder, and/or detrusor instability, is remanded. FINDING OF FACT There is no evidence in the record of a current disability manifesting in otitis externa. CONCLUSION OF LAW The criteria for establishing service connection for otitis externa have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty with the United States Navy from June 1977 to June 1981. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2012 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a hearing in October 2013. This case was previously before the Board in May 2015, June 2017, February 2018, and February 2020, when it was remanded for development. The case has been returned to the Board for further appellate review. The Board notes the July 2012 rating decision on appeal denied service connection for chronic dysuria, prostatitis, and epididymitis, which were later characterized by the Board as one claim for service connection for a genitourinary disability. Although service connection for chronic dysuria was granted in an October 2020 rating decision, the Board finds it appropriate to consider the underlying claims for epididymitis and prostatitis (now characterized as benign prostatic hypertrophy), as well as the other disabilities raised under the umbrella of a genitourinary disability during the pendency of this appeal. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a). Establishing service connection generally requires (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 current disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also 38 C.F.R. § 3.303, Hickson v. West, 12 Vet. App. 247, 252-53 (1999). Service connection may be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). The existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C. § 1110; see Degmetich v. Brown, 104 F.3d 1328 (1997); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Entitlement to service connection for otitis externa The Veteran claimed service connection in July 2010 for otitis externa based on notations of ear infections, diagnosed as otitis externa, in his service treatment records. While in service, the Veteran was treated for several ear infections. The Veteran’s VA treatment records do not contain any complaints of ear infection, and no treatment for or diagnosis of otitis externa. The Veteran submitted several private treatment records from providers specializing in audiology and neurotology. In July 2010, at a workup for intermittent dizziness, the Veteran did not report any ear infections, and no abnormalities of the outer ear were noted. At a July 2011 vestibular evaluation, the Veteran’s otoscopy, middle ear evaluation, and audiometry were all normal, and the Veteran did not report any problems with ear infections. In a March 2013 hearing test, the Veteran reported a history of otitis externa, but no current ear infection was noted. At an April 2013 vestibular evaluation, it was noted the Veteran did not have otitis externa, and although the Veteran again reported previous ear infections, he did not complain of any recent or current ear infections. The Veteran attended several VA examinations while this claim was pending. In March 2016, the Veteran reported having ear infections during service, but did not recall having any ear infections since his discharge from the Navy. The physical otomicroscopic examination of the Veteran’s ears, including external ear, ear canal, and tympanic membrane, was normal, without any evidence of acute or chronic disease. At an October 2017 examination, the Veteran reported having ear infections after service and seeking care for them from his VA doctors, as well as seeing a private otolaryngologist. The physical examination of the Veteran’s ears was again normal at this examination. A July 2020 examination of the Veteran’s external ears, ear canals, and tympanic membranes was also normal, and the Veteran reported only problems with dizziness, tinnitus, and balance at this examination. Both the October 2017 and July 2020 VA examiners noted one instance in the record where the Veteran was treated for an ear condition, when, in November 2008, he was diagnosed with otitis media with perforation. The October 2017 examiner noted that otitis media has a distinct pathology from otitis externa, although both may manifest with similar symptoms of earache. The Board also notes, that, at the October 2013 Board hearing, the Veteran did not report currently experiencing ear infections or receiving a diagnosis of otitis externa since service. After review of the evidence of record, the Board finds there is no current diagnosis of chronic otitis externa or any evidence indicating the Veteran currently experiences recurring ear infections. Although the November 2008 diagnosis of otitis media could have produced symptoms similar to those the Veteran experienced in service, the Board does not find that the single instance of otitis media in November 2008 is recent to the Veteran’s July 2010 service connection claim, and therefore cannot serve to establish a current disability. See Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013) (current disability requirement is satisfied when the record contains a recent diagnosis of disability prior to filing a claim for benefits based on that disability). Moreover, the October 2017 examiner noted that otitis media has a distinct pathology from otitis externa. The Board acknowledges the Veteran’s report of post-service ear infections made at the October 2017 VA examination; however, the Board does not find this statement to be credible evidence of the existence of ear infections during the appeal period. The Board initially notes that the credibility of this report is diminished by the Veteran’s denial of ear infections after service at the March 2016 VA examination. The credibility of this statement is further diminished by the fact that the Veteran reported he sought treatment for these infections, which is not reflected in the VA and private treatment records for ear complaints during the pendency of this claim. The Board finds the absence of treatment for ear infections in his post-service medical records to be significant in this case because these records contain numerous instances of the Veteran seeking treatment for complaints related to his ears but he never reported any current ear infections while seeking treatment and no infections were noted by the treating medical professionals. The Board finds that if the Veteran had experienced ear infections during the appeal period, it would be likely that he would have reported these infections when seeking treatment for ear complaints. As there is no current disability manifesting in otitis externa, service connection for otitis externa is not warranted. See Brammer, 3 Vet. App. at 225. REASONS FOR REMAND Entitlement to service connection for a genitourinary disability, to include benign prostatic hypertrophy, epididymitis, overactive bladder, neurogenic bladder, and/or detrusor instability, is remanded. Unfortunately, there has not been substantial compliance with the Board’s previous remand directives, and another remand is required. See Stegall v. West, 11 Vet. App. 268, 271 (1998). In September 2020, the RO obtained new genitourinary examinations and, in November 2020, new etiology opinions. However, the November 2020 VA examiner simply copied the bulk of the September 2018 opinion that the Board had found to be inadequate. The new opinion therefore still fails to address the etiology of the benign prostatic hypertrophy, and still does not address whether the in-service treatment for epididymitis and prostatitis is at least as likely as not related to the later development of urinary disorders. Further, in a November 2020 addendum opinion, the VA examiner opined there are no current diagnoses related to overactive bladder or neurogenic bladder that were not acute in nature. In so concluding, the examiner did not discuss the Veteran’s private treatment records showing treatment for neurogenic bladder. Finally, in the initial opinion the examiner concluded the diagnosis of detrusor instability might have been caused by the Veteran’s benign prostatic hypertrophy or by the Veteran’s depression and hypertension. The Veteran is service connected for PTSD with symptoms of depression, but the opinion is unclear as to which conditions the examiner attributed the detrusor instability. Further, the examiner did not provide any explanation of whether detrusor instability is a disability distinct from neurologic/neurogenic bladder or overactive bladder. On remand, the RO should obtain a clarification of this secondary opinion. The matter is REMANDED for the following action: Forward the claims file to an appropriate clinician who has not offered an opinion in this case to determine whether any current genitourinary disability is related to the Veteran’s military service. If the examiner determines that an additional in-person examination is required, one should be scheduled. Following review of the claims file and, if indicated, examination of the Veteran, the examiner should identify all current genitourinary disorders currently found. The examiner should first specifically address whether the genitourinary diagnoses in the record, including epididymitis, overactive bladder, benign prostatic hypertrophy, neurologic/neurogenic bladder, and detrusor instability, are or were current during or shortly prior to the pendency of this appeal, i.e., since approximately February 2012. If the examiner finds that any diagnosis in the record is not current, the examiner should address whether the diagnosis was made in error. For EACH disability identified as current to this appeal, the examiner should opine whether it is at least as likely as not (50 percent or greater probability) that the disability began in or is otherwise caused by the Veteran’s active service. The examiner should also provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that the detrusor instability is (a) caused by; or (b) aggravated (i.e., worsened beyond the normal progression of the disease) by the Veteran’s service-connected PTSD with symptoms of depression. If aggravation is found, the examiner must attempt to establish a baseline level of severity of the detrusor instability prior to aggravation by the service-connected PTSD. Please note, causation and aggravation are separate concepts and must be addressed independently. In providing this secondary opinion, the examiner should discuss whether detrusor instability is a disability distinct from overactive bladder, neurogenic bladder, and/or neurologic bladder. The examiner should be instructed that, because no genitourinary disorder was clinically noted on the Veteran’s military entrance examination, the Veteran is presumed sound at entrance into the military as to his genitourinary system, and the examiner must disregard any evidence suggesting the Veteran had any preexisting genitourinary disorder prior to military service. All findings must be reported in detail and all opinions must be accompanied by a clear rationale. If any of the above issues cannot be resolved without resorting to speculation, then a detailed medical explanation as to why this is so must be provided. M. HYLAND Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Josey, 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.