Citation Nr: 21032041 Decision Date: 05/25/21 Archive Date: 05/25/21 DOCKET NO. 16-32 632 DATE: May 25, 2021 ORDER Entitlement to service connection for a bilateral ear disability, to include residuals of otitis externa, is denied. FINDING OF FACT The weight of the evidence does not establish that the Veteran has a current bilateral ear disability, aside from the already service-connected tinnitus and service-connected bilateral hearing loss. CONCLUSION OF LAW The criteria for entitlement to service connection for a bilateral ear disability, to include the residuals of an ear infection, have not been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service from October 1973 to June 1974. Service connection for a bilateral hearing loss disability and tinnitus has been established. The Veteran currently seeks service connection for an additional bilateral ear disability. The Board of Veterans' Appeals (Board) remanded this claim for further evidentiary development in November 2018, including obtaining additional medical records that had not been added to the claims file and to accord the Veteran an additional VA examination (with a medical opinion) for his claimed ear condition. That development has been completed, and the case returns to the Board for appellate adjudication. The November 2018 Remand is incorporated herein by reference. Service Connection Bilateral Ear Disability The Veteran contends he has a bilateral ear condition which began during active service. The Board finds there is insufficient evidence to show a current diagnosable ear condition aside from hearing loss and tinnitus, which have already been service-connected. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110. The evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995). Regulations also provide that service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury which was incurred in or aggravated by service. 38 C.F.R. § 3.303(d). For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." Continuity of symptoms after discharge is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Additionally, other organic diseases of the nervous system, which may include sensorineural hearing and tinnitus, are classified as "chronic diseases" under 38 C.F.R. § 3.309(a); therefore, 38 C.F.R. § 3.303(b) also applies. 38 C.F.R. § 3.307; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); Fountain v. McDonald, 27 Vet. App. 258 (2015) (including tinnitus as an organic disease of the nervous system). In adjudicating an appeal, the Board fully considers the lay assertions of record. A layperson is competent to report on the onset and recurrence of symptoms. 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). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case-by-case basis, whether a veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011). As established in the November 2018 Remand, the Veteran seeks service connection for bilateral ear disability separate from his already service-connected bilateral hearing loss and tinnitus. Specifically, he contends that he acquired sand in his ears during service and has experienced residuals of this injury since then. He describes scarring in his left ear and difficulties with his right ear. Service treatment records confirm the Veteran's reported in-service incidentthat he was diagnosed with otitis externa after receiving an ear irrigation to his left ear due to sand. An in-service event or injury is conceded and has been acknowledged and considered by the examiners of record. Available medical records show that the Veteran has sought treatment for his ears for many years, including at the Mayo Clinic, where it was determined in August 2009 that there was no evidence of active disease. In a private assessment in November 2011, the Veteran reported left tinnitus, high pitched in nature, occasionally pulsatile for the previous 2.5 years. He had multiple rounds of antibiotics without relief. The examiner found left subjective tinnitus, with possible superior canal dehiscence or early otosclerosis. On VA examination in June 2015, the examiner noted the Veteran had previous otitis externa secondary to sand, but without residual. The Veteran's symptoms were listed as tinnitus, hearing loss, and large amounts of cerumen in the left ear with possible scar tissue. The examination was otherwise normal. The examiner remarked that the Veteran had bilateral ear surgery to replace bone loss secondary to osteoporosis in 2013. In his July 2016 substantive appeal, the Veteran included a statement concerning his bilateral ear condition causing frequent ear infections since his separation from service, progressing to require surgeries. A September 2019 evaluation at the Mayo clinic revealed no acute diseases of the ears, with tympanic membranes intact and mild fibrosis of the tympanic membrane visible from previous inflammation. On VA examination in October 2019, the Veteran reported that he incurred problems with his ears during a field training exercise in sandy terrain. He got sand in his ears and eventually required flushing. He stated that, when his ears were flushed, blood came out. He stated that the problem was significant on the left side, worsening over the decades to the extent that he underwent three surgeries, the first of which being in 2015 or 2016. He also reported less severe issues in his right ear stemming from the same sand exposure. The examiner noted that the Veteran underwent a tympanostomy placement approximately 3-4 years ago. As this was ineffective, he underwent removal of the tympanotomy tube not long after its placement. He had ongoing symptoms and underwent removal of middle ear ossicles with placement of prosthetic middle ear device. He did well for a short time but has since experienced hearing loss and worsening symptoms. The Veteran underwent let stapedectomy in 2014 with mild postoperative changes of the tympanic membrane in the left ear. However, the condition was considered resolved by surgery and there was no current diagnosis for either ear. The October 2019 VA examiner diagnosed bilateral tinnitus and bilateral sensorineural hearing loss, based on available medical documentation. No other disability is described by the ENT specialists who treated the Veteran. In the absence of a documented bilateral ear disability (other than tinnitus and hearing loss, for which is he already service-connected) there is insufficient factual basis by which to establish a nexus between the claimed bilateral ear disability and active-duty military service. Here, there is no evidence of a currently diagnosed chronic or acute condition of either ear beyond tinnitus or hearing loss. While the Veteran has reported pain, medical treatment providers have attributed this to tinnitus, which is already service-connected. Examiners have acknowledged the Veteran's in-service treatment for otitis externa and his frequent ear complaints and treatment thereof. However, no additional diagnoses have been documented. Indeed, the in-service otitis externa was considered resolved. At no point during the appeal period has he been diagnosed with a separate ear condition attributable to his active duty injury. The Board acknowledges the Veteran's assertion that his pain is attributable to a separate medical condition. However, the existence of such a disability is not subject to lay observation, but, rather, requires knowledge of complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Hence, the opinion of the Veteran in this regard is not competent. In the absence of proof of present disability there can be no successful claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). There is simply no probative evidence of a separate current bilateral ear disability attributable to his active duty injury, and the claim for a bilateral ear condition fails this basis alone. The preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine does not apply, and the claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. THERESA M. CATINO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M.E. Lee 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.