Citation Nr: 0909072	
Decision Date: 03/11/09    Archive Date: 03/17/09

DOCKET NO.  07-40 255	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Reno, 
Nevada


THE ISSUES

1.  Entitlement to service connection for a cholesteatoma of 
the left ear to include as due to exposure to Agent Orange.

2.  Entitlement to service connection for bilateral hearing 
loss.


REPRESENTATION

Appellant represented by:	Nevada Office of Veterans' 
Services


WITNESS AT HEARING ON APPEAL

Appellant




ATTORNEY FOR THE BOARD

Russell P. Veldenz, Associate Counsel


INTRODUCTION

The Veteran, who is the appellant, had active service from 
December 1964 to November 1967.

This matter is before the Board of Veterans' Appeals (Board) 
on appeal of a rating decision in March 2007 of the 
Department of Veterans Affairs (VA) Regional Office (RO) in 
Seattle Washington.  The claims file is currently being 
handled by the RO in Reno, Nevada.

In December 2008, the Veteran appeared at a video conference 
hearing before the undersigned Acting Veterans Law Judge.  A 
transcript of the hearing is in the record.

The claim of service connection for bilateral hearing loss is 
addressed in the REMAND portion of the decision below and is 
REMANDED to the RO via the Appeals Management Center (AMC), 
in Washington, DC.


FINDINGS OF FACT

The medical evidence shows that there is no relationship 
between the Veteran's cholesteatoma of the left ear and 
service including exposure to Agent Orange.






CONCLUSION OF LAW

A cholesteatoma of the left ear was not incurred in or 
aggravated by service.  38 U.S.C.A. §§ 1110, 5107 (West 
2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2008).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Veterans Claims Assistance Act of 2000 (VCAA)

The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and 
implemented in part at 38 C.F.R. § 3.159, amended VA's duties 
to notify and to assist a claimant in developing information 
and evidence necessary to substantiate the claims. 

Duty to Notify

Under 38 U.S.C.A. § 5103(a), VA must notify the claimant of 
the information and evidence not of record that is necessary 
to substantiate the claims, which information and evidence VA 
will obtain, and which information and evidence the claimant 
is expected to provide.  

Also, the VCAA notice requirements apply to all five elements 
of a service connection claim.  The five elements are: (1) 
veteran status; (2) existence of a disability; (3) a 
connection between the Veteran's service and the disability; 
(4) degree of disability; and (5) effective date of the 
disability.  Dingess v. Nicholson, 19 Vet. App. 473, 484-86 
(2006).

The VCAA notice must be provided to a claimant before the 
initial unfavorable adjudication by the RO.  
Pelegrini v. Principi, 18 Vet. App. 112, 119-120 (2004).  

The RO provided pre-adjudication VCAA notice by letter, dated 
in October 2006 regarding the Veteran's service connection 
claim for a cholesteatoma of the left ear.  In the letter, 
the Veteran was notified of the evidence needed to 
substantiate the claim of service connection, namely, 
evidence of current disability; evidence of an injury or 
disease in service or an event in service, causing injury or 
disease; and evidence of a relationship between the current 
disability and the injury, disease, or event in service.  The 
Veteran was notified that VA would obtain service records, VA 
records, and records of other Federal agencies and that he 
could submit private medical records or authorize VA to 
obtain private medical records on his behalf.  The notice 
included, in general, the provisions for disability ratings 
and for the effective date of the claims, that is, the date 
of receipt of the claims.

As for content of the VCAA notice, the document substantially 
complied with the specificity requirements of Quartuccio v. 
Principi, 16 Vet. App. 183, 186-87 (2002) (identifying 
evidence to substantiate a claim and the relative duties of 
VA and the claimant to obtain evidence); of Charles v. 
Principi, 16 Vet. App. 370, 374 (2002) (identifying the 
document that satisfies VCAA notice); of Pelegrini v. 
Principi, 18 Vet. App. 112,120-21 (2004) (38 C.F.R. § 3.159 
notice); and of Dingess v. Nicholson, 19 Vet. App. 473, 484-
86 (2006) (notice of the elements of the claim, including the 
degree of disability assignable and effective date of claim).  

Based on the foregoing, the Board concludes that no further 
obligation to the Veteran is required to comply with the duty 
to notify.

Duty to Assist

Under 38 U.S.C.A. § 5103A, VA must make reasonable efforts to 
assist the claimant in obtaining evidence necessary to 
substantiate the claim.  The RO has obtained: service 
treatment records, VA records, and private audiology 
evaluation records.  

A VA examination regarding the bilateral hearing loss claim, 
dated in January 2007, is of record.  While the RO did not 
conduct a medical inquiry in the form of a VA examination 
regarding the Veteran's service connection claim for a 
cholesteatoma of the left ear, there is no evidence that the 
claimed disability may be associated with an established 
injury or disease in service.  Under these circumstances, a 
medical examination with medical opinion is not required 
under 38 C.F.R. § 3.159(c)(4).

As the Veteran has not identified any additional evidence 
pertinent to the claim and as there are no additional records 
to obtain, the Board concludes that no further assistance to 
the Veteran in developing the facts pertinent to the claim is 
required to comply with the duty to assist. 

Principles of Service Connection

Service connection may be granted for a disability resulting 
from disease or injury incurred in or aggravated by active 
service.  38 U.S.C.A. § 1110. 

Service connection may also be granted for a disease 
diagnosed after discharge, when all the evidence, including 
that pertinent to service, establishes that the disease was 
incurred in service. 38 C.F.R. § 3.303(d).

In order to establish service connection for the claimed 
disorder, 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.  Hickson v. West, 12 Vet. App. 247, 253 (1999).

A veteran who, during active naval service, served in the 
Republic of Vietnam during the Vietnam era (beginning in 
January 1962 and ending in May 1975) shall be presumed to 
have been exposed during such service to certain herbicide 
agents, including an herbicide commonly referred to as Agent 
Orange.  38 U.S.C.A. § 1116(f).

"Service in the Republic of Vietnam" includes service in the 
waters offshore and service in other locations if the 
conditions of service involved duty or visitation in the 
Republic of Vietnam, that is, within the land borders, 
including the inland waters, of Vietnam.  38 C.F.R. 
§ 307(a)(6)(iii); Haas v. Peake, 525 F. 3d 1168, 1193-95 
(Fed. Cir. 2008). 

Whenever VA's Secretary determines, on the basis of sound 
medical and scientific evidence, that a positive association 
exists between (A) the exposure of humans to an herbicide 
agent, and (B) the occurrence of a disease in humans, the 
Secretary shall prescribe regulations providing that a 
presumption of service connection is warranted for that 
disease.  38 U.S.C.A. § 1116(b)(1).  

If a veteran was exposed to an herbicide agent during active 
military service, the following diseases will be presumed to 
have been incurred in service if manifest to a compensable 
degree within specified periods, even if there is no record 
of such disease during service: chloracne or other acneform 
disease consistent with chloracne, Type 2 diabetes (also 
known as Type II diabetes mellitus or adult-onset diabetes), 
Hodgkin's disease, chronic lymphocytic leukemia, multiple 
myeloma, non-Hodgkin's lymphoma, acute and subacute 
peripheral neuropathy, porphyria cutanea tarda, prostate 
cancer, respiratory cancers (cancer of the lung, bronchus, 
larynx, or trachea), and soft-tissue sarcoma (other than 
osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or 
mesothelioma). 38 U.S.C.A. § 1116(a)(2); 38 C.F.R. §§ 
3.307(a)(6), 3.309(e).

VA's Secretary has determined that a presumption of service 
connection based on exposure to certain herbicides used in 
the Republic of Vietnam during the Vietnam era is not 
warranted for any condition for which the Secretary has not 
specifically determined a presumption of service connection 
is warranted.  Notice, 59 Fed. Reg. 341-346 (1994); 61 Fed. 
Reg. (231)489-5050 and (231)489-5050 (1996); 67 Fed. Reg. 42600- 
42608 (2002); 68 Fed. Reg. (231)489-5050 (2003); 72 Fed. Reg. 
(231)489-5050 (2007).  

Notwithstanding the aforementioned provisions relating to 
presumptive service connection, which arose out of the 
Veteran's Dioxin and Radiation Exposure Compensation 
Standards Act, Pub. L. No. 98-542, § 5, 98 Stat. 2,725, 
2,727-29 (1984), and the Agent Orange Act of 1991, Pub. L. 
No. 102-4, § 2, 105 Stat. 11 (1991), a claimant is not 
precluded from establishing service connection with proof of 
direct causation.  Combee v. Brown, 34 F. 3d 1039, 1042 (Fed. 
Cir. 1994).

Factual Background

The Veteran claims he has cholesteatoma of the left ear 
related to service, including Agent Orange exposure in 
Vietnam.

The Veteran's DD-Form 214 shows that the Veteran served on 
active duty in the Army from December 1964 to November 1967, 
and his military decorations include the Vietnam Service 
Medal and the Republic of Vietnam Campaign Medal.  The 
Veteran served a tour of duty in Vietnam from January 1967 to 
November 1967.

The service treatment records contain no complaint, finding, 
or diagnosis of cholesteatoma of the left ear or any symptoms 
related thereto.  At the time of his separation physical 
examination in November 1967, the Veteran's ears were 
evaluated as normal and he had no complaints or history of 
medical disorders or symptoms regarding his ears, including 
cholesteatoma of the left ear. 

The first evidence of cholesteatoma of the left ear occurred 
in May 2006 when the Veteran sought treatment from the VA for 
an ear infection because it affected his hearing.  He 
reported that tubes were inserted into his ears about a year 
to a year and a half before he went to the VA, although 
later, in June 2006, he stated the tubes were inserted 
approximately 3 to 4 years before seeking VA medical 
attention.  In May 2006, a VA medical record shows his ear 
canals were inflamed with a creamy discharge.  His left 
tympanic membrane was perforated.  The diagnosis in June 2006 
was probable cholesteatoma, left ear.  

In July 2006, a VA computed tomography scan demonstrated 
significant soft tissue within the middle ear indicating the 
possibility of a cholesteatoma that could not be ruled out.  

A January 2007 VA ear, nose, and throat (ENT) consult shows 
an assessment of postoperative middle ear exploration and 
partial removal of cholesteatoma.  A January 2007 nursing 
note and subsequent February 2007 ENT consult shows he was 
doing well postoperatively.  

None of the post service records demonstrate any medical 
evidence or opinion that the Veteran's cholesteatoma resulted 
from a disease, injury, or event incurred in or aggravated by 
active service.

Analysis

On the basis of the service treatment records, cholesteatoma 
of the left ear was not affirmatively shown to have had onset 
during service, and the Veteran has not argued that 
disabilities were present during service.  38  U.S.C.A. 
§ 1110; 38 C.F.R. § 3.303(a).

Thus, based on the medical evidence in the record, 
cholesteatoma of the left ear was not shown to have had onset 
in service.  The Veteran's post service records also do not 
connect the diagnosis, cholesteatoma of the left ear, to the 
Veteran's service.

Furthermore, there is no mention of the cholesteatoma in the 
Veteran's ear until June 2006, or a few years prior to that 
according to medical history.  This is approximately 39 years 
after the Veteran's separation from service in November 1967.  
When considering whether or not to grant a claim for service 
connection, the Board may take into consideration the passage 
of a lengthy period of time in which the veteran did not 
complain of the tiffany34@example.net.  See Maxson v. West, 12 
Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 
230 F. 3d 1330, 1333 (Fed. Cir. 2000); see also Forshey v. 
West, 12 Vet. App. 71, 74 (1998), aff'd sub nom. Forshey v. 
Principi, 284 F. 3d 1335, 1358 (Fed. Cir. 2002) (the 
definition of evidence encompasses "negative evidence" which 
tends to disprove the existence of an alleged fact, i.e., the 
lack of evidence is itself evidence).  In this case, the 
absence of any medical evidence of complaints of or treatment 
for cholesteatoma of the left ear for 39 years after 
separation from service tends to establish that the Veteran's 
cholesteatoma was not a result of his military service.

Regarding the Veteran's contention that herbicide exposure 
while serving in Vietnam resulted in his claimed disability, 
it is noted that his claimed disability, cholesteatoma, is 
not among the listed diseases associated with exposure to 
herbicides, for which service connection on a presumptive 
basis is warranted under 38 U.S.C.A. § 1116(a)(2); 38 C.F.R. 
§§ 3.307(a)(6), 3.309(e).

Furthermore, there is no competent medical evidence that the 
Veteran's cholesteatoma is actually caused by exposure to 
herbicides, or otherwise linked to his period of active 
service.  38 C.F.R. § 3.304(d).

To the extent the Veteran offers his opinion that his 
cholesteatoma of the left ear is connected to service, it is 
a condition under case law where lay observation has not been 
found to be competent to establish a diagnosis and the 
determination as to the presence of the disability therefore 
is medical in nature, that is, not capable of lay 
observation.  Savage v. Gober, 10 Vet. App. 488, 498 (1997) 
(on the question of whether a veteran has a chronic condition 
since service, the evidence must be medical unless it relates 
to a condition as to which, under case law, lay observation 
is competent); Barr v. Nicholson, 21 Vet. App. 303 (2007) 
(lay testimony is competent to establish the presence of 
observable symptomatology, where the determination is not 
medical in nature and is capable of lay observation); 
Espiritu v. Derwinski, 2 Vet. App. 492, 495 (1992) (a 
layperson without the appropriate medical training and 
expertise is not competent to provide a probative opinion on 
a medical matter, to include a diagnosis of a specific 
disability and a determination of the origins of a specific 
disorder).

Where as here, the determinative issues involve questions of 
a medical diagnosis, not capable of lay observation, and 
therefore medical in nature, and of medical causation, that 
is, medical evidence of an association or link between the 
cause of death and a disease, injury, or event in service, 
competent medical evidence is required to substantiate the 
claim.  Competent medical evidence means evidence provided by 
a person who is qualified through education, training, or 
experience to offer a medical diagnosis or medical opinion.  
38 C.F.R. § 3.159.

As a lay person, the Veteran is not qualified through 
education, training, and expertise to offer an opinion on a 
medical diagnosis, not capable of lay observation, and on 
medical causation.  

As the preponderance of the evidence is against the claim as 
explained, the benefit-of-the-doubt standard of proof does 
not apply.  38 U.S.C.A. § 5107(b).


ORDER

Entitlement to service connection for cholesteatoma of the 
left ear to include as due to exposure to Agent Orange is 
denied.


REMAND

The Veteran seeks service connection for bilateral hearing 
loss.  He asserts that hearing loss was caused by or 
exacerbated while on active duty with the Army where he was 
exposed to noise from artillery fire.  He indicated that he 
was in supply communications for the artillery units and was 
exposed to firing mortars, 8-inch Howitzers, 155's, and other 
military weapons.

While the RO has verified that the Veteran was in Vietnam, 
there has not been any attempt to obtain his service 
personnel records.

The service treatment records disclose that on audiological 
evaluation at entry into service in December 1964, pure tone 
thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
0
0
0
0
20
LEFT
0
0
0
0
0
A June 1965 service treatment record notes complaints of pain 
in the right ear.  The right ear was negative on objective 
evaluation.  The Veteran's hearing apparently was not tested 
upon separation but the Veteran indicated he was told his 
hearing was going bad.  

After service, there are records from private audiograms 
performed in August 2002 and July 2006 that were not 
interpreted.  VA testing in July 2006 revealed normal sloping 
to profound mixed hearing loss in the right ear and mild 
sloping to moderate mixed hearing loss in the left ear.  A 
January 2007 VA examination revealed a diagnosis of normal to 
severe sensory neural hearing loss in the right ear and a 
severe to profound mixed hearing loss in the left ear.

The VA examiner's opinion was that the Veteran had right ear 
hearing loss at entry into service and that it was less 
likely than not that the Veteran's hearing loss was caused by 
noise exposure that the Veteran experienced in service.  The 
examiner did not discuss whether the Veteran's hearing loss 
was aggravated or became worse as a result of the Veteran's 
service.

The Veteran testified at his hearing that he has had 
additional treatment at Nellis Air Force Base that has not 
been made part of the claims file.  Also, according to the 
Veteran's testimony but not included in the claims file, two 
of his medical caregivers at Nellis Air Force Base, Doctors 
Sumner and Cleary, have issued written reports expressing an 
opinion that the Veteran's hearing loss was caused by 
service.  Additionally, the Veteran stated that he had an 
appointment to see an ear specialist, Dr. Mose, to whom he 
had been referred by Dr. Cleary.

As the evidence in the record is insufficient to determine 
whether the current bilateral hearing loss is related to 
active duty, further evidentiary development is required 
under the duty to assist. 38 C.F.R. § 3.159.

Accordingly, the case is REMANDED for the following action:

1.  Obtain the Veteran's service personnel 
records.

2.  Obtain all Nellis Air Force Base 
records since February 2007 for treatment 
of the Veteran's bilateral hearing loss.

3.  Ask the Veteran to notify VA or submit 
information regarding any appointment with 
an ear specialist, Dr. Mose.

4.  Afford the Veteran a VA audiology 
examination to determine whether the 
Veteran's current bilateral hearing loss 
was incurred in or aggravated by active 
duty from December 1964 to November 1967. 
The claims folder should be made available 
to the examiner for review.  The examiner 
is asked to address the following 
questions:

a)  Was there a pre-existing right ear hearing loss 
when the Veteran entered service and, if so, was it 
aggravated by service, including any noise exposure 
the Veteran may have had, that is, was there a 
worsening of the underlying condition not due to the 
natural progress of the condition as contrasted to a 
temporary worsening of symptoms?  If there was no 
pre-existing right ear hearing loss, was it at least 
as likely as not incurred in service?

b)  Is it as least as likely as not that the current 
hearing loss in the left ear is related to service, 
including any noise exposure the Veteran may have 
had?  What is the etiology of the current left ear 
hearing loss?

The term "at least as likely as not" does not mean 
"within the realm of possibility." Rather, it means 
that the weight of the medical evidence both for and 
against the conclusion is so evenly divided that it 
is as medically sound to find in favor of causation 
as it is to find against causation.

5.  After the development requested has been 
completed, adjudicate the claims. If any benefit 
sought remains denied, furnish the Veteran a 
supplemental statement of the case and return the 
case to the Board.

The appellant has the right to submit additional evidence and 
argument on the matter or matters the Board has remanded.  
Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law 
requires that all claims that are remanded by the Board of 
Veterans' Appeals or by the United States Court of Appeals 
for Veterans Claims for additional development or other 
appropriate action must be handled in an expeditious manner.  
See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2008).



______________________________________________
SARAH B. RICHMOND
Acting Veterans Law Judge, Board of Veterans' Appeals








 Department of Veterans Affairs



{'dataset': 'bva_opinions'}