Citation Nr: 0710417 Decision Date: 04/11/07 Archive Date: 04/25/07 DOCKET NO. 03-16 918 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Entitlement to service connection for chronic otitis media. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD N. McElwain, Associate Counsel INTRODUCTION The veteran had active service from April 1970 to November 1971. This matter came before the Board of Veterans' Appeals (Board) on appeal from a decision of September 2002 by the Department of Veterans Affairs (VA) Chicago, Illinois, Regional Office (RO). FINDING OF FACT The veteran did not have chronic otitis media in service, or for several years thereafter; his current disability is not related to disease or injury in service. CONCLUSION OF LAW The criteria for service connection for chronic otitis media have not been met. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303 (2006). REASONS AND BASES FOR FINDING AND CONCLUSION In April 2002, the agency of original jurisdiction (AOJ) sent a letter to the veteran providing the notice required by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). Because service connection has been denied, any question as to the appropriate disability rating or effective date is moot, and there can be no failure-to-notify prejudice to the veteran. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The VA has also done everything reasonably possible to assist the veteran with respect to his claim for benefits, such as obtaining service medical records, obtaining private medical records, and providing a personal hearing. Service connection may be granted for a disability resulting from injury or disease incurred in or aggravated by active service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. To establish service connection for the claimed disorder, there must be medical evidence of a current disability; medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and medical evidence of a nexus between the claimed in-service disease or injury and the current disability. The veteran's entrance examination record reports the veteran had scarring in both eardrums and a history of running ears, mostly when the veteran was young. Service medical records do not report any complaints or diagnosis of an ear condition and the November 1971 separation examination reports a normal finding for the ears-general. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b) (2000). In this case, there is no evidence of chronic otitis media condition in service; consequently, continuity of symptomatology is needed. The initial post-service record of an ear problem is found in a November 1976 treatment record which reports the veteran's complaint of occasional fullness in the ears and an earache. The record reports the veteran's history of an ear infection in 1971 and in the previous winter, Winter 1975, and intermittent pain in bilateral ears since childhood. The veteran was subsequently diagnosed with adhesive otitis media, left ear, and ossicular chain discontinuity, and a tympanomastoidectomy with incus transposition, left, was performed. See November 19, 1976 private operation record. Private treatment records dating in February 1977, November 1977, May 1985, May 1987, May 1988, and May 1990 report pain in at least one ear. A June 2001 private treatment record reports the veteran was prescribed otic drops which seemed "to clear up occasional infections in the left ear." A March 2002 letter from the veteran's private ear physician states that the veteran was initially seen at the private clinic in November 1976, "at which time the veteran presented with chronic ear infection, beginning in 1971." The physician opined that "based on the history [the veteran] provided at the initial clinic visit, the veteran's left ear infection began during his tour of duty during Vietnam." Although the physician has provided a positive nexus opinion, the Board finds that this opinion has no probative value. The physician's positive nexus opinion is premised on the physician's finding that the veteran has had chronic ear infections since 1971. The physician mischaracterizes the 1976 treatment record, however. The 1976 treatment record reports the veteran's history of 2 prior ear infections, one in 1971 and another 4 years later in 1975. 2 ear infections over the span of 5 years is not evidence of a chronic condition. There is no competent evidence indicating that the veteran had additional ear infections during the period. In short, there is no evidence that the veteran had chronic otitis media between separation from service and the 1976 initial treatment. Consequently, the nexus opinion is based on an erroneous premise and its probative value is voided. In sum, there is no competent medical evidence linking the veteran's chronic otitis media to service. Service medical records do not report any ear infections, and the first recorded treatment for an earache is dated in 1976, over five years after separation from service. Although the 1976 record reports the veteran's history of prior ear infections, there is no evidence that the alleged prior ear infections were manifestations of a chronic disability existing since service. Consequently, service connection must be denied. ORDER Service connection for chronic otitis media is denied. ____________________________________________ J. E. DAY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs