Citation Nr: 0004069 Decision Date: 02/16/00 Archive Date: 02/23/00 DOCKET NO. 93-27 866 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUES 1. Entitlement to service connection for a respiratory disorder, including bronchitis. 2. Entitlement to service connection for otitis externa and otitis media. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant INTRODUCTION The veteran served on active military duty from September 1963 to August 1967. Previously, in August 1996, the Board of Veterans' Appeals (Board) denied the issue of entitlement to a compensable disability rating for the service-connected residuals of a puncture wound to the forehead and granted a 10 percent disability evaluation for the service-connected residuals of a fracture of the third metatarsal bone of the right foot. Additionally, the Board remanded to the Philadelphia, Pennsylvania, regional office (RO) the veteran's claims of entitlement to service connection for a left shoulder disability (including bursitis), a low back disability, hearing loss with tinnitus, otitis externa and otitis media, and a respiratory disorder (including bronchitis). By a September 1996 rating action, the RO effectuated the Board's decision and assigned a 10 percent disability evaluation to the service-connected residuals of a fracture of the third metatarsal bone of the right foot, effective from August 1991. Subsequently, by an October 1999 rating action, the RO granted service connection for the following disabilities: bilateral hearing loss (0 percent, effective from August 1991, and 20 percent, effective from November 1998), tinnitus (10 percent, effective from August 1991), recurrent left shoulder strain with degenerative joint disease and bursitis (20 percent, effective from August 1991), and chronic recurrent lumbosacral strain (20 percent, effective from August 1991, and 40 percent, effective from February 1999). By this same rating action, the RO also continued the previous denials of service connection for a respiratory disorder (to include bronchitis) and for otitis externa and otitis media. Also in October 1999, the RO notified the veteran of this decision. In November 1999, the veteran acknowledged that he had reviewed the recent VA decision and explained that the action did not satisfy his appeal on the following issues: entitlement to service connection for a respiratory disorder to include bronchitis and entitlement to service connection for otitis externa and otitis media. Consequently, these two service connection claims are the only issues remaining in appellate status before the Board. FINDINGS OF FACT 1. A respiratory disorder, including bronchitis, was not incurred in, or aggravated by, the veteran's active military duty. 2. Otitis externa and otitis media were not incurred in, or aggravated by, the veteran's active military duty. CONCLUSIONS OF LAW 1. Service connection for a respiratory disorder, including bronchitis, is not warranted. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 1991); 38 C.F.R. § 3.303 (1999). 2. Service connection for otitis externa and otitis media is not warranted. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 1991); 38 C.F.R. § 3.303 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Respiratory Disorder, Including Bronchitis The veteran's claim of entitlement to service connection for a respiratory disorder, including bronchitis, is well grounded within the meaning of 38 U.S.C.A. § 5107(a) (West 1991). That is, the Board has found that the veteran has presented a claim which is plausible. A November 1992 medical opinion from a private physician associates the veteran's then-diagnosed reactive airway disease (secondary to chronic inflammatory scar tissue in the upper airway leading to moderately chronic severe upper reactive airway disease in association with lower airway reactivity-in other words, secondary to frequent inner and external ear infections) with "exposure to potentially hazardous toxic materials and organic solvents, namely Agent Orange." Specifically, the physician expressed his opinion that this exposure "has at least a significant effect in producing reactive upper and lower airway disease on this veteran." A reasonable inference from a reading of this medical record is that the physician felt that the veteran's reactive airway disease is attributable to his active duty. The Board concludes, therefore, that the veteran's claim of service connection for a respiratory disorder, to include bronchitis, is well grounded. See Caluza v. Brown, 7 Vet.App. 498 (1995). Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated by service. 38 U.S.C.A. §§ 1110, 1131 (West 1991); 38 C.F.R. § 3.303 (1999). In the present case, the veteran has essentially asserted that he developed a chronic respiratory disorder during his active military duty and that he has continued to experience respiratory pathology since then. In support of these contentions, the veteran submitted several lay statements. Specifically, in a February 1994 statement, a retired police officer explained that, while investigating a case, he observed the veteran "occasionally visit . . . a Camden, N.J. doctor . . . for treatment of an ear and lung condition." Also, in a March 1994 statement, a pharmacist explained that, in the past 10 years, the veteran has purchased prescription medications and requested assistance in choosing over-the-counter prescriptions for the treatment of (in pertinent part) chronic bronchitis and obstructive airway disease. In February 1997, this same pharmacist noted that the veteran has (in the three years since he had written his previous statement) continued to purchase prescription medications and requested assistance in choosing over-the-counter prescriptions for the treatment of chronic bronchitis and obstructive airway disease. The available service medical records reflect a finding of sonovious rhonchi of both bases (which was not considered to be disabling) at a January 1964 examination. The report of this evaluation also notes that chest x-rays taken in October 1963 were negative. Subsequently, in August 1964, the veteran was treated for bilateral rhonchi. An impression of chronic bronchitis was given. Annual chest x-rays taken in February 1965 were negative. At an examination conducted in June 1965 for purposes of State Department duty, the veteran denied ever having experienced asthma, shortness of breath, chronic cough, or tuberculosis. The evaluation demonstrated that his lungs and chest were normal, but also noted that he had sonovious bronchi of both bases which was not considered to be disabling. No defects were noted at a May 1966 examination, when the veteran was found to be physically qualified for transfer. The separation examination which was conducted in July 1967 demonstrated that the veteran's lungs and chest were normal. A respiratory defect was not noted on this evaluation report. The veteran was discharged from active military duty in August 1967. An August 1973 private examination demonstrated that the veteran's lungs were clear to auscultation and percussion. Chest x-rays were normal. A private evaluation completed in the following month confirmed that the veteran's lungs were clear to auscultation and percussion. A private examination completed in January 1974 also confirmed that the veteran's lungs were clear to auscultation and percussion. Chest x-rays were again normal. According to the results of pulmonary function studies completed in June 1990, a spirometry revealed normal volume and flow parameters with a preserved maximum voluntary ventilation. Lung volumes were within normal limits, the diffusion study was 95% of predicted, and the flow volume loop was unremarkable. A private physician concluded that this study demonstrated normal volume and flow parameters without hyperinflation or gas exchange abnormalities. At a private examination conducted in August 1991, the veteran complained of shortness of breath, a productive cough, and wheezing with exertion. He also reported that his cough and wheezing had been present for years and had worsened in the previous few weeks and that his respiratory problems had started in the military in 1963. The report of the evaluation also notes the veteran's prior history of smoking. Examination of the veteran's lungs showed that they were clear. The examining physician provided the impression of chronic bronchitis and recommended ruling out asthma. In a letter dated in September 1991, a private examiner noted that the veteran had a history of smoking one pack of tobacco per day for 15 years, that he had stopped 15 years ago, that he admitting to a cough for six months which was productive of clear sputum, that he has shortness of breath over the last six months (primarily on exertion), and that he could hear himself wheeze. According to this physician, spirometry demonstrated a normal flow volume loop, pulmonary function studies were representative of mild restrictive lung disease, and the veteran demonstrated no bronchoreactivity during the methacholine challenge. The physician concluded that the veteran had mild restrictive lung disease and no bronchoreactivity with methacholine. At a private evaluation completed several weeks later in the same month, the veteran denied experiencing any shortness of breath. The examination demonstrated that the veteran's lungs were clear. The examining physician assessed chronic bronchitis and mild restrictive disease. At a VA examination conducted in October 1991, the veteran reported that he had problems with his lungs. In particular, the veteran stated that he had a productive cough for several years with thick sputum at times (he may bring up a couple of teaspoons of sputum per day) and occasional dyspnea on exertion for several years. The veteran also explained that he had not been hospitalized for this condition and had never undergone a bronchoscopy, that he used to smoke around one pack of cigarettes per day for approximately ten years, but that he stopped smoking years ago. Pulmonary function studies were essentially normal. Chest x-rays showed clear lungs. Physical examination demonstrated that the veteran's lungs were clear to auscultation and percussion. The examiner diagnosed very mild chronic bronchitis by history only. At a December 1992 VA examination, the veteran reported that he had had a productive cough with white sputum for many years and slight exertional dyspnea for years. Additionally, the veteran explained that he had smoked for a few years but had stopped approximately 20 years prior to the examination. Chest x-rays were unremarkable. According to results of pulmonary function tests, a spirometry was within normal limits, but flow-volume loops suggested the possibility of a fixed obstructing lesion. The examiner diagnosed mild chronic bronchitis. In October 1996, the veteran underwent a VA non-tuberculosis diseases and injuries examination, at which time he reported that he stopped smoking at the age of 26, that he has not had any occupational exposures which would have made him at risk to develop any pulmonary disorders, and that he "gets a little bit short of breath on a flight of steps" (although the examiner determined that the veteran "clearly . . . has no meaningful exercising capacity"). The examiner noted that review of the claims folder indicates that the veteran underwent at least two pulmonary function studies in the 1990s and that both of these tests demonstrated normal spirometry and lung volumes. Examination showed that the veteran's chest expands fully, that there are no wheezes, that his breathing is normal, that his resting pulse is 60, and that there is no pedal edema. The examiner concluded that the veteran's chest examination was normal and specifically stated that no chronic lung disorder was found. Chest x-rays taken in December 1996 showed no evidence of an active process. Pulmonary functions tests completed in the same month provided no evidence of obstruction on spirometry, mild restriction, and a moderately diffuse impairment that corrects to within normal limits when corrected for alvedor volume. (The examiner who conducted the October 1996 examination signed the report of the evaluation in March 1997.) In May 1999, the RO concluded that the October 1996 examination was inadequate because the examiner relied on older testing and did not conduct pulmonary function tests at the time of the evaluation. The RO, therefore, returned the veteran's case to the examiner to review the entire file (including the December 1996 pulmonary function tests results), to provide an opinion as to the current severity and etiology of any respiratory disorder found including bronchitis, and to express an opinion as to the medical probability that any respiratory condition including bronchitis began in service as claimed by the veteran. In a July 1999 report, this examiner noted that he had limited his review of the veteran's medical records to those which are relevant (namely his military medical records, the October 1996 examination report, and the December 1996 pulmonary function studies). Additionally, the examiner explained that "[a] page by page review of the military medical records shows absolutely no treatment for any bronchitis and the claimant's periodic medical evaluations done during his military service including the mustering out medical evaluation read absolutely nothing of any lung disorder." The examiner also noted that "[t]here is absolutely no history of treatment for any obstructive airways disorder and there is no history of chronic cough or chronic phlegm production." Examination in July 1999 demonstrated that the veteran was "not in anyway short of breath and certainly has no history of effort shortness of breath." The examiner concluded that the chest examination was unremarkable. The December 1996 pulmonary function tests showed no evidence of obstruction on spirometry, a diffusion impairment that corrects to within normal limits when corrected for alveolar volume, and mild restriction based on the findings of mildly reduced FVC and FEV1 and a mildly reduced total lung capacity. The examiner explained that he has no explanation for the finding of mild restriction but that this result is clinically insignificant and not germane to the issue of obstructive airways disorder such as bronchitis. Additionally, the examiner expressed his opinion that, if pulmonary function studies were to be repeated, "it might be that the finding of mild restriction might not occur as-to my recollection-pulmonary function studies before the December 3, 1996 did not show any abnormalities at all." In fact, the examiner noted that pulmonary function tests completed in July 1999 were within normal limits and concluded that chronic bronchitis as well as any other obstructive airways disorder were not found. The Board acknowledges the August 1964 service medical record which indicates that an impression of chronic bronchitis was given. Significantly, however, the July 1967 separation examination demonstrated that the veteran's lungs and chest were normal and did not note the presence of a respiratory defect. The Board also acknowledges that chronic bronchitis and mild restrictive lung disease were assessed in August and September 1991, that reactive airway disease was diagnosed in November 1992 and attributed (by the examining physician at that time) to the veteran's active duty, and that mild chronic bronchitis was diagnosed in the following month. Significantly, however, the most recent respiratory examination, which was conducted in July 1999, found no evidence of chronic bronchitis or any other obstructive airways disorder. Without competent evidence of a current respiratory disorder, including bronchitis, the claim for service connection for such a disability cannot be granted. See 38 U.S.C.A. §§ 1110, 1131 (West 1991); 38 C.F.R. § 3.303 (1999). The Board must conclude, therefore, that the preponderance of the evidence is against the claim of entitlement to service connection for a respiratory disorder, including bronchitis. Otitis Externa And Otitis Media The veteran's claim of entitlement to service connection for otitis externa and otitis media is well grounded within the meaning of 38 U.S.C.A. § 5107(a) (West 1991). That is, the Board has found that the veteran has presented a claim which is plausible. A November 1992 medical opinion from a private physician notes the veteran's "multiple episodes of documented external otitis and external media." Additionally, this physician stated that the veteran's treatment "in the field" for frequent ear pain was "most likely secondary to fungus which was a very common situation in Vietnam." Additionally, the physician concluded that "[t]his often led to chronic external otitis secondary to environmental situations that was a very frequent occurrence in Vietnam." A reasonable inference from a reading of this medical record is that the physician felt that at least the veteran's chronic external otitis is attributable to his active duty. The Board concludes, therefore, that the veteran's claim of service connection for otitis externa and otitis media is well grounded. See Caluza v. Brown, 7 Vet.App. 498 (1995). Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated by service. 38 U.S.C.A. §§ 1110, 1131 (West 1991); 38 C.F.R. § 3.303 (1999). In the present case, the veteran has essentially asserted that he developed otitis externa and otitis media during his active military duty and that he has continued to experience symptoms from these conditions since then. In support of these contentions, the veteran submitted several lay statements. Specifically, in a February 1994 statement, a retired police officer explained that, while investigating a case, he observed the veteran "occasionally visit[ing] . . . a Camden, N.J. doctor . . . for treatment of an ear and lung condition." In another statement dated in the same month, a former patient of the same physician who had treated the veteran explained that he had gotten to know the veteran in the 1970s, that the veteran had informed him that he (the veteran) was being treated for lung problems, and that the nurse who worked at the doctor's office also told him that the veteran was receiving treatment for ear problems as well. Also, in a March 1994 lay statement, a person who worked as a part-time receptionist for one of the veteran's physicians in the 1970s and early 1980 maintained that she remembered the veteran being treated for "ear problems for a number of years." The available service medical records reflect a finding of otitis externa (which was not considered to be disabling) at the January 1964 examination. Subsequently, in July 1964, the veteran sought treatment for complaints of ear aches of two days duration. The veteran described a two-day history of pain with decreased hearing in his right ear and discharge. The impression of otitis media was given. Thereafter, in May 1965, the veteran sought treatment for complaints of right ear pain of two days duration as well as an inability to hear with his left ear. The impression of bilateral serous otitis was given. At the examination conducted in June 1965 for purposes of State Department duty, the veteran denied ever having experienced ear trouble. The evaluation demonstrated that his ears (including internal and external canals) were normal but also noted that he had otitis externa which was not considered to be disabling. No defects were noted at a May 1966 examination, when the veteran was found to be physically qualified for transfer. However, in December 1966, the veteran again sought treatment for complaints of pain in both of his ears. The impression of serous otitis media was given. The separation examination which was conducted in July 1967 demonstrated that the veteran's ears (including internal and external canals) were normal. The report of this evaluation did not list either otitis externa or otitis media as defects. Following the veteran's August 1967 discharge from active military duty, and specifically in September 1973, he underwent a private examination which noted that an ears, nose, and throat evaluation was "intact." According to a report of an audiological evaluation subsequently completed in July 1990, an impression of "negative . . . middle ear dysfunction" in both of the veteran's ears was given. At a VA examination conducted in October 1991, the veteran reported that he experienced ear aches. Evaluation of the veteran's ears demonstrated asymmetric sensorineural hearing loss in both ears (left greater than right) as well as normal tympanic membranes and external canals. Magnetic resonance imaging was scheduled. At the December 1992 VA examination, the veteran reported that three to four times per year he had otitis externa or serous otitis media. The evaluation showed that the external canals and tympanic membrane in both of the veteran's ears were normal. The examiner did not diagnose otitis externa or otitis media. An October 1996 VA audio-ear disease examination demonstrated normal auricle, normal external canal, tympanic membrane of the right ear (which was retracted, increased with valsalva, and decreased thereafter), slight serous otitis media, retracted but slightly moderate left ear, and eustachian tube dysfunction (right more than left). The examiner diagnosed eustachian tube dysfunction with right serous otitis media. Importantly, however, because the examiner did not provide an opinion as to the medical probability that the otitis media shown on examination began in service (as requested in the Board's August 1996 remand), the evaluation was deemed insufficient and was returned for compliance. Subsequent medical records reflect outpatient treatment for continued tympanic membrane retraction secondary to eustachian tube dysfunction in December 1996. The veteran again received treatment for eustachian tube dysfunction in January and March 1997. According to a report of a VA audio-ear disease examination completed in May 1997, the physical examination was consistent with evidence of eustachian tube dysfunction, the veteran's ears appeared normal, and there was no evidence of an ear infection. Thereafter, the examiner expressed her opinion that "[r]eview of . . . [the veteran's] medical records at the time of his service in the military do[es] not indicate that . . . [he] acquired any sinus or ear problems at that time and it is unlikely that his condition of eustachian tube dysfunction is related to his military service." However, because the examiner who conducted the May 1997 evaluation did not address the issue of otitis media, the evaluation was deemed insufficient and was returned for compliance. Consequently, in August 1998, this examiner again examined the veteran. According to the report of the August 1998 VA ear disease examination, the examiner noted that "[r]eference is made at several points in the patient's chart, Volumes I and II, regarding an otitis external." After noting that the most recent audiogram was not available for review, the examiner recommended that the veteran undergo an audiogram with tympanogram for review and that, if such tests provide evidence of a middle ear problem, he should then undergo an examination at the ENT Clinic. In November 1998 and March 1999 addendums, the examiner explained that the November 1998 tympanometry revealed normal middle ear mobility which indicated that the veteran has no evidence of a middle ear problem contributing to his hearing loss and that the hearing loss is purely sensorineural in nature. Additionally, the examiner expressed her opinion that, based on the results of the November 1998 audiogram, she did not believe that further evaluation at the ENT Clinic was necessary. In April 1999, the RO returned the veteran's case to this examiner to answer the pertinent questions posed by the Board (does the veteran currently have either otitis media or otitis externa, and, if so, what is the medical probability that either condition began in service?). In a May 1999 statement, the examiner noted that she had reviewed the veteran's records. Additionally, she explained that "[t]ympanograms are normal and [that] there is no evidence of any middle-ear pathology." The Board acknowledges the in-service findings of otitis externa (which was not considered to be disabling) in January 1964, otitis media in July 1964, bilateral serous otitis in May 1965, otitis externa (which was not considered to be disabling) in June 1965, and serous otitis media in December 1966. However, the July 1967 separation examination demonstrated that the veteran's ears (including internal and external canals) were normal and did not find either otitis externa or otitis media to be defects. Moreover, the most recent medical examinations have failed to provide competent evidence of the presence of either of these conditions. Although in November 1992 a private examiner diagnosed "chronic external otitis" and even attributable this condition to the veteran's active duty, subsequent evaluations failed to provide competent evidence of the presence of such a condition. In particular, the December 1992 VA examination demonstrated that the external canals in both of the veteran's ears were normal. The examiner did not diagnose otitis externa. Also, the October 1996 VA audio-ear disease examination demonstrated that the veteran's external canal was normal. Additionally, the examiner who had recently evaluated the veteran several times concluded in an April 1999 report that the "[t]ympanograms are normal and [that] there is no evidence of any middle-ear pathology." Without current competent evidence of otitis externa and otitis media the claim for service connection for either of these disabilities cannot be granted. See 38 U.S.C.A. §§ 1110, 1131 (West 1991); 38 C.F.R. § 3.303 (1999). The Board must conclude, therefore, that the preponderance of the evidence is against the claim of entitlement to service connection for otitis externa and otitis media. ORDER Service connection for a respiratory disorder, including bronchitis, is denied. Service connection for otitis externa and otitis media is denied. THERESA M. CATINO Acting Member, Board of Veterans' Appeals