CHRONIC SUPPURATIVE OTITIS MEDIA

Summary

The veteran, who served in the U.S. Army from September 1979 to September 1983, appealed the severance of service connection for acute otitis media. The Agency of Original Jurisdiction (AOJ) initially severed service connection in September 2022, citing a lack of current chronic condition related to service and an administrative error in granting service connection for an acute condition that had resolved. The veteran submitted additional evidence and requested a hearing, which was later withdrawn. The Board initially denied the appeal in February 2025, but this decision was vacated and remanded by the Court of Appeals for Veterans Claims due to the Board's failure to weigh VA treatment notes indicating an active otitis problem against conflicting examiner opinions. The Board reviewed the evidence, including service treatment records from February 1980 showing an otitis media diagnosis, and subsequent VA clinical records from November 2017 through December 2021 indicating otitis was an active problem. A February 2021 VA examination found the condition at least as likely as not incurred in service, supporting the initial grant. While a May 2022 VA examination found the condition resolved, the Board found this did not constitute clear and unmistakable error (CUE) in the original grant, citing McClain v. Nicholson, which allows for service connection if a disability exists at the time of claim filing or during appeal, even if resolved later. The Board concluded that reasonable minds could differ on whether the original grant was erroneous, thus VA failed to meet its burden of proving CUE. Consequently, the severance was deemed improper, and service connection for acute otitis media was restored effective December 1, 2022.

Rationale

Service connection granted in March 2021 based on VA examiner's positive opinion.; Severance in September 2022 based on lack of current chronic condition and administrative error.; Board found severance improper due to evidence of in-service diagnosis and active problem in later clinical records.; Original grant not based on clear and unmistakable error (CUE).

Full Decision Text

Citation Nr: A26032010
Decision Date: 04/07/26	Archive Date: 04/07/26

DOCKET NO. 230926-379863
DATE: April 7, 2026

ORDER

The severance of service connection for acute otitis media effective as of December 1, 2022 was improper; service connection is restored effective as of December 1, 2022.

FINDING OF FACT

The Department of Veterans Affairs (VA) has not met its burden to establish that the award of service connection for acute otitis media was clearly and unmistakably erroneous.

CONCLUSION OF LAW

The severance of service connection for acute otitis media was not proper; restoration is warranted. 38 U.S.C. § 5112(b)(6); 38 C.F.R. § 3.105(d).

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty in the United States Army from September 1979 to September 1983.

In September 2022, the Agency of Original Jurisdiction (AOJ) severed service connection for acute otitis media. In September 2023, the Veteran submitted a Decision Review Request: Board Appeal (Notice of Disagreement), VA Form 10182, and elected the Direct Review docket. Therefore, the Board of Veterans' Appeals (Board) may only consider the evidence of record at the time of the September 2022 AOJ decision. 38 C.F.R. § 20.301. If evidence was submitted during the period after the AOJ issued the September 2022 decision, the Board did not consider it in its decision. 38 C.F.R. §§ 20.300, 20.301, 20.801.

In February 2025, the Board determined that the severance of service connection for acute otitis media was proper, and denied the appeal. The Veteran subsequently appealed to the United States Court of Appeals for Veterans Claims (Court). In December 2025, the Court granted the Parties Joint Motion for Remand (JMR); vacated the February 2025 Board decision; and remanded the appeal to the Board for further action consistent with the JMR. The JMR stated that: "the Board failed to weigh VA treatment notes indicating that [the Veteran's] otitis was an active problem against the February 2021 and May 2022 VA examiners' conclusions that the otitis had resolved." As discussed below, the Board has addressed the relevant VA clinical records.

The severance of service connection for acute otitis media effective as of December 1, 2022 was improper; service connection is restored effective as of December 1, 2022.

The Veteran asserts that the severance of service connection for acute otitis media was not proper, as the March 2021 rating decision that granted service connection for acute otitis media was not based on a clear and unmistakable error. See September 2023 VA Form 10182. For the reasons outlined below, the Board agrees.

Service connection will be severed only where evidence establishes that that the award is clearly and unmistakably erroneous, with the burden of proof being on the Government. When?severance?of service connection is considered warranted, a rating proposing severance?will be prepared setting forth all material facts and reasons. The claimant will be notified at his latest address of record of the contemplated action and furnished detailed reasons therefore and will be given 60 days for the presentation of additional evidence to show that service connection should be maintained. Unless otherwise provided in paragraph (i) of this section, if additional evidence is not received within that period, final rating action will be taken and the award will be reduced or discontinued, if in order, effective the last day of the month in which a 60-day period from the date of notice to the beneficiary of the final rating action expires. 38?C.F.R. §?3.105(d).

To establish that a grant of service connection was the product of clear and unmistakable error (CUE), VA must show that (1) either the correct facts as they were known at the time were not before the adjudicator, the adjudicator made an erroneous factual finding, or the statutory or regulatory provisions were incorrectly applied; (2) the alleged error was undebatable, not merely a disagreement as to how the facts were weighed or evaluated; and (3) the error manifestly changed the outcome of the prior decision. Allen v. Nicholson, 21?Vet. App.?54, 58?(2007); Stallworth v. Nicholson, 20?Vet. App.?482, 488 (2006). A clear and unmistakable error is one about which reasonable minds could not differ.?38?C.F.R. §?20.140
1) either the correct facts as they were known at the time were not before the adjudicator, the adjudicator made an erroneous factual finding, or the statutory or regulatory provisions were incorrectly applied; (2) the alleged error was undebatable, not merely a disagreement as to how the facts were weighed or evaluated; and (3) the error manifestly changed the outcome of the prior decision. Allen v. Nicholson, 21?Vet. App.?54, 58?(2007); Stallworth v. Nicholson, 20?Vet. App.?482, 488 (2006). A clear and unmistakable error is one about which reasonable minds could not differ.?38?C.F.R. §?20.1403(a).

In determining whether service connection will be severed, VA must consider evidence that was generated after the original decision was made. The Secretary's burden is not to prove clear and unmistakable error in the original decision in the same manner a claimant would show CUE under sections 38 U.S.C. § 5109A or 38 U.S.C. § 7111. Stallworth, 20 Vet. App. at 482 (a severance decision focuses-not on whether the original decision was clearly erroneous-but on whether the current evidence establishes that [service connection] is clearly erroneous).

In most respects, the CUE standard for?severing?service connection under §?3.105(d) is equivalent to the CUE standard for reversing or revising a prior final decision under 38?C.F.R. §?3.105(a). Section 3.105(d) places at least as high a burden of proof on VA when it seeks to?sever?service connection as § 3.105(a) places upon an appellant seeking to have an unfavorable previous determination overturned. Baughman v. Derwinski, 1?Vet. App.?563, 566?(1991).

Here, VA followed the proper due process procedural steps for severing service connection for acute otitis media. In July 2022, the AOJ proposed to sever service connection for acute otitis media. The Veteran was notified of this contemplated action and furnished detailed reasons for the proposed severance on July 11, 2022. He was given 60 days for the presentation of additional evidence to show that service connection should be maintained. The July 2022 letter informed the Veteran that he had the opportunity for a predetermination hearing if the request for a hearing was received by VA within 30 days from the date of the notice. See 38 C.F.R. § 3.105(i). The Veteran submitted both additional evidence and a timely request (see August 5, 2022 Third Party Correspondence) for a pre-determination hearing, which was withdrawn on September 14, 2022 (see September 14, 2022 Third Party Correspondence).

In September 2022, the AOJ severed service connection for acute otitis media, effective December 1, 2022. Notice of this decision and his appeal rights were sent to the Veteran on September 27, 2022. The December 1, 2022, effective date of severance is greater than the last day of the month in which a 60-day period from the date of the September 2022 notice expired. Therefore, all due process requirements were met in the severance action. 38 C.F.R. § 3.105(d).

Thus, the remaining question is whether VA has met its burden of establishing that the award of service connection for acute otitis media was clearly and unmistakably erroneous.

In March 2021, VA granted service connection for acute otitis media under a theory of direct service connection based on a February 2021 VA examiner's positive opinion, as VA stated that: "service connection for acute otitis media has been established as directly related to military service." See March 2, 2021 Rating Decision - Narrative.

The July 2022 proposal to sever service connection for acute otitis media was based on VA's finding that: "this disability was acute in service and there is no evidence of a current or chronic condition related to your military service." See July 11, 2022 Rating Decision - Narrative. In September 2022, the AOJ severed service connection for acute otitis media.

Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. Establishing service connection generally requires evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the current disability and the claimed in-service disease or injury. Shedden v. Principi,
 and there is no evidence of a current or chronic condition related to your military service." See July 11, 2022 Rating Decision - Narrative. In September 2022, the AOJ severed service connection for acute otitis media.

Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. Establishing service connection generally requires evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the current disability and the claimed in-service disease or injury. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004).

In McClain v. Nicholson, 21 Vet. App. 319, 321 (2007), the Court held that the current disability requirement is satisfied when the claimant has a disability at the time the claim is filed or during the pendency of the appeal even though the disability may resolve before adjudication.

The Veteran asserts that service connection for otitis media is warranted, as the claimed disability originated during active service. See September 12, 2019 VA Form 21-526EZ; November 19, 2020 VA Form 20-0995.

Service treatment records show that the Veteran was diagnosed with otitis media, and in this regard, a February 18, 1980 treatment record states that the Veteran reported right ear pain for one day and an assessment of "otitis media" was advanced. See August 5, 2014 STR - Medical, p. 30. An August 2, 1983 military personnel record titled "Statement of Option" states that the Veteran declined to undergo a separation medical examination, and a service medical examiner determined that a medical examination for separation "is not required." See August 7, 2017 Military Personnel Record, pp. 27, 28.

VA clinical records dated November 19, 2017; February 21, 2018; May 14, 2018; November 26, 2018; and December 5, 2018 show that the Veteran's "otitis" was an active problem. See December 12, 2018 CAPRI, pp. 1, 17, 40, 62, 80.

The report of a February 2021 VA ear examination states that the Veteran presented a history of "severe otalgia from acute otitis media [on February 18, 1980]." He was diagnosed with "acute otitis media." The examiner concluded that: "the [acute otitis media] was at least as likely as not (50 percent or greater probability) incurred in or caused by the claimed in-service injury, event, or illness" as "there is an episode of otalgia supported in service treatment record February 18, 1980" and "therefore, the claimed severe otalgia is supported by episode." See February 26, 2021 C&P Exam.

VA clinical records dated March 29, 2021; June 29, 2021; and December 15, 2021 show that the Veteran's "otitis" was an active problem. See September 9, 2022 Medical Treatment Record, pp. 4-6.

The report of a May 2022 VA ear examination states that the Veteran's "service connected diagnosis has resolved" as "there is no evidence of [an] acute or chronic otitis media on examination or the records reviewed." The examiner concluded that: "after reviewing all records and examining the Veteran, [the examiner] could not find evidence of a chronic condition related to otitis media" as "acute otitis media resolved;" "ear condition was normal;" and "records fail to show recurrent otitis or sequela of said condition." See June 14, 2022 C&P Exam.

The report of an August 2022 VA ear examination states that the Veteran was diagnosed with "acute otitis media." See September 28, 2022 C&P Exam.

As its basis for severance, VA found that: "service connection for acute otitis media is severed effective December 1, 2022 due to an administrative error in which it was granted service connection when the evidence of record showed that this condition was acute and resolved." See September 24, 2022 Rating Decision - Narrative.

This is not a claim of service connection to be evaluated as to whether the claim should be granted based upon a finding of an approximate balance of positive evidence; nor denied because the evidence is not in approximate balance between that favoring the claim and against the claim. In this matter, the standard to be employed is whether there
 "acute otitis media." See September 28, 2022 C&P Exam.

As its basis for severance, VA found that: "service connection for acute otitis media is severed effective December 1, 2022 due to an administrative error in which it was granted service connection when the evidence of record showed that this condition was acute and resolved." See September 24, 2022 Rating Decision - Narrative.

This is not a claim of service connection to be evaluated as to whether the claim should be granted based upon a finding of an approximate balance of positive evidence; nor denied because the evidence is not in approximate balance between that favoring the claim and against the claim. In this matter, the standard to be employed is whether there is "clear and unmistakable evidence" of an error. Regarding the characteristics of clear and unmistakable evidence, the word "unmistakable" means that an item cannot be misinterpreted and misunderstood, i.e., it is undebatable. Vanerson v. West, 12 Vet. App. 254, 258 (1999) (citing Webster's New World Dictionary 1461 (3rd Coll. Ed. 1988).

VA's alleged error - granting service connection for acute otitis media based on VA's finding that the Veteran no longer met the requirement of a current disability - is not an undebatable error. As noted, service treatment records confirm that the Veteran was diagnosed with otitis media during active service. The Veteran submitted his original claim of service connection for otitis media in September 2019 and a February 2021 VA examiner diagnosed the Veteran with acute otitis media. Although the Veteran's otitis media may have resolved at the time of the May 2022 VA ear examination, VA clinical records dated March 29, 2021; June 29, 2021; and December 15, 2021 show that the Veteran's "otitis" was an active problem and an August 2022 VA examiner diagnosed the Veteran with "acute otitis media." See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (holding that the current disability requirement is satisfied when the claimant has a disability at the time the claim is filed or during the pendency of the appeal even though the disability may resolve prior to adjudication). Thus, the evidence does not clearly and unmistakably show that the Veteran does not have a diagnosis of acute otitis media, i.e., a current disability. 

Here, reasonable minds could differ as to whether the rating decision that granted service connection for acute otitis media was both clearly and unmistakably erroneous. VA has therefore not met its burden of demonstrating CUE in the March 2021 rating decision that granted service connection for acute otitis media. Therefore, for reasons and bases outlined above, the severance of service connection for acute otitis media was improper; and the appeal to restore service connection is granted, effective from the date of severance on December 1, 2022. 

 

S. BUSH

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	B. Cohen

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.