Citation Nr: 0216105 Decision Date: 11/08/02 Archive Date: 11/14/02 DOCKET NO. 99-12 473 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUE Entitlement to service connection for a perforated tympanic membrane, left ear. ATTORNEY FOR THE BOARD Daniel R. McGarry, Counsel INTRODUCTION The veteran had active duty service from March 1961 to April 1964, with approximately 5 years and 8 months of prior active duty service from 1955 to 1961. He also had periods of active duty for training and inactive duty training in the Army National Guard from April 1964 to March 1978. This matter came before the Board of Veterans' Appeals (Board) on appeal from a rating decision in which the regional office (RO) denied service connection for tympanic membrane perforation, and determined that the veteran had not submitted new and material evidence to reopen his claims for service connection for a nervous disorder and for loss of balance and dizziness (previously denied as vertigo). The claims for service connection for a nervous disorder and for loss of balance and dizziness (previously denied as vertigo) are the subjects of the Remand which follows this decision. FINDINGS OF FACT 1. All relevant and obtainable evidence necessary for a fair and informed decision concerning the veteran's claims now on appeal has been obtained by VA. 2. The veteran has been notified of the evidence that is necessary to substantiate his claims, has not submitted additional evidence, and has not identified any additional evidence to support his claims. 3. The veteran does not have current disability from perforated tympanic membrane of the left ear. CONCLUSIONS OF LAW 1. VA's duty to assist in the development of the veteran's claim and the notification requirements of the Veterans Claims Assistance Act of 2000 have been satisfied. Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, §§ 3-4, 114 Stat. 2096, 2096-2099 (2000) (codified as amended at 38 U.S.C. §§ 5102, 5103, 5103A, and 5107); 66 Fed. Reg. 45,620 (Aug. 29, 2001) (to be codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a)). 2. The veteran is not entitled to service connection for perforated tympanic membrane of the left ear. 38 U.S.C.A. §§ 1110, 5107 (West 1991 & Supp. 2002); 38 C.F.R. § 3.303 (2001). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Service Connection of Perforation of the Tympanic Membrane of the Left Ear The veteran contends that he has current disability from residuals of perforation of the tympanic membrane of his left ear. For the following reasons and bases, the Board concludes that the veteran is not entitled to service connection for perforation of the left tympanic membrane. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service and/or active duty for training. 38 U.S.C.A. §§ 101(16), 1110, 5107 (West 1991 & Supp 2002); 38 C.F.R. § 3.303 (2001). Generally, to support a claim for service connection, there must be evidence of the following three elements: (1) competent lay or medical evidence of a current diagnosed disability or of persistent or recurrent symptoms of disability; (2) competent evidence that the veteran suffered an event, injury or disease in service; and (3) competent evidence that the claimed disability or symptoms is associated with the established event, injury or disease in service or another service-connected disability. In order to obtain VA benefits the law requires the evidence to show a diagnosis of a current disability or the current disabling residuals from a disease or injury. Wamhoff v. Brown, 8 Vet. App. 517, 521 (1996). The disability must also be shown to be an in-service occurrence or there must be evidence of a nexus or connection between the current disability and the in-service precipitating disease, injury, or event. Epps v. Gober, 126 F.3d 1464 (Fed. Cir. 1997). Service medical records show that the veteran was injured by a munitions explosion in August 1975. He sustained, among other injuries, a perforated left eardrum. In an August 1977 rating decision, the veteran was granted service connection for hearing loss and tinnitus due to the explosion. In April 1998, the veteran filed a claim which was deemed by the RO to include disability for perforation of the tympanic membrane of the left ear. The veteran has appealed the RO's January 1999 rating decision which denied entitlement to service connection for tympanic membrane perforation. The veteran underwent a VA ear examination in November 1997. His subjective complaints included balance problems, and decreased hearing and tinnitus on the left side. He stated that he was taking Antivert. An examination of the veteran's ears, including the left tympanic membrane, was entirely normal. The examiner reported that the veteran had no secondary condition due to his history of ear injury, and that there was not present active disease or infection in the middle or inner ear. The pertinent report diagnosis was left tinnitus per patient. The veteran was examined again on January 2002 for an ear disorder. The examiner noted that left ear trauma from an explosion and that the veteran had been told that he had Meniere's syndrome. His subjective complaints were hearing loss, tinnitus, vertigo, balance and gait problems, discharge, and pruritus. He had been treated with Dramamine and Antivert. External and otoscopic examination of the left ear showed no abnormality. The tympanic membrane was normal. The was no evidence of perforation or scar tissue. The examiner reported that there was no evidence of ear disease, including infections of the middle or inner ear. The reported diagnoses were normal ear examination and tinnitus as per patient. The Board has reviewed the entire record, including service medical records, reports of VA examinations, VA outpatient treatment records, and medical records submitted as part of the veteran's application for benefits administered by the Social Security Administration. The service medical records confirm a left tympanic membrane perforation. However, recent medical records do not show that the veteran has current disability associated with perforation of the left ear tympanic membrane. On the contrary, the examiner specifically reported in November 1997 and in January 2002 that the veteran's left ear was normal. Based on a review of the evidence, the Board finds that the veteran's left ear tympanic membrane is clinically normal and that the veteran had no current disability associated specifically with perforation of the left ear tympanic membrane. Therefore, the Board concludes that the veteran is not entitled to service connection for perforation of the left ear tympanic membrane. II. Applicability and Compliance with VCAA There has been a significant change in the law during the pendency of this appeal with the enactment of the VCAA, Pub. L. No. 106-475, 114 Stat. 2096 (2000). This law eliminates the concept of a well-grounded claim, redefines the obligations of VA with respect to the duty to assist, and supersedes the decision of the Court in Morton v. West, 12 Vet. App. 477 (1999) (holding that VA cannot assist in the development of a claim that is not well grounded). The new law also includes an enhanced duty to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits. The VCAA was implemented with the adoption of new regulations. See 66 Fed. Reg. 45,620 (Aug. 29, 2001) (codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2002)). However, the regulations add nothing of substance to the new legislation and the Board's consideration of the regulations does not prejudice the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). Generally, the VCAA is applicable to all claims filed on or after the date of enactment, November 9, 2000, or filed before the date of enactment and not yet final as of that date. VCAA, Pub. L. No. 106-475, § 7, subpart (a), 114 Stat. 2096, 2099 (2000). Under VCAA, VA has the duty to notify a claimant of the evidence necessary to support the claim, to assist in the development of claim, and to notify a claimant of VA's inability to obtain certain evidence. These duties are discussed in detail below. VA has a duty to notify the appellant and his representative, if any, of information and evidence needed to substantiate and complete a claim. 38 U.S.C.A. §§ 5102, 5103 (West Supp. 2002). In this case the veteran has been so notified by the January 1999 rating decision, the April 1999 statement of the case, and the July 2002 supplemental statement of the case. Further, by a letter dated in September 2001, the veteran was informed of the evidence needed to substantiate his claim and of the duties that the RO would undertake to assist him in developing his claim. The veteran did not respond to the RO's September 2001 letter. VA has no outstanding duty to inform the appellant that any additional information or evidence is needed. The Board concludes that VA has complied with the VCAA notification requirements. Under 38 C.F.R. § 3.159(b) (2002), VA's duty to assist in the development of claim includes the duty to make as many requests as necessary to obtain relevant records from a Federal department or agency, including service medical records; medical and other records from VA medical facilities, and records from Federal agencies, such as the Social Security Administration, as well as private medical records identified by the veteran. The RO has obtained all relevant records identified by the veteran or otherwise evident from the claims folder. In its September 2001 letter, the RO specifically advised the appellant that he could obtain private medical records and submit them to VA, or identify such records and request VA to obtain them. See Quartuccio v. Principi, 16 Vet. App. 183 (2002). The appellant has been informed that to substantiate his claim he should submit medical evidence showing that his claimed disability from perforated left ear tympanic membrane is related to a disease or injury he incurred during his active military service. He has had several opportunities to identify sources of evidence, including when he filed his claim, his Notice of Disagreement, his substantive appeal. The RO has obtained treatment records identified by the veteran, including medical records associated with his claim for disability benefits administered by the Social Security Administration. The veteran has not provided information concerning additional evidence -- such as the names of treatment providers, dates of treatment, or custodians of records, either private, Federal agency, or service related - - which has not been obtained. Under 38 C.F.R. § 3.159(c)(4) (2002), VA must provide a medical examination or obtain a medical opinion in compensation claims when such an examination or opinion is necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(d)(2) (West 1991 & Supp. 2001); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.356(a) (2002). The veteran has been afforded several VA examinations. In this case, VA has satisfied its duty to notify the veteran of evidence necessary to substantiate the claim and to assist him in obtaining records and providing medical examinations. The regulation concerning VA's duty to notify claimants of inability to obtain records under the VCAA, 38 C.F.R. § 3.159(e) (2002), is applicable to any claim for benefits received by VA on or after November 9, 2000, as well as to any claim filed before that date but not decided by VA as of that date. See 66 Fed. Reg. 45,620 and 45,631-45,632 (Aug. 29, 2001). VA has not been unable to obtain any records identified by the veteran or otherwise identified in the claims file. Therefore, VA has no duty to notify the veteran of inability to obtain evidence. ORDER Entitlement to service connection for perforation of the tympanic membrane of the left ear is denied. REMAND The veteran's February 1999 Notice of Disagreement included an attached document in which the veteran clearly specified the issues which he desired to have appealed to the Board. Those issues include entitlement to service connection for vertigo and entitlement to service connection for a neuropsychiatric disorder. The RO should provide the veteran and his representative, if any, a SOC that conforms with the requirements of 38 U.S.C.A. § 7105(d)(1) (West 1991), in particular, one that provides the veteran the law and regulations pertaining to its denial of service connection for vertigo and for a neuropsychiatric disorder including a discussion of the law and regulations pertaining to the need for new and material evidence to reopen a finally disallowed claim; a discussion of how such laws and regulations affect the RO's decision; and a summary of the reasons for such decision. The veteran and his representative, if any, must be given an opportunity to respond to the SOC. Thereafter, the case should be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome of this case. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment by the RO. 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 The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 2000) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44- 8.45 and 38.02-38.03. MARY GALLAGHER Member, Board of Veterans' Appeals IMPORTANT NOTICE: We have attached a VA Form 4597 that tells you what steps you can take if you disagree with our decision. We are in the process of updating the form to reflect changes in the law effective on December 27, 2001. See the Veterans Education and Benefits Expansion Act of 2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the meanwhile, please note these important corrections to the advice in the form: ? These changes apply to the section entitled "Appeal to the United States Court of Appeals for Veterans Claims." (1) A "Notice of Disagreement filed on or after November 18, 1988" is no longer required to appeal to the Court. (2) You are no longer required to file a copy of your Notice of Appeal with VA's General Counsel. ? In the section entitled "Representation before VA," filing a "Notice of Disagreement with respect to the claim on or after November 18, 1988" is no longer a condition for an attorney-at-law or a VA accredited agent to charge you a fee for representing you.