Citation Nr: 1318723	
Decision Date: 06/10/13    Archive Date: 06/21/13

DOCKET NO.  09-41 731	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Chicago, Illinois


THE ISSUE

Entitlement to compensation under 38 U.S.C.A. § 1151 for perforated left ear drum.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

J. H. Nilon, Counsel


INTRODUCTION

The Veteran served on active duty from December 1966 to December 1968, including service in the Republic of Vietnam.

This matter comes before the Board of Veterans' Appeals (Board) on appeal of a July 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois that in relevant part denied compensation under 38 U.S.C.A. § 1151 for a perforated left eardrum.  

In his substantive appeal, received in October 2009, the Veteran requested a hearing before a Member of the Board at the RO ("Travel Board" hearing), but he withdrew his request for hearing by writing in November 2010.  His request for a hearing before the Board is accordingly deemed to be effectively withdrawn.  See 38 C.F.R. § 20.704(e) (2012).


FINDING OF FACT

The Veteran does not have a perforated left eardrum that is proximately caused by carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing medical treatment, or by an event not reasonably foreseeable.


CONCLUSION OF LAW

The criteria for compensation under 38 U.S.C.A. § 1151 for a perforated left eardrum are not met.  38 U.S.C.A. §§ 1151, 1154(a), 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.361 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Duties to Notify and Assist

Before addressing the merits of the Veteran's claims on appeal, the Board is required to ensure that the VA's "duty to notify" and "duty to assist" obligations have been satisfied.  See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2012). 

VA is required to assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim.  The VA is required to notify a claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim.  As part of the notice, the VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, the VA will attempt to obtain on behalf of the claimant.  

In addition, the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) requires that notice to a claimant be provided "at the time" of, or "immediately after," the VA's receipt of a complete or substantially complete application for VA-administered benefits.  Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004).

The Veteran was notified of the elements required to show entitlement to compensation under 38 U.S.C.A. § 1151 by a letter in May 2006, and he had ample opportunity to respond prior to issuance of the July 2007 rating decision on appeal.  In any event, the Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notice.  See Shinseki v. Sanders, 129 S.Ct. 1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing an error is harmful or prejudicial normally falls upon the party attacking the agency's determination).  See also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006).

The RO also provided assistance to the Veteran as required under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c), as indicated under the facts and circumstances in this case.  

The Veteran's relevant VA and private treatment records are associated with the claims file.  The Veteran asserts he had a VA audiological evaluation in August 2004, which is not documented in the treatment records on file.  The file contains a continuous VA treatment record including audiological evaluations in February 2004, January 2005, April 2005, May 2005 and June 2005, none of which refer back to an otherwise undocumented evaluation in August 2004; VA has no duty to seek to obtain that which does not exist.  Counts v. Brown, 6 Vet. App. 473, 477 (1994); Porter v. Brown, 5 Vet. App. 233, 237 (1993).  Further, there is no indication that any treatment notes from August 2004 would provide evidence relevant to whether an eardrum had been ruptured in February 2004; the question of whether the rupture was discovered in August 2004 (as the Veteran insists) or in January 2005 (as documented by the evidence of record) is irrelevant to the question of causation on appeal.  Remands that would only result in imposing additional burdens on VA, with no benefit flowing to the claimant, are to be avoided.  Sabonis v. Brown, 6 Vet. App. 426, 430 (1994).

As noted in the Introduction, the Veteran withdrew his request for a hearing before the Board.  The file also contains appropriate medical opinion regarding the issue of causation of the Veteran's claimed injury.  Because the issue involves causation related to a remote treatment in 2004, current symptomology is not relevant and VA medical examination is not required.  38 C.F.R. § 3.159(c)(4).  

Based on a review of the claims file, the Board finds that there is no indication in the record that any additional evidence relevant to the issues to be decided herein is available and not part of the claims file.  See Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007).  Therefore, the Board finds that duty to notify and duty to assist have been satisfied and will proceed to the merits of the Veteran's appeal.  

Applicable Legal Principles

A veteran may be awarded compensation for additional disability, not the result of his willful misconduct, if the disability was caused by hospital care, medical or surgical treatment, or examination furnished the veteran under any law administered by VA, either by a VA employee or in a VA facility as defined in 38 U.S.C.A. § 1701(3)(A), and the proximate cause of the disability was (1) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing the hospital care, medical or surgical treatment, or examination, or (2) an event not reasonably foreseeable.  38 U.S.C.A. § 1151; 38 C.F.R. § 3.361. 

To establish causation, the evidence must show that the hospital care, medical or surgical treatment or examination resulted in the veteran's additional disability or death.  Merely showing that a veteran received care, treatment or examination and that the veteran has an additional disability or died does not establish cause.  38 C.F.R. § 3.361(c)(1).

Hospital care, medical or surgical treatment, or examination cannot cause the continuance or natural progress of a disease or injury for which the care, treatment, or examination was furnished unless VA's failure to timely diagnose and properly treat the disease or injury proximately caused the continuation or natural progress.  38 C.F.R. § 3.361(c)(2).

To establish that carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing hospital care, medical or surgical treatment, or examination proximately caused a veteran's additional disability, it must be shown that the hospital care, medical or surgical treatment, or examination caused the veteran's additional disability and (1) VA failed to exercise the degree of care that would be expected of a reasonable health care provider, or (2) VA furnished the hospital care, medical or surgical treatment, or examination without the veteran's or, in appropriate cases, the veteran's representative's informed consent.  38 C.F.R. § 3.361(d)(1).

Whether the proximate cause of a veteran's additional disability was an event not reasonably foreseeable is in each claim to be determined based on what a reasonable health care provider would have foreseen.  The event need not be completely unforeseeable or unimaginable but must be one that a reasonable health care provider would not have considered to be an ordinary risk of the treatment provided.  In determining whether an event was reasonably foreseeable, VA will consider whether the risk of that event was the type of risk that a reasonable health care provider would have disclosed in connection with the informed consent procedures of 38 C.F.R. § 17.32.  38 C.F.R. § 3.361(d)(2).

In making all determinations, the Board must fully consider the lay assertions of record.  A layperson is competent to report on the onset and continuity of his current symptomatology.  See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge).  Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.  Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007).  When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent.  Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau, 492 F.3d 1372, 1376-77. 

The Board is charged with the duty to assess the credibility and weight given to evidence.  Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001).  Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability.  Id. at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002).  Moreover, the Court has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence.  Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992).  

As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, and consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing.  See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995). 

In determining the probative value to be assigned to a medical opinion, the Board must consider three factors.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008).  The initial inquiry in determining probative value is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case.  A review of the claims file is not required, since a medical professional can also become aware of the relevant medical history by having treated a Veteran for a long period of time or through a factually accurate medical history reported by a Veteran.  See id. at 303-04.  

The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion.  See Id.  A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence.  See McLendon v. Nicholson, 20 Vet. App. 79 (2006).

The third and final factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis.  The most probative value of a medical opinion comes from its reasoning.  Therefore, a medical opinion containing only data and conclusions is not entitled to any weight.  In fact, a review of the claims file does not substitute for a lack of a reasoned analysis.  See Nieves-Rodriguez, 22 Vet. App. at 304; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions.").  

Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA.  VA shall consider all information and medical and lay evidence of record.  Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant.  38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).  To deny a claim on its merits, the evidence must preponderate against the claim.  Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54.

Evidence and Analysis

In his claim, received in January 2006, the Veteran asserted his left eardrum was perforated during VA medical treatment in February 2004.  The Veteran stated that he had been informed there was nothing that could be done to repair the tear, and that any further work on that ear would simply create a larger tear and result in more hearing loss.

Treatment records from Dr. Philip Kammel show the Veteran had a history of tubes in the right and left ears due to serous otitis media.  In October 2003 Dr. Kammel removed the tube from the right ear, but the left ear tube remained in place.  Dr. Kammel stated the Veteran was to return to the clinic in three months.

The Veteran's VA audiological evaluation in February 2004, during which he now asserts he suffered an eardrum puncture, is silent in regard to the Veteran's eardrum having been punctured during that examination.  The February 2004 clinical notes simply record current audiometric levels.  There is no indication that the ears were examined by otoscope on that occasion, in that the evaluation is silent in regard to observations regarding the middle ear, such as cerumen buildup, and is also silent in regard to the presence or absence of the left ear tube that was documented as having been present in October 2003.  Significantly, the evaluation is silent in regard to either eardrum having been visualized; thus, the evaluation report does not show whether the eardrum was already perforated at the time of the examination.  

The Veteran presented to the VA audiology clinic in January 2005 seeking hearing aids, since he had recently been awarded service connection for hearing loss.  Otoscopy revealed a left ear tympanic perforation.  The Veteran stated the perforation had been there for some time, but he had never inquired into whether it was reparable.  Testing showed there was a large conductive component to the current left ear hearing loss, and the Veteran agreed to a referral at the ear-nose-throat (ENT) clinic to see if the damage was reparable before action was taken to fit hearing aids.

Thereafter, the Veteran had a VA otolaryngology consult in April 2005 in which he reported having had lifelong "ear trouble" that was treated by his family doctor the previous year.  The Veteran had bilateral myringotomy and tubes (BMT) placed, after which he did well for several months and subsequently had the tubes removed.  He was noted by the VA audiology clinic to have a left tympanic perforation and was sent to otolaryngology for evaluation.  The Veteran denied any ear surgeries other than the set of tubes.  He denied ear trouble as a child.  He was positive for noise exposure and tinnitus in service.  He denied vertigo and endorsed hay fever with nasal congestion in springtime.  Examination of the right eardrum showed almost complete myringosclerosis with anterior inferior monofilm that revealed middle ear [illegible].  Examination of the left eardrum showed a dry anterior inferior perforation with extensive myringosclerosis of the remaining drum.  The physician's impression was left tympanic membrane (TM) perforation, dry and less than 20 percent.   The physician also noted chronic eustachian tube dysfunction, right serous otitis media (SOM), allergic rhinitis and bilateral sensorineural hearing loss (SNHL).

The Veteran had a VA otolaryngology follow-up in June 2005 for left TM perforation and right ear SOM.  The Veteran reported having had three sets of pressure-equalizing tubes (PETs) placed bilaterally, the most recent a year earlier for treatment of bilateral SOM.  Examination showed the left TM with 15 percent dry anterior/inferior perforation.  The clinical impression was SOM resolved, but the TM perforation was extensively involved in myringosclerosis.  This, combined with the Veteran's history of chronic eustachian tube dysfunction (ETD), argued against performing a tympanoplasty at that time.  The Veteran agreed to withhold surgery on the perforation.

During VA audiological evaluation in January 2006 the Veteran asserted that since his last compensation and pension (C&P) examination he had incurred a left ear perforation, with 3 surgeries.  He stated the perforation was acquired during the last C&P examination.    

The Veteran had another VA audiological evaluation in February 2007 during which he complained of worsened hearing in the left ear since the previous examination in February 2006.  The audiologist stated that the thresholds in the right ear had remained unchanged since the last examination, but the left ear thresholds had significantly deteriorated by air conduction although not by bone conduction.  This indicated more involvement from the inner war and TM perforation than a neural component.

The Veteran was examined by a VA physician at the Marion VA Medical Center (VAMC) in July 2007 to determine whether he had a left ear TM perforation that was due to VA treatment in 2004.  The left ear canal contained cerumen that blocked the view of the TM; the right ear TM was visualized and showed myelosclerosis but no perforation.  The examiner stated he could provide an opinion without resorting to mere speculation, because there was no mention of an otoscopy in the VA treatment report from February 2004 and there was no mention of a TM perforation prior to the January 2005 audiology evaluation.

Thereafter, the RO submitted the file for review by a physician at the Jesse Brown VAMC in order to obtain an adequate opinion regarding the issue on appeal.  The file contains a Report of Contact dated in September 2009 in which a VA physician stated that the Veteran had a long history of bilateral inner ear infections; prior to the VA examination in February 2004 the Veteran had bilateral TM tubes.  The physician stated that the Veteran had developed chronic scarring and permanent perforation of the left TM that was not caused or made worse by the VA examination in February 2004, and that no additional disability resulted from that VA examination.

With his substantive appeal, received in October 2009, the Veteran enclosed a letter asserting that his treatment by VA in February 2004 had included otoscopic examination and ear cleaning, with scheduled follow-up in August 2004; it was during that August 2004 follow-up that the TM tear was revealed.  The Veteran asserted that the physician who had performed the examiner in July 2007 was not an audiologist, but rather an internal  medicine specialist who could hardly speak English; the Veteran also asserted that the reviewing physician from Jesse Brown VAMC had apparently not considered all the evidence of record, since the August 2004 VA audiology follow-up was not considered.

Review of the evidence confirms that the Veteran has a perforated left TM, and that this perforation causes additional disability in the form of increased loss of hearing acuity in that ear (per the VA audiological evaluation in February 2007).  However, the evidence does not show the perforation was caused by VA medical treatment.

The Veteran appears to assert that his left TM was punctured during the February 2004 audiological evaluation without anyone noticing the puncture at the time.  The puncture was identified sometime thereafter (the Veteran asserts it was discovered in an undocumented VA audiology evaluation in August 2004, while the file shows it was certainly identified at latest by January 2005).  The Veteran draws the conclusion that the eardrum must have been punctured in February 2004.

The Board notes at the outset that the February 2004 clinical notes are absolutely silent in regard to any observed puncturing of an eardrum, which would be an acutely painful incident unlikely to be overlooked by the patient and the clinician.  As noted above, there is no indication that the ears were examined by otoscope on that occasion.  

The file contains two medical opinions, both of which weigh against the Veteran's theory of causation.  The VA examiner in July 2007 stated it would be speculative to associate the perforation with the February 2004 audiological evaluation, and he cited exactly why this is so.  The Board may rely on a statement that an opinion cannot be provided without resort to "mere speculation" if it is clear that the procurable and assembled data was fully considered and the basis for the opinion is provided by the examiner or apparent upon a review of the record; see Jones v. Shinseki, 23 Vet. App. 382 (2010).  The July 2007 VA examination report meets the criteria of Jones.

Similarly, the VA reviewer in September 2009 provided an opinion weighing against the claim.  The reviewer stated an opinion that the Veteran had developed scarring and perforation associated with the Veteran's history of inner ear infection and bilateral TM tubes, which was not caused or made worse by the VA examination in February 2004.  This opinion is not contradicted by any competent medical opinion of record.

The Veteran has asserted that the opinions cited above are inadequate, in that the examining physician in July 2007 is not an audiologist and the reviewing physician in September 2009 allegedly had not considered the complete medical record.  The Board disagrees.  The competency of a VA examiner is presumed, absent a showing of some evidence to the contrary.  Hilkert v. West, 12 Vet. App. 145 (1999).  In this case, both opinions were written by VA physicians who demonstrably were fully informed of the pertinent factual premises and provided fully-articulated opinions that were supported by reasoned analyses.  Thus, the VA opinions of record are probative under the criteria cited by Nieves-Rodriguez.

VA must consider all favorable lay evidence of record.  38 USCA § 5107(b); Caluza v. Brown, 7 Vet. App. 498 (1995).  Accordingly, in addition to the medical evidence cited above the Board has carefully considered the lay evidence offered by the Veteran in the form of his correspondence to VA and his statements to various examiners and providers.

The Board must consider the purpose for which lay evidence is offered.  Washington v. Nicholson, 19 Vet. App. 362 (2005).  The Veteran's lay evidence in this case is not offered to show the severity and chronicity of symptoms, which are within his competence as a layperson.  Rather, the lay evidence is offered to assert a medical nexus between his claimed ruptured eardrum and a VA audiological evaluation (significantly, the Veteran does not assert having had immediate pain or other observable symptoms at the time, which would have been within his competence to report).  The question of how the Veteran's eardrum came to be ruptured, absent an observable immediate traumatic injury, is a medical question not within the competence of a layperson.  Kahana, 24 Vet. App. 428; Jandreau, 492 F.3d 1372, 1376-77.

Because the Veteran is not shown to have incurred his ruptured eardrum during VA medical treatment, the question of whether such treatment resulted in additional disability due to negligence or other fault on the part of VA, or an event not reasonably foreseeable, is not reached.

In sum, based on the evidence and analysis above, the Board finds the Veteran does not have a perforated left eardrum that is proximately caused by carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing medical treatment, or by an event not reasonably foreseeable.  Accordingly, the criteria for compensation under 38 U.S.C.A. § 1151 are not met and the claim must be denied.

Because the preponderance of the evidence is against the claim the benefit-of-the-doubt rule does not apply.  Gilbert, 1 Vet. App. 49, 54.


ORDER

Entitlement to VA compensation under 38 U.S.C.A. § 1151 for perforated left eardrum is denied.



____________________________________________
STEVEN D. REISS
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs