Citation Nr: 1330453 Decision Date: 09/23/13 Archive Date: 09/30/13 DOCKET NO. 09-49 480 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to service connection for right ear hearing loss. 2. Entitlement to service connection for left ear perforated tympanic membrane, to include residuals of perforated tympanic membrane. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL Appellant and his wife (B.S.) ATTORNEY FOR THE BOARD April Maddox, Counsel INTRODUCTION The Veteran had active service from January 1971 to October 1972. This matter comes before the Board of Veterans' Appeals (BVA or Board) from an August 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio in which the RO denied the petition to reopen a claim for service connection for bilateral hearing loss and residuals of left ear perforated tympanic membrane. The Veteran testified before the undersigned Veterans Law Judge at a Travel Board hearing in March 2011. A transcript of this proceeding has been associated with the claims file. In June 2011 the Board granted the Veteran's petition to reopen his claim of entitlement to service connection for bilateral hearing loss and residuals of left ear perforated tympanic membrane, and remanded the now reopened claim for further development via the Appeals Management Center (AMC) in Washington, DC, to include additional development of the evidence. After completing the requested development, by rating decision dated in February 2012 the RO granted service connection for hearing loss, sensorineural, left ear and assigned a noncompensable disability rating effective February 20, 2008. The RO/AMC continued to deny service connection for right ear hearing loss and residuals of left ear perforated tympanic membrane as reflected in February and April 2012 supplemental statements of the case and returned this matter to the Board for further appellate consideration. The Board is satisfied that there has been substantial compliance with the remand directives and the Board may proceed with review. Stegall v. West, 11 Vet. App. 268 (1998). As was noted in the June 2011 Board decision/remand, the issue of entitlement to service connection for residuals of a traumatic brain injury was raised during the March 2011 BVA hearing. See March 2011 Hearing Transcript, page 18. Also, the issue of entitlement to service connection for an acquired psychiatric disorder to include posttraumatic stress disorder (PTSD); chronic and severe anxiety disorder due to PTSD with generalized anxiety, panic attacks and obsessive-compulsive symptoms; major depressive disorder, recurrent, severe without psychotic features, with melancholic features; intermittent explosive disorder; breathing-related sleep disorder (sleep apnea); and cognitive disorder not otherwise specified and the issue of entitlement to service connection for breathing-related sleep disorder (sleep apnea) were raised in May 2013 correspondence. These issues have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. The Board notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) claims file associated with the Veteran's claim. A review of the documents in such file reveals the only available copy of the April 2012 supplemental statement of the case. The remaining documents are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal. FINDINGS OF FACT 1. The Veteran does not have a current right ear hearing loss disability for VA compensation purposes. 2. At no time during the appeal period does the evidence show a current clinical diagnosis or residuals of perforated tympanic membrane. CONCLUSIONS OF LAW 1. The criteria for service connection for right ear hearing loss are not met. 38 U.S.C.A. §§ 1101, 1110, 1137, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (2013). 2. The criteria for service connection for left ear perforated tympanic membrane, to include residuals of perforated tympanic membrane, are not met. 38 U.S.C.A. §§ 1101, 1110, 1137, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS This appeal arises out of the Veteran's claim that right ear hearing loss and residuals of left ear perforated tympanic membrane are related to his service with the United States Army from January 1971 to October 1972. Specifically, the Veteran contends that he was exposed to excessive noise in service specifically exposure to gunfire and generator explosions. The Veteran attributes his claimed right ear hearing loss to this acoustic trauma. The Veteran also claims that he suffered a left ear perforated tympanic membrane during service and currently suffers from residuals of this injury. Factual Background The Veteran's service treatment records (STRs) contain numerous consultations regarding hearing loss and ear complaints. STRs include an audiological examination conducted during the Veteran's pre-enlistment examination in September 1970 which, while difficult to read, appears to show normal hearing. Also, in a September 1970 report of medical history the Veteran reported "yes" to "ear, nose, or throat trouble" but reported "no" to "hearing loss." In July 1971 the Veteran complained of ear aches. In October 1971 the Veteran reported decreased hearing in the left ear. The diagnosis was impacted cerumen. The following day the Veteran was noted to have mild external otitis with some edema of the canal of the right ear and bilateral Eustachian tube insufficiency. Approximately one week later the Veteran was found to have mild hearing loss bilaterally in the lower frequencies. Thereafter, the Veteran reported periodic episodes of vertigo. A November 1971 treatment report notes an impression of vertigo, etiology unknown, special audiometry, all normal. Audiometric evaluations dated from October 1971 through August 1972 showed the following: October 27, 1971 Puretone Threshold 500 Hz 1000 Hz 2000 Hz 3000 Hz 4000 Hz Right Ear 35 25 20 15 Left Ear 30 25 25 25 The Veteran continued to complain of decreased hearing bilaterally but audiometric findings were within acceptable limits. The impression was audiogram within normal limits. October 30, 1971 Puretone Threshold 500 Hz 1000 Hz 2000 Hz 3000 Hz 4000 Hz Right Ear 35 30 25 25 Left Ear 30 25 25 25 Repeat audiogram. Rule out high pitched ringing, 2 years. Periodic episodes of vertigo. November 9, 1971 Puretone Threshold 500 Hz 1000 Hz 2000 Hz 3000 Hz 4000 Hz Right Ear 20 15 15 20 15 Left Ear 30 25 25 40 35 November 10, 1971 Puretone Threshold 500 Hz 1000 Hz 2000 Hz 3000 Hz 4000 Hz Right Ear 25 20 15 20 25 Left Ear 30 25 25 45 35 November 10, 1971 Puretone Threshold 500 Hz 1000 Hz 2000 Hz 3000 Hz 4000 Hz Right Ear 20 15 10 20 20 Left Ear 25 10 20 35 20 January 1972 Puretone Threshold 500 Hz 1000 Hz 2000 Hz 3000 Hz 4000 Hz Right Ear 15 5 10 10 Left Ear 30 15 20 15 The Veteran reported an onset of dizziness and tinnitus about 1967 with a gradual increase in incidence. August 1972 Puretone Threshold 500 Hz 1000 Hz 2000 Hz 3000 Hz 4000 Hz Right Ear 30 10 10 15 Left Ear 25 5 10 15 August 1972 treatment records show recurrent external otitis as well as vertigo and also show frequent ear infections. The Veteran's October 1972 separation examination shows normal ears and does not include audiometric results. The Veteran submitted a claim for service connection for "ear, both" in November 1972. He was afforded a VA audiological examination in June 1973 which noted that eardrums were free from disease and showed the following: Puretone Threshold 500 Hz 1000 Hz 2000 Hz 3000 Hz 4000 Hz Right Ear 5 5 5 10 Left Ear 5 0 10 10 By rating decision dated in July 1973 the RO denied service connection for ear injury, defective hearing, and ear infection. In January 1980 the Veteran submitted a claim for service connection for hearing loss and broken ear drum. This claim was denied by rating decisions dated in January 1980 and March 1984. Thereafter, the Veteran perfected an appeal of the March 1984 rating decision and, in December 1984, the Board confirmed the denial of service connection for a perforated tympanic membrane. In the December 1984 Board decision the Board noted that while the Veteran had a mildly retracted tympanic membrane in October 1971, the June 1973 VA examination showed that the Veteran's eardrums were free from disease. The Veteran continued to submit several additional claims for service connection for hearing loss and a ruptured eardrum but these were denied by rating decisions dated in October 1991 and November 2006. In connection with these claims the Veteran submitted VA and private audiological reports dated in May 2006 and October 2006, however, these reports cannot be interpreted by the Board. The Veteran submitted the current claim on appeal in February 2008. In connection with this claim the Veteran submitted private treatment records dated through May 2010. Significantly, an October 2007 treatment report from Dr. J.M.F. shows that audiometric tests revealed bilateral sensorineural hearing loss, worse on the left. This report also notes an impression of bilateral peripheral vestibular disease with apparent involvement of otholithic function affecting the saccular on the left and semicircular canal function on the right. An August 2008 private treatment report from Dr. J.M.F. notes a diagnosis of right peripheral vestibular lesion. Pursuant to the June 2011 Board remand, the Veteran was afforded a VA audiological examination in July 2011. Significantly, audiometric results at the time were as follows: 500 Hz 1000 Hz 2000 Hz 3000 Hz 4000 Hz Right Ear 15 15 20 35 30 Left Ear 20 20 30 60 45 Puretone Threshold Average of 1000 Hz - 4000 Hz Right Ear 25 Left Ear 39 Speech Recognition Right Ear 98% Left Ear 94% The July 2011 VA examiner diagnosed the Veteran with sensorineural hearing loss and subjective tinnitus, left ear. The examiner reviewed the claims file and noted the Veteran's significant history of otologic issues and noted that the STRs were not consistent with the Veteran's report. The examiner noted that the Veteran recalled experiencing a perforated left tympanic membrane following injury from a mortar attack. However, the examiner noted that the STRs were silent for any documentation regarding perforation. The examiner noted that the hearing test in September 1970 was within normal limits bilateral from 500 to 4000 Hz. The examiner discussed the Veteran's STRs noted above and noted that the overall medical records do not support the Veteran's reports of injury to the left tympanic membrane. While the Veteran was treated at Walter Reed Army Medical Center as reported, this treatment was for vertigo. Also, the examiner noted that the Veteran's STRs suggested a pre-service history of otologic issues, specifically the vertigo and tinnitus, with onset prior to military service. The Veteran had a history of post-military injury to a high-voltage incident while working as a civilian lineman. The examiner indicated that he was not able to say how or if this event impacted the Veteran's hearing. The examiner noted a November 1971 audiological report and compared this to the findings in the July 2011 audiological report and indicated that, when looking at the thresholds obtained through the testing, the greatest amount of hearing loss existed at the frequencies of 3000 and 4000 Hz in the left ear. Testing in November 1971 recorded the hearing loss at 3000 and 4000 Hz, which was present on three evaluations, completed November 9 and 10, 1971. Further records of testing did not repeat this loss, including the post-discharge testing in June 1973. The examiner noted that the current configuration of hearing loss was suggestive of noise-induced hearing loss. Significantly, the Veteran entered the service with normal hearing sensitivity and he had periods of temporary shifts in hearing, which were repeatable. He was assigned an H1 profile in January 1972. Thus, the July 2011 VA examiner opined that the Veteran's hearing loss was as likely as not related to acoustic trauma during military service. With regard to the claimed perforated tympanic membrane, the examiner noted that there was no record of tympanic membrane perforation in the claims file. Further, the examiner noted that tympanometric results during the examination were within normal limits, showing no residuals of perforation. The examiner noted again that the current hearing loss existed in the high frequencies, which was more suggestive of noise exposure (as opposed to hearing loss due to a perforated tympanic membrane). General Legal Criteria Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). In order to prevail on the issue of service connection there must be competent evidence of a current disability; evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Certain chronic diseases to include sensorineural hearing loss, shall be presumed to have been incurred in service if manifested to a compensable degree within a prescribed period post service (10 percent and one year, respectively, for a psychosis), even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). With chronic disease shown as such in service (or within the presumptive period under § 3.307) so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributed to intercurrent causes. Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is questioned. When the fact of chronicity in service is not adequately supported, then the showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). The United States Court of Appeals for the Federal Circuit recently clarified that the provisions of 38 C.F.R. § 3.303(b) pertaining to the award of service connection on the basis of continuity of symptomatology apply to chronic diseases as defined in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). As noted, psychoses are among the diseases listed in section 3.309(a). Lay testimony is competent to establish the presence of observable symptomatology and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994). When a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. In such cases, the Board is within its province to weigh that testimony and to make a credibility determination as to whether that evidence supports a finding of service incurrence and continuity of symptomatology sufficient to establish service connection. See Barr v. Nicholson, 21 Vet. App. 303 (2007). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a 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. Jandreau, 492 F.3d at 1372. Analysis 1. Right ear hearing loss A claimant may establish direct service connection for a hearing disability which initially manifests itself several years after separation from service on the basis of evidence showing that the current hearing loss is causally related to injury or disease suffered in service. Hensley v. Brown, 5 Vet. App. 155, 164 (1993). Entitlement to service connection for impaired hearing is subject to the requirements of 38 C.F.R. § 3.385, which provide: "For the purpose of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2,000, 3,000, or 4,000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent." This regulation defines hearing loss disability for VA compensation purposes. The threshold for normal hearing is from zero to 20 dB, and higher threshold levels indicate some degree of hearing loss. See Hensley, 5 Vet. App. at 157. The Board notes that the July 2011 VA audiological evaluation report shows that the Veteran has left ear hearing loss for VA purposes but not right ear hearing loss. See 38 C.F.R. § 3.385. The Board finds that service connection for right ear hearing loss is against the claim. Significantly, there is no evidence of a diagnosis of right ear hearing loss for VA compensation purposes during the within one year of service or during the appeal period. While the July 2011 VA audiological examiner reported that the Veteran's hearing loss was related to acoustic trauma during military service, a review of the audiological findings at the examination shows that the Veteran does not have right ear hearing loss as defined by VA regulation 38 C.F.R. § 3.385. As was stated earlier, current disability is required in order to establish service connection. In some cases, a Veteran is competent to diagnose a disorder. See Jandreau v. 492 F. 3d at 1372; Davidson, 581 F.3d at 1313. However, the Veteran's perception of right ear hearing loss is outweighed by the objective audiometric testing which does not show the existence of a current right ear hearing loss per VA standards. Overall, the VA audiometric findings of no right ear hearing loss disability greatly outweigh the Veteran's personal beliefs. As such, his service connection claim for right ear hearing loss must be denied due to lack of a current disability for any time during the appeal period. 38 U.S.C.A. § 5107(b). 2. Residuals of left ear perforated tympanic membrane The Board finds that service connection for residuals of left ear perforated tympanic membrane is not warranted. While the Veteran contends that he perforated his left ear tympanic membrane during service and his STRs show several otologic complaints during service, there is no indication in the claims file that the Veteran ever perforated his left ear tympanic membrane, either during or after service. Furthermore, even if the Board were to find that the Veteran did perforate his left ear tympanic membrane during military service, there is no evidence of any residuals of left ear perforated tympanic membrane during the appeal period. As above, the July 2011 VA examiner noted that tympanometric during the examination were within normal limits, showing no residuals of perforation. The existence of a current disability is the cornerstone of a claim for VA disability compensation. See Degmetich v. Brown, 104 F. 3d 1328 (1997) (holding that the VA's and the Court's interpretation of sections 1110 and 1131 of the statute as requiring the existence of a present disability for VA compensation purposes cannot be considered arbitrary and therefore the decision based on that interpretation must be affirmed). In the absence of proof of a present disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The current disability requirement for a service connection claim is satisfied if the claimant has a disability at the time the claim is filed or during the pendency of that claim. See McClain v. Nicholson, 21 Vet. App. 319 (2007). As the evidence fails to demonstrate residuals of left ear perforated tympanic membrane during the appeal period, the Board finds that, as there is no current disability, service connection is not warranted. The Board recognizes the Veteran's assertions that he has residuals of left ear perforated tympanic membrane related to his military service. However, as a layperson, the Veteran is not competent to opine on medical matters such as a diagnosis or etiology of any medical diagnosis. The record does not show, nor does the Veteran contend, that he has specialized education, training, or experience that would qualify him to provide an opinion on this matter. In this regard, the diagnosis of residuals of left ear perforated tympanic membrane requires specialized testing and interpretation of such results. Accordingly, the Veteran's lay statements are not competent to render a diagnosis of such a disorder. See Davidson, supra; Jandreau, supra; see also Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). Therefore, the Board finds that the probative evidence of record is against the Veteran's claim for service connection for residuals of left ear perforated tympanic membrane and such claim must be denied. In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for residuals of left ear perforated tympanic membrane. As such, that doctrine is not applicable in the instant appeal, and his claim must be denied. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert, supra. VA's Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). In Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), the United States Court of Appeals for Veterans Claims (Court) held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 1) Veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the Court held that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable AOJ decision on the claim for VA benefits. In the instant case, the Board finds that VA has satisfied its duty to notify under the VCAA. Specifically, an April 2008 letter, sent prior to the initial August 2008 rating decision that denied the Veteran's claims, advised the Veteran of the evidence and information necessary to substantiate his service connection and increased rating claim as well as his and VA's respective responsibilities in obtaining such evidence and information. To the extent that the timing of any notice is deficient, the United States Court of Appeals for the Federal Circuit has held that VA could cure such a timing problem by readjudicating the Veteran's claim following a compliant VCAA notification letter. Mayfield v. Nicholson, 444 F. 3d 1328, 1333-34 (Fed. Cir. 2006). The Court clarified that the issuance of a statement of the case could constitute a readjudication of the Veteran's claim. See Prickett v. Nicholson, 20 Vet. App. 370 (2006). In the instant case, after all of the VCAA letters were provided to the Veteran, his claim was readjudicated in a November 2009 statement of the case, and April 2010, August 2010, January 2012, and February 2012 supplemental statements of the case. Therefore, any defect with respect to the timing of the VCAA notice has been cured. In addition, the duty to assist the Veteran has also been satisfied in this case. The Veteran's service treatment records as well as all identified and available post-service VA and private medical records are of record and were reviewed by both the RO and the Board in connection with the Veteran's claim. The Veteran has not identified any outstanding records that are pertinent to his appeal. He was also afforded a hearing before the Board. The Veteran was afforded VA examination in July 2011 with respect to the issues decided herein. The Board finds that the most recent July 2011 opinion of record is adequate to decide the issues as it is predicated on a review of the claims file, which includes the Veteran's statements, his service treatment records, and post-service treatment records. Additionally, the opinion considered all of the pertinent evidence of record, to include the statements of the Veteran, and provided a complete rationale, relying on and citing to the records reviewed. Therefore, the Board finds that the July 2011 VA examination is adequate to decide the Veteran's case as the examiner offered clear conclusions with supporting data. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); 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"). In June 2011, the Board remanded the case for additional development, to include obtaining any outstanding service treatment records (of which an attempt was made in June 2011), obtaining outstanding VA and treatment records (which was accomplished prior to the February 2013 supplemental statement of the case) and affording the Veteran a VA examination in order determine the current nature and etiology of his claimed hearing loss and residuals of perforated tympanic membrane(which was accomplished in July 2011). Therefore, the Board finds that the AOJ has substantially complied with the June 2011 remand directives such that no further action is necessary in this regard. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall, where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). In a July 2013 informal hearing presentation, the Veteran's representative requested that the Veteran be afforded another VA audiological examination to test his right ear hearing loss as the July 2011 VA examination was too old. No medical or lay evidence was provided in support of this assertion. Since the last VA examination in July 2011 is only slightly over two years old, and there is no indication in the record - other than the unsupported assertion of increase in severity of the Veteran's disability by his representative, the Board finds that it may proceed with adjudication of the matter based on the evidence of record. The Veteran's representative also wrote that the July 2011 VA examiner could not have reviewed the recently obtained VA treatment records which were requested upon remand since the examination report is dated prior to the date these records were associated with the claims file. However, the Board notes that the recently obtained VA treatment records could not change the outcome of the July 2011 VA examination report, i.e., that the Veteran does not currently have right ear hearing loss for VA compensation purpses or residuals of a left ear perforated tympanic membrane. Thus, the Board finds that the July 2011 VA examination report achieved substantial compliance with this aspect of the Board's remand instructions and the evidence and information in the claims file is sufficient for the Board to determine that this omission constituted harmless, nonprejudicial error. See Stegall, 11 Vet. App. at 271 (absent a showing of nonprejudicial error, a remand by the Board confers on the veteran or other claimant, as a matter of law, the right to compliance with the remand orders). Thus, the Board finds that VA has fully satisfied the duty to assist. In the circumstances of this case, additional efforts to assist or notify the Veteran in accordance with the VCAA would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements of the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the appellant); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the appellant are to be avoided). VA has satisfied its duty to inform and assist the Veteran at every stage in this case, at least insofar as any errors committed were not harmful to the essential fairness of the proceeding. Therefore, he will not be prejudiced as a result of the Board proceeding to the merits of his claim. ORDER Service connection for right ear hearing loss is denied. Service connection for left ear perforated tympanic membrane, to include residuals of perforated tympanic membrane is denied. ____________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs