Citation Nr: 1334746 Decision Date: 10/30/13 Archive Date: 11/06/13 DOCKET NO. 10-34 554 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to service connection for a perforated right eardrum. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESSES AT HEARING ON APPEAL Appellant and E.T. ATTORNEY FOR THE BOARD E. D. Anderson, Counsel INTRODUCTION The Veteran served on active duty from July 1952 to April 1954. This matter is before the Board of Veterans' Appeals (Board) on appeal from an April 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. In June 2012, the Veteran and his brother presented testimony at a videoconference hearing before the undersigned Acting Veterans Law Judge held at the San Antonio, Texas RO. A transcript of that hearing is of record. In August 2012, the case was remanded for further development. In July 2013, the Board again remanded this matter to the RO via the Appeals Management Center (AMC) in Washington, D.C. for additional development. The action specified in the July 2013 Remand completed, the matter has been properly returned to the Board for appellate consideration. See Stegall v. West, 11 Vet. App. 268 (1998). Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDING OF FACT The Veteran's perforated right ear drum existed prior to service and was not permanently aggravated by the Veteran's active military service. CONCLUSION OF LAW The criteria for entitlement to service connection for a perforated right eardrum have not been met. 38 U.S.C.A. §§ 1101, 1110, 1111, 1112 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.306 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION The Board has reviewed all of the evidence in the claims folder. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to these claims. The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board must note that in reviewing this case the Board has not only reviewed the Veteran's physical claims file, but the Veteran's file on the "Virtual VA" system to insure a total review of the evidence. Service Connection 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, 1131 (West 2002); 38 C.F.R. § 3.303(a) (2013). In general, service connection requires competent and credible evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third elements is through a demonstration of continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007); see Savage v. Gober 10 Vet. App. 488, 495-97 (1997); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post- service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage, 10 Vet. App. at 495-96; see Hickson v. West, 12 Vet. App. 247, 253 (lay evidence of in-service incurrence is sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303(b). However, in Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013), the Federal Circuit held that the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic by 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331, 1337-39 (Fed. Cir. 2013). For disabilities that are not listed as chronic, the only avenue for service connection is by showing in-service incurrence or aggravation under 38 C.F.R. § 3.303(a), or by showing that a disease that was first diagnosed after service is related to service under 38 C.F.R. § 3.303(d). A perforated eardrum is not recognized as a chronic condition by 38 C.F.R. § 3.309(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2013). A veteran who served during a period of war, or after December 31, 1946, will be considered to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable evidence demonstrates that an injury or disease existed prior to service and was not aggravated by such service. 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304(b) (2013). Only such disorders as are recorded in examination reports are considered as "noted." 38 C.F.R. § 3.304(b). A veteran's reported history of the pre-service existence of a disease or injury does not constitute notation of such disease or injury, but is considered with all other evidence in determining if the disease or injury preexisted the military service. See Paulson v. Brown, 7 Vet. App. 466, 470 (1995). A preexisting injury or disease will be considered to have been aggravated by active military service where there is an increase in the disorder during such military service, unless there is a specific finding that the increase in the disorder is due to the natural progress of the disease. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(a). Clear and unmistakable evidence (obvious and manifest) is required to rebut the presumption of aggravation where the pre-service disorder underwent an increase in severity during the military service. This includes medical facts and principles that may be considered to determine whether the increase is due to the natural progress of the disorder. Aggravation may not be conceded where the disorder underwent no increase in severity during the military service on the basis of all the evidence in the record pertaining to the manifestations of the disorder prior to, during, and subsequent to the military service. 38 C.F.R. § 3.306(b). If a preexisting disorder is "noted" on entering the military service, in accordance with 38 U.S.C.A. § 1153, the veteran has the burden of showing an increase in the disorder during the military service. If the veteran meets that burden and shows that an increase in the disorder occurred, then the burden shifts to the government to show that any increase was due to the natural progress of the disease. Compare 70 Fed. Reg. 23 ,027-29 (May 4, 2005) (codified at 38 C.F.R. § 3.304(b) ) with Cotant v. Principi, 17 Vet. App. 116 (2003); VAOPGCPREC 3-2003 (holding, in part, that 38 C.F.R. § 3.304(b) is inconsistent with 38 U.S.C.A § 1111 to the extent that it states that the presumption of soundness may be rebutted solely by clear and unmistakable evidence that a disease or injury existed prior to service); see also Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). The Veteran asserts that he is entitled to service connection for aggravation of a preexisting perforated right eardrum due to unprotected exposure to cold weather and noise, in addition to reported running and drainage in his ear following a flight from the United States to Japan prior to being stationed in Korea during military service. At his June 2012 videoconference hearing, the Veteran testified that during service he went to sick call for treatment of ear pain and leakage upon landing in Tokyo, Japan, prior to being stationed in Korea. Additionally, the Veteran and his brother testified that the Veteran sought continuous private treatment for recurring ear infections and drainage of his right ear following his discharge from military service and that he underwent three surgeries on his right ear. The Veteran was admittedly unable to remember the approximate dates of surgical treatment of his right ear but estimated that they occurred between the 1950s and 1970s. The Veteran's service treatment records show that a defective right ear drum was noted on the Veteran's March 1952 pre-induction physical, but there was no drainage and the Veteran's hearing was within normal limits. He was determined to be acceptable for service despite this defect. In December 1952, the Veteran was treated for complaints of occasional ear pain and difficulty hearing. At that time, he reported "ear trouble since childhood." On examination, the Veteran was noted to have an old perforated right ear drum, but no evidence of acute infection. In March 1954, the Veteran was seen for complaints of a draining ear. However, an examination found that the Veteran's ears, nose, and throat were essentially negative for any pathology. The Veteran's ear canals were clear and his ear drums were intact, although the old perforation of the right ear drum was again noted. Some cerumen was found in the canal and removed, but there was no evidence of the drainage the Veteran reported. At his April 1954 discharge physical, no disability of the right ear is noted. Post-service VA and private treatment records associated with the claims file date only since December 2009 and show that prior surgical treatment of the right ear may have included multiple mastoidectomies, a tympanoplasty, and a canal wall down (CWD) mastoidectomy for cholesteatoma. They also show reports of past surgical treatment of the right ear dating anywhere from 1970 to 1985, to as recent as 2007 by Dr. H.S., who had reportedly treated the Veteran's ear complaints since at least 2009. In June 2013, the Veteran's primary care physician, Dr. R.H. reported that he had treated the Veteran for forty to forty five years, including treatment for hearing loss with a perforated right ear drum, chronic otitis media, and a history of multiple ear surgeries. Dr. R.H. estimated that the Veteran's first two ear surgeries were performed twenty to thirty years ago, which would place them in the 1980s or 1990s, which is far more recently than reported by the Veteran. The Veteran was afforded a VA audiology examination for the claimed condition in April 2010. The examiner opined that the Veteran's perforated right ear drum that preexisted military service was not aggravated by his military service, offering the following rationale: The pre-induction physical exam documents a "defective right ear drum" upon entrance to military service. The 12-8-1952 medical note states that there was "no active drainage" from the right ear and that there was "evidence of a healed perforation" with the right ear drum. The 3-8-1954 ENT consult states that there was "no drainage" from the right ear and that "both eardrums are intact". These medical statements reveal no evidence of any aggravation of the documented pre-existing right eardrum condition and indicate that the Veteran had a stable right eardrum condition during his military service. As the Veteran's perforated right eardrum was clearly noted at his pre-induction physical, the Veteran bears the burden of proving that this disability increased in service. The Board finds that this burden has not been met. While the Veteran was seen twice in service for complaints of ear pain and drainage, on both occasions, there was no drainage or other evidence of infection and the Veteran's ear drums were intact. No abnormality or disease of the right ear was noted at the Veteran's separation physical. Thus, despite the Veteran's subjective complaints, there is no medical evidence of any aggravation of the Veteran's perforated right ear drum, even a temporary aggravation. While the Board finds the Veteran's testimony that he was exposed to extreme cold and noise exposure while serving in Korea to be credible and consistent with the nature of his service, the only evidence that this exposure permanently worsened the Veteran's perforated right eardrum is the Veteran's own unsubstantiated lay testimony. As noted, there is no evidence in the Veteran's service treatment records that his condition actually worsened. Furthermore, while the Veteran has testified that after separation from service he was treated for recurrent ear infections and eventually underwent several ear surgeries, it is impossible to determine the nature or frequency of the Veteran's post-service treatment or exactly when after service it occurred as there are no medical records available for many years after separation from service. While the Veteran testified at his hearing that he had his ear surgeries sometime in the 1950 to 1970s, other evidence suggests that he did not require surgery until twenty or thirty years after separation from service. While current medical records seem to support the Veteran's claim that his current ear problems, which include vertigo, hearing loss, tinnitus, and chronic otitis media, are more severe than they were approximately sixty years ago at the Veteran's enlistment, there is no medical evidence to suggest that this is due to anything other than the nature progression of the Veteran's disability over a lengthy period of time. Significantly, none of the Veteran's treatment providers has opined that his preexisting perforated right eardrum was permanently aggravated by the circumstance of his active military service. To the extent that the Veteran himself has opined that his military service permanently aggravated his perforated right eardrum, he has not demonstrated that he has any knowledge or training in determining the etiology of such conditions. In other words, he is a layman, not a medical expert. The Board recognizes that there is no bright line rule that laypersons are not competent to offer etiology opinions. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (rejecting the view that competent medical evidence is necessarily required when the determinative issue is medical diagnosis or etiology). Evidence, however, must be competent evidence in order to be weighed by the Board. Whether a layperson is competent to provide an opinion as to the etiology of a condition depends on the facts of the particular case. In Davidson, the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) drew support from Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) for support for its holding. Id. In a footnote in Jandreau, the Federal Circuit addressed whether a layperson could provide evidence regarding a diagnosis of a condition and explained that "[s]ometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Although the Veteran seeks to offer etiology opinions rather than provide diagnoses, the reasoning expressed in Jandreau is applicable. The Board finds that the question of whether the Veteran's perforated right eardrum was permanently aggravated in service is too complex to be addressed by a layperson. This connection or etiology is not amenable to observation alone. Rather it is common knowledge that the progression of medical conditions is the subject of extensive research by scientific and medical professionals. Hence, the Veteran's opinion that his perforated right eardrum was aggravated by service is not competent evidence and is entitled to low probative weight. For the reasons discussed above, entitlement to service connection for a perforated right eardrum is denied. The evidence in this case is not so evenly balanced so as to allow application of the benefit-of- the-doubt rule. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2013). The Duty to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA 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. This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the U.S. Court of Appeals for Veterans Claims held that, upon receipt of an application for a service-connection claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Here, the VCAA duty to notify was satisfied by a letter sent to the Veteran in January 2010. This letter informed the Veteran of what evidence was required to substantiate his claim, as well as of VA and the Veteran's respective duties for obtaining evidence. The Veteran was also informed of how VA assigns disability ratings and effective dates. VA also has a duty to assist the veteran in the development of the claim. This duty includes assisting the veteran in the procurement of service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). The RO has obtained the Veteran's service treatment records, as well as VA treatment records. The RO made reasonable efforts to obtain the Veteran's service personnel records, records of clinical treatment, and sick logs from the National Personnel Record Center, but was unsuccessful. A formal finding of unavailability was placed of record. The Veteran submitted private medical records from Ear Medical Group and a letter from Dr. R.H.. The RO requested that the Veteran provide releases for any relevant additional treatment records, including records from Dr. R.H., but the Veteran failed to complete any releases and in July 2013, he indicated that he had no further evidence to submit. The Veteran was also provided an opportunity to set forth his contentions during the June 2012 videoconference hearing before the undersigned Veterans Law Judge. In this regard, the Board notes that in Bryant v. Shinseki, 23 Vet. App. 488, 493-94 (2010), the Court held that there are two duties imposed by 38 C.F.R. § 3.103(c)(2), (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked are not impacted by the Veteran's receipt of letter that complies with VA's duty to notify. In this case, during the Board hearing, testimony was elicited regarding the elements that were lacking to substantiate the claim and the Veteran and his representative demonstrated actual knowledge of this information. The representative's questions specifically elicited responses designed to show that the Veteran's understood the criteria necessary to substantiate his claim. See Dalton v. Nicholson, 21 Vet. App. 23, 30-31 (2007) (explaining that actual knowledge is established by statements or actions by the claimant or the claimant's representative that demonstrate an awareness of what was necessary to substantiate his or her claim). Further, a review of the record also reveals no assertion, by the Veteran or his representative, that VA or the undersigned failed to comply with 38 C.F.R. § 3.103(c)(2) or identified any other prejudice in the conduct of the Board hearing. Accordingly, the Veteran is not shown to be prejudiced on this basis. The appellant was afforded a VA medical examination in April 2010. The examination is adequate and probative for VA purposes because the examiner relied on sufficient facts and data, provided a rationale for the opinion rendered, and there is no reason to believe that the examiner did not reliably apply reliable scientific principles to the facts and data. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007) (holding an examination is considered adequate when it is based on consideration of the appellant's prior medical history and examinations and also describes the disability in sufficient detail so that the Board's evaluation of the disability will be a fully informed one). Significantly, neither the appellant nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). ORDER Entitlement to service connection for a perforated right eardrum is denied. ____________________________________________ KELLI KORDICH Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs