Citation Nr: 1343243 Decision Date: 12/30/13 Archive Date: 01/07/14 DOCKET NO. 12-30 832 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to service connection for a mental condition. 2. Entitlement to service connection for a left ear condition. ATTORNEY FOR THE BOARD J. L. Wolinsky, Associate Counsel INTRODUCTION The Veteran had active military service from April 1978 to July 1984. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. The Veteran seeks service-connection for a mental condition and left ear condition. The Board must note that in reviewing this case the Board has not only reviewed the Veteran's physical claims file, but also his file on the electronic "Virtual VA" system to insure a total review of the evidence. The issue of the Veteran's mental disability is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT The evidence of record is not clear and unmistakable that the Veteran entered service with a pre-existing tympanic membrane perforation and monomeric tympanic membrane; monomeric tympanic membrane was noted in service and continues to be present. CONCLUSION OF LAW The criteria for service connection for monomeric tympanic membrane, residual of tympanic membrane perforation have been met. 38 U.S.C.A. §§ 1111, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.303, 3.304 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION I. VCAA The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2012)) redefined VA's duties to notify and assist a claimant in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). In light of the favorable determination being reached, the Board finds that no further discussion of VCAA compliance is necessary as any error that was committed as to either the duties to notify or assist is harmless. II. Legal Criteria Service connection may be granted for a disability resulting from an injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish entitlement to service-connected compensation benefits, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service-the so-called "nexus" requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). In addressing lay evidence and determining its probative value, if any, attention is directed to both competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). See Layno v. Brown, 6 Vet. App. 465, 469 (1994). In terms of competency, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." See Barr v. Nicholson, 21 Vet. App. 303, 308-09 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370, 374 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398, 405 (1995) (flatfoot). However, the veteran may not be competent to identify a complex condition, or provide an opinion on etiology of a condition not capable of lay diagnosis. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 & n.4 (stating that a veteran is not competent to identify a complex disability like cancer); See also Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (stating that rheumatic fever is not a condition capable of lay diagnosis). In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self-interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. See generally Caluza v. Brown, 7 Vet. App. 498 (1995). The Board may weigh the absence of contemporaneous medical evidence against the lay evidence in determining credibility, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006); but see Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000) (evidence of a prolonged period without medical complaint after service can be considered along with other factors in the analysis of a service connection claim). The Board must consider all the evidence of record and make appropriate determinations of competence, credibility, and weight. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). "The Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant." Id. at 367 III. Analysis In April 1978 and 1979 the Veteran's Medical Reports show that he stated his health was normal and he lacked any specific complaints, or ailments. STRs from June 1979 show that the Veteran suffered from dizziness, fainting and had complaints of being tired. In September 1979 the Veteran was diagnosed with bronchitis in service. In May 1982 the Veteran had complaints regarding his ears and the staff stated that the Veteran was not qualified for release from active duty. The Veteran was referred for a consultation with a provisional diagnosis of central perforation of the left tympanic membrane. In July 1982, the consultant reported that the Veteran recalled ear infections as a child but that he had had no recent infections or trauma and no ear drainage. The Veteran did not specifically report at that time that he had previously been diagnosed with perforation of the left tympanic membrane. The examination revealed a small central monomeric membrane but not a perforation. The consultant provided a diagnosis of monomeric membrane and recommended that the Veteran was fit for discharge. Post-service, the Veteran underwent a VA examination in January 2011. The Veteran reported that prior to service he sustained an ear infection and was found to have tympanic membrane perforation. The Veteran complained of hearing loss and tinnitus. Based on a physical exam of the Veteran, the examiner stated that the Veteran's right ear had no deformity, no erythema or edema, the ear canal was normal, and tympanic membrane was intact. In regard to the Veteran's left ear the examiner was able to visualize the tympanic membrane, and stated that "the area under question is identified. However, it is no longer perforated. There is a monomeric tympanic membrane in the central area. There is no more perforation." Upon diagnosis the examiner stated "this patient did at one point suffer from a tympanic membrane perforation. However, this is resolved." Every Veteran shall be taken to have been in sound condition when examined, accepted, and enrolled into service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C.A. 1111; 38 C.F.R. § 3.304(b); see also VAOPGCPREC 3-03 and Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). When no pre-existing condition is noted upon entry into service, the Veteran is presumed to have been sound upon entry. The burden then falls on the government to rebut the presumption of soundness by clear and unmistakable evidence that the Veteran's disability was both pre-existing and not aggravated by service. See VAOPGCPREC 3-03. Clear and unmistakable evidence means that the evidence "cannot be misinterpreted and misunderstood i.e. it is undebatable." Quirin v. Shinseki, 22 Vet App 390, 396 (2009). The standard of clear and unmistakable evidence is an onerous standard. Laposky v. Brown, 4 Vet App 331, 334 (1993). The government may show a lack of aggravation by establishing that there was no increase in disability during service or that any "increase in disability [was] due to the natural progress of the" pre-existing condition. 38 U.S.C. § 1153. If this burden is met, then the Veteran is not entitled to service-connected benefits. However, if the government fails to rebut the presumption of soundness under 38 U.S.C.A. § 1111, the Veteran's claim is one for service connection. VA entrance exams are silent to tympanic membrane perforation and therefore do not note a pre-existing injury. The only evidence which shows that the Veteran had a pre-existing injury of tympanic membrane perforation is the Veteran's statements made at the January 2011 VA examination. Service treatment records, however, show that when the Veteran's ears were evaluated in September 1979, April 1980, and August 1981, no tympanic membrane perforation or monomeric tympanic membrane was identified. Indeed, the September 1979 examination in particular revealed tympanic membranes that were clear with a present light reflex. Thus, the evidence of record is not clear and unmistakable that the Veteran entered service with a pre-existing tympanic membrane perforation and monomeric tympanic membrane. The presumption of soundness is not rebutted and the Veteran's claim is one for service connection. Monomeric tympanic membrane was noted in service and continues to be present as shown on VA examination. Accordingly, service connection for monomeric tympanic membrane, residual of tympanic membrane perforation is warranted. ORDER Entitlement to service connection for monomeric tympanic membrane, residual of tympanic membrane perforation is granted. REMAND While further delay is regrettable, the Board finds that further development is required prior to adjudicating the Veteran's claim for a mental condition. See 38 C.F.R. § 19.9 (2013). The Veteran's DD-214 Form is not currently contained in the claims file. This document may contain additional pertinent information regarding the Veteran's active military service. Upon remand, this document should be obtained and associated with the claims file. VA treatment records show that the Veteran has a prescription for Sertraline, and Trazodone to treat the Veteran's depression and mental health illness. In May 2010, the Veteran requested to see a social worker to discuss his increasing difficulty maintaining employment. The Veteran reported witnessing several occurrences of traumatic deaths of fellow serviceman, he stated that he was still disturbed at times with dreams of those deaths. In January 2011 the Veteran reported having difficulty sleeping and had dreams from his time in the Navy. Specifically, the Veteran stated that he thinks about friends that have been hurt during his time in the Navy. The Veteran's drug prescription helped him sleep and not remember incidents from the ship. In a follow-up in January 2011 the Veteran stated that he had a tough time discussing certain issues, and that "some things just need to stay closed. It can be very hard opening things back up." In January 2011 the Veteran had a psychology session. The Veteran reported that he had no previous mental health treatment and that he had been "balling up everything inside" that happened on "the ship" while he was in active duty in the Navy from 1978-1982. The Veteran became tearful when asked to describe his presenting problem, and that his mind is still stuck on the ship from what happened during his active duty. The Veteran expressed feelings of grief for losing fellow shipmates, and had a sense of guilt and a sense of responsibility for what happened. The psychology note also included statements that the Veteran had anger, feelings of isolation, irritability and frequent memories and nightmares from active service. In statements received in November 2012, the Veteran stated that he had a hard time sleeping and was still depressed. The Veteran's statements regarding the occurrence of in-service events are general and vague. This is significant because the Veteran's service treatment records are absent any relevant findings of in-service events that relate to the claimed mental disability. The Board will afford the Veteran another opportunity to provide details of the alleged in-service events to allow substantiation of the claimed events. In addition, the Board observes that in response to the Veteran's report in his application for compensation benefits that he was seen in service for his mental health by the "U.S. Navy" in 1981, the RO advised the Veteran that military mental health records were often kept separate from other service treatment records. See June 2010 VCAA letter. The RO noted that it needed to know if he received treatment at a mental health facility during service, and if so, provide the name and location of the facility to enable the RO to request the records. The Veteran did not respond. As this issue is being remanded, the Board will also afford the Veteran another opportunity to identify any in-service treating facility for his mental health. Accordingly, the case is REMANDED for the following action: 1. Obtain the Veteran's DD-214 Form. If the Form cannot be located, a written statement to that effect should be requested for incorporation into the record. 2. The Veteran should be contacted and requested to provide information as to the names of individuals involved, units of assignment, dates, locations, and circumstances of events he describes as traumatic events (e.g., witnessing traumatic deaths of fellow servicemen) that occurred in service that caused his mental disability. If provided in sufficient detail, undergo appropriate development to substantiate the claimed in-service events. The Veteran should also be asked whether he received treatment at a mental health facility during service, and if so, provide the name and location of the facility to enable the AMC/RO to request the records. If provided, follow the procedures set forth in 38 C.F.R. § 3.159(c) with respect to requesting records from Federal facilities. All records/responses received should be associated with the claims file. 3. Ensure the above development has been completed in accordance with the directives. Then, readjudicate the claim. If it remains denied, send the Veteran a supplemental statement of the case and provide an opportunity to respond before the case is returned to the Board. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. 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 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ TANYA A. SMITH Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs