Citation Nr: 1343405 Decision Date: 12/31/13 Archive Date: 01/07/14 DOCKET NO. 10-38 183 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUE Entitlement to service connection for the residuals of a left ear tympanic membrane rupture, also claimed as an ear condition. ATTORNEY FOR THE BOARD McBrine, M., Counsel INTRODUCTION The Veteran served on active duty from January 2006 to July 2009. This matter comes before the Board of Veterans' Appeals (Board) from an April 2007 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Board points out that the Veteran requested both a videoconference hearing, and a hearing before a Decision Review Officer, in this case, however, he failed to report for either of these scheduled hearings, and gave no reason for his failure to appear. As such, the Board deems the hearing requests withdrawn. FINDINGS OF FACT The Veteran ruptured his tympanic membrane in service; however, there is no lay or medical evidence demonstrating current residuals related to his ruptured tympanic membrane. CONCLUSION OF LAW The Veteran does not currently have any residual disability related to his in service tympanic membrane rupture. 38 U.S.C.A. §§ 1101, 1110, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303( 2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all the evidence submitted by or on behalf of the Veteran. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). Both the Veteran's physical, and virtual, claims files have been reviewed in adjudication of this claim. Veterans Claims Assistance Act of 2000 (VCAA) With respect to the Veteran's claim, VA has met all statutory and regulatory notice and duty to assist provisions. 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, 3.326(a) (2013). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the Veteran and his or her representative, if any, of any information and 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). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the United States Court of Appeals for Veterans Claims (Court) held that VA must inform the Veteran of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the Veteran is expected to provide; and (4) request that the Veteran provide any evidence in his or her possession that pertains to the claim. VCAA letters dated in July 2009 and June 2010 satisfied the duty to notify provisions. See 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(b)(1) (2013). The Veteran was advised that it was ultimately his responsibility to give VA any evidence pertaining to the claims. These documents informed him that additional information or evidence was needed to support his claims, and asked him to send the information or evidence to VA. The Board also concludes that VA's duty to assist has been satisfied. The Veteran's service treatment records and relevant VA medical records are in the file. All records identified by the Veteran as relating to the claims have been obtained, to the extent possible. The Board finds that the record contains sufficient evidence to make a decision on the claims. The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4)(i) (2013). The Veteran was provided with a VA examination in October 2009. This examination report is thorough and it appears that the examiner both reviewed the documented record and elicited a history from the Veteran. The Board concludes that this examination is adequate and satisfied VA's duty to assist the Veteran. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Service Connection Law The Veteran is claiming entitlement to service connection for the residuals of a left ear tympanic membrane rupture. For the below reasons, service connection is denied for this claim. Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). An alternative method of establishing the second and third elements of service connection for those disabilities identified as a "chronic condition" under 38 C.F.R. § 3.309(a) is through a demonstration of continuity of symptomatology. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). A claimant can establish continuity of symptomatology with competent evidence showing: (1) that a condition was "noted" during service; (2) post-service continuity of the same symptomatology; and (3) a nexus between a current disability and the post-service symptomatology. 38 C.F.R. § 3.303(b). Here, however, the claimed disability of ruptured tympanic membrane is not listed in § 3.309(a), and therefore not subject to this continuity of symptomatology pleading alternative. Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The standard of proof to be applied in decisions on claims for VA benefits is set forth in 38 U.S.C.A. § 5107(b). Under that provision, VA shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. The Board must determine the value of all evidence submitted, including lay and medical evidence. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible, or worthy of belief. See Barr v. Nicholson, 21 Vet. App. 303 at 308 (2007) (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a). In ascertaining the competency of lay evidence, the courts have generally held that a layperson is not capable of opining on matters requiring medical knowledge. In certain instances, however, 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 Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009) (where widow seeking service connection for cause of death of her husband, the Veteran, the Court holding that medical opinion not required to prove nexus between service connected mental disorder and drowning which caused Veteran's death). Laypersons have also been found to not be competent to provide evidence in more complex medical situations. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (concerning rheumatic fever). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b) (West 2002); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Facts and Analysis Taking into account all relevant evidence, the Board finds that service connection is not warranted for the residuals of a left ear tympanic membrane rupture. In this regard, there is no question that the Veteran ruptured his left ear drum during an accident in service. However, neither the medical or lay evidence of record shows any residuals related to that ear drum rupture. The Board does point out that the Veteran is already service connected for a traumatic brain injury and tinnitus, and that compensable evaluations have been assigned for both. The question of service connection for hearing loss was also the subject of separate unappealed rating decisions wherein service connection was denied because his hearing did not meet the requirements for establishing a disability under 38 C.F.R. § 3.385 (2013). However, the Veteran's tympanic membrane itself has been shown to be well healed, without residuals. Specifically, on October 2009 examination, the Veteran described being in a Humvee in service that was hit by a roadside bomb. He reported being told that he had a mild concussion and, after noticing drainage in his ear several weeks later, being told that he had a ruptured eardrum. He indicated that he was prescribed medication and that he had experienced no drainage since then. Examination of the auricular revealed normal size, shape, and form, with no deformity present. There was no evidence of tissue loss. External canals were without evidence of edema, scaling, or discharge. Tympanic membranes were pearly gray with good light reflex bilaterally. Tympanum and mastoids were normal bilaterally. There was no evidence of discharge or cholesteatoma. The Veteran did report intermittment tinnitus (for which he is service connected), but no other current difficulties were reported. Active disease was not present. In sum, the examiner indicated that the Veteran's prior tympanic membrane perforation was resolved without any current effect on function. There is no further medical evidence of record indicating any residual disability of the Veteran's tympanic membrane. Thus, while the Veteran did have a rupture of his ear drum in service, the most probative evidence indicates that it resolved completely without residuals. As the Veteran currently has no disability of his left ear tympanic membrane, service connection cannot be granted. While the Veteran is competent to testify to certain aspects of disability, the Board points out that he has not identified any current residuals related to his in-service injury. As noted, during his 2009 VA examination, he reported the tinnitus for which he is service-connected but did not identify any other ear trouble. In his Notice of Disagreement, he discussed having sustained his injury in service, but did not identify any current residuals. His VA Form 9 is also absent of any indication of current residuals. The Board notes that a VA audio examination was conducted in June 2010 to evaluate his complaints of hearing loss and tinnitus, which, as noted, were considered by the RO as separate claims. That examination report makes reference to the Veteran's in-service ruptured eardrum, and that he had some drainage following the injury, but he specifically denied having any now. Given that the Veteran has not provided any lay evidence of current residuals, and because the only medical evidence of record affirmatively indicates that the Veteran does not have any residuals of his ear drum rupture in service, the Board finds that the preponderance of the evidence of record is against a grant of service connection for the residuals of a left ear tympanic membrane rupture. As the preponderance of the evidence is against this claim, the benefit-of-the-doubt doctrine does not apply, and the claim must be denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App 49, 55-57 (1990). ORDER Entitlement to service connection for the residuals of a left ear tympanic membrane rupture, also claimed as an ear condition, is denied. ____________________________________________ Michael Lane Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs