Citation Nr: 1720008 Decision Date: 06/06/17 Archive Date: 06/21/17 DOCKET NO. 16-40 712A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for bilateral perforated ear drums. REPRESENTATION Appellant represented by: Florida Department of Veterans Affairs ATTORNEY FOR THE BOARD T. Monrose, Associate Counsel INTRODUCTION The Veteran served on active duty in the Marine Corps from December 1954 to December 1957. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2015 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which denied entitlement to the benefit currently sought on appeal. A motion to advance this appeal on the Board's docket has been raised by the Board's Acting Vice Chairman. The undersigned is granting the motion and advancing the appeal on the docket based on advanced age. 38 C.F.R. § 20.900(c) ('advanced age' is defined as 75 or more years of age). FINDING OF FACT The Veteran does not have a current diagnosis or residuals of bilateral perforated ear drums. CONCLUSION OF LAW The criteria for service connection for bilateral perforated ear drums have not been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2015); 38 C.F.R. §§ 3.102, 3.303 (2016). REASONS AND BASES FOR FINDING AND CONCLUSION VCAA VA has a duty to provide notice of the information and evidence necessary to substantiate a claim. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2015); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2016). A standard June 2014 letter satisfied the duty to notify provisions. The Veteran has not alleged that VA failed to comply with the notice requirements of the VCAA, and he was afforded a meaningful opportunity to participate effectively in the processing of his claim and has in fact provided additional arguments at every stage. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005). The notice required by 38 U.S.C.A. § 5103(a) should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). That was done in this case. VA also has a duty to provide assistance to substantiate a claim. 38 U.S.C.A. § 5103A (West 2015); 38 C.F.R. § 3.159 (c). The Veteran's service treatment records and post-service VA treatment records are in the file. The VA has also obtained private treatment records and associated them with the claims file. As such, the Board finds the duty to assist with obtaining medical records has been satisfied. 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, as defined by law. The case of McLendon v. Nicholson, 20 Vet. App. 79 (2006), held that an examination is required when (1) there is evidence of a current disability, (2) evidence establishing an 'in-service event, injury or disease,' or a disease manifested in accordance with presumptive service connection regulations occurred which would support incurrence or aggravation, (3) an indication that the current disability may be related to the in-service event, and (4) insufficient evidence to decide the case. The Board notes that the Veteran was afforded VA examinations in December 13, 2014, with an addendum issued two weeks later. See 38 C.F.R. § 3.159(c)(4) (2016). The examination and related addendum are sufficient evidence for deciding the claim. The reports are adequate as it is based upon consideration of the Veteran's prior medical history and examinations, describes the disability in sufficient detail so that the Board's evaluation is a fully informed one, and contains a reasoned explanation. Therefore, the Board finds that the examination is adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). In light of the foregoing, the Board is satisfied that all relevant facts have been adequately developed to the extent possible; no further assistance to the appellant in developing the facts pertinent to the issue on appeal is required to comply with the duty to assist. 38 U.S.C.A. §§ 5103 and 5103A (West 2015); 38 C.F.R. § 3.159 (2016). Law and Regulations A Veteran is a person who served in the active military, naval, or air service and who was discharged or released under conditions other "than dishonorable." 38 C.F.R. § 3.1(d) (2016). The term "active military, naval, or air service" includes: (1) active duty; (2) any period of ACDUTRA) during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in the line of duty; and (3) any period of INACDUTRA during which the individual concerned was disabled or died from an injury incurred or aggravated in the line of duty. 38 U.S.C.A. § 101 (24) (West 2015); 38 C.F.R. § 3.6 (a) (2016). Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1131 (West 2015); 38 C.F.R. § 3.303 (a) (2016). Service connection may also be granted for any disease 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) (2016). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. Id.; see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996). Further, every Veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for 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. See 38 U.S.C.A. § 1111 (West 2015); 38 C.F.R. § 3.304 (b) (2016). Only such conditions as are recorded in examination reports are to be considered as noted. 38 C.F.R. § 3.304(b). If a condition is not noted upon entrance into service, then to rebut the presumption of soundness at service entrance VA must show by clear and unmistakable evidence both that there was a pre-existing condition and that it was not aggravated during or by the Veteran's service. Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004); VAOPGCPREC 3-2003 (July 16, 2003). To satisfy this second-prong requirement for rebutting the presumption of soundness, the government must show by clear and unmistakable evidence either that there was no increase in disability during service or that any increase in disability was "due to the natural progression" of the condition. Joyce v. Nicholson, 443 F.3d 845, 847 (Fed. Cir. 2006). If a pre-existing disability is noted upon entry into service, then the Veteran cannot bring a claim for service connection for that disability, only a claim for service-connected aggravation of that disability. In that case, 38 U.S.C.A. § 1153 applies and the burden falls on him, not VA to establish aggravation. Wagner, 370 F.3d at 1096; Jensen v. Brown, 19 F.3d 1413, 1417 (Fed. Cir. 1994); 38 C.F.R. § 3.306 (2016). Competent medical evidence means 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 mean statements conveying sound medical principles found in medical treatises. It would also include statements contained in authoritative writings such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1) (2016). 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)(2) (2016). Analysis The Veteran seeks service connection for bilateral perforated ear drums, which he contends initially manifested in service. The Veteran contends that he had noise exposure while completing an exercise at Camp Lejeune in North Carolina. Specifically, he alleges that he was required to run across a field when an explosion went off. As a result of the explosion, he could not hear for several days and has since had recurring ear problems which were further exacerbated by the two perforated ear drums. Turning to the medical evidence of record, the Veteran's service treatment records show that his right ear drum was healed on his enlistment examination dated December 1954. However, he had no record of any subsequent perforation of the right or left ear drum. Private treatment records from January 2014 indicate that the Veteran had fluid behind his tympanic membrane in both ears and the Eustachian tube was not properly functioning, but his hearing improved after wax was removed from his ears. "Tympanic membrane is defined as a thin membrane that separates the middle ear from the inner part of the external auditory meatus and functions in the mechanical reception of sound waves and in their transmission to the site of sensory receptions-called also eardrum, tympanum." McNeely v. Principi, 3 Vet. App. 357, 361-62 (1992). The Board notes that the Veteran reported a history of bilateral perforated ear drums during an examination in December 2013 to the same private physician who treated him in January 2014. However, there was no indication that the Veteran suffered from service-related perforated ear drum or any residuals thereof during the January 2014 or December 2013 examinations. In April 2015, VA treatment records indicated that the Veteran's tympanic membrane appeared within normal limits. In addition, the right ear canal was dry and excessive cerumen was noted in the left ear. Finally, the Veteran reported that he had a history of bilateral perforated ear drums and had tubes placed in his ears for the last 15 years. In a VA examination dated December 30, 2014, the examiner opined that Veteran's "ENT troubles (ear drums)" existed prior to active military service and the right ear drum healed prior to active military service. Moreover, the Veteran's '[h]earing is bilaterally within normal limits . . . with SMR/STR evidence of any acoustic trauma . . ..' Lastly, the examiner noted that current audiometrics performed on December 13, 2014 do not support tympanic membrane perforations or evidence of conductive disease. After a careful review of the record, it is determined that entitlement to service connection for perforated ear drums or the residuals thereof is not warranted. Simply, the Veteran has no current disabilities or diagnoses that are shown to be related to the possible ear drum perforations he experienced either before service or since that time. All private and VA medical evidence shows that there was eustachian tube dysfunction but no disabilities or diagnoses related to the tympanic membranes or ear drums. The VA examiner who provided the January 2015 opinion reiterated that no history of perforated ear drums had been shown in any medical records. They were noted to be intact, while the Veteran was shown to have ear wax and fluid behind the ear drum. Current audiometrics also did not support tympanic membrane or ear drum perforations and are without evidence of conductive disease. With regard to the Veteran's statements, he has asserted that he was not told upon entry into service that he had a history of a perforated ear drum, and he should have been informed so that he could obtain a deferment. To the extent that the Veteran has a disagreement with how he was treated prior to or during service by the Department of Defense, that is a matter for that agency and not for VA to address. The Veteran has asserted that he has had hearing loss and tinnitus since service. He is competent to do so, and he has already been granted service connection for these disabilities, which are not on appeal before the Board. However, to the extent that the Veteran contends that he has other residuals that are related to perforated ear drums that either occurred prior to service or since that time, the evidence in the record provided by audiological experts is more probative than the Veteran's assertions. The audiological evidence of evaluations is associated with the file, and the January 2015 VA examiner provided the opinion that there is no current disability or residual of ear drum perforations, to the extent that they occurred. While the January 2015 VA examiner asserts that the Veteran was not exposed to noise during service and should not be service connected for hearing loss or tinnitus, this portion of his opinion is irrelevant to the issue being decided herein. As such, to the extent that this examiner's opinion is contradicted by the Veteran's statements regarding noise exposure and the prior December 2014 VA examination report that acknowledged noise exposure in service, this inconsistency is irrelevant to the determination on this issue. Whether the Veteran was exposed to noise in service or not, he has no currently diagnosed disability of a perforated ear drum or a residual thereof. This evidence outweighs any assertion by the Veteran that he does have such residuals, since the opinion is provided by an audiologist, who has training and expertise that the Veteran is not shown to have. See Jandreau v. Nicholson, 492 F. 3d 1372, 1376 (2007). In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107 (b); 38 C.F.R. § 3.102 ; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Entitlement to a service connection for bilateral perforated ear drums is denied. ____________________________________________ R. FEINBERG Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs