Citation Nr: 1805095	
Decision Date: 01/25/18    Archive Date: 02/05/18

DOCKET NO.  13-21 913	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUES

1.  Entitlement to service connection for residuals of ruptured left ear drum.
 
2.  Entitlement to service connection for emphysema


REPRESENTATION

Veteran represented by:	Veterans of Foreign Wars of the United States


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

K. M. Schaefer, Counsel
INTRODUCTION

The Veteran served on active duty from August 1962 to December 1969.  

This case comes before the Board of Veterans' Appeals (Board) on appeal of a September 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida.  

In July 2016, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge.  A transcript of the proceeding is of record. 

In December 2016, the appeal was remanded to the RO for further development, which has been accomplished.  See Stegall v. West, 11 Vet. App. 268, 271 (1998).  While the appeal was in remand status, two issues previously on appeal, entitlement to service connection for bilateral hearing loss and tinnitus, were granted by the Appeals Management Center in May 2017 and are no longer before the Board.  The remaining issues listed above have now returned to the Board for appellate review.  

The issue of entitlement to service connection for a respiratory disability is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDING OF FACT

A disability manifested by residuals of a ruptured left ear drum was not present during the pendency of the claim. 


CONCLUSION OF LAW

The criteria for service connection for residuals of a ruptured left ear drum have not been met. 38 U.S.C. §§ 1101, 1110 (2012); 38 C.F.R. § 3.303 (2017).

REASONS AND BASES FOR FINDING AND CONCLUSION

Legal Criteria

Service connection is granted for disability resulting from disease or injury incurred in or aggravated by active duty.  38 U.S.C. § 1110; 38 C.F.R. § 3.303.  Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service.  38 C.F.R. § 3.303 (d).

"Congress specifically limits entitlement to service-connected disease or injury where such cases have resulted in a disability ... in the absence of a proof of present disability there can be no claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).  The United States Court of Appeals for Veterans Claims (Court) has held that the requirement for service connection that a current disability be present is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim even though the disability resolves prior to the Secretary's adjudication of the claim.  See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007).

Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary.  The Secretary 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.  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. § 5107 (2012); 38 C.F.R. § 3.102 (2017); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).

To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54.



Analysis

In this case, the Board has reviewed all of the evidence of record, with an emphasis on the evidence relevant to this appeal.  Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record.  Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record, but does not have to discuss each piece of evidence).  Hence, 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 the claims.

The Veteran has raised a claim of entitlement to service connection for residuals of a ruptured left ear drum, including recurrent ear infections.  He contends that his left ear drum ruptured during submarine training.  However, service treatment records do not reflect ear or ear drum injury or diagnosis of an ear or ear drum disability, which was specifically examined at all clinical examinations including the Veteran's service separation examination in November 1969. 

Moreover, post-service medical evidence does not establish that the Veteran has a disability of the left ear drum for which service connection can be granted.  VA treatment notes show that the Veteran was treated for ear infections of the right ear on two occasions and for an ear infection in an unspecified ear in October 2009.  A VA examination was performed in March 2017 after which the examiner stated that the Veteran had a normal ear examination and that there was no nystagmus and no damage to tympanic membrane observed.  Therefore, the examiner indicated that there was no diagnosis related to the Veteran's claimed ruptured left eardrum or any diagnosis of an ear disease. 

The Veteran has offered no evidence of a chronic disability of the left ear or ear drum.  Even if the Veteran has experienced ear infections in the left ear, which the medical evidence shows is suspect, the occurrence of ear infections alone is not a disability for which service connection could be granted absent evidence of a chronic disability that resulted from the ear infections.  Thus, as the evidence does not establish that the Veteran has a current disability of the left ear or ear drum, service connection must be denied. 

The Board has duly considered the benefit of the doubt doctrine.  38 U.S.C. 
§ 5107; see also Gilbert.  However, the preponderance of the evidence is against the Veteran's claim, so that doctrine is not applicable.    


ORDER

Entitlement to service connection for residuals of a ruptured left ear drum is denied.


REMAND

Regrettably, the Board determines that a remand of the Veteran's claim of entitlement to service connection for a respiratory disorder must again be remanded.  In the December 2016 remand, the Board directed that the VA examiner was to consider the Veteran's statements and "competent reports of the claimed in-service injury or of symptoms experienced during active service and since."   However, the only potential cause for the emphysema discussed by the examiner was secondhand smoke.  The examiner did not address the Veteran's exposure to asbestos described at his hearing and in a November 2010 submission or the exposure to acid and hydrogen sulfide gas fumes discussed in that submission.  Therefore, the Board finds that the December 2016 VA respiratory opinion is inadequate.  Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).  

Accordingly, the case is REMANDED for the following action:

1.  Undertake appropriate development to obtain any outstanding records pertinent to the Veteran's claim.

2.  Obtain another opinion from the December 2016 VA examiner, or another equally qualified examiner if that examiner is not available, as to the etiology of any respiratory disability present during the period of the claim.  All pertinent evidence of record must be made available to and reviewed by the examiner, and any indicated tests and studies should be performed.

Based on the review of the record, the examiner should state a medical opinion with respect to each respiratory disability present during the period of the claim as to whether it is at least as likely as not (i.e., whether there is a 50 percent or better probability) that the disorder originated during active service or is otherwise etiologically related to active service.  For purposes of the opinions, the examiner should assume that the Veteran is a reliable historian.  The examiner must not ignore the Veteran's competent reports of the claimed in-service injury or of symptoms experienced during active service and since.  

The rationale for each opinion expressed must also be provided.  In forming this opinion, the examiner must consider the in-service activities and exposures described in the Veteran's written statements and testimony, to include the November 2010 submission and July 2016 hearing in which the Veteran noted exposure to asbestos and exposure to acid and hydrogen sulfide gas fumes.  If the examiner is unable to provide any required opinion, he or she should explain why.  If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation as to why this is so.  If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed.  

3.  Readjudicate the issue remaining on appeal.  If the benefit sought on appeal is not granted to the Veteran's satisfaction, a supplemental statement of the case should be issued to the Veteran and his representative, and they should be afforded the requisite opportunity to respond.  Thereafter, the case should be returned to the Board for further appellate action.

By this remand, the Board intimates no opinion as to any final outcome warranted.

The Veteran need take no action until he is otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame.  See Kutscherousky v. West, 12 Vet. App. 369 (1999).

This REMAND 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. §§ 5109B, 7112 (2012).




______________________________________________
T. REYNOLDS
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs