Citation Nr: 18148809 Decision Date: 11/08/18 Archive Date: 11/08/18 DOCKET NO. 16-39 029 DATE: November 8, 2018 ORDER Compensation under 38 U.S.C. § 1151 for perforated left tympanic membrane (claimed as hole in left eardrum) is denied. REMANDED Entitlement to service connection for monoclonal gammopathy (claimed as blood disorder) as due to herbicide agent exposure is remanded. FINDING OF FACT 1. The weight of the competent evidence of record is against a finding that objective symptoms for a perforated left tympanic membrane were present on July 29, 2013. 2. The weight of the competent evidence of record shows that the Veteran’s perforated left tympanic membrane was neither actually, nor proximately caused by the care, or lack thereof, rendered by a VA medical professional on July 29, 2013. 3. The Veteran served in a unit that operated in the vicinity of the Korean Demilitarized Zone (DMZ) during an interval within the time frame between April 1, 1968 and August 31, 1971. CONCLUSION OF LAW The criteria for disability compensation under 38 U.S.C. § 1151 for qualifying additional disability from VA care, claimed as perforated left tympanic membrane, have not been met. 38 U.S.C. §§ 1151, 5107(b); 38 C.F.R. §§ 3.102, 3.361. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served active duty in the Army from March 1969 to October 1970. This matter comes to the Board of Veterans Appeals (Board) from a September 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. Entitlement to compensation under 38 U.S.C. § 1151 for perforated left tympanic membrane. The Veteran contends that his perforated left tympanic membrane was caused by the improper use of a Q-tip, by a VA healthcare professional, to clean the Veteran's eardrum. The Board concludes that the preponderance of the evidence weighs against finding that July 2013 VA care proximately caused or resulted in additional disability claimed as perforated left tympanic membrane. 38 U.S.C. § 1151; 38 C.F.R. § 3.361. Under 38 U.S.C. § 1151, compensation is awarded for a qualifying additional disability or death in the same manner as if such additional disability or death were service-connected. For purposes of this section, a disability or death is a qualifying additional disability if (1) the disability or death was not the result of the veteran’s willful misconduct, (2) the disability or death was caused by hospital care, medical or surgical treatment, or examination furnished the veteran under the law administered by the Secretary, and (3) the proximate cause of the disability or death was (A) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the Department in furnishing the hospital care, medical or surgical treatment, or examination, or (B) an event not reasonably foreseeable. 38 U.S.C. § 1151; 38 C.F.R. § 3.361; Viegas v. Shinseki, 705 F.3d 1374, 1377-78 (Fed. Cir. 2013). The record reflects that the Veteran was diagnosed with impacted cerumen. Following this diagnosis, the Veteran was scheduled to have the cerumen removed at Shreveport VA Medical Center on July 29, 2013. Pertinent medical records from the Shreveport VA Medical Center show that cerumen was removed without any complications or complaints. Following the cerumen removal, the Veteran’s eardrum was examined and found to be intact. The Veteran’s lay contention is that improper eardrum cleaning led to the development of an abcess, which then led to a perforated left tympanic membrane. The Board finds that he is not competent to formulate a medical opinion in this matter as he lacks the requisite medical expertise and the cause-and-effect opinion (i.e. cleaning caused abcess to form, which led to eardrum perforation) provided by the Veteran is not susceptible to lay observation. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (2007). Therefore, his statements regarding etiology have no probative value. Furthermore, the medical evidence of record dispels Veteran’s notion, as noted in the July 2013 medical report, the Veteran’s ear examination revealed that the eardrum was intact and there was no wax, discharge, or redness. Indeed, there was no note of pain or discomfort. According to the VA medical professional that conducted the cerumen removal, the procedure used to remove the cerumen was “tolerated well” by the Veteran. In contrast, patients that experience tympanic membrane perforation “complain of a sudden onset of ear pain, vertigo, tinnitus, and altered hearing after a specific event.” See EDWARD C. JAUCH ET AL., THE ATLAS OF EMERGENCY MEDICINE (Kevin J. Knoop et al. eds., 4th ed. 2016). Furthermore, a physical examination of the tympanic membrane would reveal “a slit-shaped tear or a larger perforation with an irregular border, often associated with blood along the margins.” Id. Of which was not discovered when the Veteran’s eardrum was examined after the cerumen removal. It was not until December 2013 that the Veteran reported that he had a “buzzing” sound that he linked to his July 2013 cerumen removal. The medical records provided from Good Shepherd Medical Associates confirm treatment for the perforated tympanic membrane, but do not support a conclusion that it was caused by VA care. In fact, these records are silent as to the underlying cause of the perforation and thus do not provide the needed information to link the Veteran’s perforated tympanic membrane with the VA care he received in July 2013. In view of the above, the Board finds that, while the Veteran has perforated left tympanic membrane, competent evidence has not been received showing that it was caused by the July 2013 VA care or treatment as theorized by the Veteran. 38 U.S.C. § 1151; 38 C.F.R. § 3.361. The Board assigns greater probative value to the medical evidence showing no post-operative complications related to the Veteran’s cerumen removal, coupled with the many months intervening the treatment/care and the findings for left tympanic membrane perforation. Accordingly, the claim is denied. There is no doubt to resolve. 38 U.S.C. § 5107(b).   REASONS FOR REMAND 1. Entitlement to service connection for monoclonal gammopathy (claimed as blood disorder) as due to herbicide agent exposure is remanded. The Board finds that a VA medical opinion is necessary to decide the claim of entitlement to service conneciton for monoclonal gammopathy is related to service, to include herbicide agent exposure. 38 C.F.R. § 3.159(c). Although veterans who served in Vietnam are presumed to have been exposed to herbicide agents, in this case, the Veteran served in Korea. Certain veterans who served in Korea are also presumed to have been exposed to herbicide agents. Under current regulations, a veteran who served between April 1, 1968, and August 31, 1971, in a unit that, as determined by the Department of Defense (DOD), operated in or near the Korean DMZ in an area in which herbicide agent are known to have been applied during that period, is presumed to have been exposed to a herbicide agent. 38 C.F.R. § 3.307(a)(6)(iv). While monoclonal gammopathy is not a condition for which service connection can be granted on a presumptive basis based on herbicide agent exposure, in August 2016 the Veteran stated that his primary care physician opined that the condition is related to herbicide agent exposure. Although, the Veteran is competent to report what he was told by a medical professional, there are no medical reports or opinions in the claims file that confirm this assertion. Nevertheless, the Veteran has provided compentent evidence of a potential relationship between his monoclonal gammopathy and service to warrant remand for a VA medical opinion. See McClendon v. Nicholson, 20 Vet. App. 79 (2006). As such, in view of the record and the Veteran’s statements, the Board believes that VA’s duty to obtain a VA medical opinion is triggered in this case. The matter is REMANDED for the following action: 1. Ask the Veteran to complete a VA Form 21-4142 for Longview Community Based Outpatient Clinic and any other medical provider identified by the Veteran. Make two requests for the authorized records from the medical providers, unless it is clear after the first request that a second request would be futile. 2. Thereafter, schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of his claimed blood disorder, to include monoclonal gammopathy. The examiner must opine whether it is at least as likely as not that the currently diagnosed blood disorder, to include monoclonal gammopathy is related to an in-service injury, event, or disease, including in-service exposure to Agent Orange, presumed by his Korean DMZ service, or other tactical herbicide agent. 3. Ensure that the VA medical opinion obtained includes a complete rationale for the conclusions reached. The medical opinion must support the conclusions reached with an analysis that is adequate for the Board to consider and weigh against other evidence of record; medical opinions must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. If an opinion cannot be expressed without resort to speculation, ensure that the clinician so indicates and discusses why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. (Continued on the next page)   4. Readjudicate. C.A. SKOW Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Griffey, Law Clerk