Citation Nr: 1807114	
Decision Date: 02/02/18    Archive Date: 02/14/18

DOCKET NO.  12-04 345	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Detroit, Michigan


THE ISSUE

Entitlement to service connection for a perforated right eardrum.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

J. Abrams, Associate Counsel


INTRODUCTION

The Veteran served on active duty from February 1963 to February 1965.

This matter is before the Board of Veterans' Appeals (Board) on appeal from a June 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan.  In February 2017, the Veteran testified before the undersigned Veterans Law Judge (VLJ) via videoconference.  A copy of the hearing transcript is of record and has been reviewed.  In June 2014, July 2016, and June 2017 Board decisions, the claim was remanded.  The Board finds that there has been substantial compliance with its prior remand directives.  See Stegall v. West, 11. Vet. App. 268 (1998).

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017).  38 U.S.C. § 7107(a)(2) (2012).


FINDING OF FACT

The preponderance of the evidence is against a finding that a perforated right eardrum is etiologically related to the Veteran's active military service.


CONCLUSION OF LAW

The criteria for service connection for a perforated right eardrum have not been met.  38 U.S.C. §§ 1110, 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309 (2017).






REASONS AND BASES FOR FINDING AND CONCLUSION

I.  Duties to Notify and Assist

As a preliminary matter, the Board has reviewed the claims file and finds that there exist no deficiencies in VA's duties to notify and assist that would be prejudicial and require corrective action prior to a final Board determination.  See 38 U.S.C. §§ 5103, 5103A; 38 C.F.R. § 3.159; see also Bryant v. Shinseki, 23 Vet. App. 488 (2010) (regarding the duties of a hearing officer); Mayfield v. Nicholson, 20 Vet. App. 537 (2006) (corrective action to cure a 38 C.F.R. § 3.159(b) notice deficiency); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004) (timing of notification).  

The Board also notes that, to the full extent possible, VA complied with all prior remand instruction requests, and there exist no deficiencies in VA's duties to notify and assist in that regard.  See Stegall v. West, 11 Vet. App. 268 (1998) (a remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand order); but see D'Aries v. Peake, 22 Vet. App. 97, 104, (2008) (it is only substantial compliance, rather than strict compliance, with the terms of a remand that is required).

II.  Legal Criteria

Service connection may be granted for a disability resulting from disease or injury incurred or aggravated during active military service.  38 U.S.C. § 1110 (2012).  Generally, service connection requires (1) the existence of a present disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service.  Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004).  Certain disabilities are presumed to be serviced connected if manifested to a compensable degree within one year following service.  38 C.F.R. §§ 3.303, 3.307, 3.309.


III.  Analysis

In this case, the Board acknowledges a current diagnosis of a healed perforation right tympanic membrane, based on a November 2017 VA examination report.  The Board has reviewed the service treatment records and finds that there have been no complaints, treatment, or diagnosis of an injury to the Veteran's right ear during active service.  However, in his February 2017 hearing, the Veteran testified that during active service, he went out one night and a group of men attacked him.  He noted that he was beaten and eventually passed out on the ground.  The Veteran testified that he was hit repeatedly all over his head and has had problems with his right ear ever since.

Despite the Veteran's testimony, the remaining question for the Board is whether there is an etiological relationship, or nexus, between the current disability and service.  In the November 2017 VA examination report, the examiner noted that the Veteran stated that he was in an altercation in 1963 and was hit with sticks.  The Veteran stated that he received no treatment for his right ear while in the military.

The VA examiner opined that it was less likely than not that the Veteran's healed right tympanic membrane was incurred in or caused by his active military service.  The rationale was that examinations in August 1997 and November 1997, 32 years after the Veteran's active service, showed "intact bilateral tympanic membranes."  The ear, nose, and throat consultation noted "right ear... abnormal depression in bone of external canal completely epithelized, no infection noted.  Small amount of white squamous debris removed.  Tympanic membrane intact."  No residual or chronic disability subject to service connection was shown by the Veteran's service medical records or demonstrated by evidence following service.  The examiner concluded that there was no medical nexus establishing causality between an incident in the military in 1963 and the Veteran's perforated right tympanic membrane.  Full consideration of all pertinent and available medical facts was rendered. 

The Veteran's representative argued in a January 2018 Informal Hearing Presentation that the 2009 examination was more thorough than the previous 1997 examinations.  Additionally, the representative argued that the 2009 examination found the Veteran's tympanic membrane to be intact.  According to the representative, noting that the membrane was intact in 2009 did not rule out the presence of the "abnormal depression in bone of external canal completely epithelized" that was documented.  The Veteran's representative argued that because there was no indication of illness or injury between 1997 and 2009, the Board must concede that the old injury identified in 2009 was at least as likely as not present in 1997, if not all the way back to the Veteran's attack during active service.

Despite the representative's arguments, the Board notes that there is a presumption of regularity that public officers perform their duties correctly, fairly, in good faith, and in accordance with law and governing regulations.  Marsh v. Nicholson, 19 Vet. App. 381 (2005); Crain v. Principi, 17 Vet. App. 182 (2003).  The Board further notes that "VA benefits from [sic] a [rebuttable] presumption that it has chosen a person who is qualified to provide a medical opinion in a particular case."  Parks v. Shinseki, 716 F. 3d 581, 585 (Fed. Cir. 2013).  There is no evidence in the record to indicate that the August 1997 and November 1997 examinations, that found no problems with the Veteran's tympanic membrane, were inadequate.  Additionally, there is no evidence that the damage to the Veteran's tympanic membrane, which was discovered in 2009, went back to 1997 or even further back in time.  As a result, the statements by the Veteran's representative, standing alone, are insufficient to rebut the presumption of regularity.  Id. at 274 (holding that "clear evidence to the contrary" is required to rebut the presumption of regularity).

The Board notes that post-service right tympanic membrane treatment was not shown in the record until 2009, over 40 years after the Veteran's discharge from service.  The passage of time between the Veteran's discharge and an initial diagnosis for the claimed disorder is one factor that weighs against the Veteran's claim.  Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (noting that a lengthy period of absence of medical complaints for condition can be considered as a factor in resolving claim, just not the only or sole factor); see also Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (affirming Board's denial of service connection where the Veteran had failed to account for lengthy time period between service and initial symptoms of disability).

The Board finds that the November 2017 VA examination report, finding no nexus between the Veteran's current perforated right eardrum and his assault in active service, is the most probative evidence of record, as the examiner reviewed the claims file and provided a detailed rationale.  The Veteran is competent to observe lay symptoms, but he does not have the training or credentials to provide a competent opinion as to the etiology of his perforated right tympanic membrane.  See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007).

Based on the above analysis, the preponderance of the evidence is against the claim for service connection for a perforated right eardrum, and the claim must be denied.  38 U.S.C. § 5107(b).


ORDER

Entitlement to service connection for a perforated right eardrum is denied.



____________________________________________
A. C. MACKENZIE
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs