Citation Nr: 20008062 Decision Date: 01/30/20 Archive Date: 01/30/20 DOCKET NO. 16-41 016 DATE: January 30, 2020 ORDER Entitlement to service connection for perforation of the right tympanic membrane is denied. FINDING OF FACT Perforation of the right tympanic membrane is not shown to be causally or etiologically related to any disease, injury, or incident in service. CONCLUSION OF LAW The criteria for service connection for perforation of the right tympanic membrane have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from August 1956 to July 1959. The Veteran died in August 2017 and the Appellant is his surviving spouse. In November 2018, the Board remanded the claim on appeal for further development and adjudication. The Board finds that there was substantial compliance with its November 2018 remand directives. A remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand order. Stegall v. West, 11 Vet. App. 268 (1998). Nonetheless, it is only substantial compliance, rather than strict compliance, with the terms of a remand that is required. See D’Aries v. Peake, 22 Vet. App. 97, 104 (2008) (finding substantial compliance where an opinion was provided by a neurologist as opposed to an internal medicine specialist requested by the Board); Dyment v. West, 13 Vet. App. 141 (1999). The Board also notes that in January 2019, it remanded the Appellant’s claim for entitlement to service connection for kidney cancer, claimed as due to radiation exposure and noted that the RO had received and was working on the notice of disagreement with respect to the December 2017 denial of entitlement to service connection for cause of death, bone and lung cancer (for accrued purposes only). The Board finds that as it appears the RO is still working on the claims, such are not before the Board at this time. Entitlement to service connection for perforation of the right tympanic membrane is denied. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). 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). 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). Additionally, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Alternatively, service connection may be established under 38 C.F.R. § 3.303 (b) by (a) evidence of (i) the existence of a chronic disease in service or during an applicable presumption period under 38 C.F.R. § 3.307 and (ii) present manifestations of the same chronic disease, or (b) when a chronic disease is not present during service, evidence of continuity of symptomatology. 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; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). During his lifetime, the Veteran sought service connection for his perforated right tympanic membrane. He asserted that, at discharge, the physician performing the separation examination told him that he had a perforated tympanic membrane in his right ear. See Letter from the Veteran dated January 2013. He further contended that he believed the perforation was due to the hazardous noise exposure he experienced in service from unloading aircraft on an air base in Okinawa and from firing weapons and being around gunfire without any hearing protection. See Letter from the Veteran dated January 2013; VA Examination dated December 2014; Audiological Evaluation dated December 2012. At the outset, the Board notes that the Veteran’s service medical records may have been destroyed in a 1973 fire at the National Personnel Records Center (NPRC). When the NPRC informs VA that records were lost in the 1973 fire, or when there is other evidence in the file that a claimant’s service records have otherwise been lost or destroyed, VA has a heightened duty to assist a claimant in developing a claim. Russo v. Brown, 9 Vet. App. 46, 51 (1996); O’Hare v. Derwinski, 1 Vet. App. 365, 367 (1991); Washington v. Nicholson, 19 Vet. App. 362, 369-70 (2005). The Board notes that the Veteran’s service treatment records were certified to be unavailable in 2012. As previously noted, given the missing service treatment records, VA has a heightened duty to assist the Veteran in developing his claim. O’Hare, 1 Vet. App. at 367; Cuevas v. Principi, 3 Vet. App. 542 (1992). This heightened duty includes providing a medical examination if review of the evidence of record determines that such examination is necessary to decide the claim. 38 C.F.R. § 3.159 (c) (4). Here, the Veteran has reported an in-service injury which he believes caused his perforated membrane. Therefore, the Veteran was provided with VA examinations and opinions to assist in the development and adjudication of the claim. The Board notes that the Veteran underwent a VA examination for his service-connected hearing loss and tinnitus in December 2014. The VA examiner did not address the Veteran’s claim for service connection for a perforated tympanic membrane. However, the VA examiner did address the Veteran’s noise exposure while in service. The examiner found that the VA had conceded that there was a high probability of noise exposure to the Veteran based on his military occupation and that the Veteran reported that he worked around excessive noise and fired weapons without hearing protection. See VA Examination dated December 2014. However, as the Board found that the VA examination did not address whether there was a causal relationship between Veteran’s perforated right tympanic membrane and his noise exposure while in-service, an addendum opinion was requested. The Veteran also underwent a private examination in December 2012 by Dr. J.S. Dr. J.S. opined that the Veteran was exposed to excessive noise in service. See Audiological Evaluation dated December 2012. Similarly to the VA examination, Dr. J.S. did not address the Veteran’s perforated right tympanic membrane. In March 2019 an addendum opinion was obtained. The examiner reviewed the Veteran’s record posthumously and noted that his hearing had been the same in both ears. Therefore the examiner concluded that any perforation of the tympanic membrane did not impact the Veteran’s hearing. However, the examiner noted that an etiological opinion as to the Veteran’s middle ear pathology could not be given and that the opinion of an ENT should be sought. In April 2019 a medical opinion from an otolaryngologist was obtained. The examiner reviewed the Veteran’s records posthumously and found that the claimed condition as less likely than not incurred in or caused by the claimed in-service injury, event or illness. The examiner provided the rationale that there is no reasonable opinion that could be made to substantiate the claim made of a perforated ear drum at separation from military service without resorting to mere speculation. The evidence of record documents “right ear drum scarring,” however the examiner found that such was non-specific and could be caused by multiple different etiologies. Furthermore, the evidence on audiological examination fails to support sequela of tympanic membrane perforation as evidenced by no conductive hearing loss, normal ear drum mobility and normal ear canal volumes. The examiner concluded that given the collection of information, there is no way to confirm or deny the presence of a prior tympanic membrane perforation, nor the scarring being due to the claimed ear drum perforation. Throughout the appeal, the Veteran and the Appellant both contended that the Veteran was told at separation that he had a perforated tympanic membrane. See Letter from the Veteran dated January 2013; VA Examination dated December 2014; Audiological Evaluation dated December 2012; Statement in Support of Claim dated October 2012. At the outset, the Board finds the evidence clearly reflects a diagnosis for a perforated tympanic membrane in the Veteran’s right ear. See VA Treatment Records dated July 2013. Additional medical records also show reported scarring from a perforated tympanic membrane. See VA Treatment Records dated July 2012 and June 2012; Non-Governmental Medical Records dated October 2012. Therefore, the Board finds that the Veteran has a present disability of a perforated right tympanic membrane pursuant to 38 U.S.C.§1131. See also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Therefore, the first element of service connection, either presumptive or direct, has been met. As for presumptive service connection and service connection based on continuity of symptomatology, perforation of the tympanic membrane is not a chronic disease subject to such forms of service connection. 38 C.F.R. §§ 3.303, 3.307, 3.309. Therefore, presumptive service connection or service connection based on continuity of symptomatology is not warranted. As for direct service connection, the Board has found that the Veteran’s noise exposure during service constitutes the in-service event or injury for the purposes of 38 C.F.R.§3.303(a). The Board finds that the Veteran’s discharge paperwork indicates that the Veteran’s Military Occupational Specialty (MOS) was atomic weapons assembly and that the Veteran received a Sharpshooter (Carbine) badge while in service. See DD-214. The Board finds the Veteran’s discharge paperwork to hold great probative value because it is consistent with the Veteran’s assertion that he was exposed to hazardous noise while in service. The Board also considers the Veteran’s lay statements that he was exposed to gunfire and aircraft noise without proper hearing protection while he was in service. The Board finds that the Veteran’s statements have probative value because they support the Veteran’s assertions that he was exposed to hazardous noise while in service and the statements are consistent with the Veteran’s MOS. See Letter from the Veteran dated January 2013; VA Examination dated December 2014; Audiological Evaluation dated December 2012. Therefore, what remains is whether there is a causal connection between the Veteran’s in-service noise exposure and the current disability. Here the evidence of record does not support the Veteran and Appellant’s contentions. The April 2019 VA examiner found that the Veteran’s claimed condition was less likely than not incurred in or caused by the Veteran’s active duty service, to include the conceded noise exposure therein. As this examiner provided sound medical explanations and rationales for his opinion, the Board finds it very probative. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (“[A]medical opinion... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions”). As an essential element of direct service connection is missing, direct service connection is not warranted. The Board notes there are no contrary medical opinions of record. The Board has also considered the Veteran’s and Appellant’s statements expressing their belief that his perforated tympanic membrane is related to his service. In this regard, a layperson is competent to report on that of which he or she has personal knowledge. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). A lay person may speak to etiology in some limited circumstances in which nexus is obvious merely through observation, such as a fall leading to a broken leg. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). However, the question of causation of a perforated tympanic membrane involves a medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship. In this regard, such an opinion requires specialized knowledge of otolaryngology. There is no indication that the Veteran or Appellant possess such specialized knowledge. As such, the question of etiology in this case may not be competently addressed by lay evidence, and the opinions of the Veteran and/or Appellant regarding the etiology of the perforated tympanic membrane are non-probative evidence. See Jandreau, supra; Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Moreover, the Veteran and the Appellant have offered only conclusory statements regarding the relationship between the perforated tympanic membrane and the Veteran’s active duty service. In contrast, the VA examiner took into consideration all the relevant facts in providing an opinion. Therefore, the Board accords great probative weight to the VA examiner’s opinion. Consequently, the Board finds that the Veteran’s perforated tympanic membrane is not shown to be causally or etiologically related to a disease or injury incurred in or aggravated during active service. Therefore, service connection for such claimed disorder is not warranted. In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the claim of entitlement to service connection for perforation of the tympanic   membrane. As such, that doctrine is not applicable in the instant appeal, and the claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, supra. L. M. BARNARD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Unger, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.