Citation Nr: 20022408 Decision Date: 03/31/20 Archive Date: 03/31/20 DOCKET NO. 14-20 360 DATE: March 31, 2020 ORDER Service connection for a perforated right eardrum is denied. FINDING OF FACT The preponderance of the evidence is against finding that a perforated right eardrum began during active service or is otherwise related to an in-service injury or disease. CONCLUSION OF LAW The criteria for service connection for a perforated right eardrum are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1969 to November 1970. The Veteran contends that his right eardrum was perforated during service. Specifically, he reports that he assisted in firing large shipboard guns during his naval service and was exposed to loud noise related to this duty. He claims the noise made him feel that his eardrums had burst. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury or disease. The Board concludes that, although the Veteran has a current diagnosis of perforated eardrum, and evidence shows exposure to excessive noise, the preponderance of the evidence weighs against finding that the Veteran’s perforated eardrum began during service or is otherwise related to an in-service injury or disease. The service treatment records reflect that upon induction into service, the Veteran completed a Report of Medical history in which he reported “perforated TMs [tympanic membranes].” This evidence suggests that the Veteran’s perforated eardrum was a condition that preexisted service. However, the Report of Medical Examination indicates that the ears were normal. VA law provides that a Veteran is presumed to be in sound condition, except for defects, infirmities or disorders noted when examined, accepted, and enrolled for service, or where clear and unmistakable evidence establishes that an injury or disease existed prior to service and was not aggravated by service. 38 U.S.C. § 1111. The presumption of soundness attaches only where there has been an induction examination during which the disability about which the Veteran later complains was not detected. See Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991). The regulations provide expressly that the term “noted” denotes “[o]nly such conditions as are recorded in examination reports,” 38 C.F.R. § 3.304(b), and that “[h]istory of pre- service existence of conditions recorded at the time of examination does not constitute a notation of such conditions.” Id. at (b)(1). Consequently, the Veteran is presumed to have been in sound condition despite having reported “perforated TMs,” upon entry into service. The Veteran’s bilateral hearing loss and tinnitus are service connected. He underwent a July 2013 VA examination in conjunction with those service connection claims. The VA examiner opined that the Veteran’s hearing loss and tinnitus were more likely than not related to his service. The examiner also noted that the Veteran had a perforated right eardrum. The Board remanded the issue in November 2018, in part so that the Veteran could undergo a VA examination that would yield a competent medical opinion addressing the etiology of the Veteran’s perforated eardrum. The Veteran was scheduled for an examination, but the RO received word that the examination was cancelled at the request of the Veteran. The duty to assist is a two-way-street. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). If the Veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the relevant evidence. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Where entitlement to a benefit cannot be established or confirmed without a current VA examination or reexamination, and a claimant, without good cause, fails to report for such examination or reexamination, an original claim for compensation shall be decided based on the evidence of record. See 38 C.F.R. § 3.655(a), (b). In this case, the evidence of record reflects that the Veteran was exposed to excessive noise, and that he has a perforated right eardrum; however, there is no competent medical opinion regarding a causal relationship between his current disability and any in-service injury or disease. The Veteran believes that his perforated right eardrum is related to an in-service injury or disease. The Veteran in this case is not competent to provide a nexus opinion regarding this issue. The issue is medically complex, as it requires knowledge of pathology. Therefore, it is outside the competence of the Veteran in this case because the record does not show that he has the medical training or credentials to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). In the absence of a competent medical opinion, there is no evidence of a causal relationship between the current disability and the in-service noise exposure. Therefore, the preponderance of the evidence weighs against the Veteran’s claim. As the preponderance of the evidence is against this claim, the benefit-of-the-doubt doctrine does not apply, and the claim of service connection for a right perforated eardrum must be denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). JAMES L. MARCH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Prem, 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.