Citation Nr: 21021175 Decision Date: 04/12/21 Archive Date: 04/12/21 DOCKET NO. 16-39 029 DATE: April 12, 2021 ORDER Entitlement to compensation under 38 U.S.C. § 1151 for perforated left tympanic membrane is denied. FINDING OF FACT The preponderance of the evidence is against a finding that the Veteran developed an additional disability due to July 2013 VA treatment. CONCLUSION OF LAW The criteria for compensation under 38 U.S.C. § 1151 for perforated left tympanic membrane have not been met. 38 U.S.C. §§ 1151, 5107; 38 C.F.R. § 3.361. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1969 to October 1970. This matter was last before the Board in November 2018 where the claim was denied. The Veteran appealed the Board’s decision to the Court of Appeals for Veterans Claims (Court). The Court vacated the Board’s decision and adopted a June 2020 Joint Motion for Remand (JMR) for reconsideration of the Veteran’s claim. Most recently, this appeal was remanded by the Board in October 2020 for further development. Specifically, additional medical records were obtained and associated with the claims file, and a new VA opinion was obtained, which the Board finds adequate for adjudication purposes. After the required development was completed, this issue was readjudicated and the Veteran was sent a supplemental statement of the case in January 2021. Accordingly, the Board finds that there was substantial compliance with prior remand directives. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Entitlement to compensation under 38 U.S.C. § 1151 for perforated left tympanic membrane The Veteran contends that his left tympanic membrane perforation is considered an “additional disability,” resulting from negligent clearing of cerumen from his left ear in July 2013.  Specifically, the Veteran contends that the VA resident physician who treated him improperly used a Q-tip to clean cerumen from his ear, resulting in an infection, which resulted in his left eardrum perforation. For reasons that follow, the Board finds that compensation is not warranted under 38 U.S.C. § 1151.  Under the current provisions of § 1151, compensation is awarded for a qualifying additional disability or a qualifying death of a veteran 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 or qualifying death if the disability or death was not the result of the veteran’s willful misconduct and (1) the disability or death was caused by hospital care, medical or surgical treatment, or examination furnished the veteran under any law administered by the Secretary, either by a Department employee or in a Department facility as defined in section 1701(3)(A) of this title; and (2) the proximate cause of the disability or death was either: (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.  The statute thus establishes an award of Section 1151 benefits requires that three elements be shown: (1) An additional disability; (2) that VA hospitalization, treatment, surgery, examination, or training was the cause of such disability; and (3) that there was an element of fault on the part of VA in providing the treatment, hospitalization, surgery, etc., or that the disability resulted from a reasonably foreseeable event.  To establish that carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA’s part in furnishing hospital care, medical or surgical treatment, or examination proximately caused a veteran’s additional disability or death, it must be shown that the hospital care, medical or surgical treatment, or examination caused the veteran’s additional disability or death (as explained in paragraph (c) of this section); and (i) VA failed to exercise the degree of care that would be expected of a reasonable health care provider; or (ii) VA furnished the hospital care or medical or surgical treatment without the Veteran’s informed consent. 38 C.F.R. § 3.361 (d). The Veteran was seen at the Shreveport VAMC in July 2013 for obstruction of the external auditory canal. The cerumen was removed with a cerumen curette and a 90 degree hook bilaterally. Unfortunately, the Veteran developed an infection about four months later, as recorded in a December 2013 note. The Veteran contends that the July 2013 removal procedure caused his subsequent otitis media, which led to the perforation of his tympanic membrane. The Board notes the presence of an additional disability after the July 2013 cerumen removal. Specifically, the Veteran noted no other ear problems at this visit. He now has a perforated left tympanic membrane, according to records dated from January 2014 to December 2020. Accordingly, the Board concedes that the Veteran’s perforation is an “additional disability” within the meaning of §1151.  However, the evidence weighs against finding that the Veteran’s eardrum perforation was directly or proximately caused by VA treatment.  First, the evidence does not indicate that the Veteran’s disability was due to the treatment he received in July 2013.  In this regard, the December 2020 examiner explained that an eardrum perforation would be noticed by the patient immediately. In this case, the Veteran, according to the July 2013 record, tolerated the procedure well and his tympanic membrane, upon inspection, was intact. Further, the examiner explained that cerumen removal does not typically result in fungal otitis externa. He notes that otitis externa may be acute or chronic, and affects about 10 percent of individuals at any given time. Thus, there is no evidence that VA treatment caused the Veteran’s tympanic membrane perforation.  Moreover, the December 2020 VA examiner opined that the procedure was not negligently performed. The examiner found that the standard of care of a reasonable healthcare provider was met in this case. The examiner, a general practitioner, reiterates the procedure that was performed, and the equipment used. He then opines that the treatment was appropriate and timely, that accepted appropriate protocols were followed, and the standard of care was met. Therefore, the evidence does not show that the Veteran’s VA provider failed to use reasonable care administering the July 2013 cerumen removal. Further, there is no indication that informed consent was not obtained. The December 2020 examiner’s opinion is probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Board has considered the Veteran’s statements in support of his claim, asserting that his tympanic membrane perforation was caused by VA treatment of his cerumen impaction. In certain instances, lay statements may serve to support findings related to the occurrence of lay-observable events or the presence of disability, or symptoms of disability, susceptible of lay observation.  Davidson, 581 F.3d at 1316; Jandreau, 492 F.3d at 1377.  However, the Veteran is not competent to opine that any additional disability is etiologically related to VA treatment. Specifically, the Veteran does not have the necessary education, training, or experience to comment on whether a device used to clear cerumen from the external auditory canal caused an infection, which led to a hole in the eardrum.  Accordingly, the Veteran’s contentions have been outweighed by the more probative December 2020 VA opinion. The Board also notes the Veteran’s submission of treatise evidence. Specifically, an article published in July 2014 reflects that infection is the principal cause of tympanic membrane perforation. The article also points out that perforations can also result from improper attempts at wax removal and ear cleaning. The Board notes that when medical articles or treatise evidence, standing alone, discusses generic relationships with a degree of certainty such that, under the facts of a specific case, there is at least plausible causality based upon objective facts rather than on an unsubstantiated lay medical opinion, a claimant may use such evidence to meet the requirement for a medical nexus. Wallin v. West, 11 Vet. App. 509 (1998). However, an attempt to establish a medical nexus between service and a disease or injury solely by generic information in a medical journal or treatise “is too general and inclusive.” Sacks v. West, 11 Vet. App. 314, 317 (1998) (a medical article that contained a generic statement regarding a possible link between a service-incurred mouth blister and a present pemphigus vulgaris condition did not satisfy the nexus element). Still, medical treatise evidence can provide important support when combined with an opinion of a medical professional. Mattern v. West, 12 Vet. App. 222, 228 (1999); see also Rucker v. Brown, 10 Vet. App. 67, 73-74 (1997) (holding that evidence from scientific journal combined with doctor’s statements was “adequate to meet the threshold test of plausibility”). However, in this case, the articles discuss general principles without applying them to the Veteran’s case. Notably, neither the Veteran’s statements, nor other evidence of record, indicate a causal link between the Veteran’s treatment at the Shreveport VAMC in July 2013, and his current tympanic membrane perforation. Moreover, given that the articles are general in nature and do not specifically address the Veteran’s disability, they have minimal probative value when weighed against the VA opinion that is specific to the Veteran’s case. The VA examination applies medical principles to the Veteran’s particular case, and, though negative, contain sound reasoning for their conclusions as to causation and fault. In view of the foregoing, the Board finds that the VA examiner’s opinion is adequate, persuasive, and entitled to significant probative value in the instant case.  Consequently, the preponderance of the competent medical and other evidence of record is against finding the Veteran’s tympanic membrane perforation was a result of VA treatment.  As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application in the instant case. See generally Gilbert, supra; see also Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). Therefore, the benefit sought on appeal must be denied. J.N. MOATS Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Z. Maskatia 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. § 20.130.3