12-04 345, 12-04 345

Veteran served active duty Feb 1963–Feb 1965 and appealed RO decisions denying service connection for a perforated right eardrum and a respiratory condition.
Claims progressed through RO decision (June 2010), SOC/SSOC, two Board remands (June 2014, July 2016), and a videoconference hearing in Feb 2017 where the Veteran testified.
VA provided a February 2013 examination for respiratory issues (no diagnosis; normal exam and PFTs; negative nexus) and a February 2013 ear exam diagnosing a healed perforated right eardrum with a negative nexus opinion.
At the Feb 2017 hearing the Veteran described an in-service assault in Albuquerque in which he was beaten and struck in the head and thereafter experienced right-ear problems; he did not report that incident to the 2013 examiner.
Board found VA complied with VCAA notice/assist duties and that the 2013 respiratory exam was adequate; preponderance of evidence showed no current diagnosed respiratory disability.
Because the 2013 ear nexus opinion was based on incomplete history (assault not reported to examiner), the Board remanded for updated records retrieval and a new VA ear examination addressing the Veteran’s hearing testimony.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Service connection — respiratory condition	Veteran asserts respiratory condition began in 1965–66 and relates to service	VA relies on 2013 exam showing no diagnosis, normal testing, and alternative explanations (age, smoking)	Denied — no current diagnosed respiratory disability and negative nexus opinion favors VA
Service connection — perforated right eardrum	Veteran asserts in-service assault caused right ear injury and continuing problems	VA relied on 2013 exam opinion that record lacked in-service documentation of eardrum perforation	Remanded — 2013 ear nexus opinion is potentially flawed because examiner lacked Veteran’s hearing testimony about the assault; new development and exam ordered

Stegall v. West, 11 Vet. App. 268 (1998) (Board remand orders must be complied with)
Bryant v. Shinseki, 23 Vet. App. 488 (2010) (hearing judge must explain issues and suggest overlooked evidence)
Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009) (elements required for service connection)
Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (limits and contours of lay evidence competence)
Degmetich v. Brown, 8 Vet. App. 208 (1995) (requirement of a current disability for service connection)
Gilbert v. Derwinski, 1 Vet. App. 49 (1990) (preponderance standard for weighing VA evidence)