Citation Nr: 1309656 Decision Date: 03/21/13 Archive Date: 04/01/13 DOCKET NO. 09-23 074A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Wilmington, Delaware THE ISSUE Entitlement to a compensable initial evaluation for tympanic membrane perforation. (The Board addresses the claim of entitlement to a compensable evaluation for right ear hearing loss in a separate decision being issued concurrently.) REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD W. Yates, Counsel INTRODUCTION The Veteran served on active duty from March 1979 to November 2005. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Wilmington, Delaware. In September 2012, the Veteran testified at a video conference hearing before the undersigned Acting Veterans Law Judge. A transcript of this hearing is of record. The issue of an increased evaluation in excess of 10 percent for vertigo has been raised by the record, but has not been adjudicated by the RO. Therefore, the Board does not have jurisdiction over this issue, and it is referred to the RO for appropriate action. The appeal is REMANDED to the RO via the Appeals Management Center in Washington, DC. VA will notify the appellant if further action is required. REMAND The Veteran is seeking a compensable initial evaluation for tympanic membrane perforation. Remand is required for compliance with VA's duty to assist the Veteran in substantiating his claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. At his September 2012 hearing before the Board, the Veteran testified that his tympanic membrane perforation has resulted in changes to the structure of the ear, and that this condition has chronically worsened since his most recent VA examination. Specifically, he claims that this condition results in frequent ear infections, right ear pain, dizziness, including disturbances in balance, vertigo, and low energy. Under these circumstances, the RO must, with the assistance of the Veteran, obtain the Veteran's updated treatment records, and then schedule him for a new VA examination to determine the current scope and severity of his service-connected tympanic membrane perforation. 38 C.F.R. § 3.159(c)(4)(i); see Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). Accordingly, the case is REMANDED for the following action: 1. Ask the Veteran to identify all VA and non-VA medical care providers who have treated him for his tympanic membrane perforation during the course of this appeal, including, specifically, the ENT who treated him in September 2012. Identified records must then be associated with the claims file. All attempts to secure this evidence must be documented in the claims file. If these records cannot be obtained, a letter must be sent to the Veteran informing him of the steps taken to obtain the records, listing alternative sources, and requesting that he furnish any such records in his possession or to identify the possible location of such records. 2. After completion of the foregoing, schedule the Veteran for an examination at the VA medical center in Philadelphia, PA, to determine the scope and severity of his tympanic membrane perforation, or the residuals thereof. All indicated tests and studies should be performed. The entire claims file (i.e. both the paper claims file and any medical records contained in Virtual VA) should be made available to and be reviewed by the examiner in conjunction with the examination, and the examiner should confirm that such records were available for review. If the examiner does not have access to Virtual VA, any relevant treatment records contained in Virtual VA must be printed and associated with the paper claims file so they can be available to the examiner for review. In addition to objective test results, the examiner should: a) fully describe the functional effects caused by the perforated tympanic membrane, including specifically the impact of any such effect on the Veteran's employability; and b) clearly describe the nature and degree of any impairment caused by the Veteran's tympanic membrane perforation, or the residuals thereof. The examiner should indicate whether the Veteran's competent and credible complaints of frequent ear infections, right ear pain, dizziness, vertigo, and low energy are a manifestation of his service-connected tympanic membrane perforation. The examiner should then comment as to whether any of these (frequent ear infections, right ear pain, dizziness, vertigo, and low energy) represent disabilities separate and distinct from him service-connected Eustachian tube dysfunction, vertigo, and tinnitus. The rationale for any opinions, with citation to relevant medical findings, must be provided. 3. Notify the Veteran that it is his responsibility to report for any scheduled examination, and to cooperate in the development of his claim. The consequences for failure to report for an examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2012). In the event that the Veteran does not report for any scheduled examination, documentation must be obtained and placed in the claims file which shows that notice scheduling the examination was sent to the last known address and whether any notice that was sent was returned as undeliverable. 4. Then readjudicate the appeal, including consideration of all evidence received since the December 2011 statement of the case. If the claim remains denied, provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate time for response. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). _________________________________________________ S. C. KREMBS Acting Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2012).