Citation Nr: 1316219 Decision Date: 05/16/13 Archive Date: 05/29/13 DOCKET NO. 10-41 920 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for a right ear disability other than hearing loss. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD S. Keyvan, Associate Counsel INTRODUCTION The Veteran had active service from February 1948 to June 1952. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio, as a Tiger Team effort to expedite processing of benefits claims. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). In the November 2011 decision, the Board determined that new and material evidence sufficient to reopen the Veteran's claim had been received, and reopened the Veteran's claim for service connection for a right ear disability, to include right ear hearing loss. The Board subsequently remanded this issue for additional evidentiary development and due process considerations. Claims seeking entitlement to service connection for an acquired psychiatric disability and right ear hearing loss were also remanded. With respect to the Veteran's right ear condition, the Board specifically instructed the Agency of Original Jurisdiction (AOJ) to schedule the Veteran for another ear, nose and throat (ENT) examination to determine the nature and etiology of the Veteran's right ear condition, and specifically to determine whether the Veteran has a right ear condition, in addition to hearing loss, that is causally or etiologically related to service. Based on additional development undertaken, and by way of the September 2012 rating action, the RO granted service connection for an acquired psychiatric disability (anxiety disorder), and evaluated it as 50 percent disabling, effective December 15, 2008, and further granted service connection for hearing loss in the right ear, combining it with the already service-connected left ear hearing loss, and evaluating it as noncompensably disabling prior to January 14, 2012, and 60 percent disabling effective January 14, 2012. Unfortunately, the medical opinion obtained on remand concerning the etiology of the Veteran's right ear disability other than hearing loss was found to be inadequate. Therefore, in March 2013, the Board remanded the Veteran's claim once more so the AOJ could obtain an adequate medical opinion. Unfortunately, the additional medical opinion obtained on remand is still inadequate. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance). Although the Board sincerely regrets further delay, another remand is essential to ensure that the Board remand instructions are complied with and carried out prior to a final adjudication of the claim. For the reasons set forth below, the appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND The law provides that VA shall make reasonable efforts to notify a claimant of the evidence necessary to substantiate a claim and requires VA to assist a claimant in obtaining that evidence. 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2012). Such assistance includes providing the claimant a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on a claim. 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2012). When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); 38 C.F.R. § 3.159(c)(4) (2012). In its November 2011 remand, the Board requested, in part, that the AOJ schedule the Veteran for a VA examination to determine whether any current right ear disability, in addition to any right ear hearing loss, was either caused or aggravated by service, or is otherwise causally related to service. The Board specifically referenced service treatment reports dated on March 28, 1949 and June 14, 1949, both of which discussed treatment for the right ear condition. In particular, the Veteran was treated for bilateral mild otitis externa in March 1949, and reported a history of intermittent ear drainage in both ears for the prior six years during the June 1949 treatment visit. The Veteran also reported that the last episode of right ear drainage occurred approximately one year prior, and on physical examination, the right tympanic membrane was described as scarred and somewhat retracted. The Veteran was afforded a VA ear disease examination in January 2013, at which time, the VA examiner determined that any right ear condition was not related to the Veteran's military service. The examiner based his opinion on the Veteran's service treatment records, which he claimed to be silent for any factual finding of a right ear condition. In reaching this conclusion, the VA examiner referenced a service treatment report dated on December 5, 1951, which indicated that the Veteran presented with complaints of drainage in the right ear of three weeks duration, and found that this particular sentence, was a typographical error, as the remainder of the treatment note, as well as treatment just three days prior, referenced the left ear. Unfortunately, the VA examiner failed to reconcile his opinion with additional documentation of in-service right ear treatment as reflected by the March 28, 1949 and June 14, 1949 treatment reports. In light of the examiner's failure to address these treatment reports in his conclusion, the January 2013 medical opinion was deemed inadequate for rating purposes, and the Veteran's claim was remanded for a clarifying opinion. Specifically, in the March 2013 remand directives, the Board requested that the AOJ refer the Veteran's claim file to the same examiner who evaluated him in January 2013, and instructed this examiner to provide another opinion as to whether any current right ear disability was related to the Veteran's service, taking into account documentation of in-service right ear treatment referenced in the March 2013 and November 2011 Remands. An additional opinion was issued in April 2013, wherein the same VA examiner who provided the January 2013 opinion, concluded that based on the January 2013 physical examination results, there was no objective evidence of a chronic right ear disability. With regard to evidence of in-service right ear treatment, the examiner once again only addressed the service treatment report dated on December 5, 1951, noting that the Veteran's complaints of right ear drainage was a typographical error, "as this note is a follow-up (continuation of treatment) initiated on 2 December 1951 for left ear pain and discharge" and the remainder of the treatment report reflects treatment for the left ear. According to the examiner, "there is no history contained within the service medical record of treatment for a right ear condition." Indeed, it appears as though the VA examiner reiterated the same exact conclusion and explanation provided in January 2013 opinion, when rendering his second opinion in April 2013. The value of a physician's statement is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support his opinion." Bloom v. West, 12 Vet. App. 185, 187 (1999). Thus, a medical opinion is inadequate when it is unsupported by clinical evidence. Black v. Brown, 5 Vet. App. 177, 180 (1995). See also Kightly v. Brown, 6 Vet. App. 200 (1994); Miller v. West, 11 Vet. App. 345, 348 (1998) (medical opinions must be supported by clinical findings in the record and conclusions of medical professionals which are not accompanied by a factual predicate in the record are not probative medical opinions.) Unfortunately, the Board finds the April 2013 opinion to be inadequate as the examiner again failed to reconcile his conclusion with service treatment records dated on March 28, 1949 and June 14, 1949 documenting treatment for, and a history of, right ear problems. When providing the basis for his conclusion, the examiner continues to solely focus on the December 5, 1951 service treatment report, and while he has acknowledged the March 28, 1949 service treatment report - which clearly reflects a diagnosis of "mild bilateral otitis externa," his review of the claims file does not appear to encompass the June 14, 1949 service treatment report documenting the Veteran's reported history of drainage of both ears of 6 years duration. Moreover, he did not reconcile his conclusion with objective findings of in-service treatment for, and diagnosis of a right ear disability. Thus, this opinion is of little probative value, because it is not predicated on a complete review of the claims file. Nieves- Rodriguez v. Peake, 22 Vet. App. 295 (2008) (the probative value of a medical opinion comes from when it is the factually accurate, fully articulated, and sound reasoning for the conclusion, not the mere fact that the claims file was reviewed). Both the November 2011 and March 2013 remands specifically instructed the examiner to address these in-service findings when rendering his opinion. The United States Court of Appeals for Veterans Claims (Court) has held "that a remand by this Court or the Board confers on the Veteran or other claimant, as a matter of law, a right to compliance with the remand orders." Stegall v. West, 11 Vet. App. 268, 271 (1998). As such, compliance with the terms of the remand is necessary prior to further appellate review, and if not, "the Board itself errs in failing to ensure compliance." Id. Additionally, while the physical examination of the Veteran's right ear was shown to be normal at the January 2013 examination, VA treatment records dated from January 2010 to June 2012 reflect that the Veteran was seen on a regular basis at the VA ENT clinic, at which time, he underwent routine cleanings of the right mastoid cavity. Indeed, a November 2010 VA outpatient note reflects that the Veteran presented with malodorous drainage from the right ear, and the January 2012 primary care note indicates a history of chronic mastoiditis and mastoid surgery of the right ear. In McClain v. Nicholson, the Court held that the requirement of a current disability is satisfied when the claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim and that a claimant may be granted service connection even though the disability resolves prior to the Secretary's adjudication of the claim. See 21 Vet. App. 319, 321 (2007). In light of this evidence, the Board finds that the January 2013 VA examination report, which was clear for any signs of ear disease in the right ear, does not relieve the examiner of his obligation to address in-service records documenting treatment for, and a reported history of right ear problems, as well as post-service records reflecting possible evidence of a right ear disability. In light of the inadequate medical conclusion, as well as VA treatment records reflecting ongoing treatment for right ear drainage during the pendency of the appeal, the Board finds that the Veteran should be scheduled for another VA medical examination, to determine whether he has any right ear disease, other than hearing loss, that was incurred in, or otherwise related to his military service. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. Request relevant records pertaining to treatment the Veteran has received for his right ear condition from the VA Medical Center (VAMC) in Orlando, Florida, from July 2012 to the present. All such available documents should be associated with the claims file, and all efforts to obtain the evidence must be noted it the claims folder. 2. Once these records have been obtained, schedule the Veteran for an appropriate VA otolaryngology examination to determine the nature and etiology of his current right ear disorder. The claims folder, a copy of this remand, and all records on Virtual VA must be made available to the examiner in conjunction with the examination. A notation to the effect that this review has occurred should be made in the examination report. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed, and all pertinent pathology should be noted in the examination report. The examiner should specifically take into consideration the March 28, 1949 service treatment report documenting treatment for bilateral mild otitis externa, and the June 14, 1949 treatment report reflecting the Veteran's history of intermittent drainage of both ears of 6 years duration. The examiner should also take note of VA treatment records dated from January 2010 to June 2012 reflecting ongoing treatment for drainage of the right mastoid cavity. Following a review of the record and an examination of the Veteran, the examiner should specify the nature of any current right ear disorder(s) and provide diagnoses for all identified disabilities. For any right ear disorder diagnosed on examination, or during the pendency of the appeal, the examiner should then express an opinion as to whether it is at least as likely as not, i.e., a 50 percent probability or greater, that such disorder(s) had its(their) clinical onset in service or is(are) otherwise related to the Veteran's military service, to include his conceded in-service noise exposure and evidence of in-service right ear treatment. In answering this question, the examiner should address the Veteran's competent assertions that he has experienced right ear drainage since service, and should set forth the medical reasons for accepting or rejecting the Veteran's statements regarding continuity of symptoms since his military service. If the examiner finds that the Veteran's disability(ies) is(are) not related to his service, then he or she must provide a complete rationale upon which his or her opinion is based, and must include a discussion of the medical principles as applied to the medical evidence and facts used in establishing his or her opinion. If the examiner determines that he/she cannot provide an opinion without resorting to speculation, the examiner should explain the inability to provide an opinion, identifying precisely what facts could not be determined. In particular, he/she should comment on whether an opinion could not be provided because the limits of medical knowledge have been exhausted or whether additional testing or information could be obtained that would lead to a conclusive opinion. Jones v. Shinseki, 23 Vet. App. 382, 389 (2010). (The AOJ should ensure that any additional evidentiary development suggested by the examiner be undertaken so that a definite opinion can be obtained.) 3. After completing the above, readjudicate the issue on appeal. If the benefit sought on appeal is not granted, the Veteran and his representative should be provided with a supplemental statement of the case. An appropriate period of time should be allowed for response before the case is returned to the Board. No action is required of the Veteran until he is notified; however, the Veteran is advised that failure to report for any scheduled examination may result in the denial of his claim. 38 C.F.R. § 3.655 (2012). The Veteran 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 case must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by Court 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). _________________________________________________ J. A. MARKEY Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board is appealable to the Court. 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).