Citation Nr: 1322372 Decision Date: 07/12/13 Archive Date: 07/18/13 DOCKET NO. 12-10 609 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to an initial compensable disability rating for left otitis media and left Eustachian tube dysfunction. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. Havelka, Counsel INTRODUCTION The Veteran served on active duty from March 1968 to March 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2011 rating decision which granted service connection for left otitis media and Eustachian tube dysfunction and assigned a noncompensable (0%) disability rating. The Veteran disagreed with the initial disability rating assigned and perfected an appeal with respect to this issue. In July 2011, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judges. A transcript of that proceeding is of record. Additional development is required with respect to the issue on appeal. Accordingly, 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. The issue of entitlement to service connection for a disability manifested by earache and/or dizziness other than left otitis media and left Eustachian tube dysfunction is the subject of a separate remand by the Board. REMAND At the February 2013 hearing, the Veteran testified that he received treatment for his service-connected left ear disability both from private physicians and at VA medical facilities. Review of the record reveals private treatment records dated from 2007 to 2009 have been submitted. However, records subsequent to that have not. Moreover, with the exception of Compensation and Pension examination reports, there do not appear to be any VA treatment records contained in the record on appeal. Efforts to obtain these records are required. Records generated by VA are constructively included within the record. If records of VA treatment are material to the issue on appeal and are not included within the claims folder, a remand is necessary to acquire such VA records. Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). The Veteran's service-connected left otitis media and left Eustachian tube dysfunction is rated under Diagnostic Code 6200 for chronic suppurative otitis media which provides for a 10 percent disability rating during suppuration, or with aural polyps. The note following the rating criteria also provides for separate disability ratings to be assigned for hearing impairment. 38 C.F.R. § 4.97, Diagnostic Code 6200. The last VA audiology evaluation of the Veteran was conducted in April 2009 at that time the evidence revealed that the Veteran did not have a current hearing loss disability, and service connection for hearing loss was denied by the January 2010 Board decision. See 38 C.F.R. § 3.385. In light of the Veteran's testimony of increased symptoms of his service-connected left ear disability, along with assertions of related hearing loss, an audiology examination appears warranted. When the medical evidence is inadequate, VA must supplement the record by seeking an advisory opinion or ordering another medical examination. Colvin v. Derwinski, 1 Vet. App. 171 (1991) and Hatlestad v. Derwinski, 3 Vet. App. 213 (1992). Accordingly, the case is REMANDED for the following action: 1. Ask the Veteran to provide a list containing the names of all health care professionals and/or facilities (private and governmental) where he had been treated for his service-connected left otitis media and left Eustachian tube dysfunction since 2009. Subsequently, and after securing the proper authorizations where necessary, make arrangements in order to obtain all the records of treatment from all the sources listed by the Veteran which are not already on file. All information obtained should be made part of the file. The RO should also obtain all the records of any treatment at VA facilities for the period of time from 2004 to the present which are not already on file. All records and/or responses received should be associated with the claims file. If any records sought are determined to be unavailable, the Veteran must be notified of that fact pursuant to 38 C.F.R. § 3.159(e) (2012). 2. The veteran should be accorded a VA audiology examination. The report of examination should include a detailed account of all manifestations of the hearing loss found to be present. All necessary tests should be conducted and the examiner should review the results of any testing prior to completion of the report. The examiner should indicate if the Veteran has a current left sided hearing loss disability and if so whether any such hearing loss is the result of the service-connected left otitis media and left Eustachian tube dysfunction. The examiner should also note the presence of absence of suppuration. If the examiner determines that additional otolaryngology examination is necessary, then the appropriate examination should be ordered. The claims file and all records on Virtual VA must be made available to the examiner, and the examiner must specify in the examination report that the claims file and Virtual VA records have been reviewed. The examiner should provide complete rationale for all conclusions reached. If possible, the examination should be scheduled at the VA Medical Center in Columbus, Ohio. 3. Following completion of the above actions, review the claims folder and ensure that all of the foregoing development has been conducted and completed in full. If any development is incomplete, appropriate corrective action is to be implemented. Specific attention is directed to the examination report. If the examination report does not include fully detailed descriptions of pathology and all test reports, special studies or adequate responses to the specific opinions requested, the report must be returned for corrective action. 38 C.F.R. § 4.2 (2000) ("if the [examination] report does not contain sufficient detail, it is incumbent upon the rating board to return the report as inadequate for evaluation purposes."). Green v. Derwinski, 1 Vet. App. 121, 124 (1991); Abernathy v. Principi, 3 Vet. App. 461, 464 (1992); and Ardison v. Brown, 6 Vet. App. 405, 407 (1994). 4. After completing the above actions, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claim for an initial compensable disability rating for left otitis media and left Eustachian tube dysfunction must be readjudicated. If any benefit remains denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and her representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. 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). _________________________________________________ KATHLEEN K. GALLAGHER 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).