Citation Nr: 1332156 Decision Date: 10/17/13 Archive Date: 10/21/13 DOCKET NO. 12-12 352 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUES 1. Entitlement to service connection for otitis media. 2. Entitlement to an initial disability rating in excess of 30 percent for posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: National Association of County Veterans Service Officers ATTORNEY FOR THE BOARD Rebecca Feinberg, Counsel INTRODUCTION The Veteran served on active duty from August 1969 to May 1971. This matter comes to the Board of Veterans' Appeals (Board) on appeal from August 2011 and November 2011 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska. In the August 2011 rating decision, the RO granted service connection for PTSD and assigned a 10 percent rating effective from April 27, 2011. The November 2011 rating decision denied service connection for otitis media. During the pendency of the appeal, the RO issued a statement of the case (SOC) in December 2011 and increased the evaluation for the Veteran's PTSD to 30 percent effective from April 27, 2011. Nevertheless, applicable law mandates that, when a veteran seeks an increased evaluation, it will generally be presumed that the maximum benefit allowed by law and regulation is sought, and it follows that such a claim remains in controversy where less than the maximum benefit available is awarded. See AB v. Brown, 6 Vet. App. 35 (1993). Thus, the issue of entitlement to an increased evaluation remains on appeal. A review of the Veteran's virtual VA claims files show that they contain relevant evidence not also associated with the paper claims file. That evidence was reviewed by the RO prior to the issuance of the March 2013 supplemental statement of the case and by the Board prior to issuing this remand. 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 Regarding the claim of entitlement to service connection for otitis media, the Board finds that a remand is necessary to obtain an addendum opinion to the one that was provided in October 2011. On his service entrance examination, the Veteran's ears were abnormal, and it was noted that he had scarring of his right tympanic membrane. During service, the Veteran complained of draining of his ears and was found to have serous otitis on the left and impacted cerumen on the right. In November 1969, he underwent a left-sided myringotomy. Later in November 1969, the Veteran was shown to have right ear otitis media and externa. Externa otitis was again shown in the right ear in June 1970. Upon examination for separation in May 1971, the Veteran's ears were normal. There are no post-service medical treatment records pertaining to the Veteran's claimed ear disability. However, in October 2011, he was afforded a VA examination. He reported that he had symptomatology several times per year in both ears when they would not drain correctly. He denied any surgery since separation from service. However, an examination of the ears was normal. The examiner reviewed and detailed the service treatment records and opined that the serous otitis problems the Veteran had now were not caused by or a result of treatment in service. The rationale was that the enlistment examination had a history of scarred tympanic membrane on the right side, which demonstrated evidence of a history of Eustachian tube dysfunction and chronic otitis prior to entering into service. The Veteran had not undergone any more formal surgeries for this problem, and his ear examination was now normal without evidence of tympanosclerosis or other abnormalities. The Veteran did not demonstrate any permanent deformity or disability from the infections that he had in service. The Board finds that this opinion is inadequate. First, the rationale correctly noted the scarring on the right tympanic membrane upon entrance into service and noted that the Veteran currently experienced serous otitis. However, a full discussion of whether the Veteran's serous otitis of the right ear was aggravated during service was not provided. In addition, an examination of the Veteran's left ear was normal at entry into service, yet no opinion or reasoning was provided that addressed whether the otitis media the Veteran now experiences began during service. Furthermore, the examiner did not explain the conclusion that the Veteran had no permanent deformity or disability from the infections he had in service in light of his complaints of multiple occurrences of otitis media per year. With regard to the claim of entitlement to an initial increased rating for PTSD, the Board notes that the Veteran was last afforded an examination in July 2011. However, in a July 2012 private treatment record, the Veteran was shown to have some symptoms that were not previously noted to be associated with his PTSD. These symptoms included abnormal speech, impaired judgment, panic attacks, severe anxiety, and a mood with no variability. He was also assigned a Global Assessment of Functioning score of 51, which is significantly lower than the 65 assigned in July 2011. To fully assess the Veteran's current level of disability, the Board finds that a remand is necessary to afford him an examination. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should request that the Veteran provide the names and addresses of any and all health care providers who have provided treatment for his otitis media and PTSD. After acquiring this information and obtaining any necessary authorization, the RO/AMC should obtain and associate these records with the claims file. 2. After completing the requested development in the preceding paragraph, the Veteran should be afforded a VA examination to determine the nature and etiology of any ear disorder that may be present. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, his post-service medical records, and all lay statements. Based on the records reviewed and the examination results, the examiner is requested to identify all current diagnoses of any ear disorders that are present and specifically address the following questions: (a) Did a preexisting right ear disorder undergo aggravation during service? In other words, did a preexisting right ear disorder undergo any degree of worsening during service? If the examiner determines that the Veteran's right ear disorder underwent any degree of aggravation during service, the examiner is asked to clarify whether this aggravation represents a permanent worsening of the underlying pathology due to service rather than a temporary or intermittent flare-up(s) resulting from service. Likewise, the examiner should state whether any aggravation during service, if found, was due to the natural progression of the condition. It should be noted that "aggravation" and "worsening" to mean that there was a permanent increase in severity beyond the natural progression of the disease. (b) Did a left ear disorder clearly and unmistakably exist prior to service? (c) If the answer to (b) is "yes," the examiner is asked to answer the questions in subsection (a) regarding the left ear. (d) If the answer to (b) is no, is it at least as likely as not (i.e., there is at least a 50 percent probability) that any current left ear disorder had its onset during service or is otherwise causally related to the Veteran's military service In making all determinations, the examiner is asked to address the Veteran's own assertions regarding the onset of his ear symptomatology. It should be noted that the Veteran is competent to attest to factual matters of which he had first-hand knowledge. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examiner should provide a complete rationale for all opinions. 3. After obtaining any identified and outstanding records, the Veteran should be afforded a VA examination to ascertain the current severity and manifestations of his PTSD. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file and to comment on the severity of the Veteran's service-connected PTSD. The examiner should report all signs and symptoms necessary for rating the Veteran's PTSD under the General Rating Formula for Mental Disorders. The findings of the examiner should address the level of social and occupational impairment attributable to the Veteran's PTSD. To the extent possible, the examiner should distinguish between symptoms associated with the service-connected PTSD and any symptoms associated with a nonservice-connected disorder. If the examiner is unable to distinguish the symptomatology, the examiner should so state in the report. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Because it is important "that each disability be viewed in relation to its history [,]" 38 C.F.R. § 4.1), copies of all pertinent records in the Veteran's claims file, or in the alternative, the claims file, must be made available to the examiner for review. 4. After completing these actions, the RO/AMC should conduct any other development as may be indicated by a response received as a consequence of the actions taken in the preceding paragraphs. 5. Thereafter, the RO/AMC should consider all of the evidence of record. If any benefit sought is not granted, the RO/AMC should issue a Supplemental Statement of the Case and allow the Veteran and his representative an opportunity to respond. Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition. No action is required of the Veteran until he is otherwise notified by the RO/AMC. By this action, the Board intimates no opinion, legal or factual, as to any ultimate disposition warranted in this case. The appellant has the right to submit additional evidence and argument on the matter or matters 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). _________________________________________________ JESSICA J. WILLS 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).