Citation Nr: 1802940 Decision Date: 01/12/18 Archive Date: 01/23/18 DOCKET NO. 11-11 158 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), adjustment disorder, and depression. 2. Entitlement to service connection for bilateral perforated ear drums. 3. Entitlement to service connection for ear infections, to include as secondary to bilateral perforated eardrums. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD B. G. LeMoine, Associate Attorney INTRODUCTION The Veteran served on active duty from July 1965 to July 1969. These matters come before the Board of Veterans' Appeals (Board) on appeal of September 2010 and August 2011 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska. This case was previously remanded by the Board in June 2014 and February 2016. The case has been returned to the Board for review. In March 2013, the Veteran testified during a video conference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the claims file. In February 2016, the Board remanded the claim of entitlement to service connection for a disorder manifested by vertigo/dizziness with lightheadedness, to include as secondary to bilateral perforated eardrums, ear infections, or service-connected tinnitus for additional development. A May 2017 rating decision granted entitlement to service connection for vertigo/dizziness with light headedness on the basis of aggravation of disability that pre-existed service, with no preservice percentage deduction. The May 2017 rating decision characterized the service-connected disability as "vertigo/dizziness with light headedness associated with bilateral perforated ear drums." As this represents a total grant of the benefit sought on appeal with respect to this issue, it is no longer before the Board. See Grantham v. Brown, 114 F. 3d 1156, 1159 (Fed. Cir. 1997). The issue of entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), adjustment disorder, and depression, is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. A May 2017 rating decision award of service connection for vertigo/dizziness as aggravated by service, and characterization of the service-connected disability as "associated with bilateral perforated ear drums," may be reasonably interpreted as including a grant of service connection for bilateral perforated eardrums as the in-service injury which resulted in aggravation of the service-connected vertigo/dizziness. 2. With resolution of doubt in the Veteran's favor, probative evidence of record establishes that it is at least as likely as not that recurrent ear infections, associated with bilateral perforated ear drums, are etiologically related to service. CONCLUSIONS OF LAW 1. Service connection for bilateral perforated ear drums was established by a May 2017 rating decision. 38 U.S.C. §§ 1101, 1110, 5103, 5103A, 5107 (b) (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2017). 2. The criteria for entitlement to service connection for recurrent ear infections, associated with bilateral perforated ear drums, have been met. 38 U.S.C. §§ 1101, 1110, 5103, 5103A, 5107 (b) (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's Duty to Notify and Assist With respect to the Veteran's claims herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2017); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). Legal Criteria Service connection may be established for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303 (2017). To establish service connection for a disability, the Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service Connection for Bilateral Perforated Eardrums Once service connection has been granted, it can be severed only upon the Secretary's showing that the final rating decision granting service connection was "clearly and unmistakably erroneous." See Daniels v. Gober, 10 Vet. App. 474, 478 (1997); Graves v. Brown, 6 Vet. App. 166 (1994). The burden of proof in such cases is upon the Government. 38 C.F.R. § 3.105 (d); see also Baughman v. Derwinski, 1 Vet. App. 563, 566 (1991). CUE is "a very specific and rare kind of error...[i]t is the kind of error, of fact or of law, that when called to the attention of later reviewers compels the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the error." Fugo v. Brown, 6 Vet. App. 40, 43 (1993). To determine whether there was CUE under 38 C.F.R. § 3.105(a) in a prior determination, either the correct facts, as they were known at the time, were not before the adjudicator (i.e., more than a simple disagreement as to how the facts were weighed or evaluated) or the statutory or regulatory provisions extant at the time were incorrectly applied; the error must be undebatable and of the sort which, had it not been made, would have manifestly changed the outcome at the time it was made; and a determination that there was CUE must be based on the record and law that existed at the time of the prior adjudication in question. Damrel v. Brown, 6 Vet. App. 242, 245 (1994); Russell v. Principi, 3 Vet. App. 310, 313-14 (1992) (en banc). However, in determining whether service connection will be severed, VA may-and must-consider evidence that was generated after the original decision was made. Stallworth v. Nicholson, 20 Vet. App. 482 (2006) (a "severance decision focuses-not on whether the original decision was clearly erroneous-but on whether the current 'evidence establishes that [service connection] is clearly erroneous.'" (quoting 38 C.F.R. § 3.105 (d) ); see Daniels v. Gober, 10 Vet. App. 474, 480 (1997) (holding that 38 C.F.R. § 3.105 (d) "clearly contemplat[es] the consideration of evidence acquired after the original granting of service connection"). As noted above, a May 2017 rating decision granted entitlement to service connection for vertigo/dizziness with light headedness, and characterized the service-connected disability as "vertigo/dizziness with light headedness associated with bilateral perforated ear drums." As such, the Board finds that it is reasonable to conclude that service connection was established for residual disability of bilateral perforated ear drums, namely vertigo/dizziness with light headedness. Characterization of the service-connected disability as "associated with bilateral perforated ear drums," may be reasonably interpreted as including a grant of service connection for bilateral perforated eardrums as the in-service injury which resulted in aggravation during service of the vertigo/dizziness. Applicable law precludes severance of service connection in the absence of demonstration of clear and unmistakable error in the May 2017 rating decision. A May 2016 VA examination report considered in the May 2017 rating decision opined that the Veteran's history and examination support the claim of bilateral perforated ear drums. It was noted that current examination showed scar tissue formation over the tympanic membrane, and that such was a sign of previous perforations that have since healed. It was concluded that it was at least as like as not that the bilateral perforated eardrums had caused the Veteran's dizziness/vertigo in service. The May 2016 VA examination report also provided a response to the question of "Is it at least as likely as not that the residuals of perforated ear drums, to include scarring of the ear drums or tympanic membranes, are caused by, incurred in, or otherwise related to service." It was opined that "[t]he condition claimed was less likely than not (less than 50% probability) incurred in or caused by the claimed in-service injury, event or illness." As rationale for the opinion, it was noted that the Veteran reported he had been first told that he had perforated ear drums in the early 1970's after he had separated from service. It was also noted that although the Veteran's hearing test was normal on separation examination, there was no documentation of an otoscopic exam of the ears, therefore there is no evidence that would show whether or not a perforation of the tympanic membranes was present when he separated from service. The examiner continued that, at the same time, if perforations of the tympanic membranes were present, it is likely that a hearing deficit would also be present. As the hearing test results were normal, it is less likely than not that the tympanic membrane perforations were present when the Veteran separated from service. It was concluded, that it was therefore less likely than not that the tympanic membrane perforations or any of their residuals were caused by, incurred in, or otherwise related to service. After weighing all of the evidence then of record, the May 2017 rating decision granted service connection for residual disability associated with bilateral perforated ear drums. As the May 2016 examination report noted that, although the Veteran's hearing test was normal on separation examination, there was no documentation of an otoscopic exam of the ears, therefore there is no evidence that would show whether or not a perforation of the tympanic membranes was present when he separated from service, there existed a plausible basis for the award of service connection with resolution of doubt in the Veteran's favor. Hence, the Board does not find that there was clear and unmistakable error in the May 2017 rating decision. Service connection for recurrent ear infections. The Veteran contends that he had ear infections during his active service and this caused his now service-connected bilateral perforated eardrums. See March 2013 Board hearing transcript. As to an in-service event, injury or disease, the Veteran's service treatment records reveal that he was treated for ear pain in December 1968. Accordingly, there is evidence of an in-service injury in the form of ear pain, and the issue remaining for consideration as to direct service connection is whether the Veteran's recurrent ear infections are etiologically related to the in-service ear pain. On VA examination in May 2016, it was noted that the Veteran reported that he recalled having one ear infection while he was in service. He says that this was treated and it resolved. The examiner noted the records show that he began having problems with recurrent ear infections in the early 1970's, and that he has had infections that involve the middle ear (otitis media). It was explained that the middle ear is normally drained by the eustachian tube, and that when the eustachian tube does not drain the middle ear (eustachian tube dysfunction), fluid can accumulate in the middle ear leading to infection. The examiner continued that the middle ear is also isolated from the external environment by the tympanic membrane. When a perforation of the tympanic membrane is present, the middle ear is exposed and more susceptible to infection. The examiner was concluded that it is at least as likely as not that the recurrent infections of the ear that occurred while the perforated tympanic membrane was present were due to the perforation. It was also ultimately concluded that it is at least as likely as not that the recurrent ear infections that occurred after the tympanic membrane perforation had healed were due to eustachian tube dysfunction. Although the May 2016 examiner also opined the condition clearly and unmistakably existed prior to service, and was not aggravated beyond its natural progression by an in-service event, injury or illness, no rationale was provided for such opinion, and it lacks probative value. In view of the foregoing, the Board finds that, with resolution of doubt in the Veteran's favor, the evidence of record supports service connection for recurrent ear infections associated with bilateral perforated eardrums. 38 U.S.C. § 5107 (b); see also Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). ORDER Entitlement to service connection for bilateral perforated ear drums has been established by a May 2017 rating decision. Entitlement to service connection for recurrent ear infections, associated with bilateral perforated ear drums, is granted. REMAND The Board finds that the remaining issue on appeal must be remanded for further development before a decision may be made on the merits. Service Connection for an Acquired Psychiatric Disorder In February 2016, the Board remanded the Veteran's claim for entitlement to service connection for an acquired psychiatric disorder. The VA examiner was directed to discuss the Veteran's diagnosis of adjustment disorder. The VA examiner was advised that the Veteran was treated for adjustment disorder in 2010 and 2011. Furthermore, the VA examiner was directed to opine whether it is at least as likely as not that the Veteran has a diagnosis of major depressive disorder and adjustment disorder and, if so, were they caused by or etiologically related to his service. The Veteran was provided a VA examination in April 2017. The VA examiner reviewed the record, interviewed the Veteran and conducted an in-person examination. The VA examiner noted that the Veteran had a diagnosis of major depressive disorder however; the VA examiner did not discuss the Veteran's VA treatment for adjustment disorder. Additionally, the VA examiner did not provide an opinion as to whether the Veteran has a diagnosis of adjustment disorder and, if so, was it caused by or etiologically related to his active service, as directed by the February 2016 Board remand. Compliance with Board remand directives is not discretionary and the Board errs as a matter of law when it fails to ensure remand compliance. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Therefore, the Board finds that the April 2017 VA examination is inadequate for adjudication purposes. Barr v. Nicholson, 21 Vet. App. 303 (2007). Accordingly, a remand is required to obtain an addendum opinion. Accordingly, the case is REMANDED for the following action: 1. Forward the record and a copy of this remand to the examiner who conducted the April 2017 VA examination, or if the examiner is unavailable, another suitably qualified examiner, for completion of an addendum opinion. If the examiner determines that another in-person examination of the Veteran is required to provide the below-requested information, then such an examination should be scheduled. Following review of the record, the examiner should express an opinion as to: a) Whether it is at least as likely as not (50 percent or greater probability) that the Veteran has adjustment disorder. In providing the above opinion, the examiner should be mindful of the Veteran's 2010 and 2011 VA treatment for adjustment disorder. b) If so, whether it is at least as likely as not (50 percent or greater probability) that adjustment disorder is related to the Veteran's active service. The examiner must indicate that the record was reviewed. A complete rationale must be provided for each opinion given. 2. After completion of the above, review the expanded record, including the evidence entered since the most recent supplemental statement of the case, and determine whether entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), adjustment disorder, and depression, may be granted. If any benefit sought remains denied, furnish the Veteran and his representative with a supplemental statement of the case. The appropriate period should be allowed for response before the appeal is returned to the Board. 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 claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or the 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. §§ 5109B, 7112 (2012). ____________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs