Citation Nr: 18159197 Decision Date: 12/19/18 Archive Date: 12/18/18 DOCKET NO. 10-15 276 DATE: December 19, 2018 REMANDED Service connection for chronic suppurative otitis media is remanded. An initial compensable disability rating for cellulitis as a residual of immersion foot is remanded.   REASONS FOR REMAND The Veteran had active service from January 1971 to January 1973. This matter comes before the Board from September 2008 and December 2012 rating decisions. The Veteran testified before the undersigned Veterans Law Judge in a hearing at the Regional Office (RO) in May 2016. In August 2017, the Board granted service connection for hearing loss. At that time, the Board also remanded the claims pertaining to otitis and cellulitis for additional development. The Board also remanded a claim of service connection for a low back condition, as well as a rating claim pertaining to posttraumatic stress disorder (PTSD), for the issuance of a statement of the case (SOC). An SOC was issued in November 2017. No substantive appeal was received as to those two issues. 1. Service connection for chronic suppurative otitis. In May 2018, the Board obtained a medical expert opinion from the Veterans Health Administration (VHA) regarding the likelihood that the etiology of the Veteran’s otitis is related to service, which was received in August 2018. It was concluded that otitis externa, noted to have been initially assessed as a ‘very mild otitis externa’ in 2012, was due to use of Q-tips and manipulation of the ear. However, in an October 2018 brief, the Veteran’s representative asserted that the Veteran began using Q-tips in response to runny/draining ears during service in Vietnam, not the other way around. The Board notes that although the VHA opinion reflects normal ear evaluations during service, the opinion not sufficiently address the Veteran’s lay assertions in that respect, and thus, is not completely adequate. As such, another VA examination is warranted. 2. An initial compensable rating for cellulitis as a residual of immersion foot. A review of the claims file reveals that a remand is necessary before a decision on the merits of the claim for an initial compensable rating for cellulitis as a residual of immersion foot can be reached. During the pendency of the Veteran’s claim and appeal, the criteria for rating disabilities of the skin were changed by an amendment to the rating schedule that became effective on August 13, 2018. See 83 Fed. Reg. 32592 (July 13, 2018). The amendment provides that the Board should apply the criteria which are more favorable to the Veteran for any pending claim. As the amendment was not effectuated at the time of the November 2017 supplemental statement of the case (SSOC), the Veteran was only provided with notice of the regulations in effect prior to August 13, 2018, and the claim was adjudicated using those regulations. Because the Veteran’s disability was pending at the Board since the effective date of the change in regulations, he would be subject to the both the earlier regulations as well as the new regulations. As such, remand is necessary for adjudication by the RO to consider both sets of regulations. The matters are REMANDED for the following action: 1. Readjudicate the claim for a compensable initial rating for cellulitis as a residual of immersion foot under both the prior skin rating regulations and the new ones effective August 13, 2018. If the benefit sought is not granted in full, issue an SSOC. 2. Schedule the Veteran for a VA examination by an appropriate medical professional in connection with the otitis claim. The entire claims file must be reviewed by the examiner. The examiner is to conduct all indicated tests. All ear conditions should identified, even if resolved, other than service-connected hearing loss and tinnitus. The examiner is to provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that any ear condition (including one manifested by otitis externa and “ears running”) had its onset directly during service, or is otherwise related to service. The examiner is asked to consider the statements from the Veteran with respect to symptom onset during service in Vietnam, and use of Q-tips thereafter. The examiner is asked to explain why his statements make it more or less likely that an inner ear condition, including otitis, started during service. If indicated, it should be explained whether there is a medical reason to believe that the Veteran’s recollection of his symptoms during and after service may be inaccurate or not medically supported. The examiner should only rely on silence in the medical records if it can be explained either (a) why the silence in the record can be taken as proof that the symptom did not occur, or (b) why the fact would have normally been recorded if present. (Continued on the next page)   In answering all questions, please articulate the reasons underpinning every conclusion. That is, (1) identify what facts and information, whether found in the record or outside the record, support the conclusion, and (2) explain how that evidence justifies the conclusion. RYAN T. KESSEL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Taylor