Citation Nr: 20003183 Decision Date: 01/14/20 Archive Date: 01/14/20 DOCKET NO. 17-45 985 DATE: January 14, 2020 REMANDED Entitlement to compensation under 38 U.S.C. § 1151 for a left ear injury is remanded. Entitlement to compensation under 38 U.S.C. § 1151 for tinnitus is remanded. REASONS FOR REMAND The Veteran served on active duty from October 1958 to October 1962. He testified before the undersigned Veterans Law Judge in November 2019. 1. Entitlement to compensation under 38 U.S.C. § 1151 for a left ear injury is remanded. 2. Entitlement to compensation under 38 U.S.C. § 1151 for tinnitus is remanded. The Veteran contends that he incurred additional disability to his left ear due to VA’s negligence during a hearing aid fitting which resulted in a left ear mold breaking into his ear. The Veteran subsequently had to undergo surgery to remove the ear putty from his inner ear. A VA opinion was obtained in February 2017 addressing the Veteran’s claims for compensation under 38 U.S.C. § 1151. The VA examiner initially found that it was at least as likely as not that the Veteran’s left middle ear condition became worse as a result of the injection of impression material into his middle ear. The examiner noted that it resulted in urgent left ear surgery to remove the impression material. The VA examiner then noted that his left ear injury and damage to ear drum was less likely as not caused by carelessness, negligence, lack of proper skill, error in judgement or fault on part of the VA personnel. However, he then stated that the injection of the impression material into the middle ear was an error on the part of the VA audiologist. The same examiner then provided an addendum opinion a few weeks later. He noted that the Veteran had chronic bilateral otitis media and had had surgery on his right ear and a long-standing tympanic membrane perforation prior to the incident in question (it is noted that he did not specifically state which ear the perforation is associated with). The examiner then acknowledged that an error had been made in performing an impression by the VA audiologist who did not properly block the ear canal, which resulted in the impression material entering the middle ear through a pre-existing perforation. He acknowledged that this was an error on the part of the VA and below the standard of care. The examiner noted that without the error the Veteran would not have needed surgery. However, he then stated that the Veteran is recovered and now back to his baseline status of intermittent bilateral drainage and mixed hearing loss. He concluded that the Veteran was no worse now because of the error. However, the Board observes that this finding contradicts with his earlier initial opinion finding the Veteran had experienced an additional disability as a result of the VA audiologist’s mistake. With respect to the Veteran’s tinnitus claim, the examiner merely noted that his tinnitus was not caused by VA error; no rationale was provided. The Board finds that the VA opinions of record are inadequate to adjudicate the Veteran’s claims. Accordingly, the Board finds that new VA opinions must be obtained. The evidence also indicates that there may be outstanding relevant VA treatment records. In a statement received in August 2019, the Veteran noted that he was currently being treated by an Ear, Nose and Throat (ENT) doctor at the Redding VA Outpatient Clinic and these records could address his condition. Any VA treatment records are within VA’s constructive possession and are considered potentially relevant to the issue on appeal. VA should obtain them on remand. The matters are REMANDED for the following actions: 1. Obtain and associate with the claims file outstanding records from the VA Northern California Health Care System Redding VA Clinic. 2. Obtain an addendum opinion from an appropriately qualified medical professional. The need for a new VA examination is left to the examiner’s discretion. The VA examiner must review the Veteran’s entire claims file (including all evidence associated with the file after the January 2017 VA examination) and express opinions, including the degree of probability expressed in terms of whether it at least as likely as not, regarding each of the following questions: (a) Does the Veteran have additional disability due to the 2006 treatment at the VA audiology clinic where an ear impression was taken for a hearing aid? (b) If the answer to the above question is Yes, is the additional disability due to: (1) carelessness, negligence, lack of proper skill, error in judgment, or a similar instance of fault on the part of the VA in providing the treatment; or (2) an event not reasonably foreseeable. All opinions offered must be accompanied by a clear rationale consistent with the evidence of record. In rendering these opinions, the examiner must consider and discuss the Veteran’s reports of ongoing symptomatology following the 2006 treatment. If the examiner finds it impossible to provide any part of the requested opinions without resort to pure speculation, he or she should so indicate and provide a rationale as to why such a finding is made. Caroline B. Fleming Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. M. Clark, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.