Citation Nr: 20003243 Decision Date: 01/15/20 Archive Date: 01/14/20 DOCKET NO. 12-30 616 DATE: January 15, 2020 REMANDED Entitlement to compensation under 38 U.S.C. § 1151 for right ear hearing loss as a result of surgery performed at the VA Medical Center (VAMC) in Buffalo, New York in August 2009 is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1976 to August 1970. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a November 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded this case in April 2014 and November 2016 for further development. The Board denied the claim in a June 2018 decision. In an August 2019 Order, the United States Court of Appeals for Veterans Claims (Court) granted a joint motion for remand (JMR) and vacated the Board’s June 2018 decision. The Court remanded the case for further action consistent with the terms of the JMR.   Entitlement to compensation under 38 U.S.C. § 1151 for right ear hearing loss is remanded. In the JMR, the parties agreed that there had not been substantial compliance with the Board’s prior remand directives. In this regard, the Board instructed in its November 2016 remand that if additional relevant VA or private treatment records were obtained, the otolaryngologist (ENT) who rendered the September 2014 opinion, or a suitable substitute, should be requested to provide a new opinion based on the updated record. Additional records were subsequently added to the file, including a February 2010 private treatment record authored by E. Diaz-Ordaz, M.D., an ear, nose, and throat specialist, who stated that the Veteran’s worsening hearing after the surgery was most likely due to manipulation of the incus, which created a maximum conductive hearing loss. In a May 2017 opinion, the ENT who provided the September 2014 opinion reiterated that opinion verbatim. The ENT noted at the bottom of the report that the entire claims file had been reviewed, including a recently-obtained CT scan. Nevertheless, the parties to the JMR found that because the opinion contained the exact text of the September 2014 opinion, it “appeared that the updated claims file was not considered” by the September 2014 ENT or a suitable substitute. On remand, a new medical opinion must be obtained by the VA ENT who authored the September 2014 and May 2017 opinions, or a suitable substitute. The opinion must include discussion of the February 2010 private treatment record by Dr. Diaz-Ordaz, and any other pertinent evidence. If the examiner finds that a change in the prior medical opinion is not warranted, the examiner should still address the February 2010 opinion by Dr. Diaz-Ordaz, and explain why a change in the prior opinion is not warranted. The matter is REMANDED for the following action: 1. Forward the claims file to the otolaryngologist (ENT) at the Syracuse VA Medical Center (VAMC) who provided the September 2014 opinion, or a suitable substitute. In addition to all other pertinent evidence, the examiner must address the February 2010 private treatment record by Dr. Diaz-Ordaz finding that worsening of the Veteran’s hearing after the surgery was most likely due to manipulation of the incus. The examiner should respond to the Board’s prior inquiries, as set forth below, if the new evidence would warrant a change in the opinion. If the examiner finds that a change in the prior medical opinion is not warranted, the examiner should still address the February 2010 opinion by Dr. Diaz-Ordaz, and explain why it does not change the examiner’s opinion. The examiner is asked to address the following questions, unless a change in the opinion is not warranted, in which case the examiner should so state. (a) What is the likelihood, likely, as likely as not, or unlikely, that a CT scan of the right ear area such as the one performed on the appellant in July 2009, or a separate MRI, could have discovered the damage to the appellant’s right ear found during the August 2009 right ear surgery? (b) Were there any additional non-surgical diagnostic tests that could have been performed prior to the August 2009 surgery, which likely would have discovered the damage to the appellant’s right ear found during the August 2009 surgery? (c) Did VA medical personnel exercise the degree of skill and care ordinarily required of the medical profession in testing the appellant for right ear damage prior to initiating and performing the August 2009 surgical procedure? (d) Was there carelessness, negligence, lack of proper skill, error in judgment, or a similar instance of fault on VA’s part in not detecting the damage to the appellant’s right ear (i.e., on CT scan and/or MRI) prior to the August 2009 right ear surgery, and thus proceeding with the surgery on August 20, 2009? Would the surgery have been appropriate had the damage to the appellant’s right ear (i.e., on CT scan and/or MRI) been detected in advance? P.M. DILORENZO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Rutkin, 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.