Citation Nr: 20044574 Decision Date: 07/02/20 Archive Date: 07/02/20 DOCKET NO. 16-02 735 DATE: July 2, 2020 REMANDED Entitlement to service connection for a retracted tympanic membrane (claimed as collapsed ear drum) is remanded. REASONS FOR REMAND The Veteran had active service from June 1969 to June 1971. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a January 2013 rating determination by the Department of Veterans Affairs (VA) Regional Office (RO) located in Cleveland, Ohio. In March 2017, the Veteran testified at a video conference before the undersigned Veterans Law Judge (VLJ) sitting at the RO in Cleveland, Ohio. A transcript of the testimony has been associated with the record. The Board remanded the Veteran’s appeal in August 2018 for additional development. Specifically, the Board directed the VA to obtain the Veteran’s outstanding VA treatment records and schedule the Veteran for a new VA examination and medical opinion to determine the etiology of the Veteran’s disability. The Board notes that although the requested development was performed, it was not done so in substantial compliance with the Board’s directives. Stegall v. West, 11 Vet. App. 268 (1998). Entitlement to service connection for a retracted tympanic membrane (claimed as collapsed ear drum) is remanded. The Veteran asserts that his retracted tympanic membrane is the result of his acoustic trauma in service. The Veteran was diagnosed with retracted tympanic membrane in August 2012. At the March 2017 videoconference hearing, the Veteran testified that he served as an infantryman in service, and that he was subjected to noise during two ambushes which involved artillery rounds, to include AK, M16, and grenades during his service in Cambodia. The Veteran’s DD-214 indicates that the Veteran served in the infantry and received the Combat Infantryman Badge. The Board finds that the Veteran’s assertions as to his acoustic trauma in service are generally consistent with his service as documented and described. Given the above discussion, the Board considers the Veteran to be a reliable historian as to his in-service experiences, and concedes acoustic trauma in service. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). During the March 2017 videoconference, the Veteran denied having any problems with his ears prior to service. He stated that he has only received treatment for his ears through the VA and that the primary treatment has been the insertion of a tube in his ear and physical therapy for his vertigo. He stated that he did not seek treatment for his ears after separating from the military because he did not trust the government. After service, the Veteran reported having ear infections and nearly falling off the roof of his house in 1974 because he lost balance. He said that he also experienced vertigo most recently in February 2017. Although the Veteran reported having problems with balance and dizziness since 1974, he said that he started having more severe vertigo that manifested in the room spinning in 2005. The Veteran had an audiology consult in December 2011. The Veteran presented with complaints of right ear hearing loss and aural pressure accompanied by episodic vertigo and lightheadedness since 2005. The Veteran described two different types of episodes. The first involves sudden onset episodes of vertigo that last 1-2 minutes. They mostly occur with motion such as looking up and induce nausea and vomiting that can last for hours. The vertigo ceases when the Veteran closes his eyes. Veteran last experienced an episode of vertigo 3 or 4 months ago. He feels that the episodes have improved since when they first began. The Veteran stated that he stopped smoking in February and since then he has only had one episode of vertigo. The second type of episode the Veteran experiences are episodes of sudden onset lightheadedness/dizziness. This type of episode occurs more often. These episodes last several hours and occur once every 2-3 weeks. The Veteran reported that he last experienced an episode of lightheadedness one week ago. During the episodes, the Veteran reported an increase in the aural pressure in the right ear. He feels that these episodes are also somewhat improving, but not as drastically as the vertigo. The Veteran reported that being in the dark, walking on uneven surfaces, and in the shower all exacerbate his dizziness/lightheadedness. The Veteran reported that the episodes of dizziness/lightheadedness can occur with motion, visual stimulation, or when vet is completely still. Loud noises and physical exertion do not provoke neither the dizziness nor vertigo. A tympanometry test of both ears and reflexes produced the following results: excessive negative middle ear pressure, normal canal volume, and abnormal low tympanic membrane compliance in the right ear, and normal middle ear pressure, TM compliance, and ear canal volume in the left ear. In August 2012, the Veteran had a CT scan of his temporal bone. The examiner provided the following impression of the right temporal bone: complete opacification of the right mastoid air cells and right middle ear cavity, and mild soft tissue thickening along posterior wall of medial external auditory canal. The examiner noted that these findings are likely due to infectious/inflammatory etiology, and that the thinning of bone along superior wall of superior semicircular canal, suspicious for dehiscence. As for the left temporal bone, the examiner noted minimal mucosal thickening in left mastoid air cells and subtle thinning of bone along superior wall of the superior semicircular canal. An October 2012 audiology consult showed clear ear canals, and an intact tympanic membrane with normal landmarks. The Veteran reported feeling lightheaded/dizzy during Tymp/ARTs in left ear. The Veteran was afforded a VA examination in December 2012. The examiner diagnosed the Veteran with mixed hearing loss which means that there is both a conductive component and sensorineural component to the Veteran’s hearing loss. However, the VA examiner did not provide an opinion as to the etiology of the Veteran’s retracted tympanic membrane (conductive component of the hearing loss). A February 2013 audiology consult showed clear bilateral ear canals, an intact tympanic membrane with normal landmarks identified. The Veteran had an audiological consult in 2016 during which he was assessed with asymmetrical hearing loss and flat right tympanogram. He also had vestibular testing completed in 2016 but reported having no vertigo for over a year. The examiner noted that the Veteran also has a history of right PE tube. Per the August 2018 remand directives, the Veteran was afforded a VA examination in March 2019. The examiner diagnosed the Veteran with benign paroxysmal positional vertigo and chronic suppurative otitis media (a long-standing, persistently draining perforation of the eardrum (tympanic membrane)). The examiner noted tight TM scarring of the tympanic membrane. The examiner also noted that the Veteran’s service treatment records do not document any treatment for any ear conditions, or retractions or ear infections. His service treatment records, specifically his February 1971 report of medical history, do document that he had frequent episodes of otitis media in grade school. The Veteran states that he had frequent ear infections as a child that stopped when he was about 10 years old. His separation exam in 1971 documented a normal ear nose and throat exam including normal tympanic membranes. The Veteran states that he had frequent episodes of right ear yellow drainage starting a few years after he was discharged from the service. He did not go to the doctor for treatment for many years. He had a right ear TM tube placed in 2013 for right ear chronic suppurative otitis media. He states that he has not had any recurrent right ear drainage since that tube was placed. It has since been removed. He saw an ENT specialist in May 2016 and they noted that his right TM had extensive scarring and was immobile but did not note any retraction. The Veteran has had frequent disequilibrium with turning his body or head quickly or walking on unlevel surfaces for the past five years or so and he has had episodes of vertigo with changes or head and body position only a few times per year for the past five years. On this basis, the examiner opined that it is less likely than not that the Veteran has a retracted tympanic membrane or any other ear conditions including vertigo or disequilibrium, that are related to any event, injury or illness or disease in service to include his in-service acoustic trauma. The examiner opined that it is more likely than not that the Veteran’s right tympanic membrane scarring is due to the frequent, recurrent ear infections that he had as a child. During an April 2019 audiological assessment, the Veteran denied occupation noise exposure. On examination, the Veteran denied dizziness, ear pain/pressure/fullness, ear drainage, and past hearing aid history. The examiner reported that the Veteran’s tympanic membrane was intact in the left ear and that he had tympanosclerosis in the right ear. In its August 2018 directives, the Board requested that the examiner providing the medical opinion for the etiology of the Veteran’s retracted tympanic membrane address the Veteran’s lay statements during the March 2017 videoconference hearing relating to his acoustic trauma in service. In providing his medical opinion, the examiner did not address the Veteran’s lay statements during the March 2017 hearing. Stegall v. West, 11 Vet. App. 268 (1998) (holding that non-compliance with prior remand instructions warrants a remand). The Board also notes that the March 2019 VA examination was not performed by an ENT physician, but rather an internist, who lacks the specialization required to provide the requested medical opinion. The examination revealed that the Veteran experienced ear infections in childhood. Although the Veteran’s May 1969 enlistment examination is silent for ear troubles, the Veteran’s February 1971 report of medical history confirms that he had ear infections prior to entering service. Therefore, the Veteran is presumed to have been sound upon enlistment in the Army, but there is evidence in the claims file suggesting that a rebuttal of the presumption of soundness may be warranted. As such, another remand is necessary for an addendum medical opinion by an ENT specialist to address the Veteran’s lay statements regarding acoustic trauma and to determine if the Veteran’s disability clearly and unmistakably pre-existed service, and if so, whether it was clearly and unmistakably not aggravated during service. The matters are REMANDED for the following action: 1. Provide an addendum medical opinion from an ENT specialist to determine the etiology of the Veteran’s retracted tympanic membrane. The electronic claims file, to include the Veteran’s service treatment records, statements, and treatment records, must be reviewed by the examiner. After reviewing the claims file and examining the Veteran, the examiner should answer the following: did the Veteran’s retracted tympanic membrane clearly and unmistakably (undebatable) preexist the Veteran’s service. If the examiner finds it did clearly and unmistakably preexist service, the examiner must opine whether it was clearly and unmistakably not aggravated by service. If the examiner finds that it either did not clearly and unmistakably preexist service, or was not clearly and unmistakably aggravated by service, the examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease, to include as due to the conceded in-service acoustic trauma. The examiner’s attention is directed to the March 2017 videoconference hearing testimony. The Veteran’s assertions as to his in-service acoustic trauma and his symptoms should be noted and addressed by the VA examiner. A rationale for the opinion must be provided. The examiner is reminded that the term “as likely as not” does not mean “within the realm of medical possibility,” but rather that the evidence of record is so evenly divided that, in the examiner’s expert opinion, it is as medically sound to find in favor of the proposition as against it. If the examiner is unable to offer the requested opinions, it is essential that the examiner offer a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. See Jones v. Shinseki, 23 Vet. App. 382 (2010). 2. The AOJ should then review the record and readjudicate the claim. If it remains denied, the AOJ should issue an appropriate supplemental statement of the case (SSOC) and afford the Veteran and his attorney the opportunity to respond. The case should then be returned to the Board, if in order, for further review. Michael A. Pappas Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. White, Associate 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.