Citation Nr: 21000929 Decision Date: 01/06/21 Archive Date: 01/06/21 DOCKET NO. 14-20 376 DATE: January 6, 2021 REMANDED Service connection for right ear pain is remanded. REASONS FOR REMAND The Veteran had active service from July 1989 to August 1994. A hearing was held between the Veteran and undersigned in November 2017. A transcript of the hearing is associated with the claims file. While it regrets the additional delay, the Board of Veterans’ Appeals (Board) must again remand the Veteran’s claim in order to ensure that the Agency of Original Jurisdiction (AOJ) has substantially complied with its remand directives. In the absence of proof of a present disability (and, if so, of a nexus between that disability and service), there can be no valid claim for service connection. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The term “disability” refers to the functional impairment of earning capacity, and pain alone may result in such a functional impairment. See Saunders v. Wilkie, 887 F.3d 1356, 1364-68 (Fed. Cir. 2018). VA considers a disability to be present if a chronic disability exists at any time during the pendency of the claim for benefits, even if such disability resolves before VA’s adjudication of the claim. See McClain v. Nicholson, 21 Vet. App. 319 (2007). In May 2018, the Board remanded the Veteran’s claim in order to afford him with an additional examination clarifying the nature and etiology of the Veteran’s claimed disability resulting in right ear pain. The Board instructed the examiner to discuss whether the Veteran’s right ear pain had resulted in a disability—that is, a functional impairment—affecting the right ear at any time since filing his June 2010 claim for service connection. The Veteran underwent an examination in March 2019, at which time the examiner stated that he did not have a right ear disability because the Veteran denied experiencing right ear pain at the time of the examination. This opinion is inadequate because the examiner did not address whether the Veteran experienced a chronic functional impairment as the result of his claimed right ear disability at any time since June 2010. Accordingly, the AOJ should arrange for an examiner to again address whether the Veteran’s complaints of right ear pain constitute a disability, and if so, address the etiology of such disability. This matter is REMANDED for the following action: Obtain the following opinions from a VA examiner of appropriate expertise. An additional physical examination of the Veteran should occur only if the examiner determines that such is required in order to offer the requested opinions. Following a review of the Veteran’s claims file, the examiner should address the following questions: (a.) Has the Veteran experienced a chronic right ear disability, including in the form of a functional impairment as the result of pain, at any time since filing his claim for service connection in June 2010? Why or why not? Rationale must be provided.   If the examiner determines that the Veteran experienced a right ear disability at any time since filing his claim for service connection in June 2010, then address the following questions: (b.) Is it at least as likely as not (that is, a 50 percent or greater probability) that the Veteran’s right ear disability had its onset during the Veteran’s active service, or is such disability otherwise related to the Veteran’s active service? (c.) Is it at least as likely as not that the Veteran’s right ear disability was caused by any service connected conditions, including tinnitus and headaches. (d.) Is it at least as likely as not that the Veteran’s right ear disability underwent any incremental increase in disability, regardless of its permanence, due to service-connected disability, including tinnitus and headaches. The term “incremental increase in disability” means additional impairment of earning capacity. Objective measurement, or numerical quantification, is not required to ascertain an increase in disability. Moreover, any “incremental increase in disability” need not be permanent. In addressing the above questions, the examiner should address the November 2017 statement from Dr. C.M.,   who suggested that the Veteran’s exposure to high altitude during parachute jumps caused right ear pain and headaches. MICHAEL A. HERMAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J.A. Flynn, 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.