Citation Nr: 21002313 Decision Date: 01/13/21 Archive Date: 01/13/21 DOCKET NO. 10-16 004 DATE: January 13, 2021 REMANDED Entitlement to service connection for residuals of a right ear cyst is remanded. REASONS FOR REMAND The Veteran served on active duty from July 1982 to May 1986. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2009 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In February 2011, the Veteran testified at a hearing before the undersigned Acting Veteran’s Law Judge. A transcript of the hearing is associated with the file and has been reviewed. This matter was previously before the Board. In a September 2013 decision, the Board denied service connection for residuals of a right ear cyst and right ear hearing loss. The Veteran appealed this decision to the U.S. Court of Appeals for Veterans Claims (Court). In September 2014, the Court issued a Memorandum Decision vacating the September 2013 Board decision and remanded the matters for readjudication. Specifically, the Court found that the Board failed to provide an adequate statement of reasons or bases for its evaluation of the appellant’s lay evidence and the Board erred by relying on an inadequate May 2010 examination. In July 2015, the Board remanded the claims for further development. Regarding the issues remanded in the July 2015 Board decision, the Board notes that the Veteran was provided VA examinations for residuals of his right ear cyst and hearing loss disability in November 2016 and August 2018. Unfortunately, in August 2020 the Board remanded the claims again for additional development, to include new VA opinions. During the appeal, in a November 2020 rating decision, the RO granted service connection for right ear hearing loss and assigned an applicable rating and effective date. To date, the Veteran has not indicated disagreement with the initial rating or effective date assigned. As the grant of service connection represents the full benefit sought on appeal, right ear hearing loss is no longer before the Board. Entitlement to service connection for residuals of a right ear cyst is remanded. Although the Board sincerely regrets additional delay, a remand is again required because the October 2020 VA examiner’s opinion is inadequate. The examiner opined that the Veteran’s cholesteatoma is less likely than not incurred in or caused by his service because service treatment records do not document the condition and the onset was after service. The Board finds this opinion inadequate because the examiner relied on the absence of evidence in service treatment records in formulating the opinion. See Buchannan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). Moreover, the October 2020 VA examiner did not take into account medical articles that relate to the onset of cysts, submitted by the Veteran in June 2015, as specifically described and requested in August 2020 remand directives. Accordingly, based on lack of compliance with the prior remand directives, an addendum opinion is necessary. Stegall v. West, 11 Vet. App. 268 (1998). The matter is REMANDED for the following action: 1. Arrange for an appropriate health care provider to review the Veteran’s claims file and provide an addendum opinion as to whether the Veteran’s right ear cyst is at least as likely as not (50 percent probability or greater) had its clinical onset during service or is due to an event or incident of the Veteran’s period of active service. In answering this question, the examiner must take into account the articles that the Veteran has submitted. If the examiner finds it appropriate, a new examination should be done. If an opinion cannot be given without resorting to speculation, the examiner should explain why and state whether the need to speculate is due to deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), the record (additional facts are required), or the examiner (does not have the knowledge or training). 2. The Veteran’s claim should be readjudicated based on the entirety of the evidence. If the benefit sought on appeal is not granted, the Veteran should be provided a Supplemental Statement of the Case (SSOC) and afforded the requisite opportunity to respond before the case is returned to the Board. T.D. JONES Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Thomas D. Jones, 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.