Citation Nr: 21002447 Decision Date: 01/13/21 Archive Date: 01/13/21 DOCKET NO. 12-29 611 DATE: January 13, 2021 REMANDED Entitlement to service connection for a bilateral ear disability, to include hearing loss and tinnitus is remanded. REASONS FOR REMAND The Veteran served on active duty with the United States Air Force from April 1981 to February 1984. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2010 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a hearing in September 2015. This case was previously before the Board in March 2016 and in December 2018, where it was remanded to the Agency of Original Jurisdiction (AOJ) for further development in both instances. Unfortunately, another remand is necessary in this case. In the December 2018 remand, the Board requested that VA schedule a new medical examination for the Veteran and to give a new opinion as to the etiology of the Veteran’s hearing conditions. Specifically, the examination was to “assesses all possible ear disabilities” which may manifest in bilateral hearing loss or tinnitus. The remand directives highlighted several particular issues that the examiner should discuss, including Meniere’s disease, the Veteran’s reported experience of fullness, pain, and dizziness, and previous diagnoses of otitis media and otalgia. The examiner was advised that a complete rationale was to accompany all opinions. VA provided the Veteran with a new examination in October 2020. However, the medical opinion issued after this examination did not comply with the December 2018 remand directives. Rather than addressing the specific issues identified, the opinion appears to have improperly relied on the lack of contemporaneous medical records to corroborate the Veteran’s claims as the basis upon which it denied service connection. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). The opinion references the Veteran’s complaints of dizziness and fullness, but does not explain why they are or are not relevant to the examiner’s conclusions. The diagnosis portion of the opinion includes optional boxes for Meniere’s disease and otitis media. They are left blank, reasonably indicating that the examiner did not diagnose the Veteran with these disorders, but the examiner failed to address them in a rationale explaining why they are not relevant to the Veteran’s present condition. The opinion also neglects to consider the ear treatments the Veteran was undergoing at the time of the examination, including ear drops and antibiotics. The opinion also did not address the Veteran’s lay testimony that he had been exposed to hazardous noise during service proximate to the flight lines; that he had noticed changes to and been tested for his hearing in 2000; and that he had regularly been treated for ear infections in 1991 and 1992. The proffered rationale is in noncompliance with the prior remand directives, failing to provide the extensive etiological discussion that was requested and using the absence of contemporaneous records as fatal to the claim. Therefore, the Board finds the opinion to be insufficient and another remand is required. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (remand by Board confers upon claimant, as a matter of law, the right to compliance with remand order). The matter is REMANDED for the following actions: 1. Obtain any outstanding VA treatment records, to include any records regarding the Veteran’s treatment at the Dayton VA Medical Center in the 1990s, and associate them with the claims file. 2. Obtain a new opinion from an examiner other than the one who provided the October 2020 opinion to determine whether any current ear condition manifesting in hearing loss, dizziness/vertigo and/or tinnitus is related to the Veteran’s military service. The claims file must be made available to and be reviewed by the examiner in conjunction with the examination. Schedule the Veteran for a new examination only if deemed necessary by the examiner selected to provide the opinion. The examiner should identify all ear conditions found during the course of the appeal. For each ear condition identified, the examiner should opine whether it is at least as likely as not (50 percent or greater probability) that the disability began in or is otherwise caused by the Veteran’s active service. In providing the requested opinions, the examiner should address the Veteran’s lay statements regarding continuity of symptomatology since onset and/or since discharge from service. The examiner should also address the Veteran’s documented complaints of fullness and pain in the ears, dizziness, hearing loss, tinnitus, erythema, effusion, and drainage. The examiner must also discuss the significance of the notations of otalgia, otitis media, and chronic eczematous otitis externa and their treatment using antibiotics and eardrops which are noted in his private treatment records. The examiner should also expressly address whether the Veteran has met the criteria for a diagnosis of Meniere’s disease at any point during the appeal. The examiner must specifically acknowledge and discuss the Veteran’s claims of in-service noise exposure. Simply observing that hearing loss was not noted at separation from service or on in-service hearing tests will be deemed an inadequate rationale for a negative etiology opinion on a hearing loss disability. If the examiner attributes the current hearing loss disability to post-service noise exposure, or any other cause, rather than in-service noise exposure, he or she must provide a rationale for this finding. The examiner is advised the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinion. If the examiner rejects the Veteran’s reports, he or she must provide a reason for doing so. All findings must be reported in detail and all opinions must be accompanied by a clear rationale. If any of the above issues cannot be resolved without resorting to speculation, then a detailed medical explanation as to why this is so must be provided. M. HYLAND Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Narnor, Harriyah 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.