Citation Nr: 21065229 Decision Date: 10/25/21 Archive Date: 10/25/21 DOCKET NO. 09-36 372 DATE: October 25, 2021 REMANDED Entitlement to a compensable disability rating for left ear hearing loss on an extraschedular basis is remanded. The propriety of the reduction of the disability rating for chronic sinusitis from 50 percent to 30 percent, effective November 1, 2017, is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1979 to May 1981 and from April 1984 to October 1985. He also served in the United States Army Reserves, to include a period of active duty for training (ACDUTRA) from May to August 1978. These matters come before the Board of Veterans' Appeals (Board) on appeal from March 2009 and July 2017 rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). In December 2012 and May 2021, the Veteran testified at Board hearings before the undersigned Veterans Law Judge. Transcripts of those hearings are associated with the claims file. In February 2020, the Board last remanded the left ear hearing loss claim to the RO for further development. 1. Entitlement to a compensable disability rating for left ear hearing loss on an extraschedular basis Although the Board sincerely regrets the additional delay, another remand is warranted as there has not been substantial compliance with the February 2017 and February 2020 prior Board remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). In this regard, both the February 2017 and February 2020 Board decisions remanded the claim for the Veteran to undergo an ear, nose, and throat examination and to obtain an addendum opinion as to whether the Veteran's other reported symptoms, including pain, vertigo, and roaring in his ears, were related to his left ear hearing loss. However, following the February 2020 Board remand, in September 2020, the Veteran underwent a hearing loss and tinnitus VA examination where the examiner indicated that the validity of puretone test results were not valid for rating purposes because the test results were inconsistent with organic hearing loss. The September 2020 VA examiner further noted that the Veteran's responses were inconsistent and unreliable on every examination, indicative of non-organic hearing loss, and that his test results were less likely than not an aggravation of his service-connected hearing loss. The examiner also pointed out that she was not an otologist. This opinion is inadequate as the VA examiner did not explain why inconsistency/unreliability on testing results are indicative of non-organic hearing loss. Moreover, while a majority of the Veteran's examinations showed inconsistent and unreliable puretone test results, not all VA examinations had such results. Finally, the examiner did not address whether the Veteran's other symptoms were related to his service-connected left ear hearing loss as requested to do so. Accordingly, a remand is warranted for the Veteran to undergo another hearing loss and tinnitus examination as well as a separate ear, nose, and throat examination. Additionally, on remand, a VA examiner must address the Veteran's other reported symptoms as specifically requested to do so in both the February 2017 and February 2020 Board remand directives. 2. The propriety of the reduction of the disability rating for chronic sinusitis from 50 percent to 30 percent, effective November 1, 2017 In the April 2018 Board decision, the Board noted that the Veteran filed a Notice of Disagreement (NOD) with the July 2017 rating decision that reduced the Veteran's rating for chronic sinusitis but that the Agency of Original Jurisdiction (AOJ) had not issued a Statement of the Case (SOC). As such, the Board remanded the claim for the AOJ to issue a SOC pursuant to Manlincon v. West, 12 Vet. App. 238 (1999). To date, the RO has not issued a SOC as to this claim as instructed to do so. See Stegall, 11 Vet App. at 271. Therefore, this issue is remanded for the issuance of an SOC. The matters are REMANDED for the following action: 1. Obtain and associate with the claims file any outstanding VA treatment records. The last VA treatment of record is dated August 2020. 2. Schedule the Veteran for a VA audiological examination to assess the Veteran's service-connected left ear hearing loss. The examiner should review the record, to include this Remand. All indicated tests and studies should be conducted and the results reported in detail. The examiner should respond to the following: (a) Identify all currently present manifestations of the Veteran's bilateral hearing loss disability. If the examiner determines that any identified symptoms are not present or do not manifest at the intensity described by the Veteran, such should be noted with rationale. (b) If audiological testing produces unreliable results, the examiner must explain what about the testing that day produced unreliable results and why the results could not be reported. 3. Additionally, schedule the Veteran for a separate VA ear, nose, and throat examination. The examination should be performed by an otolaryngologist, if feasible. If such is not feasible, it should be documented in the claims file. The examiner should review the record, to include this Remand. All indicated tests should be conducted and results reported in detail. All associated diagnoses must be reported, to include associated/currently present manifestations of the Veteran's left ear hearing loss disability. If the examiner determines that any identified symptoms are not present or do not manifest at the intensity described by the Veteran, such should be noted with rationale. 4. If the above ear, nose, and throat VA examiner is an otolaryngologist, he or she is asked to respond to the following. If, the above ear, nose, and throat VA examiner is NOT an otolaryngologist, obtain an addendum opinion from an otolaryngologist responding to the following. If it is not feasible to obtain an addendum opinion from an otolaryngologist, then obtain an addendum opinion responding to the following from an ear, nose, and throat specialist: After reviewing the record, to include the recent ear, nose, and throat examination, together with the results of any testing deemed necessary, the examiner should offer an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran's complaints of pain, including nerve pain behind his left ear, discomfort, headaches, syncope, dizziness/vertigo, roaring in his left ear, and any associated nausea and vomiting are caused by or aggravated by the same pathology as his service-connected left ear hearing loss (which has been described as at least partially conductive in nature) or whether they are more likely attributable to another cause, to include another service-connected disability. A complete rational for all medical opinions must be provided. A discussion of the relevant facts and medical principles involved, including citations if appropriate, would be of considerable assistance to the Board. 5. Furnish to the Veteran an SOC with respect to the matter of the propriety of the of the reduction of the Veteran's disability rating for chronic sinusitis from 50 percent to 30 percent, effective November 1, 2017. Afford the Veteran and his representative the appropriate opportunity to file a substantive appeal to perfect an appeal of the issue. The Veteran is reminded that to obtain appellate review of any matter not currently in appellate status, a timely appeal must be perfectedfor the particular claim. MARJORIE A. AUER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Amanda Purcell, 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.