Citation Nr: 21065751 Decision Date: 10/27/21 Archive Date: 10/27/21 DOCKET NO. 16-17 971 DATE: October 27, 2021 REMANDED Entitlement to service connection for an ear disorder, to include as secondary to service-connected bilateral hearing loss, is remanded. REASONS FOR REMAND The Veteran served on active duty from February 1968 to February 1972. He appeals a November 2015 rating decision by the Agency of Original Jurisdiction (AOJ). This case was previously before the Board. Most recently, in August 2021 the Board remanded the Veteran's claim to the AOJ for further action consistent with the Board's remand directives. The claim is back before the Board for further appellate proceedings. Although the Board regrets the additional delay, further development is necessary prior to adjudication of this claim. Specifically, the August 2021 Board remand instructed the AOJ to obtain an opinion as to whether the Veteran's diagnosed peripheral vestibular disorder is at least as likely as not related to his in-service noise exposure as an Aircraft Maintenance Specialist or secondary to his service-connected bilateral hearing loss. See August 2021 Board remand. Consequently, the Veteran attended a September 2021 VA examination. The September 2021 VA examiner opined that the Veteran's peripheral vestibular disorder, which was noted to have been diagnosed in 2020, had resolved. See September 2021 VA opinion. The examiner stated that the Veteran's current symptoms were consistent with orthostatic hypotension, which he attributed to the Veteran's prescribed medications. Given that the Veteran's peripheral vestibular disorder had resolved, the examiner provided a negative nexus opinion regarding both direct and secondary service connection based solely on the resolution of the condition, stating that the Veteran "currently has no objective signs of a Peripheral Vestibular Disorder." The examiner further opined that the Veteran's newly diagnosed orthostatic hypotension was not related to service or secondary to his service-connected bilateral hearing loss. Id. However, the question remains whether the Veteran's 2020 diagnosis of peripheral vestibular disorder is related to his service or secondary to his service-connected bilateral hearing loss. The September 2021 VA examiner failed to answer this questionhe simply stated that the Veteran's peripheral vestibular disorder had resolved. This question is still relevant despite the September 2021 VA examiner's finding that the condition had resolved. See McLain v. Nicholson, 21 Vet. App. 319, 321 (2007) (the current disability requirement in a service connection claim is satisfied when a claimant has a disability at the time a claim is filed or during its pendency even if the disability resolves prior to adjudication). Therefore, the Board finds that remand is warranted in order to afford the Veteran with an adequate examination and opinion regarding the etiology of his peripheral vestibular disorder, which was diagnosed during the pendency of his claim. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); see also McLain, supra. The matters are REMANDED for the following action: 1. Obtain any outstanding VA and/or private treatment records relevant to treatment the Veteran received for his claimed ear disorder not already of record. All obtained records should be associated with the evidentiary record. If any identified records are not obtainable (or none exist), the Veteran should be notified, and the record clearly documented. 2. After the development outlined above is complete, schedule the Veteran for a VA examination by an appropriately qualified clinician to determine the nature and etiology of the Veteran's claimed ear disorder, including but not limited to peripheral vestibular disorder. The evidentiary record, including a copy of this remand, must be made available to and reviewed by the examiner. A complete history should be elicited directly from the Veteran and the opinion should include a notation that this record review took place. After a thorough review of the record to include all in-service and post-service treatment records, the examiner should answer the following: (a.) Identify any ear disorder diagnosed anytime during the period on appeal from January 2015 to present. The examiner is advised that any diagnosed condition at the time of claim or during its pendency, even if the disability resolved prior to adjudication, shall be addressed. (b.) Is it at least as likely as not that the identified ear disorder, including but not limited to peripheral vestibular disorder, was incurred in or is otherwise related to service? (c.) Is it at least as likely as not that the identified ear disorder, including but not limited to peripheral vestibular disorder, was proximately caused OR aggravated by his service-connected bilateral hearing loss? In rendering these opinions, the examiner is advised that the Veteran is competent to report his symptoms and history. Such reports must be acknowledged and considered in formulating any opinion. If the examiner rejects the Veteran's reports, he or she must provide an explanation for such rejection. The examiner is not to improperly discount the Veteran's lay statements or mistakenly rely on an absence of medical evidence in the record to support his or her conclusions. The complete rationale for all opinions should be set forth, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If the examiner cannot provide a requested opinion without resorting to mere speculation, it must be stated, and the examiner must provide the reasons why an opinion would require speculation. 3. Thereafter, readjudicate the claim. If any benefit sought remains denied, provide the Veteran with a Supplemental Statement of the Case (SSOC), and return the case to the Board. DONNIE R. HACHEY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Katie Poe, 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.