Citation Nr: 21071176 Decision Date: 11/30/21 Archive Date: 11/29/21 DOCKET NO. 18-01 589 DATE: November 30, 2021 ORDER Entitlement to service connection for bilateral chronic ear infections is denied. REMANDED Entitlement to service connection for gastroesophageal reflux disease (GERD), to include as due to an undiagnosed illness is remanded. FINDING OF FACT The Veteran does not have a current diagnosis for right or left chronic ear infections. CONCLUSION OF LAW The criteria for service connection for chronic ear infections have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from June 1979 to August 1979 and from December 1990 to April 1991. She also had various periods of active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA) while she was in the Naval Reserves and Air Force Reserves. She was also in the National Guard from 1992 to 1997. These issues come before the Board of Veterans' Appeals (Board) on appeal from a December 2016 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In December 2019, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge (VLJ). The transcript is of record. The Board remanded this matter for additional development in May 2020, which has not been completed. Stegall v. West, 11 Vet. App. 268, 271 (1998). REASONS FOR REMAND 1. Entitlement to service connection for gastroesophageal reflux disease (GERD), to include as due to an undiagnosed illness is remanded. The Veteran contends that she currently has GERD that resulted from her military service, including service in Southwest Asia. A review of the service treatment records (STRs) reveal no gastrointestinal complaints or issues. A review of the post-service VA treatment records reveal chronic heartburn complaints and a GERD diagnosis, among other issues. The Board remanded this matter in June 2021 for a VA examination. See June 2021 VA Examination. A VA opinion was completed in September 2021. In its June 2021 remand order, the Board directed the examiner be advised that the Veteran is competent and credible to report her medical history including symptoms and treatment relating to GERD and this evidence must be taken into account when forming the etiology opinion. Unfortunately, there has not been substantial compliance with the Board's previous remand directives regarding the issue of entitlement to service connection for GERD. Another remand is required. Stegall v. West, 11 Vet. App. 268, 271 (1998). The September 2021 examiner rendered a negative opinion. See September 2021 VA Opinion. The examiner opined that the Veteran's GERD was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner indicated that the "veteran was not diagnosed with GERD while on active duty, nor can evidence or nexus be established that GERD began during and continued after service or is related to SW Asia exposure." The examiner noted that the Veteran shared she has heartburn but noted that there was no objective evidence, no treatment recommendations or EGD to show GERD. The VA has a duty to assist veterans in developing their claims for benefits. 38 C.F.R. § 3.159. The duty to assist including providing a medical examination when necessary to decide a claim. 38 C.F.R. § 3.159(c)(4). When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The examiner failed to consider the evidence of record in rendering her opinion. Specifically, in 2012, the Veteran had an EGD examination with Dr. M.C. which found mild distal reflux. See CAPRI Records. Additionally, the September 2021 examiner did not adequately consider the Veteran's contentions. She did not specifically address the Veteran's credible contentions from her Board hearing where she testified that she ate local food and stayed in local lodgings while traveling in Southwest Asia and experienced "lots of indigestion" while in-service. These competent observations must be addressed in any etiology opinion. This testimony was found to be truthful and credible. As such, an opinion is required to address this evidence. The Board finds that the VA opinions are inadequate based on the examiner's failure to consider the evidence of record and address the Veteran's lay contentions. As such, the Board remands this matter for the issuance of a clarifying VA medical opinion. 2. Entitlement to service connection for bilateral ear infections. The Veteran contends that she experienced bilateral ear infections that first manifested during active duty service. A review of the STRs reveal complaints of an ear infection in January 1991. However, the separation examination contains no notations regarding ongoing ear issues. A review of the post-service VA treatment records shows continued complaints for ear infections and a diagnosis of chronic suppurative otitis media. The Board remanded this matter in June 2021 for a VA examination. See June 2021 VA Examination. A VA opinion was completed in September 2021. In its June 2021 remand order, the Board directed that the examiner be advised that the Veteran is competent and credible to report her medical history including symptoms and treatment relating to her bilateral ear infections and this evidence must be taken into account when forming the etiology opinion. Unfortunately, there has not been substantial compliance with the Board's previous remand directives regarding the issue of entitlement to service connection for chronic bilateral ear infections. Another remand is required. Stegall v. West, 11 Vet. App. 268, 271 (1998). A VA opinion was completed in September 2021. See September 2021 VA Opinion. The examiner noted that the Veteran had an acute ear infection in service but that there was no evidence in the Veteran's STRs or post-service treatment records of a chronic condition. The examiner considered the December 2005 diagnosis of chronic suppurativa otitis media but found lack of ear infection at the August 2020 examination more indicative of the Veteran's present condition. As such, the Veteran's previous examination did not include a nexus for chronic infections to service. The examiner indicated that she considered the Veteran's statements and noted that there was a lack of evidence to support that the Veteran has had a chronic condition since service. Additionally, the examiner found that there is "no supportive medical evidence in literature to support that environmental exposures, even in Southwest Asia, can lead to chronic ear infections." As such, the examiner rendered a negative service connection opinion. The VA has a duty to assist veterans in developing their claims for benefits. 38 C.F.R. § 3.159. The duty to assist including providing a medical examination when necessary to decide a claim. 38 C.F.R. § 3.159(c)(4). When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The June 2021 opinion did not adequately consider the evidence of record. The examiner did not consider the Veteran's complaints or prescriptions for ear infections in March 2005, August 2016, September 2016, April 2017. Additionally, the examiner did not consider the Veteran's presenting at her July 2020 VA examination with a tender ear. Neither opinion appropriately considered or addressed this evidence. As such, an opinion is required. The Board finds that the VA opinions are inadequate based on the examiners' failure to appropriately consider and address the evidence. As such, the Board remands this matter for the issuance of a clarifying VA medical opinion. The matters are REMANDED for the following action: 1. Obtain updated VA and/or private treatment records to the extent possible. If such records are unavailable, the Veteran's claims file must be clearly documented to that effect and the Veteran notified in accordance with 38C.F.R. §3.159 (e). 2. Obtain an addendum opinion from the VA examiner who conducted the September 2021 VA opinions regarding the nature and etiology of the Veteran's GERD. The electronic claims file must be made available to the examiner. The examiner should note in the examination report that the claims file has been reviewed. If the September 2021 VA examiner(s) is not available, the claims file should be provided to an appropriate medical professional so as to render the requested opinion. If the examiner determines that another VA examination is necessary, one should be scheduled. Based on a review of the record, and a new examination if necessary, the examiner must address the following: Whether it is as least as likely as not (a 50 percent or greater probability) that the Veteran's GERD manifested during service or is otherwise related to service, including environmental exposure in Southwest Asia? The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a certain conclusion is so evenly divided that it is as medically sound to find in favor of such a conclusion as it is to find against it. The examiner is advised that the Veteran is competent to report her medical history including symptoms and treatment, and that her reports must be taken into account. Specifically, the examiner must consider and address the Veteran's contentions that she experienced "lots of indigestion" in service. For purposes of the medical opinion only, the examiner should assume the Veteran is credible with regard to her self-reported medical history relating to GERD. A complete rationale must be provided for all opinions presented. If the medical professional cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation for why an opinion cannot be rendered. In so doing, the medical professional shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). 3. Obtain an addendum opinion from the VA examiner who conducted the September 2021 VA opinions regarding the nature and etiology of the Veteran's bilateral chronic ear infections. The electronic claims file must be made available to the examiner. The examiner should note in the examination report that the claims file has been reviewed. If the September 2021VA examiner(s) is not available, the claims file should be provided to an appropriate medical professional so as to render the requested opinion. If the examiner determines that another VA examination is necessary, one should be scheduled. Based on a review of the record, and a new examination if necessary, the examiner must address the following: Whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's bilateral chronic ear infections manifested during service or is otherwise related to service, including environmental exposure in Southwest Asia? The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a certain conclusion is so evenly divided that it is as medically sound to find in favor of such a conclusion as it is to find against it. The examiner must specifically consider the Veteran's complaints or prescriptions for ear infections in March 2005, August 2016, September 2016, April 2017. Additionally, the examiner must consider the Veteran presenting with a tender ear at her July 2020 VA examination in rendering his or her opinion. The examiner is advised that the Veteran is competent to report her medical history including symptoms and treatment, and that her reports must be taken into account. For purposes of the medical opinion only, the examiner should assume the Veteran is credible with regard to her self-reported medical history relating to ear infections. A complete rationale must be provided for all opinions presented. If the medical professional cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation for why an opinion cannot be rendered. In so doing, the medical professional shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). G. A. WASIK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board V. Schmidt 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.