Citation Nr: 21071382 Decision Date: 11/30/21 Archive Date: 11/30/21 DOCKET NO. 19-24 370 DATE: November 30, 2021 REMANDED Service connection for chronic otitis media is remanded. Service connection for a perforated tympanic membrane, to include as secondary to chronic otitis media, is remanded. Service connection for bilateral hearing loss, to include as secondary to chronic otitis media and/or a right perforated ear drum, is remanded. Service connection for a bilateral tinnitus, to include as secondary to chronic otitis media, and/or a right perforated ear drum, is remanded. REASONS FOR REMAND The Veteran served on active duty from May 1965 to May 1967. In October 2021, the Veteran failed to appear for a Travel Board hearing before a Veterans Law Judge. He has neither provided good cause for his absence, nor requested the hearing be rescheduled. As the Veteran was properly notified of the time, date and location of his scheduled hearing and failed to appear, his hearing request is deemed withdrawn. The United States Court of Appeals for Veterans Claims (Court) has held that when a claimant makes a claim, he is seeking service connection for symptoms regardless of how those symptoms are diagnosed or labeled. See Brokowski v. Shinseki, 23 Vet. App. 79 (2009) (holding that a claimant may satisfy the requirement to identify the benefit sought by referring to a body part or system that is disabled or by describing symptoms of the disability); see also Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009) (holding that the scope of a mental health disability claim includes any mental disorder that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and other information of record). In a December 2019 statement, the Veteran stated that his chronic otitis media with effusion, which was initially diagnosed in service, led to his hearing loss and should be included in the current claim. He further stated that his perforated ear drum should also be included in the appeal as it was also caused by the chronic otitis media. Therefore, in consideration of the holdings in Brokowski and Clemons, the Board has broadened and recharacterized the issues as listed above. Additionally, the Board finds that the March 2017 claim for service connection for hearing loss and a broken ear drum encompassed a claim for service connection for bilateral tinnitus. The claim adequately identified the ears as the disabled body part. Moreover, although hearing loss and tinnitus are medically separate disabilities, the Veteran is not expected as a lay person to have either "the legal or medical knowledge to narrow the universe of his claim or his current condition" to mere tinnitus. See Clemons, 23 Vet. App. at 4-5. Furthermore, the June 2019 VA examination reflects that in describing his hearing disability, the Veteran complained of both hearing loss and tinnitus and he contended in the December 2019 statement that both hearing loss and tinnitus should be service-connected. As such, the Board has included the issue of entitlement to service connection for bilateral tinnitus. In this appeal, the Veteran asserts that he had bilateral hearing loss and a broken ear drum which were related to his active military service. He stated in the September 2017 Notice of Disagreement that he suffered a broken ear drum caused his hearing loss. The Veteran further stated at the June 2019 VA audiological examination that he had noise exposure from shooting a rifle during basic training. Although he had ear plugs during this training, he stated he heard ringing in the right ear following a shot which continued ringing and drainage. He sought care and was told his tympanic membrane was broken. Additionally, as stated above, the Veteran contended in the December 2019 statement that his hearing loss, tinnitus, and perforated ear drum were the result his chronic otitis media. According to the service treatment records, the March 1967 Report of Medical Examination at separation noted otitis media in 1965 and that the tympanic membrane was "clean." However, the Veteran stated in the March 1967 Report of Medical History that he had ear, nose, or throat trouble. He stated he had a clogged right ear in 1965 of otitis media but had "no trouble now." The record reflects that several VA opinions (from July 2017, May 2019, and June 2019) have been obtained in adjudication of the Veteran's claim. However, the Board finds that a new VA opinion is warranted for several reasons. First, while the July 2017 VA examination opinion provided an etiological opinion on whether the Veteran's bilateral hearing loss stemmed from noise exposure during service, the VA examiner erroneously stated that the separation medical records were silent about any ear infections incurred during military service. The VA examiner stated that the Veteran's separation medical record indicated the Veteran had otitis media in 1963, prior to induction. However, the Veteran's separation medical record reflects that he had otitis media during service in 1965, not 1963. Therefore, the Board finds the VA examiner's findings is erroneous on the question of whether the Veteran's otitis media stemmed from his military service. Second, the May 2019 VA etiological opinion indicated that otitis media, once clear, did not cause hearing loss to reappear years later. The VA examiner determined that the hearing loss in the right ear was most likely related to the ear infections and/or ruptured tympanic membrane that was present with hearing loss prior to surgery in 2015. However, the Veteran contended that he had had otitis media since service and that his chronic otitis media which stemmed from service caused his hearing loss. Private treatment records, submitted by the Veteran after the development this opinion, reflect the Veteran was diagnosed and treated for right chronic otitis media and perforation of the right tympanic membrane well before 2015, which he stated ultimately contributed to his hearing loss. Additionally, the June 2019 VA examiner determined that the record was silent in regard to the right ear until April 2015 when the Veteran underwent a right transcanal tragal tympanoplasty. However, this is not the case as the private treatment records reflect that he was treated for chronic otitis media and perforation of the right tympanic membrane on several occasions prior to April 2015. Given the newly added private treatment records reflecting treatment and diagnosis of chronic otitis media and a perforated right tympanic membrane, and VA and private treatment records which also suggest the possibility of hearing loss and tinnitus stemming from a right perforated tympanic membrane, a new VA opinion is needed. Finally, the VA examiners did not adequately address the Veteran's lay statements of onset and continuity of symptomatology since separation from service. Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007) (finding a medical examination inadequate where the examiner impermissibly ignored the appellant's lay assertions regarding onset of symptoms or injury during service). Accordingly, the Board finds that the VA examinations of record are inadequate for evaluation purposes and therefore, a new VA etiological opinion is warranted. The matters are REMANDED for the following action: Obtain a VA opinion to address the etiology of the Veteran's chronic otitis media, perforated tympanic membrane, bilateral hearing loss, and tinnitus. If a physical examination is necessary to answer the Board's questions, one should be scheduled. The VA examiner is asked the following: a. Is it at least as likely as not (50 percent or better probability) that the Veteran's chronic otitis media had its onset during, manifested within one year of service discharge, or is otherwise related to his active military service? b. Is it at least as likely as not (50 percent or better probability) that the Veteran's right perforated tympanic membrane had its onset during, manifested within one year of service discharge, or is otherwise related to his active military service? c. Is it at least as likely as not (50 percent or better probability) that the Veteran's right perforated tympanic membrane was caused OR aggravated by his chronic otitis media? Aggravation under 38 C.F.R. § 3.310 (b) does not require that there be "permanent" worsening of the nonservice connected disability. The VA examiner must provide separate findings and rationales relating to causation and aggravation. d. Is it at least as likely as not (50 percent or better probability) that the Veteran's bilateral hearing loss had its onset during, manifested within one year of service discharge, or is otherwise related to his active military service, to include as due to noise exposure during service? e. Is it at least as likely as not (50 percent or better probability) that the Veteran's bilateral hearing loss was caused OR aggravated by his chronic otitis media and/or his right perforated tympanic membrane? Aggravation under 38 C.F.R. § 3.310 (b) does not require that there be "permanent" worsening of the nonservice connected disability. The VA examiner must provide separate findings and rationales relating to causation and aggravation. f. Is it at least as likely as not (50 percent or better probability) that the Veteran's tinnitus had its onset during, manifested within one year of service discharge, or is otherwise related to his active military service, to include as due to noise exposure during service? g. Is it at least as likely as not (50 percent or better probability) that the Veteran's tinnitus was caused or aggravated by chronic otitis media and/or perforated right tympanic membrane? Aggravation under 38 C.F.R. § 3.310 (b) does not require that there be "permanent" worsening of the nonservice connected disability. The VA examiner must provide separate findings and rationales relating to causation and aggravation. The examiner should specifically consider and address the lay statements regarding onset and continuity of symptomatology for each claimed condition since service, including the Veteran's statement that he experienced a "broken ear drum" during service. The examiner is also asked to consider and address any relevant VA and private treatment record pertaining to the Veteran's bilateral ear disabilities of chronic otitis media, perforated right tympanic membrane, bilateral hearing loss, and tinnitus. A complete rationale must be provided for all opinions rendered. L. Chu Veterans Law Judge Board of Veterans' Appeals Attorney for the Board H. Yoo, 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.