Citation Nr: 21074089 Decision Date: 12/14/21 Archive Date: 12/14/21 DOCKET NO. 16-41 016 DATE: December 14, 2021 REMANDED Entitlement to service connection for perforation of the right tympanic membrane is remanded. REASONS FOR REMAND The Veteran served on active duty in the U.S. Army from August 1956 to July 1959. Unfortunately, he died in August 2017. His surviving spouse has been substituted as the appellant for purposes of prosecuting the claim to completion. 38 U.S.C. § 5121A. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an October 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. After remanding the matter for additional development in November 2018, the Board denied service connection for perforation of the right tympanic membrane by a decision entered in January 2020. The appellant appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In April 2021, the Court granted a Joint Motion for Remand (JMR) filed by the parties to the appeal (the appellant, through an attorney, and representatives from VA General Counsel), thereby vacating the Board's decision and remanding the matter for readjudication. Entitlement to service connection for perforation of the right tympanic membrane is remanded. In the JMR filed with the Court, the parties to the appeal agreed that the Board relied on an inadequate VA medical opinion in denying the appellant's claim. More specifically, the parties noted that an April 2019 VA medical opinion was not authored by an otolaryngologist. In March 2019, a medical opinion was obtained from an audiologist. The author of the opinion concluded "with certainty" that "any perforation of the right tympanic membrane did not impact [the Veteran's] hearing." The examiner noted that if the RO needed a medical opinion about the cause of middle ear pathology, the opinion of an [ear, nose, and throat specialist, or otolaryngologist] should be sought. Thereafter, an April 2019 VA medical opinion was obtained to address whether the Veteran's right tympanic membrane rupture and/or tympanic membrane scarring was at least as likely as not incurred during military service. However, the opinion was procured from a certified physician's assistant, rather than an otolaryngologist. The parties to the JMR agreed, in essence, that the Board failed to ensure that VA had fulfilled its duty to assist the appellant by seeking an opinion from a specialist as recommended by its own examiner. See Hyder v. Derwinski, 1 Vet. App. 221, 224 (1991). Pursuant to the terms of the JMR, a new or addendum medical opinion is required. This matter is REMANDED for the following action: 1. Make arrangements to provide the record on appeal to a qualified examiner, specifically an otolaryngologist, for purposes of assessing the etiology of the perforated tympanic membrane of the Veteran's right ear. The examiner should be asked to review the record and offer an opinion with respect to the matter of whether it is at least as likely as not (i.e., whether it is 50 percent or more probable) that the perforated tympanic membrane of the Veteran's right ear had its onset in, or was otherwise related to, his period of active service. In providing the opinion, the examiner must take into consideration the Veteran's and the appellant's lay statements, including the letter from the Veteran dated January 2013; the Veteran's statements made during December 2014 VA examination; and the Appellant's Statement in Support of Claim dated October 2012. A clear rationale for all opinions must be provided and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If an opinion cannot be provided without resorting to speculation, the examiner should state the reason why speculation would be required (e.g., if the requested determination is beyond the scope of current medical knowledge, actual causation cannot be selected from multiple potential causes, etc.). 2. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the issue on appeal should be readjudicated based on the entirety of the evidence. If the benefit sought remains denied, the appellant and her representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. DAVID A. BRENNINGMEYER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Joseph T. Leonard, 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.