Citation Nr: A21020118 Decision Date: 12/16/21 Archive Date: 12/16/21 DOCKET NO. 190919-31870 DATE: December 16, 2021 REMANDED Entitlement to service connection for cholesteatoma to include due to left ear hearing loss is remanded. REASONS FOR REMAND The Veteran served in active-duty service with the Airforce from January 1986 to January 1990. A rating decision was issued in March 2015 under the legacy system. In May 2018, the Veteran opted into the modernized review system, also known as the Appeals Modernization Act (AMA), by submitting a Rapid Appeals Modernization Program (RAMP) election form and selecting the higher-level review option. The agency of original jurisdiction (AOJ) issued an AMA rating decision pursuant to RAMP in September 2018 and October 2018. The Veteran submitted a September 10182 notice of disagreement, selecting the Evidence Submission Review option. The Board remanded this appeal in January 2021 for further development. The Board notes in the January 2021 Board decision, the Board also denied an increased evaluation for tinnitus and service connection for right ear hearing loss. The Veteran appealed his denial to the Court of Appeals for Veterans Claims (CAVC or the Court). The Court in a July 2021 decision partially vacated and remanded the appeal to the Board for readjudication. The Board notes the Veteran in the July 2021 Court decision did not challenge the January 2021 Board decision on right ear hearing loss and tinnitus; as such, those issues have been dismissed. The Board also notes that the January 2021 Board decision remanded the issue of an increased rating for left ear hearing loss. As that issue was part of a separate AMA appeal stream, it is not before the Board. The Board finds that remand is warranted for additional development. The Veteran and representative have asserted service connection for cholesteatoma as due to his service-connected left ear hearing loss. Review of the evidence of record shows the Veteran in October 2013 reported surgery for cholesteatoma in 1990; the treating provider assessed the Veteran with recurrent cholesteatoma in the left ear. The record shows the Veteran underwent several surgical procedures for mastoid tympanoplasty to treat his cholesteatoma beginning in February 2014. In a June 2014 VA authorization and consent to release information form, the Veteran noted his surgery on his left ear in February 2014 and stated that his exit physical was never performed and "had they done so, I likely would have had far less damage...the problem would have been discovered much sooner and surgery done to save my own ear before all of the degeneration occurred." The Veteran did not specifically describe the issue of cholesteatoma in this statement. In an April 2015 notice of disagreement (NOD) appealing hearing loss and tinnitus, the Veteran reiterated his missed exit physical "would have caught the cholesteatoma in time to have saved my hearing." In a January 2021 Board decision, the Board noted the Veteran's contentions for service connection for cholesteatoma but did not find they were not on appeal before the Board. The Board noted a December 2016 VA correspondence notifying the Veteran that service connection must be established to obtain a rating and advised the Veteran to submit an application. In the July 2021 CAVC decision, the Court found the Board failed to provide an adequate statement of reasons or bases for failing to adjudicate the issue of service connection for cholesteatoma despite the "[Veteran's] explicitly raising the issue." The Court found the Veteran arguably raised the issue in June 2014 and noted that the Veteran could raise issues through the informal claims process. The Board notes here that prior to March 24, 2015, a claim was defined as "a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement, to a benefit." 38 C.F.R. § 3.1 (p) (2014). The requirement for the use of a standardized form to initiate a claim did not become law until March 24, 2015. See 79 Fed. Reg. 57660 (Sept. 25, 2014). The Court noted that the Secretary was required to review all communications prior to March 2015 that could be interpreted as formal or informal claims and to consider within the context of the record whether they reasonable raised a claim for benefits. See Brannon v. West, 12 Vet.App. 32, 35 (1998); see also Beverly v. Nicholson, 19 Vet.App. 394, 404 (2005) (recognizing that the Board is required to adjudicate "all issues reasonably raised by a liberal reading of the appellant's substantive appeal, including all documents and oral testimony in the record prior to the Board's decision"). As such, the Court asked on remand that the Board consider whether the Veteran raised a separate claim for cholesteatoma or whether cholesteatoma should be considered part and parcel to his left ear hearing loss. Although the June 2014 statement does not specifically describe the issue of cholesteatoma, the Veteran does reference cholesteatoma in the subsequent April 2015 NOD and reiterated that the missed exit physical would have caught his disability and therefore would have been able to save his hearing. As the June 2014 statement was made prior to the March 2015 requirement for standardized forms for application, the Board resolves reasonable doubt and finds the Veteran had raised an informal claim for service connection for cholesteatoma. The Board notes that the Veteran complained of issues of left ear drainage and his tympanic membrane as early as March 2009, prior to his September 2013 claim for left ear hearing loss. As such, the Board finds the Veteran has raised the issue for service connection for cholesteatoma as a separate and distinct disability. The Board also notes that as the Court indicated and found here that an informal claim for service connection for cholesteatoma was raised prior to the implementation of AMA on February 19, 2019; therefore, the issue for service connection for cholesteatoma remains under the legacy system. 38 C.F.R. § 3.2400 (b). Review of the claims record does not show a VA examination has been held regarding the nature and etiology of the Veteran's claimed cholesteatoma. The Board also notes that the Veteran in the treatment record relating to cholesteatoma reported receiving surgical treatment relating to cholesteatoma in 1990, however, records of this 1990 treatment have not been associated with the record. As such, the Board finds remand is warranted to obtain outstanding treatment records and to obtain a VA examination on the nature and etiology of the Veteran's claimed cholesteatoma. The matters are REMANDED for the following action: 1. Obtain and associate with the claims file all updated and outstanding treatment records. 2. Request that the Veteran complete a VA Form 21-4142 and provide the names and addresses of any and all healthcare providers who provided treatment for the Veteran's claimed cholesteatoma to include the records from 1990. (a.) After acquiring this information and obtaining any necessary authorization, obtain and associate any pertinent records with the claims folder. Make two requests for the authorized records from any identified provider, unless it is clear after the first request that a second request would be futile. All attempts to procure such records must be documented within the claims file. 3. Schedule a VA examination with an appropriate provider to determine the nature and etiology of the Veteran's cholesteatoma. The complete record, to include a copy of this remand, must be made available to and reviewed by the examiner. The examination report must include a notation that this record review took place. The examiner should respond to the following: (a.) Identify any current cholesteatoma disability, which may include pain alone that rises to the level of functional impairment. If any disability existed during the appeal period but has resolved, this should be made clear. (b.) For any cholesteatoma disability identified, whether resolved or active, please address whether it is at least as likely as note (a probability of 50 percent or greater) that such disability is etiologically related to the Veteran's military service? (c.) The examiner is advised that the Veteran is competent to report in-service events and treatment, and the Veteran's symptoms and history, and such reports and assertions must be specifically acknowledged and considered in formulating any opinions. If the examiner rejects the Veteran's reports, the examiner must provide a reason for doing so. (d.) If the VA examiner is unable to provide an opinion without resort to speculation, he or she should explain whether the inability is due to the limits of the examiner's medical knowledge, medical knowledge in general or there is evidence that, if obtained, would permit the opinion to be provided. A clearly stated rationale for any opinion offered should be provided. 4. After completion of the above and any additional development deemed necessary, the issues on appeal should be reviewed with consideration of all applicable laws and regulations. If any benefit sought remains denied, the Veteran should be furnished a supplemental statement of the case and be afforded the opportunity to respond. Thereafter, the case should be returned to the Board for appellate review. MICHAEL LANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Yang, Attorney-Advisor 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.