Citation Nr: 21006411 Decision Date: 02/04/21 Archive Date: 02/04/21 DOCKET NO. 04-43 820 DATE: February 4, 2021 REMANDED Entitlement to service connection for a left ear disorder, to include hearing loss and otitis is remanded. REASONS FOR REMAND The Veteran served on active duty for training (ACDUTRA) with the North Carolina National Guard from July 1982 to December 1982 and had additional periods of service with his National Guard unit. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from an August 2003 issued by the Department of Veterans Affairs (VA) Regional Office (RO) Winston-Salem, North Carolina. Jurisdiction of this appeal is currently with the RO in Cleveland, Ohio. The Veteran previously testified during a video conference hearing in March 2012. A transcript of this hearing is of record. In February 2017, the Veteran was notified that the Veterans Law Judge (VLJ) who presided over his hearing was no longer with the Board, and offered a hearing before a different VLJ. 38 U.S.C. § 7107(c); 38 C.F.R. § 20.707. In March 2017, the Veteran indicated that he did not wish to appear at another Board hearing. The September 2019 Board proceeded with his claim, and remanded the claim to the Agency of Original Jurisdiction (AOJ) for further adjudication. The case has now been returned to the Board for appellate action. In November 2020, the Veteran testified at a video conference hearing before the undersigned VLJ. A transcript of the hearing has been associated with the claims file. Service Connection – Left Ear Disorder The Veteran asserts that he has a left ear disorder, to include hearing loss and otitis, that is etiologically related to his active service. Specifically, he testified that he was exposed to hazardous noises during his service because he was attached to an infantry unit, due to live gunfire with larger ammunition and large vehicle noise, that he experienced decreased hearing acuity during service that has continued since and had tubes surgically placed in his ears during service that resulted in hearing loss. See Board Hearing Transcript, November 5, 2020. Additionally, the Veteran asserts that his treating physician related his left ear disorder to his military service. Id. The procedural history following the Veteran’s claim for service connection for a left ear disability is noted above; and, as noted above, the claim was most recently before the Board in September 2019 when it was remanded to the AOJ for further development. In that regard, the September 2019 Board directed the AOJ to obtain an addendum VA opinion. Specifically, the Board noted that the January 2019 VA opinion of record was incomplete. In its remand directives, the September 2019 Board directed the examiner to provide an opinion to clarify the determination that the Veteran did not suffer from a left ear disability in service; address whether the Veteran’s diagnosed retracted tympanic membrane and decreased hearing loss both noted to be due to his otitis were indications that he suffered from a chronic condition, possibly untreated, in-service; address the relevance of the Veteran’s reports of decreased hearing and repeat ear infections in-service; and address the post-service records documenting a “chronic otitis media with effusion.” The Veteran was afforded the directed VA examinations for his claimed left ear disability in December 2019. At that time, the VA examiner opined the Veteran’s left ear disability was less likely than not incurred in or caused by active service, or was otherwise related to service. In this regard, the examiner noted the Veteran’s military occupational noise exposure (MOS) was material control and accounting specialist, and had a low probability of hazardous noise exposure. Further, the examiner noted that the Veteran was shown to have normal hearing in February 2012 [sic], that he had mild to moderately severe hearing loss four years after separation from active service and that the hearing loss appeared to be an acute episode of hearing loss, because from 1990 to 1992, his hearing was wing normal limits, bilaterally. The examiner noted that there was no available evidence of any chronic hearing loss while on active duty, that there was a lack of medical evidence to show what course of action was taken during the Veteran’s National Guard service, stated “therefore I cannot opine based on a lack of evidence of any ear condition being treated/untreated while service in the National Guard,” and noted the Veteran needed to see an ENT specialist, but there was no evidence of a chronic otitis condition while on active duty or any unrelated ear condition while on active duty. Additionally, the examiner noted that there was no evidence in the available medical records of a chronic left ear condition, ear injury, or ear disease resulting in hearing loss during service or in close proximity to separation from service. She noted the Veteran’s enlistment physical in February 1982 was normal, his service treatment records were silent for any complaints of hearing loss while on active service, and his DD Form 2215 stated he was “not routinely exposed to hazardous noise.” The Board finds the December 2019 VA addendum opinion incomplete to decide the claim. In this regard, the examiner relied on inaccurate facts, namely, that the Veteran’s MOS was material control and accounting specialist, and had a low probability of hazardous noise exposure. The Board notes that the Veteran testified his service included service with an infantry unit and he was exposed to hazardous noise due to live ammunition and large vehicles; the examiner did not consider the Veteran’s noise exposure beyond his MOS. Further, the examiner failed to adequately address the Veteran’s statements and contentions regarding the onset and continuity of his symptoms, did not discuss the Veteran’s diagnosed retracted tympanic membrane and decreased hearing loss noted to be due to his otitis, and whether that was a chronic condition that was possibly untreated during service; and the post-service records documented chronic otitis media with effusion. Additionally, in November 2020, a private etiology opinion by the Veteran’s private treating physician, Dr. E.H. was submitted. At that time, Dr. E.H. stated that he had been treating the Veteran since July 2008, and that it was “more likely than not that his hearing loss is service-connected due to his exposure to noise in the military.” The Board finds the November 2020 private opinion incomplete to decide the claim. In this regard, Dr. E.W. did not provide any supporting rationale for the conclusions reached. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Given these deficiencies, the Board is unable to find that substantial compliance with the prior remand has been achieved. As such, remand is again required to afford the Veteran a VA examination that comply with the Board’s prior remand directives. See Stegall v. West, 11 Vet. App. at 268, 271 (1998). The matter is REMANDED for the following action: 1. The Veteran should be given the opportunity to identify any outstanding private or VA treatment records relevant to the claim on appeal. After obtaining any necessary authorization from the Veteran, all outstanding records should be obtained, to include updated VA treatment records. For private treatment records, make at least two (2) attempts to obtain records from any identified sources. If any such records are unavailable, inform the Veteran and his representative and afford him an opportunity to submit any copies in his possession. For federal records, all reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. Return the Veteran’s claims file to the examiner who conducted the December 2019 VA examiner so an addendum opinion may be provided. If that examiner is no longer available, provide the Veteran’s claims file to a similarly qualified clinician. The entire claims file and a copy of this remand must be made available to the examiner for review, and the examiner must specifically acknowledge receipt and review of these materials in any reports generated. A new in-person examination is only required if deemed necessary by the examiner. The examiner must provide an opinion as to the following questions: Is it at least as likely as not (more than 50 percent probability) that the Veteran’s left ear disability, to include hearing loss and otitis, began in service, was caused by service, or is otherwise related to service? If the examiner finds that the Veteran did not suffer from a left ear disability in service, he or she must address whether the Veteran’s development of a retracted tympanic membrane and decreased hearing loss, both noted to be due to otitis, are an indication that he suffered from a chronic condition, possibly untreated, in-service. The examiner must address the significance, if any, of the relevance of the Veteran’s reports of decreased hearing and repeat ear infections in-service. The examiner must address the significance, if any, of the post-service records documenting a “chronic otitis media with effusion.” The examiner must address the significance, if any, of the Veteran’s MOS in an infantry unit, and his reports and hearing testimony regarding hazardous noise exposure sustained during active service. The examiner must also address the November 2020 private etiology opinion submitted by Dr. E.H. indicating that the Veteran’s hearing loss is etiologically related to his active service. The examiner must provide all findings, along with a complete rationale for his or her opinion(s) in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion. KRISTY L. ZADORA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Mariah N. Sim, 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.