Citation Nr: 21009659 Decision Date: 02/23/21 Archive Date: 02/23/21 DOCKET NO. 13-17 427 DATE: February 23, 2021 REMANDED Entitlement to compensation under 38 U.S.C. § 1151 for left ear hearing loss, persistent otorrhea, and chronic serous otitis media due to a Department of Veterans Affairs (VA) parotidectomy in 1987 is remanded. Entitlement to compensation under 38 U.S.C. § 1151 for erectile dysfunction (ED) and voiding dysfunction due to VA surgeries in 1979, October 2009, and November 2009 is remanded. REASONS FOR REMAND The Veteran had active duty service from August 1967 to August 1969. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2010 rating decision by a Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ). The Board most recently remanded these issues to the AOJ in August 2019 for additional development. The case has since returned to the Board for further adjudication. However, another remand is required. 1. Entitlement to compensation under 38 U.S.C. § 1151 for left ear hearing loss, persistent otorrhea, and chronic serous otitis media due to a VA parotidectomy in 1987 is remanded. The Board is obligated to ensure AOJ compliance with remand directives. Stegall v. West, 11 Vet. App. (1998). The August 2019 remand required the AOJ to obtain a medical opinion addressing certain evidence in the claims file. Specifically, an examiner was to provide an opinion considering that the Veteran’s left ear hearing loss was worse than the right ear in 1989, after his 1987 surgery. The November 2019 opinion indicates that the Veteran’s hearing loss was not aggravated by his surgery, but did not address that the Veteran’s left ear hearing was worse than his right. Therefore, another remand is required. 2. Entitlement to compensation under 38 U.S.C. § 1151 for ED and a voiding dysfunction due to VA surgeries in 1979, October 2009, and November 2009. In the August 2019 remand, the Board noted that the VA examinations of record were inadequate because they did not separately address the 2009 explant and implant surgeries. The November 2019 opinion similarly lacks detail. The examiner explained that “[ED] as well as voiding dysfunction is an expected outcome of multiple penile surgeries and was explained in informed consent prior to surgery.” However, there is no distinction made between the explanation of risk between the October 2009 surgery and the November 2009 surgery, and “prior to surgery” does not specify which of the surgeries the examiner refers to. Therefore, remand is necessary for clarification. The matters are REMANDED for the following action: 1. Obtain a supplemental opinion from an appropriate VA clinician to determine the etiology of the Veteran’s left ear disabilities. The Veteran’s record should be reviewed, including the August 2019 remand and this remand. The examiner must acknowledge having reviewed the remands. If the examiner determines that he or she cannot respond to the Board’s inquiry as set forth in detail below without examination of the Veteran, the Veteran should be afforded such an examination. If an in-person examination cannot be conducted, an examination by other means must be offered. The examiner should respond to the following questions: (a.) With regard to the 1987 parotidectomy, did the Veteran sustain any additional disability, including left ear hearing loss, recurrent and persistent otorrhea, or chronic serous otitis media? If there was additional disability after the parotidectomy, is it the result or due to the surgery? The examiner must address the 1989 audiograms which appear to show worse hearing on the left side than on the right side, and on any left ear fluid. (b.) If there was such additional disability, was it the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing the hospital care or medical or surgical treatment? (c.) Did VA fail to exercise the degree of care that would be expected of a reasonable healthcare provider? (d.) And, was the proximate cause of any additional disability, to include left ear hearing loss, recurrent and persistent otorrhea, or chronic serous otitis media, not reasonably foreseeable? 2. Obtain a supplemental opinion from an appropriate VA clinician to determine the etiology of the Veteran’s ED and voiding dysfunction. The Veteran’s record should be reviewed. If the examiner determines that he or she cannot respond to the Board’s inquiry as set forth in detail below without examination of the Veteran, the Veteran should be afforded such an examination. If an in-person examination cannot be conducted, an examination by other means must be offered. The examiner should respond to the following questions: (a.) With regard to the October 2009 penile surgery, did the Veteran sustain any additional disability, including ED or voiding dysfunction? If there was additional disability after the October 2009 surgery, is it the result or due to the surgery? (b.) If there was such additional disability, was it the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing the hospital care or medical or surgical treatment in October 2009? (c.) In the October 2009 surgery, did VA fail to exercise the degree of care that would be expected of a reasonable healthcare provider? (d.) And, with regard to the October 2009 surgery, was the proximate cause of any additional disability, to include ED and voiding dysfunction, not reasonably foreseeable? (e.) With regard to the November 2009 penile surgery, did the Veteran sustain any additional disability, including ED or voiding dysfunction? If there was additional disability after the surgery, is it the result or due to the surgery in November 2009? (f.) If there was such additional disability, was it the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing the hospital care or medical or surgical treatment in November 2009? (g.) In the November 2009 surgery, did VA fail to exercise the degree of care that would be expected of a reasonable healthcare provider? (h.) And, with regard to the November 2009 surgery, was the proximate cause of any additional disability, to include ED and voiding dysfunction, not reasonably foreseeable? (i.) In responding to the above inquiries, the examiner must distinguish between the October 2009 explant surgery and the November 2009 implant surgery, and any additional disability resulting from, any risks from, any negligence or carelessness within, and the degree of care required in each separate surgery. (Continued on the next page)   The examiner must provide all findings, along with a complete rationale for his or her opinion(s) in the examination report. If the opinion cannot be made without resort to speculation, the examiner must so state and provide a rationale for this conclusion, including an explanation of whether there is any potentially available information that, if obtained, would allow for a non-speculative opinion. S. L. Kennedy Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Smith, 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.