Citation Nr: 21022008 Decision Date: 04/14/21 Archive Date: 04/14/21 DOCKET NO. 17-62 579A DATE: April 14, 2021 REMANDED Entitlement to a compensable disability rating for perforated left tympanic membrane healed with residual scarring/sclerosis is remanded. Entitlement to compensation under 38 U.S.C. § 1151 for perforated right ear drum is remanded. Preliminary Matters The Veteran had honorable active duty service with the United States Army from October 1965 to October 1967. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a July 2015 rating decision of a VA Regional Office (RO). The Board notes that in his December 2017 substantive appeal, the Veteran requested a hearing before the Board. Accordingly, the Veteran was scheduled for a Board hearing in November 2020, which he cancelled and did not appear. However, in a January 2021 informal hearing presentation (IHP), the Veteran’s representative indicated that the Veteran requested a hearing before the Board. In February 2021, a letter was sent to the Veteran requesting clarification as to whether he wished to have a Board hearing. The Veteran was provided 30 days from the date of the letter to provide clarification. Absent any indication from the Veteran, the Board will proceed with adjudicating the claims. The Veteran did not submit any correspondences within 30 days of the date of the letter. Thus, as the Veteran cancelled the previously scheduled hearing in November 2020 and did not respond to the February 2021 letter, the Board finds the Veteran’s request for a hearing to be withdrawn. REASONS FOR REMAND Although further delay is regrettable, the Board finds that a remand is necessary in this case to ensure that due process is followed and that there is a complete record upon which to decide the Veteran’s claims so that he is afforded every possible consideration. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. 1. Entitlement to a compensable disability rating for perforated left tympanic membrane healed with residual scarring/sclerosis. The Veteran contends that he is entitled to an increased rating for his service-connected perforated left tympanic membrane disability. A review of the record shows that the Veteran most recently underwent a VA examination for this service-connected disability in March 2015, six years ago. Throughout the appeal period, the Veteran has asserted that the current severity of his perforated left tympanic membrane disability is worse than what is contemplated by the current rating. Furthermore, in his December 2017 substantive appeal, the Veteran indicated that he has experienced “repeated perforation of the left ear drum with build-up of scarring.” Thus, it appears that the Veteran is suggesting that his service-connected disability has worsened in severity. Therefore, a more contemporaneous examination is warranted for the Veteran’s service-connected perforated left tympanic membrane disability in order to ensure that the record reflects the current severity of the disability. 2. Entitlement to compensation under 38 U.S.C. § 1151 for perforated right ear drum is remanded. Under certain circumstances, a veteran who is disabled as a result of VA medical treatment may receive compensation for a qualifying additional disability in the same manner as if such additional disability were service connected. 38 U.S.C. § 1151. Here, the Veteran asserts that in 2012, a VA physician caused damage to his right ear on examination during an audiology visit by poking his right ear because she thought that there was cotton in his ear. He contends that VA was careless, negligent, showed lack of proper skill, showed error in judgment, or showed similar instance of fault in poking his right ear to remove nonexistent cotton in his ear canal, or was an event that reasonably unforeseeable. The evidence of record is currently insufficient for the Board to render a decision as to this matter. No VA medical review, examination, or opinion has been obtained in connection with the Veteran’s claim for compensation under the provisions of 38 U.S.C. § 1151. Given the facts of this case and because a claim for compensation under 38 U.S.C. § 1151 involves medical questions that the Board itself is not competent to address, the Board finds that the matter must be remanded for the Agency of Original Jurisdiction to obtain an opinion that provides a comprehensive analysis of the Veteran’s claim. On remand, the AOJ should make appropriate efforts to ensure that all pertinent private treatment records and any updated VA records are associated with the claims file. The Board notes that the most recent VA medical records associated with the claims file are from 2012. The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination by an appropriate clinician to determine the severity of his perforated left tympanic membrane disability. The Veteran’s claim file and a copy of this remand should be provided to the examiner and the examination report should reflect that these items were reviewed. If an examination cannot be scheduled at a location to which the Veteran can safely travel, or if health considerations make the scheduling of an in-person examination not possible, the AOJ should consider whether other virtual options, to include telehealth interviews or examinations are possible. The examiner is requested to comment on the severity of the Veteran’s service-connected perforated left tympanic membrane disability throughout the rating period. The examiner should discuss the effect of the disability on his occupational functioning and daily activities. A complete rationale must be provided for all opinions offered. 2. Obtain an opinion from a qualified clinician as to whether the Veteran’s perforated right ear drum is proximately due to carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA. The clinician is asked to review the record and then respond to the following: a) Diagnose the Veteran’s right ear disability(ies). b) Provide an opinion as to whether it at least as likely as not (within the realm of 50 percent probability or greater) that the Veteran’s current right ear disability was caused by carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA, or was an event that was reasonably unforeseeable. The examiner should consider the Veteran’s report that in 2012, his ear was poked by a VA physician in order to remove cotton that was not there, and that this procedure caused or aggravated his current right ear disability. The clinician should indicate that the record was reviewed. A complete rationale should be provided for all opinions given. R. Erdheim Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Y. MacDonald, 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.