Citation Nr: 21027669 Decision Date: 05/06/21 Archive Date: 05/06/21 DOCKET NO. 15-30 261 DATE: May 6, 2021 REMANDED The claim of entitlement to service connection for residuals of bilateral ear injury is remanded. REASONS FOR REMAND The Veteran had active service from April 1967 to April 1969. This matter comes before the Board of Veterans' Appeals (Board) from an October 2013 rating decision by the Agency of Original Jurisdiction (AOJ). The Board denied service connection for a bilateral ear injury in February 2019. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In January 2020, the Court granted the parties' Joint Motion for Remand (JMR), vacating the Board's decision and returning the matter to the Board for action consistent with the JMR. The matter was remanded for development of the record in June 2020 and October 2020. On VA examination in March 2021, the examiner noted a history of a blast injury in 1968 that resulted in perforated tympanic membranes, and in-service findings of tinnitus and hearing loss. The Veteran endorsed current symptoms to include pain when he had water in his ears. In Saunders v. Wilkie, the Federal Circuit held that pain alone could constitute a disability if it causes functional impairment. 886 F.3d 1356, 1365-68 (Fed. Cir. 2018). The Federal Circuit further explained that to establish a disability, "the [V]eteran will need to show that his pain reaches the level of a functional impairment of earning capacity." Id. at 1367-68. Considering the Veteran's report of pain in his ears, and the lack of clarity as to whether the Veteran's ear pain causes disabling functional impairment as contemplated in Saunders, the Board concludes that an additional examination is necessary to address this question. The matter is REMANDED for the following action: 1. Schedule the Veteran for an examination to determine whether he has an ear disability, to include any functional limitation due to ear pain, that is separate and distinct from his service-connected bilateral hearing loss and tinnitus. The evidentiary record, including 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. After the record review and examination of the Veteran, the examiner should indicate whether the Veteran has an ear disability other than hearing loss and tinnitus, to include whether he has functional limitation due to ear pain. For all identified ear disabilities other than hearing loss and tinnitus, the examiner should provide an opinion regarding whether it is at least as likely as not that any such disability is related to active service, to include, but not limited to, being in close proximity to explosions therein. In rendering this opinion, the examiner is advised that the Veteran is competent to report his symptoms and history. Such reports must be acknowledged and considered in formulating any opinion. If the examiner rejects the Veteran's reports, he or she must provide an explanation for such rejection. The examiner is not to improperly discount the Veteran's lay statements or mistakenly rely on an absence of medical evidence in the record to support his or her conclusions. The complete rationale for all opinions should be set forth, 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 mere speculation, the examiner must provide a complete explanation for why an opinion cannot be rendered. In so doing, the examiner must explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. (Continued on the next page) 2. Then, readjudicate the Veteran's claim. If the decision remains adverse to the Veteran, he and his representative should be furnished a supplemental statement of the case (SSOC) and afforded an appropriate period within which to respond thereto. DONNIE R. HACHEY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Barone, 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.