Citation Nr: 21027914 Decision Date: 05/07/21 Archive Date: 05/07/21 DOCKET NO. 16-40 846 DATE: May 7, 2021 REMANDED Entitlement to service connection for residuals of a perforated tympanic membrane is remanded. REASONS FOR REMAND The Veteran had active service in the United States Army from June 1969 to May 1971. This case comes before the Board of Veterans' Appeals (Board) on appeal from a July 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) which is the Agency of Original Jurisdiction (AOJ). The Veteran expressed disagreement with this determination, and the present appeal ensued. In October 2018, the Board remanded the Veteran's appeal to provide the Veteran with a VA examination. The required development has been completed and the appeal has been returned to the Board for further adjudication. Characterization of an issue on appeal The Veteran originally filed a claim for service connection for a perforated ear drum in May 2015. Based on evidence of record and the Board's dispositions, the Board has expanded the issue on appeal (to be considered on the merits) to include any disability which may be manifested by residuals of a perforated tympanic membrane. Clemons v. Shinseki, 23 Vet. App. 1, 5-8 (2009); Boggs v. Peake, 520 F.3d 1330 (Fed. Cir. 2008); Velez v. Shinseki, 23 Vet. App. 199, 203-05 (2009). Entitlement to service connection for residuals of a tympanic membrane is remanded. The Board notes that the Veteran's electronic claims file contains a record that the Veteran applied for disability benefits from the Social Security Administration (SSA) and received an unfavorable decision. Although the Veteran was not granted SSA disability benefits, there may be evidence associated with the Veteran's claim that have not been associated with his VA file, to include medical records on which the unfavorable SSA decision is based. Under 38 U.S.C. § 5107 (a), VA's duty to assist specifically includes requesting information from other Federal departments or agencies. As a complete copy of the Veteran's disability file from the SSA is pertinent to the issues on appeal, efforts to obtain and associate such with the record must be undertaken. Murincsak v. Derwinski, 2 Vet. App. 363 (1992); Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010). In addition, the Veteran was provided a VA examination in January 2021, and the examiner concluded that, despite an April 2015 treatment record reflecting a diagnosis of "left TM sclerotic and with small orifice lower half," the Veteran did not currently have a diagnoseable disability of the tympanic membrane despite. The Board notes that service connection may be warranted if there was a disability present at any point during the claim period, even if it is not currently present. McClain v. Nicholson, 21 Vet. App. 319 (2007). The Board is also cognizant of the holding of the Court's holding in Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). In Romanowsky, the Court held that when the record contains a recent diagnosis of disability prior to a veteran filing a claim for benefits based on that disability, the report of diagnosis is relevant evidence that the Board must address in determining whether a current disability existed at the time the claim was filed or during its pendency. In a footnote, the Court noted that a determination that a diagnosis is "sufficiently proximate to the filing of a claim so as to constitute evidence of a 'current diagnosis' is a factual finding to be made by the Board in the first instance." As view of above, the question for the Board is whether this disability, which was diagnosed contemporaneous to his filing of the current claim, is related to the Veteran's service. As the January 2021 VA examiner did not sufficiently address this critical subject, the Board prior remand directives have not been substantially completed, and another remand is necessary. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The matters are REMANDED for the following action: 1. The AOJ must obtain and associate with the file all updated records of VA treatment pertinent to the Veteran. 2. The AOJ must contact the Social Security Administration (SSA) and attempt to obtain and associate with the Veteran's VA file any documents(s) concerning the Veteran's denial of disability benefits from that Agency, to include the medical records and SSA hearing transcripts on which that decision was based. If the search for such records has negative results, the claims file must be properly documented as to the unavailability of these records. 3. Thereafter, the AOJ must request that the Veteran be scheduled for an appropriate VA examination to evaluate the residuals of the Veteran's perforated tympanic membrane and to determine the nature, date(s) of initial onset, and residuals to include scarring and symptoms related to a perforated tympanic membrane. The complete electronic record must be made available to, and reviewed by, the VA examiner prior to conducting the examination. All necessary studies and tests should be conducted. The examiner must render an opinion as to whether it is at least as likely as not, (i.e., a 50 percent probability or greater), that the Veteran's residuals of tympanic membrane perforation are related to his period of military service, or to any incident therein. The examiner must address the April 2015 diagnosis. If the examiner cannot render an opinion without resorting to mere speculation, a full and complete explanation for why an opinion cannot be rendered should be provided. 3. After the above actions are completed, readjudicate the issues on appeal and if the decision is adverse to the Veteran, issue a supplemental statement of the case and allow the appropriate time for response. Then, return the case to the Board. Michael J. Skaltsounis Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. W. Morgan, 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.