Citation Nr: 21029638 Decision Date: 05/14/21 Archive Date: 05/14/21 DOCKET NO. 16-02 735 DATE: May 14, 2021 ISSUE Entitlement to service connection for a right ear disability, to include a retracted tympanic membrane (claimed as a collapsed ear drum). REMANDED Entitlement to service connection for a right ear disability, to include a retracted tympanic membrane (claimed as collapsed ear drum) is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from June 1969 to June 1971. This matter is before the Board of Veterans' Appeals (Board) on appeal from a January 2013 rating determination by the Department of Veterans Affairs (VA) Regional Office (RO) located in Cleveland, Ohio. In March 2017, the Veteran testified at a video conference hearing before the undersigned Veterans Law Judge (VLJ) sitting at the RO in Cleveland, Ohio. A transcript of the testimony has been associated with the record. The Board remanded the Veteran's appeal in August 2018 and July 2020 for additional development, including scheduling the Veteran for new VA examinations and medical opinions to determine the etiology of the Veteran's right ear disability. The Board notes that, according to the United States Court of Appeals for Veterans Claims (the Court), when a claimant makes a claim, he is seeking service connection for symptoms regardless of how those symptoms are diagnosed or labeled. See Clemmons v. Shinseki, 23 Vet. App. 1 (2009). The record shows multiple diagnoses for the Veteran's right ear during the period on appeal. Based on the record the Board will recharacterize the Veteran's claim pursuant to Clemmons as entitlement to service connection for a right ear disability, to include a retracted tympanic membrane (claimed as a collapsed ear drum). This issue so characterized is reflected on the title page. As will be discussed below, the Board finds that there has not been substantial compliance with its remand directives and the matter must be remanded once again. See Stegall v. West, 11 Vet. App. 269 (1998). Entitlement to service connection for a right ear disability, to include a retracted tympanic membrane (claimed as a collapsed ear drum) is remanded. The Veteran contends that he is entitled to service connection for his right ear disability. He claims that this disability is the result of his acoustic trauma in service. The Veteran was diagnosed with a retracted tympanic membrane in August 2012. The Veteran was afforded a VA examination for his right ear disability in December 2012. The examiner diagnosed the Veteran with mixed hearing loss but failed to provide an opinion as to the etiology of the Veteran's disability. At the March 2017 videoconference hearing, the Veteran testified that he served as an infantryman in service, and that he was subjected to noise during two ambushes which involved artillery rounds, to include AK, M16, and grenades during his service in Cambodia. In an August 2018 decision the Board found that the Veteran's assertions as to his acoustic trauma in service were generally consistent with his service as documented and described. At that time the Board conceded acoustic trauma in service. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Therefore, the Board found that the matter should be remanded to afford the Veteran a new VA examination to determine the etiology of his right ear disability. At that time the Board asked the examiner to consider the Veteran's March 2017 hearing testimony with regard to his in-service acoustic trauma and symptoms when rendering an opinion. The Veteran was afforded a new VA examination in March 2019. At that time the examiner diagnosed the Veteran with benign paroxysmal positional vertigo and chronic suppurative otitis media (a long-standing, persistently draining perforation of the eardrum (tympanic membrane)). The examiner provided a negative etiological opinion for a nexus between the Veteran's retracted tympanic membrane or any ear condition and his active duty service, instead opining that the Veteran's right tympanic membrane scarring was more likely than not related to his frequent ear infections that he reported having as a child. The examiner noted that if there were any further questions as to the Veteran's ear condition, they should be directed to an ENT specialist. In a July 2020 decision the Board again conceded acoustic trauma in service and found that the March 2019 examination was inadequate as the examiner failed to address the Veteran's lay statements as directed by the August 2018 remand. The Board also found the March 2019 examination was insufficient as it was performed by an internist, rather than an ENT physician, who would possess the specialization required to provide the requested medical opinion. Therefore, the matter was remanded for an addendum medical opinion to be issued. In its remand directives the Board specifically ordered that the medical opinion be obtained from an ENT specialist to determine the etiology of the Veteran's right ear disability. A medical opinion and Disability Benefits Questionnaire was completed in September 2020. The Board notes while the examiner noted that she consulted with an ENT specialist when reviewing the Veteran's file, the examiner who provided the medical opinion was an internist, and not an ENT specialist, as specifically directed by the July 2020 remand. Additionally, the Board notes that the September 2020 examiner relied on a lack of evidence in the Veteran's service treatment records of an in-service event or acoustic trauma when rendering her negative etiological opinion. However, the examiner failed to acknowledge or consider that in both the August 2018 and July 2020 Board remands, the Board has already conceded the Veteran's claimed acoustic trauma in service. As such, the lack of evidence of an in-service event in the Veteran's service treatment records is not an adequate basis for the examiner's determination that the Veteran's right ear disability does not have a nexus to his active duty service. For these reasons, the development actions requested in the Board's July 2020 remand were not substantially completed. A Board remand confers on claimants, as a matter of law, the right to substantial compliance with the remand orders. Stegall v. West, 11 Vet. App. 268, 271 (1998); D'Aries v. Peake, 22 Vet. App. 97 (2008). Accordingly, the additional development specified in the Board's prior remand must be substantially completed prior to adjudication. The matters are REMANDED for the following action: 1. Obtain any outstanding and relevant private and/or VA treatment records. Should such exist, associate such with the claims file. 2. All efforts to have an addendum opinion obtained by an ENT physician must be made and must be documented of record. If an ENT physician is not able to complete the medical opinion, then the RO must make a finding that an ENT physician is not available and must provide the reasons why. 3. If an ENT physician is available, request an addendum medical opinion to determine the etiology of the Veteran's right ear disability. The electronic claims file, to include the Veteran's service treatment records, statements, and private treatment records, must be reviewed by the examiner. After reviewing the claims file and examining the Veteran, the examiner should answer the following: did the Veteran's right ear disability clearly and unmistakably (undebatable) preexist the Veteran's service. If the examiner finds it did clearly and unmistakably preexist service, the examiner must opine whether it was clearly and unmistakably not aggravated by service. If the examiner finds that it either did not clearly and unmistakably preexist service, or was not clearly and unmistakably aggravated by service, the examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease, to include as due to the conceded in-service acoustic trauma. The examiner's attention is directed to the March 2017 videoconference hearing testimony. The Veteran's assertions as to his in-service acoustic trauma and his symptoms should be noted and addressed by the VA examiner. The examiner should view the Veteran as a reliable historian as to his service and his report of his activities in service. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). A rationale for the opinion must be provided. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as against it. If the examiner is unable to offer the requested opinions, it is essential that the examiner offer a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. See Jones v. Shinseki, 23 Vet. App. 382 (2010). 4. The AOJ should then review the record and readjudicate the claim. If it remains denied, the AOJ should issue an appropriate supplemental statement of the case (SSOC) and afford the Veteran and his attorney the opportunity to respond. The case should then be returned to the Board, if in order, for further review. Michael A. Pappas Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Nettey, 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.