Citation Nr: 21031202 Decision Date: 05/20/21 Archive Date: 05/20/21 DOCKET NO. 17-45 531 DATE: May 20, 2021 REMANDED Entitlement to service connection for a left ear injury is remanded. Entitlement to service connection for a respiratory disorder, to include sinusitis, is remanded. REASONS FOR REMAND The Veteran served on active duty from January 1957 to January 1961. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In October 2019, the Veteran appeared at a videoconference hearing before the undersigned. A transcript of the hearing is of record. The Board notes that an October 2015 Formal Finding of Unavailability of Service Records found that the Veteran's service treatment records (STRs) were unavailable due to a fire-related event. The Board recognizes that there is a heightened obligation to assist the Veteran in the development of the case, a heighted obligation to explain findings and conclusions, and a heightened duty to consider carefully the benefit of the doubt rule in cases, such as in this situation, in which records are presumed to have been, or in actuality were, destroyed in the possession of the government. See Washington v. Nicholson, 19 Vet. App. 362, 369-70 (2005) ("[W]hen VA is unable to locate a claimant's records, it should advise him to submit alternative forms of evidence to support his claim and should assist him in obtaining sufficient evidence from alternative sources"); Cromer v. Nicholson, 19 Vet. App. 215, 217 (2005) (citing O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991)). This appeal has been advanced on the Board's docket pursuant to 38 U.S.C. § 7107(a)(2); 38 C.F.R. § 20.900(c). In January 2020, the Board remanded the issues of service connection for a left ear injury and for a respiratory disorder to obtain VA examinations and medical opinions to determine the etiology of each disability. The Board finds that the remand instructions were not substantially complied with and thus a remand is necessary. See Stegall v. West, 11 Vet. App. 268, 271 (1998). By this remand, the Board intends no determination, explicit or implied, as to the credibility of any statements of record. 1. Entitlement to service connection for a left ear injury is remanded. 2. Entitlement to service connection for a respiratory disorder, to include sinusitis, is remanded. Where, as here, VA undertakes to provide an examination or obtain an opinion when developing a claim, even if not statutorily obligated to do so, it must provide an adequate one. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); see also Bolton v. Brown, 8 Vet. App. 185, 191 (1995) (emphasizing the Board's duty to return an inadequate examination report "if further evidence or clarification of the evidence... is essential for a proper appellate decision"). The January 2021 VA examinations were inadequate because the examiner had not been provided with the Veteran's claims folder or the January 2020 remand to be able to perform a thorough examination. The examiner found that the Veteran did not have a respiratory disorder, sinusitis, or a left ear injury currently or in the past. The examiner opined that because there was no diagnosis it was less likely than not that the Veteran experienced any sort of respiratory disorder or a left ear injury during military service. An addendum opinion was provided in February 2021, but these opinions were also inadequate as there was no indication that the Veteran's lay statements were taken into consideration especially since the Veteran's STRs were unavailable due to a fire. Additionally, the opinion for a respiratory disorder made the conclusory statement that since there was no evidence of a respiratory disorder in military service, it was less likely than not that it originated in military service. The examiner did not provide a thorough rationale as to why it was less likely than not that the Veteran's left ear injury or his respiratory disorder was related to military service. The January 2020 remand instructions requested that if lay assertions in any regard were discounted, the examiner should clearly state why. The instructions also claimed that any negative nexus opinion rendered based solely on the lack of in-service documentation would be considered deficient. As such, a new VA examination and medical opinion is warranted for both disorders. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination by an appropriate clinician to obtain an opinion as to the nature and etiology of any current ear disability, to include chronic otitis media with eustachian tube dysfunction, that is separate and distinct from hearing loss or tinnitus. The electronic claims file must be made accessible to the examiner for review in conjunction with the examination. (a.) The examiner should identify all of the Veteran's current let ear disorders. If any previously diagnosed conditions are not diagnosed, the examiner should provide a supporting explanation. (b.) For any left ear disorder diagnosed, the examiner should indicate whether it is at least as likely as not (50 percent or greater probability) that each currently diagnosed left ear disorder had its onset in service or is otherwise related to the Veteran's military service. (c.) The examiner should specifically consider and address all relevant medical and other objective evidence and the Veteran's lay statements concerning symptoms in service. An explanation for all opinions expressed must be provided. (d.) The clinician is advised that the Veteran is competent to report his symptoms and history, and that such lay reports must be considered in formulating the requested opinions. If lay assertions in any regard are discounted, the examiner should clearly so state and explain why. (e.) Additionally, in light of the unavailability of the Veteran's STRs, any negative nexus opinion rendered based solely on the lack of in-service documentation will be considered deficient. 2. Schedule the Veteran for a VA examination by an appropriate clinician to obtain an opinion as to the nature and etiology of any current respiratory disorder, to include sinusitis. The electronic claims file must be made accessible to the examiner for review in conjunction with the examination. (a.) The examiner should identify all of the Veteran's current respiratory disorders. If any previously diagnosed condition is not diagnosed, the examiner should provide a supporting explanation. (b.) For any respiratory disorder diagnosed, the examiner should indicate whether it is at least as likely as not (50 percent or greater probability) that each currently diagnosed respiratory disorder had its onset in service or is otherwise related to the Veteran's military service, to include exposure to jet fuel. (c.) The examiner should specifically consider and address all relevant medical and other objective evidence and the Veteran's lay statements concerning symptoms in service. An explanation for all opinions expressed must be provided. (Continued on the next page) (d.) The clinician is advised that the Veteran is competent to report his symptoms and history, and that such lay reports must be considered in formulating the requested opinions. If lay assertions in any regard are discounted, the examiner should clearly so state and explain why. (e.) Additionally, in light of the unavailability of the Veteran's STRs, any negative nexus opinion rendered based solely on the lack of in-service documentation will be considered deficient. Thomas H. O'Shay Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Imam, 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.