Citation Nr: 21032618 Decision Date: 05/27/21 Archive Date: 05/27/21 DOCKET NO. 06-15 665 DATE: May 27, 2021 REMANDED Entitlement to an increased (compensable) rating for left ear otitis media and externa, to include on an extraschedular basis, is remanded. (The issues of entitlement to compensation under the provisions of 38 U.S.C. § 1151 for residuals of traumatic brain injury, psychiatric disability, and cervical spine disability, entitlement to an initial compensable extraschedular rating for ulcerated septum of the nose, and entitlement to increased ratings for service-connected left and right knee disabilities are the subjects of separate decisions by the Board.) REASONS FOR REMAND The Veteran served on active duty from August 1990 to July 1996. This matter initially came before the Board of Veterans' Appeals (Board) from an October 2005 rating decision, in which the agency of original jurisdiction (AOJ) denied entitlement to an increased (compensable) rating for left ear otitis media and externa. The Veteran testified before a Decision Review Officer (DRO) at a September 2006 hearing, and a transcript of the hearing is associated with his claims file. In February 2010, the Board remanded this matter to schedule the Veteran for a Board hearing before a Veterans Law Judge (VLJ). He testified at a July 2010 hearing and a transcript of the hearing is associated with his claims file. The VLJ who held the hearing is a signatory to this decision. In February 2011, the Board remanded this matter for further development. In April 2013, the Board denied entitlement to an increased rating for left ear otitis media and externa. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In March 2014, the Court set aside the Board's April 2013 decision, in part, and remanded to the Board the issue of entitlement to an increased rating for left ear otitis media and externa for readjudication in compliance with directives specified in a March 2014 Joint Motion filed by counsel for the Veteran and VA. In September 2014, September 2015, May 2016, April 2017, and February 2020 the Board remanded this matter for further development. The Veteran testified at a second hearing before a VLJ in January 2021 and a transcript of the hearing is associated with his claims file. The VLJ who held the hearing is a signatory to this decision. A VLJ who conducts a hearing must participate in making the final determination of the claim involved. 38 U.S.C. § 7107 (c); 38 C.F.R. § 20.707. Appeals can be assigned only to an individual VLJ or to a panel of not less than three members. See 38 U.S.C. § 7102 (a). Therefore, when a veteran has had a personal hearing before two separate VLJs during the appeal and these hearings covered one or more common issues, as they have in this case, a third VLJ is assigned to the panel after the second Board hearing has been held. 38 C.F.R. § 20.707 requires that a veteran must be provided the opportunity for a hearing before all three VLJs involved in a panel decision. Arneson v. Shinseki, 24 Vet. App. 379 (2011). As noted above, the Veteran testified at two hearings before two different VLJs concerning the issue on appeal, and both VLJs are signatories to this decision. Thus, a third VLJ will be assigned to the panel deciding this appeal. In a March 2021 letter, the Board notified the Veteran and his representative of the opportunity for a hearing before the third member of the decision panel. The Veteran responded in April 2021 that he waived his right to a third hearing. Therefore, the Board may proceed to adjudicate the Veteran's appeal. Entitlement to an increased (compensable) rating for left ear otitis media and externa, to include on an extraschedular basis, is remanded. As a preliminary matter, the Board is cognizant of the fact that this matter has been in adjudicative status for years and has already been remanded multiple times in the past. Nevertheless, as explained in more detail below, the Board finds that it is necessary to obtain a medical opinion as to the nature of the complications of the Veteran's left ear otitis media and externa (as was requested in its most recent February 2020 remand), to obtain outstanding Social Security Administration (SSA) and federal disability retirement records, and to allow the AOJ to consider additional relevant evidence in the first instance. Consequently, the Board wishes to assure the Veteran that it would not be remanding this matter again unless it was essential for a full and fair adjudication of his claim. In the February 2020 remand, the Board instructed the AOJ to obtain a medical opinion that addressed whether any of the Veteran's claimed manifestations of his service-connected left ear otitis media and externa are actually manifestations of the disability, such that a separate rating may be warranted for any such manifestation(s). The manifestations claimed by the Veteran include hearing loss and distortion, tinnitus, pain and burning, vertigo and balance issues, infections, decreased concentration, dry/scaly/itching ear canal, and tympanic membrane scarring. The Veteran was subsequently afforded a VA ear conditions examination in October 2020 and the examiner noted that the Veteran reported tinnitus, left ear pain, and balance problems. However, the examiner did not address all of the Veteran's reported manifestations of his service-connected left ear disability (as listed above) or otherwise specifically opine whether they are actually manifestations of his disability. Therefore, another remand of the issue of entitlement to an increased rating for left ear otitis media and externa is required for compliance with the Board's February 2020 remand instructions. Stegall v. West, 11 Vet. App. 268, 271 (1998). Also, a June 2019 VA TBI follow-up note indicates that the Veteran was in the process of filing for Social Security Administration (SSA) disability benefits for unspecified disability. Moreover, the Veteran has suggested on several occasions, including on a September 2019 VA Form 9, that he has filed for federal disability retirement benefits. Any outstanding records pertaining to the Veteran's claims for SSA and federal disability retirement benefits may be relevant to the issue on appeal. Hence, the AOJ should attempt to obtain any such relevant records upon remand. The evidence also indicates that there may be outstanding relevant VA treatment records. The most recent VA treatment records in the claims file are from the Jackson Vista electronic records system (dated to June 2009), the Atlanta VA Health Care System (dated to August 2010), and the Central Alabama Veterans Health Care System (dated to July 2020). Any VA treatment records are within VA's constructive possession, and must be obtained regardless of their relevance as long as they are sufficiently identified. Sullivan v. McDonald, 815 F.3d 786, 793 (Fed. Cir. 2016) (VA has a duty to assist in obtaining sufficiently identified VA medical records regardless of their relevance); see also Jones v. Wilkie, 918 F.3d 922 (Fed. Cir. 2019) (confirming the holding in Sullivan). A remand is required to allow VA to obtain them. Lastly, following a June 2020 supplemental statement of the case (SSOC), additional evidence has been associated with the Veteran's claims file by the AOJ that is relevant to the issue of entitlement to an increased rating for left ear otitis media and externa. This evidence includes the report of the October 2020 VA ear conditions examination. This relevant evidence has not been considered by the AOJ and no waiver of initial AOJ consideration of this evidence has been received. See 38 C.F.R. § 20.1305(c). Hence, the Board is required to remand the left ear issue for issuance of the necessary SSOC. The matter is REMANDED for the following action: 1. Obtain the Veteran's outstanding VA treatment records from the Jackson Vista electronic records system for the period since June 2009; the Atlanta VA Health Care System for the period since August 2010; the Central Alabama Veterans Health Care System for the period since July 2020; and all such relevant records from any other sufficiently identified VA facility. 2. Contact the SSA and request a copy of that agency's decision(s) for disability and/or supplemental security income benefits and all relevant records pertaining to such claim(s). Document all requests for information as well as all responses in the claims file. 3. Contact the United States Office of Personnel Management and request all records relied upon in making any disability retirement determination(s). Document all requests for information as well as all responses in the claims file. 4. After all efforts have been exhausted to obtain and associate with the claims file any additional treatment records, obtain an addendum opinion from an appropriate clinician regarding the nature and severity of all complications of the Veteran's left ear otitis media and externa. The clinician should address all of the Veteran's contended manifestations of his service-connected left ear otitis media and externa (to include hearing loss and distortion, tinnitus, pain and burning, vertigo and balance issues, infections, decreased concentration, dry/scaly/itching external ear canal, and tympanic membrane scarring) and for each such claimed manifestation, should provide an opinion as to whether it is at least as likely as not a symptom of his service-connected left ear otitis media and externa. For each claimed manifestation that is likely a symptom of the Veteran's left ear otitis media and externa, the clinician should separately discuss the severity of the symptom during the period since May 2005 and, if possible, indicate (a) whether at any point(s) during this period the symptom increased in severity; (b) the approximate date(s) of any such change(s); and (c) the severity of the symptom on each date. (CONTINUED ON NEXT PAGE) 5. After the above development, and any additionally indicated development, has been completed, readjudicate the issue of entitlement to an increased rating for left ear otitis media and externa, to include on an extraschedular basis. If the benefit sought is not granted to the Veteran's satisfaction, send the Veteran and his representative an SSOC that considers all additional relevant evidence received since the June 2020 SSOC, and provide an opportunity to respond. If necessary, return the case to the Board for further appellate review. Jonathan Hager Veterans Law Judge Board of Veterans' Appeals R. FEINBERG Veterans Law Judge Board of Veterans' Appeals A. S. CARACCIOLO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Elwood, 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.