Citation Nr: 21041678 Decision Date: 07/09/21 Archive Date: 07/09/21 DOCKET NO. 12-30 999A DATE: July 9, 2021 REMANDED Entitlement to service connection for a bilateral ear disability, to include perforation of tympanic membranes, chronic ear infections, and otitis media is denied. REASONS FOR REMAND The Veteran served on active duty from February 1968 to March 1970. This case is before the Board of Veterans' Appeals (Board) on appeal from a November 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). Entitlement to service connection for a bilateral ear disability, to include perforation of tympanic membranes, chronic ear infections, and otitis media is denied. The Board is obligated by law to ensure that the RO complies with its directives; where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. Stegall v. West, 11 Vet. App. 268 (1998). Regrettably, the Board finds that further remand is necessary in this case under Stegall. Pursuant to the February 2019 remand, VA opinions were obtained for the Veteran's bilateral ear disability, to include perforation of tympanic membranes, chronic ear infections, and otitis media claim. The Board directed that the VA examiner provide an opinion to determine the nature and etiology of any bilateral ear disability to include perforation of tympanic membranes, chronic ear infections and otitis media. The examiner was told that the Veteran was currently diagnosed with status post bilateral mastoidectomy and meatoplasty during the appeal period. In an October 2019 VA opinion, the examiner determined that the evidence of record does not support that the Veteran's military service, including caused and/or resulted in a current ear disability. As rationale, the examiner expressed that the Veteran does not have a current ear disability. The current disability requirement is satisfied when the claimant has a disability at the time the claim is filed or during the pendency of the appeal even though the disability may resolve prior to adjudication. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). On remand, an addendum opinion should be obtained to determine the nature and etiology of the Veteran's ear disability. The examiner should note that the Veteran has a current disability for the appeal period. The matters are REMANDED for the following action: 1. Obtain an addendum medical opinion from the October 2019 VA opinion to determine the nature and etiology of any bilateral ear disability to include perforation of tympanic membranes, chronic ear infections and otitis media. The examiner must review the claim file and A COMPLETE COPY OF THIS REMAND. The need for an in-person examination is left to the examiner's discretion. The examiner must opine whether any current ear disability (such as mastoiditis, chronic ear infections and/or otitis media) is at least as likely as not related to an in-service injury, event, or disease, including presumed exposure to herbicide agents. The examiner is advised that the Veteran is already service-connected for hearing loss and tinnitus-these disabilities do not require opinions. The examiner is also to provide an opinion as whether the healed perforation of the left ear and scarred right ear tympanic membrane noted during the February 1968 entrance examination were at least as likely as not aggravated (non-temporary increase in severity) by service and, if so, whether any increase in severity was clearly and unmistakably (undebatable) due to its natural progress. The examiner must provide a fully-explained rationale for the opinions offered. The examiner should note the article entitled 'Otitis media: viruses, bacteria, biofilms and vaccines.' If the examiner is unable to provide a rationale for any of the opinions, then he or she must indicate why (e.g. additional evidence is needed, limits of medical knowledge, etc.). 2. Readjudicate the claim. Emily Tamlyn Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Hughes 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.