Citation Nr: 22018475 Decision Date: 03/29/22 Archive Date: 03/29/22 DOCKET NO. 12-30 999A DATE: March 29, 2022 REMANDED Entitlement to service connection for bilateral ear disability, to include perforation of tympanic membranes, chronic ear infections, and otitis media, is remanded. REASONS FOR REMAND The Veteran served on active duty in the U.S. Marine Corps from February 1968 to March 1970. This matter initially came before the Board of Veterans' Appeals (Board) from a November 2009 rating decision. In December 2016, the Board granted the Veteran's application to reopen a claim of service connection for bilateral ear disability. The issue was remanded by the Board in December 2016, February 2019, and July 2021 for further development. The most recent remand in July 2021 specifically instructed the agency of original jurisdiction (AOJ) to obtain an addendum opinion pertaining to the Veteran's claim. Upon review of the record, the Board finds that the claim must be remanded. The Board sincerely regrets the additional delay caused by this remand but wishes to assure the Veteran that it is necessary for a full and fair adjudication of his claim. Entitlement to service connection for bilateral ear disability, to include perforation of tympanic membranes, chronic ear infections, and otitis media, is remanded. The Board finds that a new VA examination and etiological opinion is warranted for the Veteran's claim. The Veteran contends that his bilateral ear condition is related to his service, to include the ear problems documented in his service treatment records, his presumed exposure to herbicide agents (including Agent Orange) in Vietnam, his exposure to dirty water in Vietnam, and his presumed exposure to water contaminated with volatile organic compound at Camp Lejeune. Addendum opinions provided by a VA physician were associated with the Veteran's claims file in December 2021. He opined that the Veteran's left ear perforation, which clearly and unmistakably existed prior to service, was clearly and unmistakably not aggravated beyond its natural progression by service because the symptoms the Veteran complained of during his military career were consistent with the natural progression of his pre-existing condition. He also opined that the Veteran's bilateral ear condition was less likely than not related to service, to include presumed herbicide exposure, and noted that the Veteran did not have a current ear disability, except for his service-connected hearing loss and tinnitus, and that the legislated Agent Orange presumed diseases did not include ear conditions. First, the Board notes that the Veteran filed his application seeking entitlement to service connection for bilateral ear disability in May 2009. The U.S. Court of Appeals for Veterans Claims (Court) has held that the requirement for service connection that a current disability be present is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim even if the disability resolves prior to the Secretary's adjudication of the claim. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Second, in considering whether herbicide agent exposure caused the Veteran's bilateral ear disability, the mere fact that VA has not included a certain diagnosis on a list of presumptive conditions is not, in and of itself, a sufficient rationale for finding that the condition is not related to service. See Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994); See also Polovick v. Shinseki, 23 Vet. App. 48, 55 (2009) ("to [deny] service connection... on the basis that it is not likely there is any nexus to service solely because the statistical analysis (in an IOM report) does not support presumptive service connection, would, in effect, permit the denial of direct service connection simply because there is no presumptive service connection."). Finally, the Veteran has also requested an in-person VA examination. See August 2021 VA 21-4138 Statement in Support of Claim. Accordingly, a remand for a new examination and etiological opinion is warranted for the Board to adequately decide the claim. Lastly, the evidence indicates that there may be outstanding relevant VA treatment records. The most recent VA treatment records in the claims file are from the West Palm Beach VA Health Care System and are dated to August 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. The matter is REMANDED for the following action: 1. Ask the Veteran to identify the location and name of any VA or private medical facility where he has received treatment for ear disability, to include the dates of any such treatment. Ask the Veteran to complete a VA Form 21-4142 for all records of his treatment for ear disability from any sufficiently identified private treatment provider from whom records have not already been obtained. Make two requests for any authorized records, unless it is clear after the first request that a second request would be futile. 2. Obtain the Veteran's outstanding VA treatment records from the West Palm Beach VA Health Care System for the period since August 2020; and all such relevant records from any other sufficiently identified VA facility. 3. After all efforts have been exhausted to obtain and associate with the claims file any additional treatment records, schedule the Veteran for a VA examination with an appropriate clinician to determine the nature of any current ear disability other than hearing loss and tinnitus and to obtain a medical opinion as to whether any such disability is related to service. The claims file should be made available to the examiner for review in connection with the examination. Based on review of the record and examination of the Veteran, the examiner should respond to the following: (a.) Is there an approximately 50 percent chance that any ear disability other than hearing loss and tinnitus experienced by the Veteran since approximately May 2009 (including, but not limited to, perforation of tympanic membranes, chronic ear infections, and otitis media) (1) had its onset in service; OR (2) is related to a disease or injury in service, to include the ear problems documented in his service treatment records, his presumed exposure to herbicide agents (including Agent Orange), his exposure to dirty water in Vietnam, and his presumed exposure to water contaminated with volatile organic compound at Camp Lejeune? The examiner must specifically address: The article submitted by the Veteran, entitled 'Otitis media: viruses, bacteria, biofilms, and vaccines;' and Any private opinions in the claims file. (b.) Whether the healed perforation of the left ear and scarred right ear tympanic membrane noted during the February 1968 entrance examination were clearly and unmistakably 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. In considering whether herbicide agent exposure caused the Veteran's bilateral ear disability, please keep in mind that the mere fact that VA has not included a certain diagnosis on a list of presumptive conditions is not, in and of itself, a sufficient rationale for finding that the condition is not related to service. In other words, the Board needs opinions as to the likelihood that the Veteran's bilateral ear condition, without regard to the conditions VA recognizes as being due to herbicide exposure, were nevertheless at least as likely as not related to his exposure to herbicides in Vietnam. The factors affecting a direct service connection analysis when a disability is not on the list of diseases presumed to be associated with Agent Orange exposure include whether there are persuasive studies, whether there are risk factors personal to the Veteran that might be the cause of his claimed ear disability, and whether the disability has manifested itself in an unusual manner. (CONTINUED ON NEXT PAGE) The examiner must provide the rationale for all proffered opinions. Brian J. Elwood Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. L. Park, 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.SC