Citation Nr: 22018529 Decision Date: 03/29/22 Archive Date: 03/29/22 DOCKET NO. 19-24 370 DATE: March 29, 2022 REMANDED Service connection for chronic otitis media. Service connection for a perforated tympanic membrane. REASONS FOR REMAND The Veteran served on active duty from May 1965 to May 1967. The case is on appeal from an August 2017 rating decision. The case was most recently before the Board in November 2021, at which time the claims for service connection for otitis media, a perforated tympanic membrane, hearing loss, and tinnitus, were remanded for new medical opinions. While the case was in remand status, the RO granted service connection for tinnitus and hearing loss in a January 2022 rating decision. As the benefit sought was granted in full for those issues, they are no longer on appeal. 1. Service connection for chronic otitis media. 2. Service connection for a perforated tympanic membrane. In this appeal, the Veteran asserts that his chronic otitis media and broken ear drum are related to his active military service. The Veteran stated at a June 2019 VA examination that he had noise exposure from shooting a rifle during basic training. Although he had ear plugs during this training, he said he experienced sustained ringing with drainage. He claimed that he sought care and was told his tympanic membrane was broken. Alternatively, the Veteran contends in a December 2019 statement in support that his hearing loss, tinnitus, and perforated ear drum are the result of his chronic otitis media that began during service. Service treatment records (STRs) show that at the time of his separation examination in March 1967, "DRUMS (Perforation)" was marked, with the description of the tympanic membrane as "clean," and also noting "otitis media 1965." In the contemporaneous Report of Medical History completed by the Veteran at that time, he checked previously having mumps, and ear, nose, or throat trouble. The accompanied physician's summary states a "clogged rt ear '65 otitis media no trouble now" and "mumps no sequelae." In the November 2021 Board remand, new medical opinions were requested. In December 2021, a physician reviewed the claims file and provided direct service opinions for the claims of a perforated tympanic membrane and for otitis media. He stated that it was less likely than not that the Veteran's right tympanic membrane had its onset in the military or within one year of service, as there is lack of documentation noted in his STRs. He also opined that the otitis media was also less likely related to service, as there was only one incidence without another report of otitis media until 2015, with a lack of chronicity and continuity of care. The physician further opined that the Veteran's perforated tympanic membrane is less likely a result of or aggravated by his otitis media, using similar rationale. The Board finds the December 2021 opinions inadequate and based on incorrect data. With regard to the Veteran's perforated tympanic membrane, the only clinical evaluation checkmark during the Veteran's military separation examination is next to "DRUMS (Perforation)." While it is marked on the "normal" side, with the explanation that the "TMS clean," it stands to reason that this had been an issue during service, despite the medical opinion rationale that there is lack of documentation in the Veteran's STRs. Further, for the rationale provided for a negative otitis media opinion, it was stated that the condition was not reported from the time of his military separation until 2015. This is a false premise, as available private treatment records document "chronic" otitis media as early as May 2004, along with an October 2001 medical note that he had experienced conductive hearing loss as a result of a right perforation that "is very old." While additional medical opinions by an otolaryngologist (ENT) were obtained in January 2022, the opinions are only as to whether the Veteran's tinnitus and hearing loss may be secondary or aggravated by the Veteran's otitis media and/or perforated tympanic membrane. While not fully adequate to provide a positive nexus opinion for service connection for the Veteran's otitis media and perforated tympanic membrane, the opinions still provide valuable insight. It was opined that it is at least as likely as not that the tympanic membrane perforation and its repair caused the conductive component of the right ear hearing loss (which is now service-connected), and that chronic otitis media can lead to middle ear pathology. The Board finds that additional medical opinions are warranted. The December 2021 VA opinions were insufficient, in that they appear to have been based solely on the inaccurate premise of an absence of documentation in the STRs, and also failed to consider the Veteran's lay statements. See Buchanan v. Nicholson, 451 F. 3d 1331, 1336-37 (Fed. Cir. 2006) (VA examiner's opinion inadequate that relied on the absence of contemporaneous medical evidence); see also Acevedo v. Shinseki, 25 Vet. App. 286, 294 (2010); Dalton v. Nicholson, 21 Vet. App. 23, 39 (2007) (holding that an examination was inadequate where the examiner did not comment on the Veteran's report of in-service injury but relied on the service medical records to provide a negative opinion). Further, the Board finds that the additional opinions should be conducted by an ENT, based on the complicated nature of the Veteran's conditions. It is noted that the Veteran's STRs include a notation that the Veteran had a history of mumps at the time of his separation examination from service, while not indicated at the time of his induction or enlistment examinations, suggesting possible contraction during service. This may have impacted the Veteran's hearing conditions. In light of the remand, updated VA treatment records should be obtained. The matters are REMANDED for the following action: 1. Obtain any updated VA treatment records dated since November 2021. 2. Forward the claims file to an ENT for medical opinions as to the nature and etiology of the Veteran's chronic otitis media and perforated tympanic membrane. The need for an in-person clinical examination of the Veteran should be determined by the examiner. The record, including a complete copy of this remand, should be made available for review. Following a review of the record, and examination if necessary, the examiner is then asked to provide a response to each of the following for the Veteran's ear conditions: (a) For the Veteran's otitis media condition: (i) Is it at least as likely as not (at least an approximate balance of positive and negative evidence) that the condition (1) began during active service, (2) manifested within 1 year after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service? (ii) Was the condition at least as likely as not caused by (i.e., proximately due to) the Veteran's perforated tympanic membrane or mumps? (iii) Has the condition been at least as likely as not aggravated (i.e., worsened beyond its natural progression) by the Veteran's perforated tympanic membrane? In making this determination, the examiner should specifically address and discuss: (1) the March 1967 separation examination and report of medical history noting otitis media and mumps; (2) the Veteran's lay statements of otitis media in service and since service; (3) private medical treatment for "chronic" otitis media since as early as May 2004; and (4) the January 2022 medical opinion that the Veteran's service-connected right ear hearing loss may be a result of chronic otitis media. (b) For the Veteran's perforated tympanic membrane: (i) Is it at least as likely as not (at least an approximate balance of positive and negative evidence) that the condition (1) began during active service, (2) manifested within 1 year after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service? (ii) Was the condition at least as likely as not caused by (i.e., proximately due to) the Veteran's otitis media or mumps? (iii) Has the condition been at least as likely as not aggravated (i.e., worsened beyond its natural progression) by the Veteran's otitis media? In making this determination, the examiner should specifically address and discuss: (1) the March 1967 separation examination and report of medical history marking drum perforation, ear, nose, or throat trouble, and noting mumps; (2) the Veteran's lay statements of experiencing drainage following a rifle training and told that his tympanic membrane was broken; (3) the October 2001 private medical treatment record of a perforated tympanic membrane that "is very old"; and (4) the January 2022 medical opinion that the Veteran's service-connected right ear hearing loss may be a result of a tympanic membrane perforation. The examiner should not rely on silence in the medical records unless it can be explained: (a) why the silence in the available records can be taken as proof that the symptom(s) did not occur, including why the fact would have normally been recorded if present, or (b) why the absence of medical records is medically significant. The examiner should provide rationale for all opinions expressed, including by citing to the record. RYAN T. KESSEL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Morford, 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.