Citation Nr: 20003945 Decision Date: 01/16/20 Archive Date: 01/16/20 DOCKET NO. 17-45 922 DATE: January 16, 2020 REMANDED Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for tinnitus is remanded. Entitlement to service connection for multiple myeloma is remanded. REASONS FOR REMAND The Veteran served 20 years in the Air National Guard from May 1966 to November 1986. He performed multiple periods of active duty training (ACDUTRA) and inactive duty training (INACDUTRA) throughout his career and a period of active duty from June 1966 to October 1966. These matters come to the Board of Veterans’ Appeals (Board) on appeal from a March 2015 decision of the Department of Veterans Affairs (VA) Regional Office (RO). The March 2015 decision determined that the Veteran did not have qualifying active service for the purpose of receiving compensation benefits in response to the Veteran’s claims for service connection for bilateral hearing loss, tinnitus, and multiple myeloma. The Veteran timely appealed this decision. The Veteran testified at a Travel Board hearing in November 2019 before the undersigned Veterans Law Judge. A transcript of that hearing is of record. This appeal has been advanced on the Board’s docket pursuant to 38 U.S.C. § 7107(a)(2) (2018) and 38 C.F.R. § 20.900(c) (2018). “Veteran” status, generally Generally, to qualify for VA benefits, a claimant must be a “veteran” under the law. Dingess v. Nicholson, 19 Vet. App. 473, 484 (2006). Under 38 U.S.C. § 101(2), a “veteran” is defined as “a person who served in the active military, naval, or air service, and who was discharged or released therefrom under conditions other than dishonorable.” The term “active military, naval, or air service” includes: (1) active duty; (2) any period of ACDUTRA during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in line of duty, and; (3) any period of INACDUTRA during which the individual concerned was disabled or died from an injury incurred or aggravated in line of duty. 38 U.S.C. § 101(24); 38 C.F.R. § 3.6(a); Biggins v. Derwinski, 1 Vet. App. 474, 477-78 (1991). For periods of ACDUTRA, service connection may be granted for disability resulting from injuries or diseases incurred or aggravated during such periods. For periods of INACDUTRA, service connection may be granted for disability resulting only from injuries incurred or aggravated during such periods, not disability resulting from diseases. 38 U.S.C. § 101(22), (24); McManaway v. West, 13 Vet. App. 60, 67 (1999) (stating that the law “permits service connection for persons on inactive duty (training) only for injuries, not diseases, incurred or aggravated in line of duty”). Moreover, the advantage of certain evidentiary presumptions, provided by law, that assist veterans in establishing service connection for a disability do not extend to those who claim service connection based on a period of ACDUTRA or INACDUTRA. Paulson v. Brown, 7 Vet. App. 466, 470-71 (1995) (noting that the Board did not err in not applying presumptions of sound condition and aggravation to appellant’s claim where he served only on active duty for training and had not established any service-connected disabilities from that period). Thus, in order to establish veteran status with respect to a period of ACDUTRA or INACDUTRA, and therefore eligibility for service connection, the record must establish that a claimant was disabled or died due to a disease or injury incurred or aggravated in the line of duty during a period of ACDUTRA, or that he or she was disabled or died from an injury (or from an acute myocardial infarction, cardiac arrest, or cerebrovascular accident) incurred or aggravated in the line of duty during a period of INACDUTRA. Mercado-Martinez, 11 Vet. App. at 419; Paulson v. Brown, 7 Vet. App. 466, 470 (1995); Biggins v. Derwinski, 1 Vet. App. 474, 478 (1991); see also 38 U.S.C. § 101 (24); 38 C.F.R. § 3.6(a). In the absence of such evidence, the period of ACDUTRA or INACDUTRA would not qualify as “active military, naval, or air service,” and the appellant would not qualify as a “veteran” for that period of ACDUTRA or INACDUTRA service alone. 38 U.S.C. § 101(2), (24). In this case, the Veteran has achieved “veteran” status as a general matter by virtue of his DD Form 214 that confirms he had active duty service. Thus, his qualifying as a “veteran,” with active military, naval, or air service for disability benefits for a disability resulting from injury or disease incurred during service from June 1966 to October 1966, as well as reference to him as the Veteran, is not in question. For service connection to be granted for any disability resulting from injury or disease incurred during the remainder of his service, it must be shown that the claimed disease or injury was incurred or aggravated during a period of ACDUTRA or that the Veteran was disabled from an injury incurred or aggravated during a period of INACDUTRA. For the following reasons, a remand is necessary for further development. Entitlement to service connection for bilateral hearing loss and tinnitus The Veteran maintains that his bilateral hearing loss and tinnitus disabilities are related to the noise exposure he experienced in-service on the pistol team and as a C-130 loadmaster. During the Veteran’s November 2019 Board hearing, the Veteran’s wife testified that the Veteran has had trouble hearing her since they first met in 1981, and he complained of problems with his hearing after drill weekends. The Veteran additionally testified that he experienced ringing in his ears after drill weekends. The RO did not reach a decision on the merits of the Veteran’s claims for service connection for bilateral hearing loss and tinnitus, but found that the Veteran did not have qualifying active service for the purpose of receiving compensation benefits. Thus, the Veteran has not been afforded VA examinations for his claimed bilateral hearing loss and tinnitus, and opinions as to the etiology of these disabilities have not otherwise been obtained. VA is obliged to provide an examination or obtain a medical opinion in a claim for service connection when the record contains competent evidence that the claimant has current disability or persistent or recurrent symptoms of disability, the record indicates that the disability or symptoms of disability may be associated with active service, to include ACDUTRA or ACDUTRA, and the record does not contain sufficient information to make a decision on the claim. 38 U.S.C. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79 (2006). As the evidence of record indicates that the Veteran has experienced persistent or recurrent symptoms of hearing loss and tinnitus that may be associated with noise exposure suffered during periods of ACDUTRA or INACDUTRA, a remand is warranted for a VA examination. Entitlement to service connection for multiple myeloma The Veteran contends his multiple myeloma was a result of his stateside exposure to herbicide agents during ACDUTRA and INACDUTRA when unloading C-130s carrying drums of herbicide agents. A December 2014 buddy statement contended that all of the C-130s flown by the Veteran’s unit flew missions over South Vietnam carrying Agent Orange. The Veteran testified during his November 2019 Board hearing that he was diagnosed with multiple myeloma in February 2011 that is currently in remission. Thus, he meets the current disability requirement. As the evidence of record does not show that the Veteran had service in Vietnam or any other area where herbicide agent exposure is presumed, his claimed exposure to herbicide agents cannot be presumed. 38 U.S.C. § 1116(f); 38 C.F.R. § 3.307. Furthermore, while multiple myeloma is one of the diseases on the list of those presumed service-connected in veterans exposed to herbicide agents, presumptive service connection is not applicable to any of the Veteran’s periods of ACDUTRA or INACDUTRA because he did not serve 90 days of active continuous service during any of those periods of training. 38 U.S.C. § 1116(a)(1); 38 C.F.R. § 3.307(a)(1), 3.309(e). However, this does not preclude the Veteran from alleging that multiple myeloma with which he has been diagnosed is related to herbicide agent exposure during a period of ACDUTRA or INACDUTRA. 38 U.S.C. § 1113(b); 38 C.F.R. § 3.303(d) (the availability of service connection on a presumptive basis does not preclude consideration of service connection on a direct basis). Consequently, as there is evidence that there is current disability that may be associated with ACDUTRA or INACDUTRA and not merely a conclusory generalized lay statement suggesting a nexus between a current disability and such service, a remand for a VA examination is warranted. Cf. Waters v. Shinseki, 601 F.3d 1274, 1278-79 (Fed. Cir. 2010) (a conclusory generalized lay statement alleging nexus between a current disability and service does not meet the standard to warrant a VA examination). Accordingly, the matters are REMANDED for the following action: 1. Schedule the Veteran for a VA audiological examination to determine the nature and etiology of any hearing loss and tinnitus. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any hearing loss or tinnitus is related to noise exposure during any period of ACDUTRA or INACDUTRA verified in his military personnel record. The agency of original jurisdiction should, to the extent possible, identify all periods of ACDUTRA or INACDUTRA. The claims file should be provided to the examiner. A complete rationale should accompany any opinion provided. 2. Contact the JSRRC, or any other appropriate agency or individual, and ask them to provide any available information that might corroborate the Veteran’s claimed in-service exposure to herbicide agents while performing periods of ACDUTRA or INACDUTRA from October 1966 to November 1986. If exposure to herbicide agents during a period of ACDUTRA or INACDUTRA is confirmed, an opinion should be requested from an appropriate clinician as to whether it is at least as likely as not (50 percent or greater probability) that multiple myeloma is related to exposure to an herbicide agent during any period of ACDUTRA or INACDUTRA. The agency of original jurisdiction should, to the extent possible, identify all periods of ACDUTRA or INACDUTRA. The claims file should be provided to the examiner. A complete rationale should accompany any opinion provided. Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board H. Styer, 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.