Citation Nr: 21070242 Decision Date: 11/23/21 Archive Date: 11/23/21 DOCKET NO. 16-28 946 DATE: November 23, 2021 REMANDED Entitlement to service connection for sinus problems is remanded. Entitlement to service connection for hearing loss is remanded. REASONS FOR REMAND The Veteran served on active duty in the Army National Guard from April 1985 to September 1985 In June 2019, the Veteran testified at a Board hearing. The transcript is of record. In October 2019 the Board issued a decision denying the claim of entitlement to service connection for sinus problems. The Veteran appealed that decision to the Court of Appeals of Veterans Claims (Court) and in an order dated September 2020, the Court granted a joint motion for partial remand (JMPR)and remanded the issue for readjudication. In April 2021 the Board remanded for further development. The Board regrets the additional delay; however, a remand is necessary to ensure compliance with the Board's prior remand instructions and to ensure that due process is met. Stegall v. West, 11 Vet. App. 268, 271 (1998). 1. Entitlement to service connection for sinus problems In April 2021 the Board remanded for a VA examination and medical opinion on the nature and etiology of sinusitis. In September 2021 the VA examiner provided a negative nexus opinion that relied on the length of time from separation of service to diagnosis noting that chronic sinusitis was not diagnosed until July 2018. Thus, the examiner concluded that the Veteran developed chronic sinusitis after service due to environmental exposure to pollen. While evidence of a prolonged period without medical complaint and the amount of time that elapsed since service can be considered, the examiner failed to provide a reasoned medical explanation as to the significance of the length of time between separation and the complaints documented in the post-service medical records. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). Furthermore, the examiner did not address the Veteran's lay statements that he dealt with numerous bouts of sinus problems since service but did not always seek treatment. As such, the Board finds that a remand is necessary to obtain an addendum opinion on the nature and etiology of chronic sinusitis. 2. Entitlement to service connection for hearing loss The Board remanded the issue of entitlement to service connection for hearing loss for an addendum opinion as the January 2020 medical opinion of record was inadequate as it relied on normal hearing during service. In May 2021 the same VA examiner opined that hearing loss was less likely than not incurred in or caused by service as there is no documented threshold shift during service and noise exposure was conceded after service. The examiner stated that high frequency hearing loss is associated with noise exposure but also due to aging and again pointed out that the Veteran was exposed to loud noise outside of service. The Board finds this opinion is inadequate. The examiner again relied on the lack of hearing loss in service to support the negative nexus opinion and failed to consider the Veteran's in-service noise exposure and reports of not having proper ear protection and continuity of symptoms. 38 C.F.R. § 3.385 establishes that service connection for a current hearing disability is not precluded where hearing was within normal limits at separation. See Hensley v. Brown, 5 Vet. App. 155, 159-60 (1993). Furthermore, a medical opinion is inadequate, if it does not take into account the Veteran's reports of symptoms and history. See Nieves- Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). The matters are REMANDED for the following action: 1. In remanding this case, the Board makes no credibility determination, expressed or implied, at this juncture. 2. Obtain updated VA and/or private treatment records. If such records are unavailable, the Veteran's claim file must be clearly documented to that effect and the Veteran notified in accordance with 38 C.F.R. § 3.159(e). 3. Obtain an addendum opinion from a medical professional with appropriate expertise to determine the nature and etiology of sinusitis. The examiner should review the Veteran's claims file. If the examiner determines that an opinion cannot be provided without an examination, the Veteran should be scheduled for one. Based on a review of the record, and examination if necessary, the examiner must address the following: (a.) Whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's sinusitis is related to his active service, or is caused by or aggravated by military service, to include due to his exposure to CS gas? The examiner must consider the following: 1) the Veteran's in-service complaints of cough and cold symptoms See Service Treatment Records; 2) Veteran's lay statements that he has had problems with sinuses since service but did not always seek treatment; 3) "Chlorobenzylidene Malononitrile (CS Riot Control Agent) Associated Acute Respiratory Illnesses in a U.S. Army Basic Combat Training Cohort" See Correspondence April 2021, "Tear Gas: an Epidemiological and Mechanistic Reassessment" See Correspondence March 2020, "Chronic Sinusitis" and "Medical Aspects of Chemical Warfare" See Appellate Brief November 2021. The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a certain conclusion is so evenly divided that it is as medically sound to find in favor of such a conclusion as it is to find against it. In all opinions rendered, the examiner is advised that the Veteran is competent to report his symptoms and treatment history. The opinion and rationale must go beyond a generalized statement that a review of medical literature does not support the Veteran's claim, it should reflect the specific facts and medical principles specific to the Veteran's claim. For any medical literature referenced, provide a full copy of it or a full citation. If a negative opinion is offered based primarily on the length of time between separation and the current diagnosis the examiner should explain the medical significance of this fact, i.e., why this is indicative that any current sinusitis is not related to service. A complete rationale containing clear conclusions with supporting data and a reasoned medical explanation connecting the two is required for all medical opinions. The examiner should also identify and explain the relevance or significance, as appropriate, of any history, clinical findings, medical knowledge, or literature, etc., relied upon in reaching the conclusion(s). If the medical professional cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation for why an opinion cannot be rendered. In so doing, the medical professional shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). 4. Obtain an addendum medical opinion from a medical professional with appropriate expertise. Based on the repeated inadequacies of the prior opinions, the Board requests that the Regional Office make reasonable efforts to obtain the following opinion from a different, qualified, VA examiner. The examiner should review the Veteran's claims file. If the examiner determines that an opinion cannot be provided without an examination, the Veteran should be scheduled for one. Based on a review of the record, and a new examination if necessary, the examiner must address the following: Whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's bilateral hearing loss is related to his active service or is caused by or aggravated by military service, to include improper hearing protection in service. The examiner must consider and address the following: 1) The private audiological examination records, to include the finding that test results are consistent with exposure to noise from firearms. See Medical Treatment Record Non-Government Facility January 2020. The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a certain conclusion is so evenly divided that it is as medically sound to find in favor of such a conclusion as it is to find against it. The examiner is advised that normal hearing at separation is not sufficient to serve as a rationale as 38 C.F.R. § 3.385 establishes that service connection for a current hearing disability is not precluded where hearing was within normal limits at separation (Continued on the next page) In all opinions rendered, the examiner is advised that the Veteran is competent to report his symptoms of bilateral hearing loss from in-service injury to the present. The examiner must specifically consider and discuss the Veteran's in-service exposure to acoustic trauma and continuity of symptomology since service. The opinion and rationale should reflect such consideration. If the medical professional cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation for why an opinion cannot be rendered. In so doing, the medical professional shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). G. A. WASIK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. A. Prinsen 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.