Citation Nr: 21016110 Decision Date: 03/19/21 Archive Date: 03/19/21 DOCKET NO. 17-64 922 DATE: March 19, 2021 REMANDED Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to an initial compensable rating for chronic sinusitis is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from February 1964 to February 1966. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a November 2016 rating decision by the Department of Veterans Affairs (VA)Veterans Benefits Administration Regional Office (RO). In June 2019, the Veteran appeared at a hearing before the undersigned Veterans Law Judge. A copy of the hearing transcript is of record. 1. Entitlement to service connection for bilateral hearing loss is remanded. Although the Board regrets the delay, additional development is needed prior to further disposition of the claim for entitlement to service connection for a bilateral hearing loss disability. The Veteran claims that current bilateral hearing loss disability is the result of noise exposure in service during small arms training, in the motor pool, and exposure to heavy motor vehicle equipment. The Veteran’s January 1964 service entrance examination suggests that the at the time of service entry, the Veteran had bilateral hearing loss as defined in 38 C.F.R. § 3.385 because frequencies of 40 decibels or greater in the right and left ears were indicated. A veteran will be considered to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable evidence demonstrates that an injury or disease existed prior thereto and was not aggravated by service. 38 U.S.C. § 1111. Only conditions recorded in examination reports are to be considered as noted. 38 C.F.R. § 3.304(b). In November 2020, the claim was remanded for a VA examination. The examiner was instructed to opine as to whether any clearly and unmistakably preexisting bilateral hearing loss was clearly and unmistakably not aggravated by service. At a December 2020 VA examination, the audiologist discussed the entrance and separation audiograms and did not find the shift in hearing significant. The examiner stated that the Veteran’s preexisting bilateral hearing loss was “less likely than not permanently aggravated by military noise exposure.” A remand by the Board confers on the Veteran the right to compliance with the remand. Stegall v. West, 11 Vet. App. 268 (1998). The December 2020 examiner used the wrong standard of review (at least as likely as not), rather than the clear and unmistakable evidence standard as instructed in the Board Remand. Therefore, the opinion is incomplete, and does not substantially comply with the November 2020 Board remand, and further examination is necessary. Clinical documentation dated after November 2020 is not of record. VA should obtain all relevant VA and private treatment records which could potentially be helpful in resolving the claim. Murphy v. Derwinski, 1 Vet. App. 78 (1990); Bell v. Derwinski, 2 Vet. App. 611 (1992). 2. Entitlement to an initial compensable rating for chronic sinusitis is remanded. The Veteran was most recently examined by VA September 2016. The examiner diagnosed chronic sinusitis. No incapacitating episodes or non-incapacitating episodes of sinusitis were reported. The Veteran reported being treated twice for sinus infection in the past 12 months. A VA etiology opinion was obtained in March 2020. Following review of the claims file, the examiner found that the Veteran had sporadic sinusitis. No incapacitating episodes or non-incapacitating episodes of sinusitis were reported. The examiner reported that the Veteran had no history of sinus surgery. In a December 2019 Statement in Support of Claim, the Veteran indicated that he had sinus surgery in the past, the surgeon is now deceased, and the Veteran is unable to obtain those records. In January 2021, the Veteran submitted a Statement in Support of Claim reporting “at least 4 incapacitating episodes of sinusitis a year” with headache, face pain due to sinus pressure, dizziness, and earache. The Veteran's January 2021 statement that he has multiple incapacitating episodes of sinusitis each year suggests that the sinusitis disability has increased in severity since the most recent VA examination. Where the evidence of record does not indicate the current state of the disability, a more contemporaneous VA examination must be conducted. Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 3.327(a). Remand is required to provide the Veteran a more contemporaneous VA examination that evaluates the current symptomatology of the sinusitis disability. The matters are REMANDED for the following action: 1. Contact the Veteran and request that he provide information as to all treatment for any sinusitis disability, including the names and addresses of all health care providers whose records have not already been provided to VA. Specifically request information for records to be obtained for any hospital at which the Veteran underwent sinus surgery. 2. After obtaining any necessary releases, obtain all relevant VA and private treatment records not already associated with the claims file. All attempts to locate records must be documented in the claims file. (Continued on the next page)   3. Schedule the Veteran for a VA audiology examination, with an examiner who has not previously examined the Veteran, to diagnose and obtain an opinion regarding the etiology of any hearing loss disability. The examiner must review the claims file, to include this Remand in its entirety; lay statements from the Veteran and his spouse, including hearing testimony, concerning in-service noise exposure and hearing loss symptoms; previous VA examinations; and internet articles submitted by the Veteran linking hearing loss to small arms fire, and should indicate review of the file in the examination report. The examiner should opine whether it is clear and unmistakable (undebatable) that any diagnosed hearing disability in either ear preexisted the Veteran's entrance to service. The examiner should opine whether it is clear and unmistakable (undebatable) that preexisting hearing loss disability was not aggravated during the Veteran's service. The examiner should reference the evidence that supports that opinion. The examiner should state whether any preexisting hearing disability increased in severity during service and if so, whether any increase in severity represented, or was more than, the natural progress of the disorder. The examiner is advised that the Veteran is competent to report symptoms during and since service and that those reports must be acknowledged and considered in formulating any opinion. If the Veteran's reports are discounted, the examiner should provide a reason for doing so. The examiner must consider and discuss those lay statements and should reconcile the opinion with any previous opinions of record. A clearly stated rationale for any opinion offered should be provided and must not be based solely on the lack of any in-service record. 4. Schedule the Veteran for a VA sinus examination to determine the current severity of service-connected sinusitis. The examiner must review the claims file and should note that review in the report. All tests and studies deemed necessary should be performed by the examiner. The examiner should discuss the functional impact caused by the sinusitis on occupational and daily activities. The examiner should state whether the Veteran has incapacitating episodes of sinusitis that require prolonged antibiotic treatment, and if so, the frequency. An incapacitating episode of sinusitis means one that requires bed rest and treatment by a physician. The examiner should state the frequency of non-incapacitating episodes of sinusitis characterized by headaches, pain, and purulent discharge or crusting. The examiner should state whether there has been radical surgery with chronic osteomyelitis. The examiner should state whether there have been repeated surgeries due to sinusitis. The examiner should state whether there is near constant sinusitis characterized by headaches, pain, and tenderness of the affected sinus, and purulent discharge or crusting after repeated surgeries. Harvey P. Roberts Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Duke, 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.