Citation Nr: 21026343 Decision Date: 04/30/21 Archive Date: 04/30/21 DOCKET NO. 16-28 946 DATE: April 30, 2021 REMANDED Entitlement to service connection for chronic sinusitis 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 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 June 2019, the Veteran testified at a Board hearing. The transcript is of record The Board notes that the Veteran’s claim of entitlement to service connection for tinnitus was granted in an August 2020 rating decision. As such, this issue is no longer on appeal and the Board does not have jurisdiction. See Grantham v. Brown, 114 F.3d 1156, 1158-59 (Fed. Cir. 1997) (holding that where an appealed claim for service connection is granted during the pendency of the appeal, a second notice of disagreement must thereafter be timely filed to initiate appellate review of the claim concerning "downstream" issues, such as the compensation level assigned for the disability and the effective date); see also 38 C.F.R. § 20.200 (2017). 1. Entitlement to service connection for chronic sinusitis The VA has a duty to assist, which includes providing a medical examination when necessary to make a decision on a claim. 38 C.F.R. § 3.159(c)(4)(i) (2017). The Board finds that the record contains sufficient evidence to trigger the VA’s duty to assist by providing a VA examination to discuss the nature and etiology of the Veteran’s chronic sinusitis. The Veteran provided articles suggesting a link between CS gas exposure and respiratory conditions and a statement from Dr. M.T., noting that recurrent sinusitis and eustachian tube dysfunction is related to trauma and exposures during military service. Therefore, a remand is necessary for a VA examination for an opinion to determine the etiology of the Veteran’s sinusitis. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). 2. Entitlement to service connection for hearing loss Once VA undertakes the effort to provide an examination, it must provide an adequate one. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The Veteran underwent a VA examination in January 2020. The examiner opined that it is less likely than not hearing loss was caused by service as there was no threshold shift during service and noise exposure was conceded prior to and after service with no documented problems with hearing either during service or the years after leaving service. The Board finds that the VA medical opinion is inadequate as it relies on hearing within normal limits during active duty with no significant threshold shifts during active service. According to 38 C.F.R. § 3.385 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). As such, a remand is necessary for an addendum opinion to discuss the nature and etiology of the Veteran’s bilateral hearing loss. 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. Schedule the Veteran for a VA examination with a medical professional with appropriate expertise to determine the nature and etiology of sinusitis. The examiner should review the Veteran’s claims file. Based on a review of the record, and examination, 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 cold weather and/or CS gas? (b.) The examiner must also discuss as to whether sinus issues include such symptoms as cough and a cold. The examiner must consider and address the following: 1) “Chlorobenzylidene Malononitrile (CS Riot Control Agent) Associated Acute Respiratory Illnesses in a U.S. Army Basic Combat Training Cohort” See Correspondence April 2021; 2) “Tear Gas: an Epidemiological and Mechanistic Reassessment” See Correspondence March 2020; and 3) the in-service report of a cold and cough in May 1985, which the Veteran testified was after exposure to CS gas in service. 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 examiner must consider and discuss the lay statements of record, to include the contention that he has dealt with numerous bouts of sinus problems since service even though he did not always seek treatment. The opinion and rationale should reflect such consideration. 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. 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: (a.) 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 due to improper ear protection. 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. 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 testimony alleging in-service exposure to acoustic trauma without proper ear protection and continuity of symptomology since service. The opinion and rationale should reflect such consideration. The examiner is advised that 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). 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). G. A. WASIK Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Prinsen, Samantha 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.