Citation Nr: 21031384 Decision Date: 05/21/21 Archive Date: 05/21/21 DOCKET NO. 19-07 224 DATE: May 21, 2021 REMANDED Entitlement to service connection for tinnitus is remanded. Entitlement to service connection for hearing loss is remanded. Entitlement to service connection for a chronic sinus condition is remanded REASONS FOR REMAND The Appellant served on active duty for training (ACDUTRA) from February 1958 to March 1958. This matter comes before the Board of Veteran's Appeals (Board) from a September 2016 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In his Appeal to the Board, VA Form 9, the Appellant requested a hearing at a local VA office. See VA Form 9, associated with the claims file in March 2019. In December 2020, the Appellant changed his requested hearing from a local hearing to a virtual one. See Report of Contact, dated December 2020. In February 2021, the Appellant testified via videoconference before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the record. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.902 (c). 38 U.S.C. § 7107 (b). As threshold matter, the Board notes that in order to qualify for VA benefits, a claimant must be a veteran. See Dingess v. Nicholson, 19 Vet. App. 473, 484 (2006); see also Cropper v. Brown, 6 Vet. App. 450, 452 (1994). 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." See 38 U.S.C. § 101 (2); see also 38 C.F.R. § 3.1 (d). As relevant, the term "active military, naval, or air service" includes active duty and "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." See 38 U.S.C. § 101 (24). In this case, the appellant has yet to achieve veteran status, as he has not been shown to have served on active duty and has not (at this time) been found to have a disease or injury incurred or aggravated in line of duty during ACDUTRA service. Generally, no presumptions (including the presumptions of soundness, aggravation, or for presumptive diseases) attach to periods of ACDUTRA and INACDUTRA unless "veteran" status is attained during those periods. Paulson v. Brown, 7 Vet. App. 466, 470 (1995). While service on active duty alone is sufficient to meet the statutory definition of veteran, service on ACDUTRA (or INACDUTRA), without more, will not suffice to give one "veteran" status. Donnellan v. Shinseki, 24 Vet. App. 167, 172 (2010). Before veteran status can be established for a period of such service, it must first be established that a claimant was disabled from a disease or injury incurred or aggravated in line of duty during ACDUTRA, or that he or she was disabled from an injury incurred or aggravated in line of duty during INACDUTRA. Additionally, the presumption of service connection for certain chronic disease, manifesting to a degree of 10 percent within one year following discharge from service, is not available for claims based on periods of active service for less than 90 days. See 38 C.F.R. § 3.307 (a)(1). 1. Entitlement to service connection for tinnitus is remanded. 2. Entitlement to service connection for hearing loss is remanded. The Appellant seeks service connection for hearing loss and tinnitus. In favor of his claims, the Veteran asserts that during basic training, while on a pressure test, his ears popped and began to bleed and that ever since he has had issues with his ears. He reported that a medic cleaned his ears and he was sent to the barracks, with no additional medical treatment. See hearing transcript. The Appellant's post-service medical records show that he has reported "ringing in the ears", that he currently has hearing loss, and uses hearing aids. See medical records. The Appellant's service treatment records (STRs) do not contain any symptoms, treatment or complaints for an ear disorder or problem. However, the Appellant checked "yes" to ear, nose, or throat trouble in the report of medical history for separation, dated March 1958. See report of medical history for separation, dated March 1958. In November 2015, one of the Appellant's physicians noted in his post-service medical records the Appellant's report of having participated of a simulation involving pressure changes, as they would occur during a flight. The Appellant described to the physician how his ears bled and that he experienced severe pain during the pressure test. The physician opined that his hearing loss could very reasonably be related to this in-service incurrence and the barotrauma he experienced. See medical records for November 2015. In this note, the physician did not directly address the Appellant's post-service noise exposure, nor did he provide a complete rationale for the opinion expressed. In September 2016, the Appellant was administered a Hearing Loss and Tinnitus Disability Benefits Questionnaire (Hearing Loss DBQ). Following the examination, the examiner opined that the Appellant's hearing loss and tinnitus are less likely than not related to his military service. In favor his negative opinion on hearing loss, the examiner noted the Appellant served for about 2 months and that hazardous noise exposure for that length of time was typically insignificant in causing permanent, occupational noise induced, hearing loss at 17 years old. He additionally mentioned a study's findings that most hearing loss develops gradually during middle or old age, without any identifiable cause or association other than advancing years. Finally, he noted the Appellant's civilian life noise exposure and reasoned that the Appellant's post-service civilian noise exposure was far greater than his 2 months of hazardous noise in the military. In favor of his negative opinion on tinnitus, in addition to a similar discussion to the one above on hearing loss, the examiner also pointed out that the Appellant's STRs do not contain complaints or treatment of tinnitus and that studies show that presbycusis (or age related hearing loss) is the most prevalent cause of tinnitus, followed by excessive noise exposure. See Hearing Loss DBQ, dated September 2016. Once VA undertakes the effort to provide an examination when developing a service connection claim, it must provide one that is adequate for purposes of the determination being made. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The examiner did not address in his opinions regarding hearing loss and tinnitus, the Appellant's assertion of having suffered ear-related trauma while on a pressure test during service. This complaint is noted at various times in the Appellant's post-service medical records. Accordingly, the Board finds these medical opinions are inadequate for adjudication purposes, as the examiner did not address the Appellant's lay assertions of having experienced ear-related trauma during a training exercise. Accordingly, the Board finds that new medical opinions on the Appellant's hearing loss and tinnitus must be obtained. These new medical opinions need to provide a complete rationale for the opinions expressed. Specifically, the opinions must address the Appellant's lay assertion of having experienced ear-related trauma during a pressure test in basic training and whether the Appellant's hearing loss and/or tinnitus could be at least as likely as not related to the Appellant's service, to include the event he describes. The Board respectfully notes that lack of contemporaneous medical evidence cannot be treated as substantive negative evidence. In other words, reliance on the lack of medical evidence, especially without consideration of lay statements, is an inadequate rationale. Pertinently, the Court has held that the mere absence of evidence does not equate to unfavorable evidence. See Forshey v. Principi, 284 F.3d 1335, 1358 (Fed. Cir. 2002) (en banc) (cautioning that negative evidence, meaning actual evidence weighing against a party, must not be equated with the absence of substantive evidence); see also Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007) (holding that an examination must consider lay evidence of in-service incurrence or continuity of symptomatology since service). The examiner is reminded that the Appellant is competent (qualified) to provide information about events he witnessed, including the reports of observable symptoms by the Appellant. The examiner should assume, for the purposes of the opinions, that the Appellant's reports are both accurate and credible. If the lay statements are inconsistent with the medical evidence, the examiner must provide a complete explanation (rationale) for all opinions and conclusions reached, citing the objective medical findings or other evidence leading to the conclusion that the statements are inconsistent with the medical evidence. 3. Entitlement to service connection for a chronic sinus condition is remanded. The Appellant seeks service connection for a chronic sinus condition. In favor of his claim, the Appellant asserts that his condition began in service. See VA Form 9. His post-service medical records reveal that the Appellant has been diagnosed with chronic sinusitis. See medical records, specifically CT findings and impression, dated December 2003. Although there are no service treatment record (STRs) noting any diagnosis, complaints or symptoms pertaining to a sinus condition, the Appellant's report of medical examination for separation, dated March 1958, shows the Appellant's mouth and throat were found "abnormal." See report of medical examination for separation, dated March 1958. Additionally, the report of medical history for separation, dated March 1958, shows the Appellant checked "yes" to ear, nose, or throat trouble. No additional mentions or explanations pertaining to the Appellant's ear, nose or throat trouble were noted in the report of medical history for separation. See report of medical history for separation, dated March 1958. The Appellant has not been afforded a VA examination to address the etiology of the claimed sinus condition. VA must provide an examination when there is competent evidence of a disability that may be associated with an in-service event, injury, or disease, but there is insufficient information to make a decision on the claim. 38 U.S.C. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). The threshold for finding that the disability (or symptoms of a disability) may be associated with service is low. Id. at 83. Furthermore, the duty to assist applies to all claimants applying for VA benefits, regardless of whether they have established veteran status. See Gardner v. Shinseki, 22 Vet. App. 415, 421-22 (2009). In the present case, the Appellant has a diagnosis of a disability and the medical reports for separation from service show the Appellant was noted to have an abnormal mouth or throat, and the report of medical history for separation shows the Appellant checked "yes" to ear, nose, or throat trouble, but there is not sufficient information to make a decision on the claim. As such, the Board finds that the Appellant should be afforded VA examination on remand, and a medical opinion must be obtained regarding the etiology of the appellant's claimed sinus condition. See McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). The matters are REMANDED for the following action: 1. Update existing medical records. Any response, including negative responses, must be associated with the claims file. 2. Obtain a new medical opinion regarding the possible etiology of the Appellant's hearing loss. The examiner is asked to opine whether it is as least as likely as not that the Appellant's hearing loss is related to his service, to include his assertion that he bled from the ears during a pressure test. The examiner is advised that the Appellant's contentions, including reports of hearing loss and tinnitus during and since discharge from service must be considered and discussed. Denial of service connection for a disability cannot be solely based on the lack of complaints, diagnosis, or treatment of a disability during service. See Hensley v. Brown, 5 Vet. App. 155, 157 (1993); see also 38 C.F.R. § 3.303 (d). The examiner should assume, for the purposes of the opinion, that the Appellant's reports are both accurate and credible. If the lay statements are inconsistent with the medical evidence, with medical principles concerning his condition(s), or if there is a medical basis to support or doubt the history provided by the Appellant, the examiner should provide a fully reasoned explanation (rationale) citing the objective medical findings or other evidence leading to the conclusion that the statements are inconsistent with the medical evidence or medical principles. 3. Obtain a new medical opinion regarding the possible etiology of the Appellant's tinnitus. The examiner is asked to opine whether it is as least as likely as not that the Appellant's tinnitus is related to his service, to include his assertion that he bled from the ears during a pressure test. The examiner is advised that the Appellant's contentions, including reports of hearing loss and tinnitus during and since discharge from service must be considered and discussed. Denial of service connection for a disability cannot be solely based on the lack of complaints, diagnosis, or treatment of a disability during service. See Hensley v. Brown, 5 Vet. App. 155, 157 (1993); see also 38 C.F.R. § 3.303 (d). The examiner should assume, for the purposes of the opinion, that the Appellant's reports are both accurate and credible. If the lay statements are inconsistent with the medical evidence, with medical principles concerning his condition(s), or if there is a medical basis to support or doubt the history provided by the Appellant, the examiner should provide a fully reasoned explanation (rationale) citing the objective medical findings or other evidence leading to the conclusion that the statements are inconsistent with the medical evidence or medical principles. 4. Schedule the Appellant for an examination regarding his claimed sinus condition. Following the examination, the examiner is asked to opine whether it is at least as likely as not that the Appellant's sinus condition is related to his service. The examiner is asked to provide a complete rationale for all opinions expressed. If the examiner cannot provide the requested opinion(s) without resorting to speculation, the report should expressly indicate this, and the examiner should explain why an opinion cannot be provided without resorting to speculation. If the inability to provide an opinion is the result of a need for additional information, the physician must identify the additional information needed. 5. After completing the above requested actions, and any additional notification and/or development deemed warranted, readjudicate the issue on appeal. If the benefits sought on appeal remain denied, furnish to the Appellant and his representative an appropriate supplemental statement of the case that includes clear reasons and bases for all determinations, and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. KRISTI L. GUNN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Gonzalez-Maldonado 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.