Citation Nr: 0705052 Decision Date: 02/22/07 Archive Date: 02/27/07 DOCKET NO. 04-23 648 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to service connection for trapezius muscle strain. 2. Entitlement to service connection for right ear hearing loss disability. 3. Entitlement to service connection tinea corporis. 4. Entitlement to service connection for bronchitis to include as due to asbestos exposure. 5. Entitlement to an initial rating in excess of 10 percent for a cervical spine disability. 6. Entitlement to an initial rating in excess of 10 percent for a thoracic spine disability. 7. Entitlement to an initial rating in excess of 10 percent for a lumbar spine disability. 8. Entitlement to an initial compensable rating for a right knee disability. 9. Entitlement to an initial compensable rating for a left knee disability. 10. Entitlement to an initial compensable rating for status post septoplasty. 11. Entitlement to an initial compensable rating for migraine headaches. 12. Entitlement to an initial compensable rating for left ear hearing loss disability. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD J. Connolly Jevtich, Counsel INTRODUCTION The veteran served on active duty from December 1979 to July 2003. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a July 2003 decision of the Columbia, South Carolina, Regional Office (RO) of the Department of Veterans Affairs (VA). In March 2006, the veteran testified at a Travel Board hearing before the undersigned. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND There has been a significant change in the law with the enactment of the Veterans Claims Assistance Act (VCAA). See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326. First, VA has a duty to notify the veteran and his representative, if represented, of any information and evidence needed to substantiate and complete a claim. 38 U.S.C.A. §§ 5102, 5103. VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim, (2) that VA will seek to provide, and (3) that the claimant is expected to provide. In what can be considered a fourth element of the requisite notice, VA must "also request that the claimant provide any evidence in the claimant's possession that pertains to the claim." 38 C.F.R. § 3.159(b)(1); see 38 U.S.C.A. § 5103A(g). Second, VA has a duty to assist the veteran in obtaining evidence necessary to substantiate the claim. 38 U.S.C.A. § 5103A. Additionally, the VA's duty to assist the veteran includes informing him of which evidence VA will provide and which evidence claimant is to provide. See Quartuccio v. Principi, 16 Vet. App. 183 (2002); see also 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A and 5107 (West 2002 & Supp. 2005); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2005). Also, during the pendency of this appeal, on March 3, 2006, the United States Court of Appeals for Veterans Claims (Court) issued a decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), which held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim, including the degree of disability and the effective date of an award. In the present appeal, the veteran was not provided with notice of the type of evidence necessary to establish a disability rating or effective date for the disability on appeal. The veteran has not been sent a VCAA letter with regard to the issues on appeal. On the internal Appeal Certification Worksheet, it was noted that no VCAA letter was sent. In May 2005, a VCAA letter was issued as to issues not on appeal. In that letter, it was specifically noted that the issues on appeal to the Board were not addressed therein. Accordingly, the appropriate actions should be undertaken to ensure that the directives of VCAA have been followed as to the issues on appeal. When reference is made to pertinent medical records, VA is on notice of their existence and has a duty to assist the veteran to attempt to obtain them. See Ivey v. Derwinski, 2 Vet. App. 320, 323 (1992); see also Jolley v. Derwinski, 1, Vet. App. 37 (1990). During his personal hearing, the veteran identified medical records not contained in the claims file. In addition, as the veteran has asserted during his hearing that his service-connected disabilities have worsened since his last examinations, he should be afforded new examinations in compliance with VA's duty to assist. See Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994); VAOPGCPREC 11-95 (1995). The veteran maintains that his left and right ear hearing loss have worsened. The veteran is only service-connected for left ear hearing loss disability. However, right ear hearing loss disability was denied because the veteran's level of hearing impairment did not meet the criteria of 38 C.F.R. § 3.385. The veteran should therefore be afforded a new VA audiological examination to determine the current nature and extent of his left and right ear hearing loss. If right ear hearing loss meets the criteria of 38 C.F.R. § 3.385, the audiological examiner should opine as to whether it is more likely than not, less likely than not, or at least as likely as not attributable to service. The veteran was treated for a rash of the gluteal fold during service. Currently, W.G.R., M.D. has documented that the veteran has several skin disorders including tinea cruris of the groin, tinea pedis, atopic dermatitis, acne vulgaris, and eczema. On remand, the veteran should be afforded a VA skin examination. The examiner should opine as to whether it is more likely than not, less likely than not, or at least as likely as not that any current skin diagnosis is attributable to service. At his personal hearing, the veteran stated that his spine disorders have been treated by C.K.M., M.D. There is a July 2005 medical report from this physician. In that letter, she indicated that the veteran was being scheduled for an epidural block for his low back disability and for a cervical magnetic resonance imaging (MRI). This is the only report of record from this physician. Thus, the remaining records should be obtained in compliance with VA's duty to assist. Also, with regard to his spine disabilities, the veteran asserted during his hearing that they had worsened and he had numbness. To the extent that he complains of numbness, an April 2005 VA neurological examination revealed peripheral neuropathy in all four extremities; however, the etiology was unknown. On remand, the veteran should be afforded a VA spine examination to include orthopedic and neurologic evaluations. Range of motion studies should be conducted. The medical findings should also address the directives of DeLuca v. Brown, 8 Vet. App. 202 (1995). In addition, the examiner should opine as to whether the peripheral neuropathy is more likely than not, less likely than not, or at least as likely as not attributable to the cervical spine, thoracic spine, and/or lumbar spine disabilities. If there is an etiologic relationship, separate ratings for neurologic impairment should be considered. The examiner should address the pertinent rating criteria as set forth under the current General Rating Formula for Diseases and Injuries of the Spine. In addition, the examiner should opine as to whether the veteran currently has trapezius muscle strain which is more likely than not, less likely than not, or at least as likely as not attributable to the trapezius and cervical muscle strain for which the veteran was treated during service in 2001. With regard to his knee disabilities, the veteran also asserted that the level of severity of his impairment has increased since his last VA examination. In particular, he stated that he has knee instability. On remand, the veteran should be afforded a VA examination. Range of motion studies should be conducted. The directives of DeLuca should be followed. The examiner should state if the veteran has lateral instability or subluxation. If so, the examiner should state if the lateral instability and/or subluxation is mild, moderate, or severe. With regard to his septoplasty, the veteran testified that he has increased breathing disability and felt that his nose was blocked in the same way as it had been during service, prior to the septoplasty. Therefore, the veteran should be afforded a VA examination. The examiner should state if the veteran has at least 50 percent obstruction of the nasal passage on both sides or complete obstruction on one side. With regard to the veteran's headaches, the veteran testified that they occur 10-12 times per month. The veteran should be afforded a VA headache examination to evaluate the frequency and severity of the veteran's headaches. The examiner should opine as to whether the veteran's headaches are completely prostrating and prolonged, productive of severe economic inadaptability. Finally, with regard to his bronchitis, the veteran alleged that he was exposed to asbestos during service. He stated that he has received treatment from Dr. B. of Spartanburg, South Carolina on Born Springs Highway. These records have not been obtained. As to claims of service connection for asbestosis or other asbestos-related diseases, VA has issued a circular on asbestos-related diseases. This circular, DVB Circular 21- 88-8, Asbestos-Related Diseases (May 11, 1988) (DVB Circular), provides guidelines for considering compensation claims based on exposure to asbestos. The information and instructions from the DVB Circular were included in a VA Adjudication Procedure Manual, M21-1 (M21- 1), Part VI, para. 7.68 (Sept. 21, 1992). Subsequently, the M2-1 provisions regarding asbestos exposure were amended. The new M21-1 guidelines were set forth at M21-1, Part VI, para. 7.21 (Oct. 3, 1997). The guidelines provide, in part, that the clinical diagnosis of asbestosis requires a history of exposure and radiographic evidence of parenchymal disease; that VA is to develop any evidence of asbestos exposure before, during and after service; and that a determination must be made as to whether there is a relationship between asbestos exposure and the claimed disease, keeping in mind the latency period and exposure information. See Ashford v. Brown, 10 Vet. App. 120 (1997); McGinty v. Brown, 4 Vet. App. 428 (1993). The applicable section of Manual M21-1 also notes that some of the major occupations involving exposure to asbestos include mining, milling, work in shipyards, carpentry and construction, manufacture and servicing of friction products such as clutch facings and brake linings, manufacture and installation of roofing and flooring materials, asbestos cement and pipe products, military equipment, etc. High exposure to respirable asbestos and a high prevalence of disease have been noted in insulation and shipyard workers, and this is significant considering that, during World War II, U.S. Navy veterans were exposed to chrysotile, amosite, and crocidolite that were used extensively in military ship construction. Furthermore, it was revealed that many of these shipyard workers had only recently come to medical attention because the latent period for asbestos-related diseases varies from 10 to 45 or more years between first exposure and development of disease. Also of significance is that the exposure to asbestos may be brief (as little as a month or two) or indirect (bystander disease). See Department of Veterans Affairs, Veteran's Benefits Administration, Manual M21-1, Part 6, Chapter 7, Subchapter IV, § 7.21 b. In Dyment v. West, 13 Vet. App. 141, 145 (1999), the Court found that provisions in former paragraph 7.68 (predecessor to paragraph 7.21) of VBA Manual M21-1, Part VI, did not create a presumption of exposure to asbestos. Medical nexus evidence is required in claims for asbestos related disease related to alleged asbestos exposure in service. VAOPGCPREC 4-00. In short, with respect to claims involving asbestos exposure, VA must determine whether or not military records demonstrate evidence of asbestos exposure during service, develop whether or not there was pre-service and/or post-service occupational or other asbestos exposure, and determine whether there is a relationship between asbestos exposure and the claimed disease. See M21-1, Part VI, 7.21; DVB Circular 21- 88-8, Asbestos-Related Diseases (May 11, 1988). Thus, VA must analyze the veteran's claim of entitlement to service connection for asbestosis under these administrative protocols using the following criteria. Ennis v. Brown, 4 Vet. App. 523, 527 (1993). As noted, the latency period for asbestos-related diseases varies from 10 to 45 or more years between first exposure and development of disease. M21-1, Part VI, 7.21(b)(2), p. 7-IV- 3 (January 31, 1997). An asbestos-related disease can develop from brief exposure to asbestos. Id. M21-1, Part VI, para. 7.21 contains guidelines for the development of asbestos exposure cases. Part (a) in essence acknowledges that inhalation of asbestos fibers can result in fibrosis and tumors, and produce pleural effusions and fibrosis, pleural plaques, mesotheliomas of the pleura and peritoneum, and cancer of the lung, gastrointestinal tract, larynx, pharynx and urogenital system (except the prostate), with the most common resulting disease being interstitial pulmonary fibrosis (asbestosis). Also noted is the increased risk of bronchial cancer in individuals who smoke cigarettes and have had prior asbestos exposure. M21-1, Part VI, para. 7.21(b) pertains to occupational exposure, and acknowledges that high exposure to asbestos and a high prevalence of disease have been noted in insulation and shipyard workers. Noted is that the latent period varies from 10-to-45 or more years between first exposure and development of disease. Also of significance is that the exposure to asbestos may be brief (as little as a month or two) or indirect (bystander disease). M21-1, Part VI, para. 7.21(c) provides that the clinical diagnosis of asbestosis requires a history of exposure and radiographic evidence of parenchymal lung disease. M21-1, Part VI, para. 7.21(d) provides that VA must determine whether military records demonstrate evidence of asbestos exposure in service; whether there is pre-service and/or post-service evidence of occupational or other asbestos exposure; and then make a determination as to the relationship between asbestos exposure and the claimed diseases, keeping in mind the latency and exposure information pertinent to the veteran. In this case, the record shows that the RO has not complied with M21-1 procedures. The veteran has not been sent the appropriate letter regarding alleged asbestos exposure. In the event that it is determined that the veteran has a documented history of probable asbestos exposure during service as well as competent evidence of post-service respiratory disability, the veteran should be afforded a VA examination. The examiner should opine if the veteran currently has a respiratory disability which is attributable to service to include probable asbestos exposure during service. Accordingly, this matter is REMANDED for the following actions: 1. The AMC should review the record and ensure compliance with all notice and assistance requirements set forth in the VCAA and subsequent interpretive authority. See, e.g., Pelegrini v. Principi, 18 Vet. App. 112 (2004); VAOPGCPREC 7-2004 (July 16, 2004); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). A notice consistent with 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b)(1) must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; (3) inform the claimant about the information and evidence the claimant is expected to provide; and (4) request that the claimant provide any evidence in the claimant's possession that pertains to the claim. 2. Send the veteran an asbestos letter in compliance with DVB Circular and M21- 1, Part VI regarding alleged asbestos exposure. 3. Obtain and associate with the claims file copies of all clinical records, which are not already in the claims file, of the veteran's skin treatment by W.G.R., M.D. 4. Obtain and associate with the claims file copies of all clinical records, which are not already in the claims file, of the veteran's neck/back treatment by C.K.M., M.D. These records should include documentation of any epidural block for low back disability and for a cervical MRI that were scheduled subsequent to the physician's July 2005 report. 5. Obtain and associate with the claims file copies of all clinical records, which are not already in the claims file, of the veteran's respiratory treatment by Dr. B. of Spartanburg, South Carolina on Born Springs Highway. 6. Schedule the veteran for an audiological examination for evaluation of both left and right ear hearing loss. The claims file must be made available to the examiner and the examiner should indicate in his/her report whether or not the claims file was reviewed. Any indicated tests should be accomplished. The puretone threshold scores and Maryland controlled speech discrimination testing results should be indicated. If right ear hearing loss meets the criteria of 38 C.F.R. § 3.385, the audiological examiner should opine as to whether it is more likely than not, less likely than not, or at least as likely as not attributable to service. A rationale for any opinion expressed should be provided. 7. Schedule the veteran for a skin examination. The claims file must be made available to the examiner and the examiner should indicate in his/her report whether or not the claims file was reviewed. Any indicated tests should be accomplished. The examiner should opine as to whether it is more likely than not, less likely than not, or at least as likely as not that any current skin diagnosis is attributable to service. A rationale for any opinion expressed should be provided. 8. Schedule the veteran for a spine examination. The claims file must be made available to the examiner and the examiner should indicate in his/her report whether or not the claims file was reviewed. Any indicated tests, including X-rays if indicated, should be accomplished. Orthopedic and neurological evaluations should be performed. Range of motion studies should be conducted. The medical findings should also address the directives of DeLuca. In addition, the examiner(s) should opine as to whether the peripheral neuropathy is more likely than not, less likely than not, or at least as likely as not attributable to the cervical spine, thoracic spine, and/or lumbar spine disabilities. The examiner(s) should address the pertinent rating criteria as set forth under the current General Rating Formula for Diseases and Injuries of the Spine. In addition, the examiner(s) should opine as to whether the veteran currently has trapezius muscle strain which is more likely than not, less likely than not, or at least as likely as not attributable to the trapezius and cervical muscle strain for which the veteran was treated during service in 2001. A rationale for any opinion expressed should be provided. 9. Schedule the veteran for a knee examination. The claims file must be made available to the examiner and the examiner should indicate in his/her report whether or not the claims file was reviewed. Any indicated tests, including X-rays if indicated, should be accomplished. Range of motion studies should be conducted. The directives of DeLuca should be followed. The examiner should state if the veteran has lateral instability or subluxation. If so, the examiner should state if the lateral instability and/or subluxation is mild, moderate, or severe. A rationale for any opinion expressed should be provided. 10. Schedule the veteran for a nose examination. The claims file must be made available to the examiner and the examiner should indicate in his/her report whether or not the claims file was reviewed. Any indicated tests, including X-rays if indicated, should be accomplished. The examiner should state if the veteran has at least 50 percent obstruction of the nasal passage on both sides or complete obstruction on one side. A rationale for any opinion expressed should be provided. 11. Schedule the veteran for a headache examination. The claims file must be made available to the examiner and the examiner should indicate in his/her report whether or not the claims file was reviewed. Any indicated tests should be accomplished. The examiner should comment of the frequency and severity of the veteran's headaches and should opine as to whether the veteran's headaches are completely prostrating and prolonged, productive of severe economic inadaptability. A rationale for any opinion expressed should be provided. 12. Schedule the veteran for a respiratory examination. The claims file must be made available to the examiner and the examiner should indicate in his/her report whether or not the claims file was reviewed. Any indicated tests, including X-rays if indicated, should be accomplished. The examiner should opine whether it is more likely than not, less likely than not, or at least as likely as not, that the veteran currently has a chronic respiratory disability that is attributable to service to include any likely asbestos exposure during service. A rationale for any opinion expressed should be provided. 13. The AMC should then readjudicate the claims on appeal in light of all of the evidence of record. If any issue remains denied, the veteran should be provided with a supplemental statement of the case as to any issue remaining on appeal, and afforded a reasonable period of time within which to respond thereto. Thereafter, subject to current appellate procedures, the case should be returned to the Board for further appellate consideration, if appropriate. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans Benefits Act of 2003, Pub. L. No. 108-183, § 707(a), (b), 117 Stat. 2651 (2003) (to be codified at 38 U.S.C. §§ 5109B, 7112). _________________________________________________ S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002 & Supp. 2005),only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2006).