Citation Nr: 1008591 Decision Date: 03/08/10 Archive Date: 03/17/10 DOCKET NO. 08-38 867 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUES 1. Entitlement to service connection for sarcoidosis. 2. Entitlement to service connection for hearing loss. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD A. Muhlfeld, Associate Counsel REMAND The Veteran had active military service in the United States Navy from February 1976 to February 1980, and service with the United States Army National Guard from August 1996 to June 2007, including a period of active duty from September 21, 2004, to April 1, 2005. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a December 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas. The Veteran testified before the undersigned Veterans Law Judge at a video conference hearing in November 2009. A transcript of that hearing is of record. Hearing Loss For the purposes of applying the laws administered by VA, impaired hearing is considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, and 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of those frequencies are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. The January 1976 audiological evaluation administered at the Veteran's enlistment in the Navy, reported that pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 5 5 20 5 0 LEFT 5 15 15 15 5 The January 1980 audiological evaluation administered at discharge from the Veteran's first period of service reported that pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 15 20 15 5 LEFT 15 15 25 5 0 The March 1991 audiological evaluation given at entrance into the Army National Guard reported that pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 40 40 35 30 LEFT 0 45 40 15 0 A second audiological evaluation also administered in March 1991 reported that pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 5 35 40 35 30 LEFT 0 40 25 20 0 A September 1995 audiological evaluation reported that pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 40 40 40 30 LEFT 20 30 35 25 0 This Report of Medical Examination reflects a diagnosis of mid-frequency hearing loss. An audiological evaluation administered in June 1996, prior to entrance onto active-guard reserve, reported that pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 40 50 40 35 LEFT 0 45 40 25 0 The Veteran was serving as an Army Guard unit chaplain and was ordered to active duty in support of Operation Iraqi Freedom from September 21, 2004, to April 1, 2005, including service in Iraq for a period of five months and three days. His DD Form 214 noted that he received the combat action badge (CAB). While serving in Iraq, the Veteran reported being exposed to improvised explosive devices (IEDs) while traveling in convoys, which he believes resulted in acoustic trauma. See November 2009 Board hearing. An August 2005 private audiological evaluation reported that pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 40 45 45 40 LEFT 15 45 50 40 35 Speech audiometry revealed speech recognition ability of 88 percent in the right ear and of 88 percent in the left ear. An October 2008 VA audiological examination reported that pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 40 45 45 40 LEFT 15 45 50 40 35 Speech audiometry revealed speech recognition ability of 98 percent in the right ear and of 100 percent in the left ear. The examiner diagnosed the Veteran with sloping to a mild to moderate sensorineural hearing loss in the right ear from 750 through 8000 Hertz, and a mild to moderate sensorineural hearing loss from 750 through 4000 Hertz, rising to within normal limits from 6000 through 8000 Hertz. The 2008 examiner stated that the Veteran's hearing loss began after his first active duty tour and was not further aggravated by his second tour of duty. Therefore, the examiner opined that the Veteran's pre-existing hearing loss was not caused by or further aggravated by his active duty military service. No further explanation or supporting documentation was provided as to why the Veteran's pre-existing hearing loss which began after his first active duty tour from 1976-1980, was not further aggravated by his second tour of active duty. The Board notes that in Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008), the Court found that a medical opinion which only contains data and conclusions, and is not supported by reasons or rationale is accorded no probative weight. See also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (a medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two). In this case, the Board finds that because the October 2008 VA audiological opinion contained only a conclusory opinion without any supporting data or medical explanation or analysis, as to why the Veteran's hearing loss was not aggravated by his second period of active duty, especially considering the Veteran's allegations of noise exposure from IEDs, further evidentiary development is required. The Board finds that it is unable to address the issue of aggravation of the Veteran's pre-existing hearing loss without obtaining an additional medical opinion that contains a rationale, addressing the medical probabilities that his currently diagnosed bilateral hearing loss, chronically worsened as a result of military service during the second period of active duty, taking into consideration the Veteran's contention of sustaining acoustic trauma after being in close proximity to improvised explosive devices (IEDs) while serving in Iraq. See DD Form 214 noting that the Veteran was a unit Chaplain ordered to active duty, and served in support of Operation Iraqi Freedom from September 2004 to April 2005, and received the Combat Action Badge (CAB), thereby denoting combat service. Specifically, the examiner should opine, based on review of the evidence of record, whether the Veteran's bilateral hearing loss has more likely than not (i.e., probability greater than 50 percent), at least as likely as not (i.e., probability of approximately 50 percent), or less likely than not (i.e., probability less than 50 percent) been made chronically worse/permanently increased in severity (beyond natural progression) by his second period of active duty from September 2004 to April 2005. A complete rationale should be given for all opinions and conclusions expressed. Sarcoidosis The Board notes that VA is required to obtain a medical opinion on the question of a possible relationship to military service if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but contains: 1) competent evidence of diagnosed disability or symptoms of disability, 2) establishes that the Veteran suffered an event, injury or disease in service, or has a presumptive disease during the pertinent presumptive period, and 3) indicates that the claimed disability may be associated with the in-service event, injury, or disease, or with another service-connected disability. 38 C.F.R. § 3.159(c)(4); see also McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Veteran contends that during the last 90 days of his service in the U.S. Navy (the service period from February 1976 to February 1980), he was stationed in a shipyard in Baltimore where he supervised work crews that were stripping asbestos and asphalt from ships. The Veteran also stated that prior to leaving the Navy in 1980, he noticed shortness of breath and a respiratory problem, and that immediately following service, he noticed many other symptoms which accompanied his initial respiratory problem. See November 2009 Board hearing. The Veteran's service treatment records (STRs) show several dermatological entries, and include diagnoses of dermatitis of the hands and feet, and keratoderma. Personnel records show that he served at Fort Snelling (Minnesota) from October 1976 through February 1980, and described his primary duties as a radioman, human relations divisional representative, task group operator, and supply petty officer, among other duties. His personnel records indicate that he served as a supervisor, and had been put in charge of several working parties, but do not show the capacity in which he served. The Veteran's service in Baltimore is not documented in the STRs. A post-service hospital summary shows that the Veteran was admitted in May 1982 and discharged in August 1982. R.B., M.D. rendered a diagnosis of sarcoidosis, stage II pulmonary involvement, skin involvement, and liver involvement. Dr. B. noted that the Veteran had a three to six-month history of malaise, weight loss, sweats, increasing dyspnea, and a cough, which had been initially nonproductive, but in the last two weeks was productive of mucoid, clear sputum. The Veteran was prescribed Prednisone. Other medical records show skin involvement as a part of the Veteran's sarcoidosis. See an April 1998 consultation sheet noting that the Veteran had a history of sarcoidosis and had now developed skin lesions on his right chest, and noted that he had periodic scalp lesions; an April 2007 General Medical Examination diagnosing the Veteran with sarcoidosis with pulmonary involvement, skin and liver involvement; and a May 2007 VA skin examination noted that changes on a 1998 biopsy were possibly related to underlying sarcoidosis. In a July 2008 consultation, J.H., M.D. assessed the Veteran with systemic sarcoidosis confirmed by skin biopsy and lymph node biopsy; treated over several months, if not longer, with prednisone. He also assessed the Veteran with uveitis, noting that it could be related to sarcoidosis. Dr. H. noted that the Veteran reported significant exposure to asbestos over time through the shipyard asbestos abatement program, noting that after the Veteran left the Navy, he was diagnosed with systemic sarcoidosis after a skin and lymph node biopsy. After examining the Veteran and taking his history, Dr. H. opined that the Veteran's sarcoidosis "may well be" related to his asbestos exposure, despite the fact that the diagnosis of sarcoidosis was not made until after he left the Navy. Dr. H. explained that in support of this possibility, multiple workers at ground zero, after the 911 incident, developed or died from sarcoidosis with one of the inhalants being identified as asbestos. Thus, Dr. H. opined that it was probable that the Veteran's sarcoidosis was caused by his asbestos exposure occurring from multiple months during his navy service. The Board notes that common materials that may contain asbestos include steam pipes for heating units and boilers, ceiling tiles, roofing shingles, wallboard, fire-proofing materials, and thermal insulation. M21-1MR, Part IV.ii.2.C.9.a (December 13, 2005). High exposure to asbestos and a high prevalence of disease have been noted in insulation and shipyard workers. M21-1MR, Part IV.ii.2.C.9.f. Diseases associated with exposure to asbestos are fibrosis, the most commonly occurring of which is interstitial pulmonary fibrosis, or asbestosis; tumors; pleural effusions and fibrosis; pleural plaques; mesotheliomas of pleura and peritoneum and cancers of the lung, bronchus, gastrointestinal tract, larynx, pharynx, and urogenital system, except the prostate. M21-1MR, Part IV.ii.2.C.9.b. Although the Veteran is not currently diagnosed with pulmonary fibrosis, the medical literature shows that sarcoidosis can develop into pulmonary fibrosis. Notwithstanding the uncertainty regarding in-service asbestos exposure, the Board finds that a remand is required to address the more salient issue of whether the Veteran's currently diagnosed sarcoidosis is traceable to the period of service from February 1976 through February 1980. Symptoms of sarcoidosis include shortness of breath, which the Veteran described experiencing shortly before discharge. Furthermore, skin rashes are another symptom of sarcoidosis, and the STRs contain several entries related to dermatological treatment. The Board finds that when taken together, the evidence of record indicates that the Veteran's current sarcoidosis "may be associated" with his period of active duty military service, and therefore a medical nexus opinion is required in order to fulfill the duty to assist. See 38 C.F.R. § 3.159(c)(4); see also McLendon. The Board will remand to obtain a medical opinion that is based on a review of the STRs, along with all other evidence of record, including the Veteran's statements regarding his symptomatology during service and since. A complete rationale should be given for all opinions and conclusions expressed. Accordingly, the case is REMANDED to the agency of original jurisdiction (AOJ) for the following actions: 1. The Veteran should be afforded a VA audiological examination to obtain an opinion regarding the medical probability that the Veteran's hearing loss chronically worsened during his second period of active duty from September 2004 to April 2005. The examiner should be asked to state whether any worsening was clearly and unmistakably the result of a natural progression of the disease. In arriving at a conclusion on this matter, the examiner should take into consideration the Veteran's contention regarding being in close proximity to improvised explosive devices (IEDs) while serving in Iraq in 2004 and 2005, in addition to any history he provides about symptoms he experienced during service and since. 2. The Veteran should be afforded a VA examination, conducted by an examiner with appropriate expertise to render a nexus opinion regarding the medical probability that the Veteran's currently diagnosed sarcoidosis (and/or any current residual) is traceable to the Veteran's period of active duty service with the U.S. Navy from February 1976 to February 1980. The examiner should include an opinion as to whether it is at least as likely as not that the Veteran's sarcoidosis is traceable to military service (or manifested itself in a symptomatic way within the one-year presumptive period after discharge), taking into consideration the Veteran's contentions regarding experiencing shortness of breath prior to discharge, his allegations of in-service asbestos exposure, in addition to the fact that he was seen in service for skin complaints and was diagnosed with sarcoidosis a little over two years after discharge. (The AOJ should make sure that the medical opinions comply with this remand and the questions presented in this opinion request, especially with respect to detailing any connection to military service. If the report is insufficient, it should be returned to the examiner for necessary corrective action, as appropriate.) 3. After undertaking any other development deemed appropriate, the AOJ should consider the issues on appeal in light of all information or evidence received. If any benefit sought is not granted, the Veteran and his representative should be furnished with a supplemental statement of the case and afforded an opportunity to respond before the record is returned to the Board for further review. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This case must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2009). ________________________________ MARK F. HALSEY Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board 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) (2009).