Citation Nr: 1009341 Decision Date: 03/11/10 Archive Date: 03/17/10 DOCKET NO. 07-14 989 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. 3. Entitlement to service connection for a respiratory disorder due to exposure to asbestos. REPRESENTATION Appellant represented by: Kentucky Department of Veterans Affairs WITNESSES AT HEARING ON APPEAL Appellant, S.C. ATTORNEY FOR THE BOARD M. Scott Walker, Associate Counsel INTRODUCTION The appellant served in the Army National Guard from July 1947 to July 1950. He had periods of active duty for training (ADT) from July 12, 1947 through July 27, 1947; August 6, 1948 through August 20, 1948; and August 6, 1949 through August 20, 1949. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. The appellant's file has been transferred to the RO in Louisville, Kentucky. The appellant was afforded a Board hearing, held by the undersigned, in January 2008. A copy of the hearing transcript has been associated with the file. The appellant's claims were remanded by the Board for further development in September 2008. 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 Although the Board regrets any further delay in adjudicating the appellant's claims, pursuant to the duty to assist, the issues of entitlement to service connection for hearing loss, tinnitus, and asbestosis must be remanded for further development. The appellant filed an original claim for service connection for bilateral hearing loss, tinnitus, and a respiratory disorder due to exposure to asbestos in September 2004. As noted in the prior remand, service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2009). This includes injuries or diseases incurred during active duty for training (ADT), or injuries suffered during inactive duty training (IDT). See 38 U.S.C.A. §§ 101(24), 106. The U.S. Court of Appeals for Veterans Claims (Court) held that, in order to prevail on the issue of service connection on the merits, there must be medical evidence of (1) a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. Hickson v. West, 12 Vet. App. 247, 253 (1999). Reserve and National Guard service generally means ADT and IDT. ADT is full-time duty for training purposes performed by Reservists and National Guardsmen pursuant to 32 U.S.C.A. §§ 316, 502, 503, 504, or 505. 38 U.S.C.A. § 101(22); 38 C.F.R. § 3.6(c). Basically, this refers to the two weeks of annual training that each Reservist or National Guardsman must perform each year. It can also refer to the Reservist's or Guardsman's initial period of training. IDT includes duty, other than full-time duty, performed for training purposes by Reservists and National Guardsmen pursuant to 32 U.S.C.A. §§ 316, 502, 503, 504, or 505. 38 U.S.C.A. § 101(23); 38 C.F.R. § 3.6(d). Basically, this refers to the twelve four-hour weekend drills that each Reservist or National Guardsman must perform each year. These drills are deemed to be part-time training. Generally, an individual who has only Reserve or National Guard service (ADT or IDT with no active duty) is not a veteran as legally defined. In the service connection context, for example, this means that the presumption of soundness upon entry into service and the presumptive service connection provisions of 38 C.F.R. § 3.307, applicable to active duty, would not apply to ADT or IDT. 38 U.S.C.A. §§ 1111, 1112, 1137; 38 C.F.R. § 3.307. In support of his claim, the appellant submitted several private medical reports. Regarding his claim for service connection for bilateral hearing loss and tinnitus, the appellant submitted a September 2005 report from his private audiologist which noted that the appellant had a history of hearing loss and tinnitus. It was noted that the appellant was in the National Guard for approximately three years, and during that time he was exposed to noise. Post-service noise exposure, to include exposure to bulldozers and backhoes, was also reported. The appellant was provided a diagnosis of high frequency sensorineural hearing loss secondary to noise exposure and the aging process. The physician opined that it was reasonable to assume that some of his problems are associated with noise exposure on the firing range and while working in the motor pool when he was in the National Guard 50 years earlier. Although this opinion serves as a positive nexus opinion, the Board notes that the opinion is equivocal in nature, as the physician stated that "it was reasonable to assume" a positive correlation between the appellant's period of service and "some of his problems" may exist. The physician did not comment at all as to the etiology of the appellant's tinnitus. Further, the physician attributed at least a fraction of the appellant's current hearing disorder to the natural aging process, and he did not analyze the appellant's reported post-service noise exposure. Finally, a review of the appellant's claims file was not indicated. Therefore, although a current, competent diagnosis of hearing loss was provided, as well as a positive nexus to the appellant's period of service, the opinion is not probative, as a rationale was not provided to support the opinion and a review of the appellant's claims file was not conducted. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). The appellant has also submitted statements in which he claimed that, during periods of ADT, he worked in the motor pool as a mechanic. He also stated that, while on the artillery range, he was "burning bean bags (powder charges)." The appellant noted that hearing loss and tinnitus has existed since that time. See Statement, June 27, 2005. The Board notes that the appellant is competent to attest to factual matters of which they had first-hand knowledge, such as hearing loss and tinnitus since separation. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). Following the September 2008 Board remand, the appellant was afforded a VA audiological examination in March 2009. At that time, the appellant's history of in-service acoustic trauma was noted, and his diagnosis of bilateral sensorineural hearing loss was confirmed. According to the examiner, post-service hearing loss was also reported, to include employment as a truck driver, tree trimmer, and heavy equipment operator, in addition to leisure pursuits such as hunting and shooting (the Board notes that these statements were refuted by the appellant in a December 2009 statement). The examiner was not in possession of the appellant's claims file, and therefore an opinion was not provided at that time. See VA examination report, March 6, 2009. Following a review of the claims file later that month, the examiner provided an addendum opinion dated March 26, 2009. He noted that the bulk of the appellant's service treatment records were not available for review, and that they were presumed to have been lost in a fire in St. Louis. The examiner stated that it was likely that tinnitus was related to hearing loss, and that hearing loss may have been affected by civilian noise exposure. The examiner stated, "While my inclination is to believe that civilian noise exposure is the cause of the current hearing loss and tinnitus, I will not give an opinion regarding the relationship between noise incurred in the National Guard and current tinnitus and hearing loss without a full review of the military medical/audiometric records which are reported to be lost." See Addendum, March 26, 2009. The Veteran was afforded an additional VA examination, regarding a separate claim for exposure to asbestos, in July 2009. At that time, the Veteran reported that he worked construction for 30-40 years, prior to working as a land developer for several years during which time he operated small ground-leveling equipment. See VA examination report, July 2009. An additional private report, dated October 28, 2009, noted a report from the Veteran which included exposure to in-service artillery fire, on a number of occasions, without ear protection. It was further reported that, although the Veteran claimed to have worked in construction for decades during previous examinations, he was not exposed to any loud noises or acoustic trauma post-service. Based on the Veteran's reported history, which appears to be contrary to prior statements, an opinion was provided linking reported in-service acoustic trauma to the Veteran's current diagnoses of hearing loss and tinnitus. See Report, October 2009. Although the Veteran twice provided a history of post-service noise exposure, the Veteran denied these reports in a statement received on December 16, 2009. He stated that he did not make these statements to VA examiners, that he only went hunting on occasion, and that he operated a small, hydraulic backhoe which is not considered heavy equipment. He further noted that, when trimming trees, he used a crosscut saw as opposed to a power saw. See Statement, December 2009. With regard to the asbestosis claim, the appellant has alleged that he has a respiratory disorder as a result of inservice asbestos exposure. Specifically, he stated that brake pads installed during periods of ADT from 1947 to 1950 contained asbestos. The Board also notes that a private medical report of record indicates that the Veteran reported "a significant history" of asbestos exposure in the past and worked around asbestos insulation in pipes. See Respiratory Disease Clinic record, dated February 10, 1993. 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 newer 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. [emphasis added]. 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 appellant's claim of entitlement to service connection for asbestosis under these administrative protocols. 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. In this case, the appellant submitted a medical report from a private physician dated November 2005. In that report, the physician stated that a recent CT scan revealed evidence of mild interstitial lung disease. A diagnosis of mild chronic obstructive pulmonary disease (COPD) was provided. A history of asbestos exposure was noted, and the physician opined that the appellant's current lung disorder may have been the result of prior asbestos exposure. As to a diagnosis of asbestosis, the physician recommended an examination by a B- reader or at least an occupational medicine specialist who evaluates patients regarding the possibility of pneumoconiosis on a regular basis. As with the opinion above, a review of the appellant's claims file was not noted, and a detailed rationale for any potentially positive etiological link to any period of ADT was not provided. See Prejean. Following the September 2008 Board remand, the appellant was afforded a VA respiratory examination in July 2009. Again, it was noted that the appellant was diagnosed with asbestosis. The appellant provided a history of exposure to asbestosis during his period of ADT, as well as a history of cigarette smoking. The ultimate diagnosis was a history of asbestos exposure with mild chronic obstructive pulmonary disease. The examiner noted that the appellant "doesn't need a B-reader." However, in the opinion, the examiner stated, "Needs a B-reader to officially diagnose asbestosis. Until then, this examiner is unable to form an opinion concerning the relationship between the Veteran's current lung disorder and asbestos exposure without resorting to mere speculation." Pursuant to VA's duty to assist, VA will provide a medical examination or obtain a medical opinion based upon a review of the evidence of record if VA determines it is necessary to decide the claim. 38 C.F.R. § 3.159(c)(4)(i) (2009). In McLendon v. Nicholson, 20 Vet. App. 79 (2006), the Court noted that the third prong of 38 C.F.R. § 3.159(c)(4)(I), requires that the evidence of record "indicate" that the claimed disability or symptoms may be associated with service, establishes a low threshold. See also Locklear v. Nicholson, 20 Vet. App. 410 (2006). Specifically, with regard to the appellant's claims for tinnitus and hearing loss, the examiner must consider the appellant's reported history of in-service noise exposure, as well as his reported continuity of symptoms since his period of ADT. See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006). Regarding the claim for asbestosis, all required tests must be performed in order to render a competent medical opinion, to include the use of a B-reader if necessary. Accordingly, the case is REMANDED for the following actions: 1. Schedule the appellant for an additional VA audiological examination to determine the extent and etiology of the appellant's bilateral hearing loss and tinnitus. 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. An accurate history of the Veteran's exposure to noise in service and post-service must be obtained from the Veteran. A rationale for any opinion expressed should be provided. The examiner should specifically comment on the private physicians' statements of September 2005 and October 2009, other private audiological evidence of record, VA examination reports of March 2009 and July 2009, and the appellant's reported history of in-service noise exposure, as well as his reported continuity of symptoms since his period of ADT. The examiner should then provide a rationale for any expressed opinion. The examiner should also respond to the following: Is it at least as likely as not that the appellant's bilateral hearing loss and/or tinnitus is etiologically related to the appellant's periods of ADT? Note: The term "at least as likely as not" does not mean merely within the realm of medical possibility, but rather that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against it. 3. Schedule the appellant for an additional VA respiratory examination to determine whether the appellant has a current respiratory or pulmonary disorder due to exposure to asbestos in service. The examiner should review the claims folder prior to examination. All required tests should be performed, to include the use of a B-reader if necessary to form a competent etiological opinion. 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 lung disorder is related to any period of ADT to include exposure to asbestos in service. The examiner should discuss the appellant's ADT and post- service employment history, as well as any other pertinent risk factors for asbestos related disease or other respiratory disorders. 4. The RO/AMC should then readjudicate the claims on appeal in light of all of the evidence of record. If the issues remain denied, the appellant and his representative should be provided with a supplemental statement of the case as to the issues on appeal, and afforded a reasonable period of time within which to respond thereto. 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 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2009). _________________________________________________ S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), 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) (2009).