Citation Nr: 1300514 Decision Date: 01/07/13 Archive Date: 01/11/13 DOCKET NO. 05-17 597 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUES 1. Entitlement to a respiratory disorder, claimed due to asbestos exposure. 2. Entitlement to a rating greater than 10 percent from February 16, 2006, for bilateral sensorineural hearing loss. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD S. M. Marcus, Counsel INTRODUCTION The Veteran served on active duty from October 1976 to October 1980 and again from March 1983 to March 1987. This matter is before the Board of Veterans' Appeals (Board) on appeal from March 2004 and March 2005 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. The Veteran originally had a hearing before the Board in November 2009 and the transcript is of record. Thereafter, he was informed that the Veterans Law Judge who presided over the hearing was no longer employed by the Board. He requested and was afforded a new hearing in July 2012 and that transcript is also of record. During the pendency of this appeal, the Veteran was awarded an increased rating for his bilateral sensorineural hearing loss from 0 percent to 10 percent, effective February 14, 2006, in a March 2006 rating decision. The claim was previously before the Board in February 2010 where, at that time, an increased rating prior to February 16, 2006 was denied. The denial is final and is no longer before the Board here. In contrast, the issue of entitlement to an increased rating greater than 10 percent for bilateral sensorineural hearing loss from February 14, 2006, along with the issue seeking entitlement to service connection for a pulmonary disorder, were remanded by the Board in March 2006 to allow the Agency of Original Jurisdiction (AOJ) to further assist the Veteran in the development of his claims, to include affording him VA examinations. The requested development having been partially completed, the case is once again before the Board for appellate consideration of the issues on appeal. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required on his part. REMAND The Veteran claims his hearing is worse than currently rated and he has a pulmonary disorder related to in-service asbestos exposure. Pulmonary Disorder With regard to his pulmonary disorder claim, the Veteran claims his duties in the Navy included asbestos removal aboard his ship. He believes he developed a chronic pulmonary disorder after service due to his in-service asbestos exposure. Service treatment records indicate treatment for an upper respiratory infection in December 1986, but are otherwise silent as to asbestos exposure or any lung-related treatment, complaint or diagnosis. After service, VA and private treatment records confirm a lengthy cigarette smoking habit, but no significant history of lung disease. In 2003, the Veteran received treatment for a collapsed lung described as a "spontaneous right pneumothorax," but diagnostic testing since this incident have been largely within normal limits. The Veteran was afforded a VA examination in March 2005 where chest x-rays and pulmonary function tests were "normal" with no signs of "asbestosis." The claim was last remanded to ensure all relevant medical records were associated with the claims folder, to confirm the Veteran's in-service asbestos exposure, and to afford the Veteran a VA examination. According to military records and the Veteran's in-service job description as a "Hull Maintenance Technician," it is "highly probable that he was exposed to asbestos while in the Navy." Entitlement to service connection, however, requires first and foremost existence of a present disability. See Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). As noted above, it is unclear whether the Veteran currently has a present disability related to in-service asbestos exposure. The Veteran indicated, however, he was hospitalized for four days at Episcopal Hospital sometime in 2003, and received treatment there from 2003 through 2011. Treatment at "Episcopal Hospital Emergency Room" is also referenced in a June 2003 letter from the Veteran's private physician, Dr. Chatila. Indeed, the Veteran sent in a signed release form for the VA to obtain these records in July 2012. The treatment records are not currently in the claims folder and there is no indication efforts were made to obtain them. Corrective action is required. The duty to assist includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law. McLendon v. Nicholson, 20 Vet. App. 79 (2006). The claim was last remanded, in part, to afford the Veteran a VA respiratory examination to ascertain whether the Veteran has a current pulmonary disorder related to in-service asbestos exposure. The examination was scheduled in June 2010 and the Veteran failed to report to the examination. The Veteran's representative, within an August 2011 statement, claims notice was sent to the Veteran merely two weeks prior to the examination date and thus was not enough notice. The Veteran's representative further argues there is evidence the Veteran has since become homeless and, therefore, likely did not receive notice altogether. No new address has since been provided to the VA. It is noteworthy, however, the Veteran did receive notice of his Board hearing in July 2012 and, in fact, appeared for the hearing. In light of the missing treatment records and the possibility the Veteran never received notice of his scheduled VA examination, a new VA respiratory examination is indicated. Hearing Loss The Veteran claims his hearing has worsened since he was last afforded a VA examination. With regard to increased rating claims, the duty to assist includes the duty to conduct a thorough and contemporaneous examination of the Veteran. Green v. Derwinski, 1 Vet. App. 121 (1991). In addition, where the evidence of record does not reflect the current state of the Veteran's disability, a VA examination must be conducted. Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 3.327(a). The last VA audiological examination of record is dated in February 2006, over six years ago. Similar to the other claim on appeal, this issue was remanded to afford the Veteran a new VA audiological examination. The examination was scheduled July 2010 and the Veteran did not report. As explained above, the Veteran's representative claims the Veteran's failure to report was due to the late notice of the scheduled examination, and the Veteran's homelessness at that time. In support, the representative noted a handwritten letter presumably from the Veteran's landlord, and a notation of homelessness within the Veteran's June 2011 VA outpatient treatment records. In contrast, the Veteran was sent notice of his hearing before the Board at his last known address and, in fact, appeared for the hearing. In the interest of giving the Veteran the benefit of the doubt, however, a new VA examination is indicated. As to both issues on appeal, the VA is also to take this opportunity to obtain any current VA outpatient treatment records from June 1999 to the present to ensure the file is complete. Accordingly, the case is REMANDED for the following action: 1. Ask the Veteran to identify the names and addresses of all medical care providers who treated him for any pulmonary disorder, to include asbestosis, or hearing loss since service. Most notably, ask the Veteran to provide a new release form for the VA to obtain any and all records from Episcopal Hospital associated with lung treatment from 2003 to 2011 (to the extent the release form of record is inadequate). All efforts to obtain these records, including follow-up requests if appropriate, are to be fully documented. 2. Obtain the Veteran's medical records for any treatment from the VAMC in Philadelphia from 1999 to the present. All efforts to obtain VA records are to be fully documented, and the VA facility must provide a negative response if records are not available. 3. After the above records are obtained, to the extent available, schedule the Veteran for an appropriate VA cardiovascular examination for an opinion to clarify whether the Veteran has asbestosis or any other lung disease related to in-service asbestos exposure. The entire claims file (i.e. the paper claims file and any medical records contained in Virtual VA, CAPRI, and AMIE) must be reviewed by the examiner in conjunction with the examination. If the examiner does not have access to Virtual VA, any relevant treatment records contained in Virtual VA file that are not available on CAPRI or AMIE must be printed and associated with the paper claims file so they can be available to the examiner for review. Based on the examination and review of the record, the examiner must opine as to whether it is at least as likely as not (at least a 50 percent probability) that any lung disorder found is directly related to his in-service duties as a "Hull Maintenance Technician," to include in-service asbestos exposure, his in-service treatment for an upper respiratory infection, or any other incident of his military service versus his long history of smoking. The examiner must provide a complete rationale for any opinion expressed, based on the examiner's clinical experience, medical expertise, and established medical principles. If an opinion cannot be made without resort to speculation, the examiner must provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. 4. After the above development is complete and records are obtained to the extent they exist, schedule the Veteran for an appropriate VA examination to ascertain the current severity of his service-connected bilateral sensorineural hearing loss. The entire claims file (i.e. the paper claims file and any medical records contained in Virtual VA, CAPRI, and AMIE) must be reviewed by the examiner in conjunction with the examination. If the examiner does not have access to Virtual VA, any relevant treatment records contained in Virtual VA file that are not available on CAPRI or AMIE must be printed and associated with the paper claims file so they can be available to the examiner for review. All pertinent symptomatology and findings are to be reported in detail. Any indicated diagnostic tests and studies must be accomplished. In addition to puretone thresholds and speech recognition scores, the examiner is to provide an opinion as to the overall effect the Veteran's service-connected hearing loss has on his occupational and daily functioning. The examiner must provide a complete rationale for any opinion given without resorting to speculation resolving any conflicting medical opinions. 5. Inform the Veteran that failure to report for any scheduled examination may result in the denial of a claim. 38 C.F.R. § 3.655. 6. Then, readjudicate the issues remaining on appeal. If the claims remain denied, provide the Veteran a supplemental statement of the case (SSOC). An appropriate period of time is to be allowed for response. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). The claims 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 2002). _________________________________________________ D. C. Spickler 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) (2012).