Citation Nr: 1306799 Decision Date: 02/27/13 Archive Date: 03/01/13 DOCKET NO. 09-27 904 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to service connection for a lung disability, to include asbestosis and thickening thorax. 2. Entitlement to service connection for a psychiatric disability, characterized as depression with insomnia. 3. Entitlement to an initial disability rating in excess of 50 percent for a bilateral hearing loss disability. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD E. D. Anderson, Counsel INTRODUCTION The Veteran served on active duty from September 1953 to September 1955. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. In November 2010, the Board issued a decision denying claims for service connection for a lung disability and a heart disability. Claims for service connection for a psychiatric disability and an increased evaluation for bilateral hearing loss were remanded to accomplish specific evidentiary development. The Veteran appealed the denial of service connection for a lung disability to the United States Court of Appeals for Veterans Claims (Court). (The denial of service connection for a heart disability was not contested). Through an August 2011 Court order, the Joint Motion for Remand filed by the Veteran's attorney and VA's Office of General Counsel was implemented, vacating the November 2010 decision and remanding the issue in question back to the Board. In April 2012, the Board remanded this matter to the RO via the Appeals Management Center (AMC) in Washington, D.C. to attempt to obtain additional records and to afford the Veteran a VA medical examination. The action specified in the April 2012 Remand completed, the matter has been properly returned to the Board for appellate consideration. See Stegall v. West, 11 Vet. App. 268 (1998). Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). The issue of entitlement to service connection for a psychiatric disability is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The objective medical evidence does not establish asbestosis or any other lung disability, or an etiological relationship to service. 2. Audiological test results do not show a hearing loss disability that would warrant the assignment of a disability rating in excess of 50 percent for any period on appeal nor has the Veteran presented such an unusual disability picture as to warrant referral for an extraschedular rating. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a lung disability, to include asbestosis and thickening thorax, have not been met. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012). 2. The criteria for entitlement to an initial disability rating in excess of 50 percent for service connection bilateral hearing loss have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.321, 3.655(b), 4.1, 4.2, 4.7, 4.10, 4.85 Diagnostic Code 6100 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has reviewed all of the evidence in the claims folder. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to these claims. The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board must note that in reviewing this case the Board has not only reviewed the Veteran's physical claims file, but the Veteran's file on the "Virtual VA" system to insure a total review of the evidence. Service Connection Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a) (2012). In general, service connection requires competent and credible evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third elements is through a demonstration of continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007); see Savage v. Gober 10 Vet. App. 488, 495-97 (1997); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post- service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage, 10 Vet. App. at 495-96; see Hickson v. West, 12 Vet. App. 247, 253 (lay evidence of in-service incurrence is sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303(b). "Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology." Savage, 10 Vet. App. at 496 (citing Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991)). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2012). There is no specific statutory or regulatory guidance with regard to claims for service connection for asbestosis or other asbestos-related diseases. However, in 1988, VA issued a circular on asbestos-related diseases which provided guidelines for considering asbestos compensation claims. See Department of Veterans Benefits, Veterans' Administration, DVB Circular 21-88- 8, Asbestos-Related Diseases (May 11, 1988). The information and instructions contained in the DVB Circular have since been included in VA Adjudication Procedure Manual, M21-1, part VI, para. 7.21 (October 3, 1997) (hereinafter "M21-1"). Also, an opinion by VA's Office of General Counsel discussed the development of asbestos claims. VAOPGCPREC 4-00 (April 13, 2000). The Board notes that the aforementioned provisions of M21-1 have been rescinded and reissued as amended in a manual rewrite (MR) in 2005. See M21-1MR, Part IV, Subpart ii, Chap. 1, Sec. H, Para. 29, entitled "Developing Claims for Service Connection for Asbestos-Related Diseases," and Part IV, Subpart ii, Chap. 2, Sec. C, Para. 9, entitled "Service Connection for Disabilities Resulting from Exposure to Asbestos." VA must analyze the Veteran's claim of entitlement to service connection for asbestosis under these administrative protocols using the specified criteria. Ennis v. Brown, 4 Vet. App. 523, 527 (1993); McGinty v. Brown, 4 Vet. App. 428, 432 (1993). The latency period for asbestos-related diseases varies from 10 to 45 or more years between first exposure and development of disease. The exposure may have been direct or indirect, and the extent or duration of exposure is not a factor. M21-1MR, Part IV, Subpart ii, Chap. 1, Sec. H, Para. 29a. The manual provisions acknowledge that inhalation of asbestos fibers and/or particles 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 uro-genital 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. As to occupational exposure, exposure to asbestos has been shown in insulation and shipyard workers, and others including workers involved in the manufacture and servicing of friction products such as clutch facings and brake linings. The clinical diagnosis of asbestosis requires a history of exposure and radiographic evidence of parenchymal lung disease. M21-1MR, Part IV, Subpart ii, Chap. 2, Sec. C, Para. 9a-f. As an initial matter, the Board notes that the Veteran's service treatment records are missing and presumed destroyed in the 1973 fire at the National Personnel Records Center. The Board finds that additional efforts to obtain these records would be futile. See 38 U.S.C.A. § 5103A(b)(3). The Board has considered the U.S. Court of Appeals for Veterans Claims (Court) statement in Washington v. Nicholson, 19 Vet. App. 362, 371 (2005) that: [I]n cases where, as here, the appellant's SMR's have been lost or destroyed, the Board's obligation to provide well reasoned findings and conclusions to evaluate and discuss all of the evidence that may be favorable to the appellant, and to provide an adequate statement of the reasons or bases for its rejection of such evidence is heightened. The Board has undertaken its analysis with this heightened duty in mind. The Veteran alleges that he was exposed to asbestos while working as a mechanic at Thule Air Base in Greenland. He also contends that he suffered lung damage as a result of the cold climate while he was there. As noted above, the Veteran's service treatment records are unavailable. Post-service, the earliest available medical records are VA outpatient treatment records beginning in September 2008. While these treatment records list a diagnosis of asbestosis, there appears to be no clinical basis for this diagnosis. That is, it appears that the Veteran's treatment providers relied solely on his claims that he had asbestos exposure in making this diagnosis, because chest x-rays performed in October 2008 and May 2012 are normal. As noted above, a finding of asbestosis requires not only a history of asbestos exposure, but radiographic evidence of lung disease. M21-1MR, Part IV, Subpart ii, Chap. 2, Sec. C, Para. 9a-f. There is no objective evidence in the Veteran's VA treatment records of a lung disability, other than occasional subjective complaints of shortness of breath for which the Veteran is prescribed the use of an inhaler. In May 2012, the Veteran was afforded a VA examination. The examiner did not diagnose the Veteran with interstitial lung disease or any other lung disability. His only diagnosis was "asbestosis exposure". Pulmonary function tests were not performed because the Veteran was "too lethargic", but it is significant that a May 2012 chest x-ray was normal and showed no evidence of pleural plaques that the examiner explained are indicative of asbestos lung disease. Here, the Board finds that the objective evidence of record does not have a current lung disability. Despite his subjective complaints of shortness of breath and a reported history of asbestosis exposure, there is no radiographic evidence of asbestosis or any other lung disease. The diagnosis of asbestosis in the Veteran's VA treatment records has no apparent clinical basis and the Veteran has not submitted any private medical records showing a respiratory disability. The Board notes that the Veteran claims he was exposed to asbestos in service. In-service asbestos exposure, alone, is not dispositive; resultant disability is required in order to establish service connection. With regard to claimed asbestos exposure, the Board acknowledges that the Veteran's service treatment records and service personnel records are unavailable. The only service record available is his DD Form 214, which lists his military specialty number as 635.20 and shows its related civilian occupation to be Automotive Repairman. The form also lists his most significant duty assignment as Automotive Repairman and shows that his place of separation was Fort George G. Meade, Maryland. Given the unavailability of service treatment records, there is no corroborative evidence to otherwise show that the Veteran incurred a disease or injury in service, to include asbestos exposure or any cold weather injuries at Thule Air Base in Greenland. However, exposure to asbestos has been shown in workers involved in the manufacture and servicing of friction products such as clutch facings and brake linings, which would include an automotive repairman, and the Veteran is certainly competent to attest to factual matters of which he has first-hand knowledge. For example, he is competent to report that he was exposed to asbestos while stationed at Thule Air Base in Greenland and that he was treated for lung problems in service. Competency, however, must be distinguished from weight and credibility, which are factual determinations going to the probative value of the evidence. Rucker v. Brown, 10 Vet. App. 67, 74 (1997). While the Board does not doubt the sincerity of the Veteran's belief that he has a current lung disability which was caused by asbestos exposure in service, the record fails to establish evidence of a current lung disability, as discussed above. Although the Veteran reported that he received a settlement based on asbestos exposure from B.F. Goodrich in the 1980s upon the closing of the plant in Tulsa, the Board finds this report of limited credibility given the lack of corroborative evidence supporting such a reward and the lack of objective evidence establishing that the Veteran in fact has asbestosis. See Veteran's statement, March 2008. In this regard, it is again noted that X-ray evidence establishes that his chest is normal and devoid of asbestos findings. The Veteran asserts he has asbestosis which was caused by exposure to environmental hazards during his military service. However, the Veteran has not demonstrated that he has any knowledge or training in diagnosing or determining the etiology of such conditions. In other words, he is a layman, not a medical expert. The Board recognizes that there is no bright line rule that laypersons are not competent to offer etiology opinions. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (rejecting the view that competent medical evidence is necessarily required when the determinative issue is medical diagnosis or etiology). Evidence, however, must be competent evidence in order to be weighed by the Board. Whether a layperson is competent to provide an opinion as to the etiology of a condition depends on the facts of the particular case. In Davidson, the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) drew support from Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) for support for its holding. Id. In a footnote in Jandreau, the Federal Circuit addressed whether a layperson could provide evidence regarding a diagnosis of a condition and explained that "[s]ometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Board finds that the question of whether the Veteran currently has a lung disability due to his alleged asbestos and cold exposure in service is too complex to be addressed by a layperson. The condition and etiology are not amenable to observation alone. Rather it is common knowledge that such diagnoses and relationships are the subject of extensive testing and research by scientific and medical professionals. Hence, the Veteran's opinion of the nature and etiology of any current disability is not competent evidence and is entitled to low probative weight. For all the above reasons, entitlement to service connection for a lung disability, to include asbestosis and thickening thorax, is denied. The evidence in this case is not so evenly balanced so as to allow application of the benefit-of- the-doubt rule. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2012). Increased Rating Disability evaluations are determined by the application of a schedule of ratings which is based on the average impairment of earning capacity. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2010); 38 C.F.R., Part 4 (2012). Separate diagnostic codes identify the various disabilities. 38 C.F.R. § 4.1 requires that each disability be viewed in relation to its history and that there be emphasis upon the limitation of activity imposed by the disabling condition. 38 C.F.R. § 4.2 requires that medical reports be interpreted in light of the whole recorded history, and that each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.7 provides that, where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. An evaluation of the level of disability present also includes consideration of the functional impairment of the veteran's ability to engage in ordinary activities, including employment. 38 C.F.R. § 4.10 (2012). Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and above all, coordination of rating with impairment of function, will be expected in all cases. 38 C.F.R. § 4.21. Therefore, the Board has considered the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the veteran, as well as the entire history of the veteran's disability in reaching its decision. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). In deciding the veteran's increased evaluation claim, the Board has considered the determinations in Fenderson v. West, 12 Vet. App. 119 (1999) and Hart v. Mansfield, 22 Vet. App. 505 (2007), and whether the veteran is entitled to an increased evaluation for separate periods based on the facts found during the appeal period. In Fenderson, the U.S. Court of Appeals for Veterans Claims (Court) held that evidence to be considered in the appeal of an initial assignment of a rating disability was not limited to that reflecting the then current severity of the disorder. In that decision, the Court also discussed the concept of the "staging" of ratings, finding that, in cases where an initially assigned disability evaluation has been disagreed with, it was possible for a veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period. Id. at 126. Hart appears to extend Fenderson to all increased rating claims. The Veteran was originally granted service connection for bilateral hearing loss in a May 2008 rating decision, effective December 2007, and assigned an initial 50 percent evaluation. The Veteran appealed, seeking a higher initial disability rating. Evaluations of defective hearing are based on organic impairment of hearing acuity as measured by the results of controlled speech discrimination testing together with the average hearing threshold level as measured by pure tone audiometric tests in the frequencies 1,000, 2,000, 3,000 and 4,000 Hertz. 38 C.F.R. § 4.85, Diagnostic Code 6100 (2012). To evaluate the degree of disability from defective hearing, the rating schedule requires assignment of a Roman numeral designation, ranging from I to XI. Other than exceptional cases, VA arrives at the proper designation by mechanical application of Table VI, which determines the designation based on results of standard test parameters. Id. Table VII is then applied to arrive at a rating based upon the respective Roman numeral designations for each ear. Id. Where impaired hearing is service connected in only one ear, the non-service connected ear will be assigned a Roman numeral I rating purposes. Id. For exceptional hearing impairment, 38 C.F.R. § 4.86 (2012) states that when the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more, or when the pure tone threshold is 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIa, whichever results in the higher numeral. Each ear is to be evaluated separately. Id. Of record are results from a VA compensation examination from May 2008. The May 2008 examination yielded test results of pure tone thresholds in the right ear at 500, 1000, 2000, 3000, and 4000 Hertz of 45, 60, 75, 90, and 90 decibels, respectively, for an average over the four frequencies of interest of 79 decibels. Test results of pure tone thresholds in the left ear at 500, 1000, 2000, 3000, and 4000 Hertz of 55, 70, 75, 90, and 100 decibels, respectively, for an average over the four frequencies of interest of 84 decibels. Speech audiometry test results revealed speech recognition ability of 56% in the right ear and 44% in the left ear. These results show that the Veteran does not have exceptional hearing loss in the right ear as contemplated in 38 C.F.R. § 4.86. For the left ear, he would, however, be assigned a IX under Table VIA. Application of 38 C.F.R. § 4.85 Table VI or VIA to the May 2008 measurements yields the assignment of Roman Numeral VIII to the right ear and Roman Numeral IX to the left ear, for the purpose of determining a disability rating. A 50 percent rating is derived from Table VII of 38 C.F.R. § 4.85 by intersecting row VIII with column IX. The May 2008 audiological test results do not provide for assigning a higher disability rating for the Veteran's bilateral hearing loss for any period on appeal. In Martinak v. Nicholson, 21 Vet. App. 447 (2007) the United States Court of Appeals for Veterans Claims (Court) held that in addition to dictating objective test results, a VA audiologist must fully describe the functional effects caused by a hearing disability in his or her final report. Martinak, 21 Vet. App. at 455. Here, the VA examiner did this, noting that the Veteran has difficulty understanding speech in both quiet and noisy setting, difficulty conversing on the telephone, and difficulty hearing the television. Also of record are VA Audiology Consults in October 2008 and December 2008. The Veteran was administered audiological testing on both occasions. Unfortunately, the results of the October 2008 testing were determined to be unreliable due to both false positive and false negative responses. Additionally, the Maryland CNC test was not administered on either October 2008 or December 2008 as required by VA regulations. Thus, because these audiological examinations do not conform to the requirements of the rating criteria, the Board finds that the results have little probative value. However, to the extent the Veteran testified that his hearing had worsened, the Board recognized that the Veteran is competent to report his subjective perception of hearing loss and remanded the matter to schedule the Veteran for a new VA audiological examination. This examination was scheduled for January 2013. The Veteran was advised of the time and place of the scheduled audiological examination. (The notice letter is of record and was sent to the proper address and was not returned as undeliverable. ) Nonetheless, the Veteran failed to report for examination and failed to provide good cause for his absence (a claimant failing to report for a scheduled examination must show good cause for so doing). See 38 C.F.R. § 3.655; Engelke v. Gober, 10 Vet. App. 396, 399 (1997); Ashley v. Derwinski, 2 Vet. App. 307, 311 (1992). As the Court of Appeals for Veterans Claims has held, "[t]he duty to assist in the development and adjudication of a claim is not a one-way street." Wamhoff v. Brown, 8 Vet. App. 517, 522 (1996). "If a [claimant] wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence." Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). See also Olson v. Principi, 3 Vet. App. 480, 483 (1992). Under the circumstances, it would be unreasonable to place a further burden upon VA compel the Veteran's presence for a VA examination. Under 38 C.F.R. § 3.655, when a claimant fails to report for an examination scheduled in conjunction with an original compensation claim, the claim shall be rated based on the evidence of record. When the examination was scheduled in conjunction with any other original claim, a reopened claim for a benefit which was previously disallowed, or a claim for increase, the claim shall be denied. 38 C.F.R. § 3.655(b) (2012). VA regulations define an original claim as an initial application on a form prescribed by the Secretary. 38 C.F.R. § 3.160 (2012). Here, under 38 C.F.R. § 3.655 the case could have been summarily denied based on the failure to report for a needed VA examination; however, when the Board reviews the evidence that is of record, there is still no evidence which would support his claim for an increased disability rating. Thus, the Veteran's claim for a disability rating in excess of 50 percent for his bilateral hearing loss must be denied. The Board has also considered whether the Veteran's disability warrants referral for extraschedular consideration. To accord justice in an exceptional case where the scheduler standards are found to be inadequate, the field station is authorized to refer the case to the Chief Benefits Director or the Director, Compensation and Pension Service for assignment of an extraschedular evaluation commensurate with the average earning capacity impairment. 38 C.F.R. § 3.321(b)(1) (2012). The criterion for such an award is a finding that the case presents an exceptional or unusual disability picture with related factors as marked interference with employment or frequent periods of hospitalization as to render impractical application of regular schedular standards. The Court has held that the Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R. § 3.321(b)(1) in the first instance; however, the Board is not precluded from raising this question, and in fact is obligated to liberally read all documents and oral testimony of record and identify all potential theories of entitlement to a benefit under the law and regulations. Floyd v. Brown, 9 Vet. App. 88 (1996). The Court further held that the Board must address referral under 38 C.F.R. §3.321(b)(1) only where circumstances are presented which the Director of VA's Compensation and Pension Service might consider exceptional or unusual. Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). In a recent case, the Court clarified the analytical steps necessary to determine whether referral for extraschedular consideration is warranted. See Thun v. Peake, 22 Vet. App. 111 (2008). The Court stated that the RO or the Board must first determine whether the schedular rating criteria reasonably describe the veteran's disability level and symptomatology. Id. at 115. If the schedular rating criteria do reasonably describe the veteran's disability level and symptomatology, the assigned schedular evaluation is adequate, referral for extraschedular consideration is not required, and the analysis stops. Id. If the RO or the Board finds that the schedular evaluation does not contemplate the veteran's level of disability and symptomatology, then either the RO or the Board must determine whether the veteran's exceptional disability picture includes other related factors such as marked interference with employment and frequent periods of hospitalization. Id. at 116. If this is the case, then the RO or the Board must refer the matter to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for the third step of the analysis, determining whether justice requires assignment of an extraschedular rating. Id. The Board finds that the schedular rating criteria reasonably reflect the Veteran's disability levels and symptomatology. In this case, it does not appear that the Veteran has an "exceptional or unusual" disability; he merely disagrees with the assigned evaluation for his level of impairment. The symptom of his service-connected hearing loss, difficulty hearing, is not unusual or different from that contemplated by the schedular criteria. The available schedular evaluations for the Veteran's service-connected disability are adequate. Referral for extraschedular consideration is not warranted. See VAOPGCPREC 6-96. Further inquiry into extraschedular consideration is not required. See Thun, supra. For all of the above reasons, entitlement to an increased rating for the Veteran's service connected bilateral hearing loss disability for any period on appeal must be denied. The evidence in this case is not so evenly balanced so as to allow application of the benefit-of- the-doubt rule. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2012). The Duty to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from 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. This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the U.S. Court of Appeals for Veterans Claims held that, upon receipt of an application for a service-connection claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. The Board also notes that in Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), the United States Court of Appeals for Veterans Claims (Court) clarified VA's notice obligations in increased rating claims. The Federal Circuit recently reversed the Veterans Court's decision in Vazquez-Flores, finding that VA is not required to tailor § 5103(a) notice to individual Veterans or to notify them that they may present evidence showing the effect that worsening of a service-connected disability has on their employment and daily life for proper claims adjudication. For an increased rating claim, section § 5103(a) now requires that the Secretary notify claimants generally that, to substantiate a claim, they must provide, or ask the Secretary to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability. See Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), rev'd sub. nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009) (holding that notice specific to individual Veterans is no longer required in increased compensation claims). The appeal for a higher initial rating for bilateral hearing loss originates, however, from the grant of service connection for this disability. Consequently, Vazquez-Flores is inapplicable. See Fenderson v. West, 12 Vet. App. 119, 125 (1999) (explaining that a disagreement with an initial rating assigned for a disability following a claim for service connection is part of the original claim and technically not a claim for an increased rating). Prior to and following the initial adjudication of the Veteran's claims, letters dated in January 2008, February 2008, July 2008 and December 2008 fully satisfied the duty to notify provisions. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio, 16 Vet. App. at 187; Pelegrini II, 18 Vet. App. at 120-21. The letters advised the Veteran of the information necessary to substantiate the claims, and of his and VA's respective obligations for obtaining specified different types of evidence. The Veteran was informed of the specific types of evidence he could submit, which would be pertinent to his claims, and advised to send any medical reports that he had. He was also told that it was ultimately his responsibility to support the claims with appropriate evidence. In addition, the letters provided the Veteran with notice concerning the assignment of disability ratings and effective dates. See Dingess v. Nicholson, 19 Vet. App. 473, 490 (2006). Subsequent to the issuance of the July 2008 and December 2008 letters, the Veteran's claims were readjudicated in June 2009 statements of the case (SOCs). Thus, there was no deficiency in notice and a harmless error analysis is not necessary. See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Mayfield IV); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as an SOC or SSOC, is sufficient to cure a timing defect). VA also has a duty to assist the veteran in the development of the claim. This duty includes assisting the veteran in the procurement of service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). The result of RO development indicates that most, if not all, of the Veteran's service records were likely destroyed, presumed to have been lost in a 1973 fire at the National Personnel Records Center (NPRC) facility located in St. Louis, Missouri. Inasmuch as the Veteran was not at fault for the loss of the missing records, VA is under heightened obligation to assist the Veteran in the development of his claim. See, e.g., Washington v. Nicholson, 19 Vet. App. 362, 369-70 (2005); O'Hare v. Derwinski, 1 Vet. App. 365 (1991). This heightened obligation includes searching for alternative medical records. Moore v. Derwinski, 1 Vet. App. 401 (1991); see also Cromer v. Nicholson, 455 F.3d 1346 (2006). The Board concludes that the heightened duty to assist has been met in this case. The claims file contains all available evidence pertinent to the claim, including the Veteran's DD Form 214. A formal finding of unavailability of personnel records was made, and the Veteran notified accordingly by letter, in March 2008. A formal finding of unavailability of any medical records from Thule Air Base Medical Clinic, Greenland was also made, and the Veteran was notified by letter in June 2012. Pursuant to the heightened duty to assist, the RO has undertaken the required procedures to locate and reconstruct the Veteran's records, but remains unsuccessful. The RO provided the Veteran with a copy of an NA Form 13055, Request for Information Needed to Reconstruct Medical Data, on two different occasions and requested that he complete and return the form. While the Veteran did return the form both times, the information provided was deemed insufficient for purposes of reconstructing the Veteran's medical records because it did not identify his unit organization and did not include the dates of treatment with sufficient specificity. Although VA has a statutory duty to assist the Veteran in developing evidence pertinent to a claim, the Veteran also has a duty to assist and cooperate with VA in developing evidence; the duty to assist is not a one-way street. See Wood v. Derwinski, 1 Vet. App. 190 (1991). The Veteran has at no time referenced other outstanding records, with any specificity, not yet associated with the file that he wanted VA to obtain or that he felt were relevant to his claims. All relevant records that could be located have been associated with the file. The Board finds that the duty to assist is discharged. The duty to assist also 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. The appellant was afforded a VA audiological examination in May 2008 and a VA examination of his claimed lung disability in May 2012. These examinations are based upon review of the claims folder, and thoroughly discuss the nature and severity of the Veteran's disability as well as the functional impairments resulting therefrom. The examinations are adequate and probative for VA purposes because the examiner relied on sufficient facts and data, provided a rationale for the opinions rendered, and there is no reason to believe that the examiners did not reliably apply reliable scientific principles to the facts and data. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); 38 C.F.R. § 4.2. The RO also attempted to schedule the Veteran for another VA audiological examination in January 2013, but the Veteran failed to report to his scheduled examination. The Veteran failed to provide good cause for his failure to report. The duty to assist is not limitless, the Veteran must cooperate with the process if he is in need of assistance. Significantly, neither the appellant nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claims that has not been obtained. Hence, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claims. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). ORDER Entitlement to service connection for a lung disability, to include asbestosis and thickening thorax, is denied. Entitlement to an initial disability rating in excess of 50 percent for bilateral hearing loss is denied. REMAND The Veteran is also seeking entitlement to service connection for a psychiatric disability, characterized as depression with insomnia. The Veteran has claimed that he received mental health treatment at Pepperrell Air Force Base in St John's, Newfoundland, Canada. The RO sent a request to the National Personnel Records Center (NPRC), asking them to search for these records. The NPRC responded with the following message: "Have ARR record. Ordered mental health records from ORU on 9/12/11. GBROC." While the exact meaning of this message is unclear to the Board, it suggests that records of mental health treatment during the Veteran's period of active service were located by the NPRC; however, these records were never associated with the Veteran's claims folder. On remand, any available service treatment records from Pepperrell Air Force Base should be associated with the Veteran's claims folder. If no such records are available, a formal finding of unavailability should be associated with the Veteran's claims folder. If, and only if, the RO is able to obtain mental health treatment records from Pepperrell Air Force Base, the RO should again attempt to afford the Veteran a VA psychiatric examination. The examiner is asked to opine whether it is at least as likely as not (fifty percent or greater) that the Veteran's current psychiatric disability (if any) had onset in service or was caused or permanently aggravated by the Veteran's active military service. The Board notes that the Veteran failed to report to the last VA psychiatric examination scheduled by the RO as part of his claim and the Veteran is reminded that, although the VA has a duty to assist in developing the claim at issue, this is not a one way street and that he cannot stand idle when the duty is invoked by failing to provide important information or otherwise failing to cooperate. Wood v. Derwinski, 1 Vet. App. 190 (1991) (aff'd on reconsideration, 1 Vet. App. 460 (1991); Olson v. Principi, 3 Vet. App. 480, 483 (1992). "The VA's 'duty' is just what it states, a duty to assist, not a duty to prove a claim with the claimant only in a passive role." Gobber v. Derwinski, 2 Vet. App. 470, 472 (1992). Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. Attempt to obtain any available service treatment records, including any mental health treatment records from Pepperrell Air Force Base in St. John's, Newfoundland, Canada. If no such records are available, a formal finding of unavailability should be placed in the Veteran's claims file. 2. If, and only if, mental health treatment records from Pepperrell Air Force Base are obtained, the RO should schedule the Veteran for a VA psychiatric examination. The examiner should note any functional impairment caused by the Veteran's disability, including a full description of the effects of his disability upon his ordinary activities, if any. The VA examiner is asked to render an opinion as to whether it is at least as likely as not (fifty percent or greater) that the Veteran's psychiatric disability (if any) had onset in service or was caused or permanently aggravated by the Veteran's active military service. The examiner should provide a rationale for his or her conclusions. The Veteran's claim folder and a copy of this REMAND should be furnished to the examiner, who should indicate in the examination report that he or she has reviewed the claims file. All findings should be described in detail and all necessary diagnostic testing performed. 3. When the development requested has been completed, and the RO has ensured compliance with the requested action, this case should again be reviewed by the RO on the basis of the additional evidence. If the benefit sought is not granted, the Veteran and his representative should be furnished a Supplemental Statement of the Case, and be afforded a reasonable 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 matter 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. 2012). ______________________________________________ K. Parakkal Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs