Citation Nr: 1310140 Decision Date: 03/26/13 Archive Date: 04/02/13 DOCKET NO. 10-44 521 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. 3. Entitlement to service connection for chronic obstructive lung disease (COPD). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD D. Johnson, Counsel INTRODUCTION The Veteran served on active duty from September 1972 to January 1973 and from March 1973 to March 1974. This matter is before the Board of Veterans' Appeals (Board) on appeal of a December 2008 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). Service connection for COPD was denied in a December 2008 rating decision. The Veteran did not submit a Notice of Disagreement in response to that rating decision. However, the Board notes that new and material evidence received prior to the expiration of the appeal period will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b). Here, new and material evidence (i.e. the Veteran's November 2009 statement describing his in-service exposure to asbestos) was received within a year of the unappealed December 2008 rating decision. Accordingly, the December 2008 rating decision is the proper rating action on appeal and this issue has not been characterized as a claim to reopen. See Bond v. Shinseki, 659 F.3d 1362, 1367-8 (Fed. Cir. 2011); see also Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2010). The Veteran requested to appear at a Travel Board hearing, but subsequently canceled his request in a January 2011 statement. 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 The Veteran seeks service connection for a bilateral hearing loss disability and tinnitus. He was provided a VA audiology examination in October 2009. The examiner opined that a current bilateral sensorineural hearing loss disability and tinnitus are unrelated to military service. The examiner seems to have based his opinion solely on the fact that the Veteran's bilateral hearing acuity was normal at discharge and the current right ear hearing acuity has not significantly changed since service discharge. He did not provide a specific rationale for why tinnitus is not related to service. The Board notes that the absence of documented hearing loss in service is not fatal to a service connection claim for hearing loss. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992); see also Dalton v. Nicholson, 21 Vet. App. 23 (2007). As the nexus opinion which was provided is insufficient for adjudication of the claim, an addendum opinion is required. See Barr v. Nicholson, 21 Vet. App. 303 (2007). The Veteran contends that his COPD is related to service. He alleges in-service exposure to asbestos; however, in the October 2010 Statement of the Case, the RO noted that the Veteran's occupational specialty was that of a disbursing clerk and seaman apprentice and that although he was aboard the U.S.S. Constellation from May 1973 to July 1973, there is no indication he worked in an occupation that would expose him to asbestos. Nevertheless, service treatment records reflect that the Veteran was diagnosed with a cold in September 1973, while serving aboard the USS Constellation. Moreover, a December 1973 medical record shows a diagnosis of upper respiratory illness. Post-service VA treatment records reflect a diagnosis of COPD and tobacco use disorder. As there is evidence of in-service respiratory complaints, a current diagnosis of COPD, and allegations from the Veteran that he has experienced respiratory problems since service, it is necessary to obtain a medical opinion based upon a thorough review of the record, comprehensive examination of the Veteran, and adequate rationale. 38 U.S.C.A. § 5103A (d) (West 2002); see also McLendon v. Nicholson, 20 Vet. App. 79 (2006). Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and ask him to identify all sources of VA and non-VA treatment for his hearing loss, tinnitus, and respiratory disabilities. He is asked to provide, or authorize VA to obtain, any and all non-duplicative treatment records pertaining to these disabilities. All efforts to obtain any and all identified records must be fully documented in the claims file. 2. Notify the Veteran that he may submit lay statements from himself, as well as from individuals who have first-hand knowledge of the onset of his hearing loss, tinnitus, and respiratory disabilities. He should be provided an appropriate amount of time to submit this lay evidence. 3. After any outstanding, pertinent records are added to the claims file, arrange for the Veteran's claims file to be returned to the examiner that provided the October 2009 VA audiology examination. If that examiner is unavailable, the claims file should be sent to another VA examiner with appropriate expertise. The examiner is to provide an opinion as to whether it is at least as likely as not that a current bilateral sensorineural hearing loss disability and tinnitus are related to service; and, whether it is at least as likely as not that the current bilateral sensorineural hearing loss manifested to a compensable degree within one year of service discharge. The examination report must include a complete rationale for all opinions expressed. If the examiner feels that the requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). 4. After any outstanding, pertinent records are added to the claims file, the Veteran should be afforded an appropriate VA examination to determine the nature, onset and etiology of any respiratory disability found to be present. The claims folder must be made available to and reviewed by the examiner. All indicated studies should be performed and all findings should be reported in detail. Based on the current examination findings and review of the claims file, the examiner must answer the following questions: (a) Does the clinical evidence of record support a finding that the Veteran currently has a respiratory disability that manifests as asbestosis or an asbestos-related disease? The examiner is asked to refer to and discuss any specific clinical studies, if applicable, to either rule in or rule out current asbestosis or an asbestos-related disease. (b) For any current chronic respiratory disability that is found to be present based on the clinical evidence, to include the currently diagnosed condition of COPD, is it at least as likely as not that such disability had its onset in service, or is otherwise etiologically related to the Veteran's service? The rationale for all opinions expressed should be provided in a legible report. Include discussion of the significance, if any, of the Veteran's tobacco use and/or 10-year history of post-service civilian employment in the construction field. If the VA examiner determines that he or she is unable to provide the requested medical opinion without resorting to speculation, this should be indicated in the report, along with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. 5. Review the claims file to ensure that all of the foregoing development has been completed, and arrange for any additional development indicated. Then readjudicate the claims on appeal. If the benefit sought remains denied, issue an appropriate supplemental statement of the case and provide the Veteran and his representative an appropriate period of time to respond. The case is to then be returned to the Board for further appellate review. 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. 2012). _________________________________________________ M. N. HYLAND Acting 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).