Citation Nr: 1310404 Decision Date: 03/29/13 Archive Date: 04/09/13 DOCKET NO. 10-47 236 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for bilateral hearing loss disability. 2. Entitlement to service connection for chronic obstructive pulmonary disease (COPD) and emphysema. 3. Entitlement to service connection for kidney stones. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD S. Higgs, Counsel INTRODUCTION The Veteran served on active duty from November 1960 to December 1965. These matters are before the Board of Veterans' Appeals (Board) on appeal from a rating decision dated in January 2009 by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. In correspondence received in November 2012, the Veteran canceled his request for a Board hearing. 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 As noted, the Veteran served on active duty from November 1960 to December 1965. In December 2008, a VA audiologist indicated she could not provide an opinion in this matter without resort to mere speculation. This was in part because the Veteran's November 1960 service entrance examination included whispered voice testing of 15/15, an imprecise finding, without a puretone threshold audiological examination. On review of the service treatment records, however, the Board notes a November 29, 1960, screening audiogram, that includes what appears to indicate to the Board, as laypersons, pure tone thresholds of 45 decibels at 4000 hertz and 40 decibels and 6000 hertz in the left ear, as well as thresholds of 0 decibels at 500, 1000, 2000, and 4000 hertz in the right ear. The Board finds that a new examination should be provided to the Veteran that takes into account the November 29, 1960, pure tone inservice audiological examination results. See 38 C.F.R. § 4.2 (examination results-corrective action). In addition, the December 2008 VA examining audiologist recommended an ear, nose and throat consult given the asymmetry of the Veteran's hearing loss. The Board will therefore request that the Veteran receive both a new audiological examination and an ear, nose and throat consultation in connection with his claim for service connection for bilateral hearing loss disability. Colvin v. Derwinski, 1 Vet. App. 171 (1991) (if the medical evidence of record is insufficient, VA is always free to supplement the record by seeking an advisory opinion, or ordering a medical examination to support its ultimate conclusions). The Veteran's representative has noted that the Veteran's service treatment records include a March 24, 1963, incident of having been exposed to flame, such that he had possibly small second degree burns of the face and neck. The representative described this as having been due to a gas stove explosion. The service treatment records indicate that the Veteran was examined to determine whether the flames were inhaled. The palate and throat appeared normal, though the nose-hairs were slightly singed. The next day his burns were cleaned and ointment was applied; the treating clinician wrote "looks good as though only severe sunburn. To rtn prn." The Veteran's representative has requested that the Veteran be provided a VA examination to determine whether his current COPD and emphysema may have been caused by the in-service exposure to flame, with the condition then having been aggravated by post-service smoking. The Board does not have the medical expertise to determine whether the Veteran's exposure to flame in service in March 1963 was a factor in the development of his COPD and emphysema. Therefore, the Board will request a VA examination and opinion on this matter. See 38 U.S.C.A. § 5103A(d) (duty to assist-VA examinations); Colvin, 1 Vet. App. 171. Also, as the Veteran was in July 2008 found by a VA CT scan of the chest to have an intracalyceal calculus of the right kidney, and in October 2008 wrote that during active service he would have "episodes of pain in the kidney area," the Board will request that he be provided a VA genitourinary examination to determine whether he has renal calculi that began during active service or within one year of discharge from service (see 38 C.F.R. §§ 3.307, 3.309(a)-presumptive service connection for chronic disease), or are related to any incident of service. See 38 U.S.C.A. § 5103A(d) (duty to assist-VA examinations). The requirement under the VCAA for warranting a VA examination, that the evidence "indicates" that the veteran's disability "may" be associated with the veteran's service, is a low threshold. See McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). Additionally, in February 2012 the Veteran wrote to indicate that he was receiving continuing treatment at VA. There is no indication that the RO has sought to obtain updated relevant records of continuing treatment. The records should be sought and associated with the Veteran's claims file. See 38 U.S.C.A. § 5103A(a)-(c); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992) (VA treatment records are considered to be constructively contained in the claims folder and must be obtained before a final decision is rendered). Accordingly, the case is REMANDED for the following action: 1. Request the Veteran to identify all records of VA and non-VA health care providers who have treated him for hearing loss, COPD, emphysema, or kidney stones during the period from December 1965 to the present. After obtaining any appropriate authorizations for release of medical information, the RO/AMC should seek to obtain any potentially relevant and available records that have not been previously received from each health care provider the Veteran identifies. The records sought should include any potentially relevant records of VA treatment for the period from September 2011 forward. The Veteran should also be advised that with respect to private medical evidence he may alternatively obtain the records on his own and submit them to the RO/AMC. 2. Once all available relevant medical records have been received, make arrangements with the appropriate VA medical facility for the Veteran to be afforded a VA audiological examination and a VA ear, nose and throat examination. The RO/AMC should send the claims file to the examiners for review, and the clinicians should indicate that the claims file was reviewed. The evidence reviewed should include a November 3, 1960, service entrance examination with whispered voice results of 15/15 in both ears and a profiling of the Veteran's ears at level "1"; a November 29, 1960, "group screening audiogram," which appears to show results of pure tone thresholds of 45 decibels at 4000 hertz and 40 decibels and 6000 hertz in the left ear, as well as thresholds of 0 decibels at 500, 1000, 2000, and 4000 hertz in the right ear; and a report of audiological testing results on a December 1964 service discharge examination report. The examiners should take a complete history from the Veteran for each ear as to the nature and onset of his hearing loss. After all appropriate testing and examination, the examiners should indicate for each ear whether the Veteran has sensorineural hearing loss, conductive hearing loss, or a mixed hearing loss. If there is a medical basis to support or doubt the history provided by the Veteran, the examiners should state this, with a fully reasoned explanation. For the left ear the examiner(s) should state whether he or she can assert to a very high degree of medical certainty that the Veteran's hearing loss existed prior to service. Also for the left ear the examiner(s) should state whether he or she can assert to a very high degree of medical certainty that the Veteran's left ear hearing loss was NOT aggravated (chronically worsened) during active service. For the right ear, the examiner(s) should provide an opinion as to whether it is at least as likely as not that the hearing loss disability began during active service or within one year after discharge from service, or is related to any incident of service. If a requested opinion is best rendered by the ear, nose, and throat examiner, the audiological examiner should state this fact. The examiners are requested to provide a fully reasoned explanation for their opinions, based on established medical principles and their clinical experience and medical expertise. 3. Once all available relevant medical records have been received, make arrangements with the appropriate VA medical facility for a pulmonary examination. The RO/AMC should send the claims file to the examiner for review, and the clinician should indicate that the claims file was reviewed. The records reviewed should include a March 24, 1963, incident of having been exposed to flame, such that he had possibly small second degree burns of the face and neck. This was apparently due to a gas stove explosion. The service treatment records indicate that the Veteran was examined to determine whether the flames were inhaled. The palate and throat appeared normal, though the nose-hairs were slightly singed. The next day his burns were cleaned and ointment was applied; the treating clinician wrote "looks good as though only severe sunburn. To rtn prn." All indicated tests and studies should be conducted. The examiner should also note the Veteran's history of smoking, documented in VA treatment records. The examiner should take a complete history from the Veteran as to the nature and onset of his respiratory symptoms. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should state this, with a fully reasoned explanation. The examiner should provide a diagnosed for each pulmonary disability found upon examination. For each disability diagnosed, the examiner should indicate whether the disorder began during active service or is related to any incident of service, including the March 24, 1963, incident in which he was exposed to flame and burned his face and singed his nose-hairs. The examiner should provide a fully reasoned explanation for his or her opinions, based on established medical principles and his or her clinical experience and medical expertise. 4. Once all available relevant medical records have been received, make arrangements with the appropriate medical facility for a VA genitourinary examination. The RO/AMC should send the claims file to the examiner for review, and the clinician should indicate that the claims file was reviewed. The records reviewed should include a July 2008 VA CT scan of the chest that includes an impression of an intracalyceal calculus of the right kidney. All indicated tests and studies should be conducted. The examiner should take a complete history from the Veteran as to the nature and onset of his claimed symptoms. The Board notes that in a written statement September 2008 the Veteran described experiencing "episodes of pain in the kidney area" during active service. The examiner should indicate whether it is at least as likely as not that the Veteran has renal calculi that began during active service or within one year after discharge from service, or are related to any incident of service. The examiner should provide a fully reasoned explanation for his or her opinions, based on established medical principles and his or her clinical experience and medical expertise. 5. Readjudicate the issues on appeal. If any benefit sought remains denied, provide the Veteran and his representative a supplemental statement of the case and an appropriate period of time for response. Thereafter, subject to current appellate procedure, the case must be returned to the Board for further consideration, if otherwise in order. No action is required of the Veteran until he is otherwise notified by the RO/AMC. By this action, the Board intimates no opinion, legal or factual, as to any ultimate disposition warranted in this case. 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). This appeal 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). _________________________________________________ CHERYL L. MASON 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).