Citation Nr: 1318256 Decision Date: 06/05/13 Archive Date: 06/11/13 DOCKET NO. 12-26 081 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to service connection for a bilateral hearing loss disability. 2. Entitlement to service connection for tinnitus. 3. Entitlement to service connection for a lung disorder due to asbestosis exposure. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD S. Mishalanie, Counsel INTRODUCTION The Veteran served on active duty from July 1943 to March 1946 and from September 1950 to October 1953. He also had periods of active duty training and inactive duty training with the Navy Reserve; he retired in April 1985. These matters come before the Board of Veterans' Appeals (Board) on appeal from rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. In addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claims. 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 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 above, the Veteran served with the Navy Reserve and retired in April 1985. Although the RO obtained his service treatment records from his active duty service, no attempt was made to obtain his Navy Reserve records. As these records may be pertinent to his claims, VA has a duty to assist him in obtaining them. 38 U.S.C.A. § 5103A(b) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(c)(2) (2012). Specific to his claim of entitlement to service connection for bilateral hearing loss and tinnitus, the Veteran asserts that these disabilities have bothered him since active duty. Hence, his reserve records may be pertinent to his assertions of continuity of symptomatology. Regarding the Veteran's claim of entitlement to service connection for a lung disorder, he asserts that he has chronic obstructive pulmonary disease due to asbestos exposure while in the military. Specifically, he claims he was exposed to asbestosis while serving on board merchant ships during his first period of active duty from July 1943 to March 1946. An April 2002 private treatment record notes an impression of chronic obstructive pulmonary disease; however, subsequent treatment records make no mention of this disease. In a March 2013 letter, Dr. A.S., a private physician, stated that the Veteran was diagnosed with chronic obstructive pulmonary disease by chest x-ray and pulmonary function studies. He noted that the appellant had been followed by a pulmonologist, Dr. J.H. for a number of years. On remand, an attempt should be made to obtain these private treatment records. 38 C.F.R. § 3.159(c)(1). The Board also finds that a VA examination is warranted. VA will provide a medical examination or obtain a medical opinion if the record, including lay or medical evidence, contains competent evidence of a disability that may be associated with an event, injury, or disease that occurred in service, but the record does not contain sufficient medical evidence to decide the claim. 38 U.S.C.A. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The threshold for determining whether the evidence "indicates" that there "may" be a nexus between a current disability and an in-service event, injury, or disease is a low one. Id. at 83. In this case, the Veteran's 1946 discharge certificate reflects that he served in the Navy during World War II. The appellant states that during his first term of service he served on the United States Victory Ship, the Thomas P. Leathers Liberty Ship, and the Salinas Victory Ship. Although the RO requested his military personnel records during this specific time period, none were available. Nonetheless, the Veteran is competent to report what he personally experienced, including service on board these vessels during World War II. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). VA has recognized high exposure to asbestos during World War II among individuals who were employed at shipyards and who served in the Navy. See VA's Adjudication Procedure Manual, M21-MR, Part IV.ii.2.C.9.g. (Dec. 13, 2005). Furthermore, there is competent medical evidence indicating that the Veteran has a current lung disease. While chronic obstructive pulmonary disease is by definition an obstructive lung disorder, and while asbestosis is a restrictive lung disorder, http://www.epa.gov/libby/healthrisk.html, the Board cannot offer its own medical opinion as to the etiology of any current lung disorder. Colvin v. Derwinski, 1 Vet. App. 171 (1991). Given the competent lay testimony and the medical records documenting current disability, the Board finds that the record does not contain sufficient medical evidence to make a decision on the claim. Therefore, a VA examination and medical opinion is needed to fairly resolve the claim. Accordingly, the case is REMANDED for the following actions: (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. The RO must contact the appropriate agencies and request any service treatment records that have not been associated with the claims file. Specifically, this should include a request for service treatment records associated with the Veteran's reserve service, particularly any audiometric or respiratory examination reports. The RO must document all efforts made to obtain such records. If the RO cannot locate such records, the RO must specifically document the attempts that were made to locate them, and explain in writing why further attempts to locate or obtain any government records would be futile. The RO must then: (a) notify the claimant of the specific records that it is unable to obtain; (b) explain the efforts VA has made to obtain that evidence; and (c) describe any further action it will take with respect to the claims. The claimant must then be given an opportunity to respond. 2. The RO should contact the Veteran and request that he identify the name, address, and approximate beginning and ending dates of all VA and non-VA health care providers who have treated him for any lung disorder. This should specifically include any treatment provided by Dr. J. Harris. If the RO cannot locate such records, it must specifically document all attempts that were made to locate them, and explain in writing why further attempts to locate or obtain any government records would be futile. The RO must then: (a) notify the claimant of the specific records that it is unable to obtain; (b) explain the efforts VA has made to obtain that evidence; and (c) describe any further action it will take with respect to the claims. The claimant must then be given an opportunity to respond. 3. After completion of all of the foregoing, the Veteran must be afforded a VA pulmonary examination by a physician to determine the nature and etiology of any current lung disorder. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The Veteran's claims folder and all pertinent records from Virtual VA must be made available for the examiner's review prior to the entry of any opinion. A notation to the effect that this record review took place should be included in the examiner's report. The physician examiner is requested to diagnose any current lung disorder. Thereafter, the examiner is to opine whether it is at least as likely as not, i.e., is there a 50/50 chance, that any diagnosed lung disorder, to include chronic obstructive pulmonary disease, is related to military service, to include due to in-service asbestos exposure. The physician examiner must provide a complete rationale for any opinion offered. If the examiner is unable to provide an opinion that fact must be stated and the reasons why an opinion cannot be provided explained. 4. The Veteran is to be notified that it is his responsibility to report for the examination and to cooperate in the development of the claims. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2012). In the event that the Veteran does not report for any scheduled examination, documentation should be obtained which shows that notice scheduling the examination was sent to the last known address. It should also be indicated whether any notice that was sent was returned as undeliverable. 5. After the development requested has been completed, the RO should review any report to ensure that it is in complete compliance with the directives of this REMAND. The RO must ensure that the examiner documented his or her consideration of Virtual VA. If the report is deficient in any manner, the RO must implement corrective procedures at once. 6. Upon completion of the above development, and any additional development deemed appropriate, to include, if warranted, supplemental VA medical opinions regarding any diagnosed hearing loss and tinnitus, the RO/AMC must readjudicate the issues on appeal. All applicable laws and regulations must be considered. If any benefit sought on appeal remains denied, the appellant and any representative must be provided with a supplemental statement of the case. An appropriate period of time should be allowed for response. 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). These claims must be afforded expeditious treatment. The law requires that all claims 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). _________________________________________________ DEREK R. BROWN 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).