Citation Nr: 1321399 Decision Date: 07/03/13 Archive Date: 07/12/13 DOCKET NO. 12-18 911 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUES 1. Entitlement to service connection for pulmonary disability, to include asbestosis. 2. Entitlement to service connection for hearing loss. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD M. Taylor, Counsel INTRODUCTION This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). The Veteran served on active duty from September 1954 to July 1958. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana. The issues have been recharacterized to comport with the record. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). 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. REMAND The Veteran asserts entitlement to service connection for pulmonary disability, to include asbestosis. In the June 2012 substantive appeal, VA Form 9, he noted exposure to asbestos during service from 1954 to 1958. A September 1995 private examination report reflects exposure to asbestos from 1953 to 1954 and from 1958 to 1986, in association with his occupation as a machine tender. A 25-year smoking history was noted, and pulmonary function tests (PFTs) were reported to show restrictive lung disease. The diagnosis was pulmonary asbestosis based on chest x-ray examination. In an undated private opinion, received in June 2012, Dr. Castiglioni stated that based on the Veteran's occupational history, the B-reading of the chest x-ray examination, and the pulmonary function studies, the Veteran had asbestosis and some pulmonary impairment. As reflected in the VA examination request, the RO has conceded exposure to asbestos during service based on his duties as a fireman. It was noted that his duties as a metal smith resulted in only minimal asbestos exposure, as determined by the Department of Defense. On VA examination in July 2012, the diagnosis was chronic obstructive pulmonary disease. Although high resolution computed tomography (CT) scan of the chest was noted to show no classic asbestos-related pleural plaques or asbestosis related to lung disease, the examiner did not address the 1995 diagnosis of asbestosis, and no opinion was provided with respect to whether COPD is related to service. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). The report of examination is inadequate. See Barr v. Nicholson, 21 Vet. App. 303 (2007). Because the examination report notes the Veteran failed to report for scheduled PFTs, on remand, advise the Veteran that failure to appear for a scheduled VA examination may result in a denial of the claim. 38 C.F.R. § 3.655. With respect to service connection for hearing loss, as reflected in the March 2009 VA audio examination report, the Veteran has a current diagnosis of sensorineural hearing loss in both ears and the severity of his hearing loss in each ear meets the criteria for a disability as defined by 38 C.F.R. § 3.385. In addition to duties as a fireman, the Veteran's DD Form 214 shows a military occupational specialty (MOS) of sheet metal worker, and service personnel records reflect he was a metal smith. The Board accepts that the Veteran was exposed to loud noise during service. See VBA Fast Letter 10-35 (September 2, 2010) (VA will concede exposure to hazardous noise where a veteran's duty position is shown to have a "Highly Probable" or "Moderate" probability of such exposure). The March 2009 VA examiner opined that an opinion as to whether the Veteran's hearing loss is related to acoustic trauma during service could not be provided without resort to speculation. It was noted that the Veteran's hearing at service entrance and separation is unknown. In certain situations, an examiner may be unable to render a medical opinion due to limits of the most current medical knowledge. It is unclear to the Board why the March 2009 examiner was unable to render an opinion regarding the Veteran's bilateral hearing loss disability without resorting to speculation. The examiner had access to the Veteran's reported history of service and post-service noise exposure, service treatment records, and current audiologic readings. This information should allow the examiner to render an opinion as to whether it is at least as likely as not (i.e. a 50 percent probability or greater) that any hearing loss is related to service. As such, clarification is necessary prior to further consideration of this matter by the Board. Accordingly, the case is REMANDED for the following action: 1. Provide the Veteran with notice that failure to report for a scheduled VA examination, to include PFTs, may result in a denial of the claim. See 38 C.F.R. § 3.655. 2. Schedule the Veteran for a VA pulmonary examination by an appropriate medical professional. 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. If the examiner does not have access to Virtual VA, any relevant treatment records contained in the 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. The examiner is to conduct all indicated tests. The examiner is to provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that a pulmonary disability, to include asbestosis and COPD, is related to service. The examination report must include a complete rationale for all opinions expressed, citing to the medical and competent lay evidence of record. 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). 3. Schedule the Veteran for a VA audio examination by an appropriate medical professional. 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. If the examiner does not have access to Virtual VA, any relevant treatment records contained in the 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. The examiner is to conduct all indicated tests. The examiner is to provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that bilateral hearing loss is related to service. 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. 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 either benefit 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 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). These 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 Supp. 2012). _________________________________________________ RONALD W. SCHOLZ 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).