Citation Nr: 1321716 Decision Date: 07/08/13 Archive Date: 07/18/13 DOCKET NO. 09-48 523 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUES 1. Entitlement to an initial compensable disability rating for service-connected bilateral hearing loss. 2. Entitlement to service connection for a respiratory disorder as due to exposure to asbestos. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD S. M. Kreitlow INTRODUCTION The Veteran had active military service from June 1969 to March 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts, in which the RO, in part, granted service connection for bilateral hearing loss and assigned a noncompensable disability rating. The RO also denied service connection for a respiratory disorder claimed as due to asbestos exposure. The Veteran initiated an appeal of the denial of a compensable disability rating for his now service-connected bilateral hearing loss and the denial of service connection for a respiratory disorder in a July 2009 Notice of Disagreement. He perfected his appeal in December 2009. The Veteran appeared and testified at a Board hearing held at the RO before the undersigned Veterans Law Judge in March 2013. A copy of the transcript of this hearing has been associated with the claims file. A review of the transcript demonstrates that the Veterans Law Judge complied with the requirements set forth in Bryant v. Shinseki, 23 Vet. App. 488, 491-93 (2010). 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 Board finds that remand of the Veteran's claims is warranted for additional development based upon his testimony and additional evidence presented at the March 2013 Board hearing. Increased Rating for Bilateral Hearing Loss The Veteran testified at the March 2013 hearing that his bilateral hearing loss has worsened since the most recent examination, which was conducted in August 2008. (See transcript of hearing, pg. 3.) In addition, the Veteran submitted a copy of a March 2013 VA audiology consult showing the Veteran reported progressive worsening of his hearing. As such, VA is required to afford him a contemporaneous VA examination to assess the current nature, extent and severity of his psychiatric disability. See Palczewski v. Nicholson, 21 Vet. App. 174, 181 (2007); VAOPGCPREC 11-95 (1995), 60 Fed. Reg. 43186 (1995). Thus, the Board has no discretion and must remand this claim. Service Connection for a Respiratory Disorder The Board notes that the Veteran's claim has been denied by the RO on the basis of no disability because the Veteran had not submitted any medical evidence showing he has a current respiratory disorder. At the Board hearing in March 2013, the Veteran testified as to his exposure to asbestos while he was in the Navy serving aboard the USS Willard Keith. He testified that he first sensed he had some type of respiratory disorder about a year after he got out of the Navy. He related that he had an incident in which he was driving along and started gasping for air and coughing, and he passed out causing an accident. He stated, however, that he did not seek medical treatment at that time as the condition stopped. He related that he first sought treatment about eight to nine years ago. When he did, his private physician, Dr. Cunningham, said he had a touch of asthma and put him on an Albuterol inhaler, which he has continued to use since. He related that he told his physician about his naval service and exposure to asbestos, and that she said his condition was probably service-connected. In addition, at the hearing, the Veteran submitted for the first time medical evidence relating to his claim of service connection for a respiratory disorder. He submitted a physician's statement (although the name of the physician is unknown as the signature is illegible and there is no printed name) in which the physician stated that he/she has diagnosed the Veteran with "asbestos exposure," and it is his/her opinion that it is at least as likely as not the result of exposure to asbestos during his active duty in the Navy. The physician further stated that he/she has not diagnosed a typical asbestos-related disease such as pneumoconiosis or mesothelioma, but he has had significant asbestos exposure and the physician thinks evaluation is warranted. The Veteran also submitted the report of pulmonary function testing (PFTs) from August 2010. The Board notes that it is unclear whether this report shows the Veteran has any respiratory disorder. On the report, it says "ATS Interpretation: PREMED - mild restriction." Also on the report in handwriting is noted "reduced time;" however, it also notes "Normal." Based on the Veteran's testimony as to having a current respiratory disorder, physician's statement and the unclear PFTs report, the Board finds that additional development of the claim is warranted. Initially, the Board notes that the record was held open for 60 days after the March 2013 hearing for the Veteran to obtain and submit the medical records from Dr. Cunningham; however, no records have been received to date. The Board finds, however, since it is remanding anyway, that the Veteran should be given another opportunity to either provide those treatment records himself or to provide VA with a release so that it can attempt to obtain these records. He should also be asked to provide a release or the records of any other private physician who has treated his claimed respiratory disorder since that initial treatment eight or nine years ago. If he knows that these records are unavailable, he should submit a statement advising VA of that. The Board further notes that the Veteran testified at the March 2013 that he has not received any treatment so far from VA for his respiratory disorder; however, he was pending an appointment being made for an evaluation. On remand, the Veteran should be asked if he has since had that appointment at VA for evaluation of his respiratory disorder and, if so, what VA medical facility such evaluation was held. If the Veteran indicates that he has had treatment at VA, then those records should be associated with the claims file. Finally, the Board finds that a VA respiratory examination is warranted to evaluate the Veteran's claimed respiratory disorder and to obtain a medical opinion whether it is related to his military service, specifically exposure to asbestos. After all additional records development has been completed, the Veteran should be scheduled for such examination. A medical examination or medical opinion is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim but (1) contains competent lay or medical evidence of a current diagnosed disability or persistent or recurrent symptoms of a disability; (2) establishes that the Veteran suffered an event, injury, or disease in service; and (3) indicates that the claimed disability or symptoms may be associated with the established event, injury, or disease in service. The third part could be satisfied by competent evidence showing post-service treatment for a condition or other possible association with military service. 38 C.F.R. § 3.159(c)(4). The threshold for establishing the third element is low for there need only be evidence that "indicates" that there "may" be a nexus between the current disability and military service. McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Board finds that the minimum requirements for an examination are met in the present case. Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and ask him to complete a release form authorizing VA to obtain the treatment records of Dr. Cunningham, the private physician whom he testified at the March 2013 Board hearing initially treated him about eight to nine years ago for his current respiratory disorder. The Veteran should also be requested to complete and submit a release form for any other private physicians who have treated him since that time. The Veteran should be advised that, in lieu of submitting the completed release forms, he can submit these private medical treatment records to VA himself. If the Veteran has knowledge that any of these private treatment records are unavailable, then he should advise VA of that fact. If the Veteran provides the completed release forms, then the medical records identified should be requested. All efforts to obtain these records, including follow-up requests, if appropriate, should be fully documented. The Veteran and his representative should be notified of unsuccessful efforts in this regard and afforded another opportunity to submit the identified records. 2. Contact the Veteran and ask him if he has received any treatment at a VA medical facility for his current respiratory disorder since his March 2013 Board hearing (as he testified he was awaiting an appointment). If so, the Veteran should identify what VA medical facility such treatment was provided and those treatment records should be associated with the claims file. 3. After all additional available evidence has been obtained and associated with the claims file, schedule the Veteran for the following examinations. The claims file must be provided to and reviewed by each examiner, who must indicate in his/her report that said review has been accomplished. Respiratory Examination - All necessary diagnostic tests and/or studies should be accomplished to determine what, if any, respiratory disorder the Veteran currently has. Then, after reviewing the claims file and examining the Veteran, the examiner should render an opinion as to whether it is at least as likely as not (i.e., at least a 50 percent probability) that any current respiratory disorder found on examination is related to any disease or injury incurred during service. The examiner should specifically address whether the respiratory disorder is etiologically related to exposure to asbestos during the Veteran's service in the Navy onboard the USS Willard Keith. In rendering an opinion, the examiner should consider the Veteran's statement s, if any, as to an onset in service and/or continuity of symptoms since service. Audiological Examination - The examination should be conducted by a VA audiologist for the purpose of ascertaining the current severity of the Veteran's service-connected bilateral hearing loss. The examiner should perform a complete audiological evaluation. The examiner should elicit information as to the effect the Veteran's hearing loss has on his activities of daily living, including work and social activities. If speech discrimination testing is inappropriate, the examiner should indicate the reason for which such was not performed or is not valid. Each examiner should give a detailed explanation for the reasons for any opinion(s) provided. The medical reasons for accepting or rejecting the Veteran's theories of entitlement should be set forth in detail. If an examiner determines that he/she cannot provide an opinion without resorting to speculation, the examiner should explain the inability to provide an opinion, identifying precisely what facts could not be determined. In particular, he/she should comment on whether an opinion could not be provided because the limits of medical knowledge have been exhausted or whether additional testing or information could be obtained that would lead to a conclusive opinion. Jones v. Shinseki, 23 Vet. App. 382, 389 (2010). (The agency of original jurisdiction should ensure that any additional evidentiary development suggested by the examiner be undertaken so that a definite opinion can be obtained.) 4. After all requested development and any additional assistance necessary has been provided to the Veteran (including ensuring the adequacy of the VA examination reports), the Veteran's claims should be readjudicated. If such action does not resolve the claims, a Supplemental Statement of the Case should be issued to the Veteran and his representative. An appropriate period of time should be allowed for response. Thereafter, these claims should be returned to this Board for further appellate review, if in order. 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 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). _________________________________________________ ROBERT E. SULLIVAN Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board 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).