Citation Nr: 1324457 Decision Date: 08/01/13 Archive Date: 08/13/13 DOCKET NO. 10-42 028 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to an initial compensable rating for asbestos-related pleural disease. 2. Entitlement to service connection for bilateral hearing loss. 3. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD S. Mishalanie, Counsel INTRODUCTION The Veteran served on active duty from February 1944 to September 1964. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision by the Department of Veterans Affairs (VA) Special Processing Unit at the Regional Office (RO) in Cleveland, Ohio. The Waco, Texas RO certified the appeal to the Board. In addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claims. The Virtual VA file has been reviewed in conjunction with the disposition of the issues on appeal. 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 Regarding the evaluation for asbestos-related pleural disease, the Board finds that the VA examinations are inadequate to make a determination on this claim. Specifically, the evidence shows that the Veteran has also been diagnosed with chronic obstructive pulmonary disease (COPD) and has a 30-pack year history of smoking. The Board is precluded from differentiating between symptomatology attributed to a nonservice-connected disability and a service-connected disability in the absence of medical evidence which does so. See Mittleider v. West, 11 Vet. App. 181, 182 (1998). In this case, additional clarification is needed. The November 2009 VA respiratory examination report reflects the Veteran's complaints of cough and progressive shortness of breath. He reported using oxygen at night. The examiner noted that the Veteran's diffusion capacity was normal and that his pulmonary tests showed no restrictive disease. Therefore, the examiner opined that it was more likely than not that this major impairment was due to COPD. The pulmonary function test (PFT) noted severe obstructive impairment, but noted that concomitant restriction or air-trapping could not be ruled out. The same examiner conducted a VA respiratory examination in July 2011. He again attributed most of the Veteran's respiratory symptoms to his COPD rather than his asbestos-related pleural disease. The examiner noted that asbestosis would cause "severe impairment of diffusion" and that since the Veteran only had "mild diffusion impairment," it was more likely due to COPD. The rationale for this opinion is unclear. It stands to reason that if asbestosis causes diffusion impairment, such impairment could be either mild or severe. Furthermore, the lack of diffusion impairment in November 2009, was the basis for the examiner attributing the Veteran's respiratory symptoms to COPD. Moreover, the PFT once again noted that concomitant restriction or air-trapping could not be ruled out. For these reasons, the Board finds that the Veteran should be afforded another VA respiratory examination by a different physician so that clarification can be obtained as to whether it is possible to distinguish the symptoms associated with COPD from those associated with asbestos-related pleural disease. Regarding entitlement to service connection for bilateral hearing loss and tinnitus, on September 2, 2010, the Department of Veterans' Affairs, Veterans Benefits Administration issued Fast Letter 10-35. The subject was: Modifying the Development Process in Claims for Hearing Loss and/or Tinnitus. That letter, introduced the Duty MOS Noise Exposure Listing, a rating job aid for determinations regarding service connection of hearing loss and/or tinnitus. The Duty MOS Noise Exposure Listing is a compilation of Department of Defense-verified lists of military occupational specialties (MOSs) and the corresponding probability of hazardous noise exposure. The Fast Letter indicated that when a claim for hearing loss and/or tinnitus is received, the decision maker must review the claim for: Sufficient evidence of a current disability (including lay evidence); and evidence of hearing loss and/or tinnitus in service; or records documenting an event, injury, disease, or symptoms of a disease potentially related to an audiological disability. If there is no documented evidence of an in-service illness, injury, or event with which the claimed conditions could be associated, the Duty MOS Noise Exposure Listing will be considered. Based on the Veteran's records, each duty MOS or duty assignment documented will be reviewed for a determination as to the probability of exposure to hazardous noise on the Duty MOS Noise Exposure Listing. If the duty position is shown to have a "Highly Probable" or "Moderate" probability of exposure to hazardous noise, exposure to such noise will be conceded for purposes of establishing the in-service event. In such cases, where there is sufficient evidence of a current disability and the in-service exposure to hazardous noise is conceded based on the Duty MOS Noise Exposure Listing, VA is obligated to request a VA examination and opinion to determine if there is a medical nexus. The level of probability of exposure conceded, such as "Highly Probable" or "Moderate," should be included in the information provided to the examiner in the body of the examination request. Finally, it was noted that the Duty MOS Noise Exposure Listing is not an exclusive means of establishing a Veteran's in-service noise exposure. Claims for service connection of hearing loss must be evaluated in light of all evidence of record in each case, including treatment records and examination results. In this case, the Veteran's DD 214s indicate that his primary specialty was boiler technician and the he had active service with the U.S. Navy for over 20 years. According to the Duty MOS Noise Exposure Listing, it is "Highly Probable" that the Veteran experienced exposure to hazardous noise. He alleges that he was exposed to noise while working in the boiler room and around ship engines. Given that hazardous noise exposure was highly probable; such exposure is conceded for purposes of establishing the in-service event. This information should be provided to the November 2009 VA examiner and a supplemental opinion should be requested. 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. Any outstanding, pertinent private and/or VA treatment records should be obtained and incorporated in the claims folder. Specifically, this should include any outstanding, relevant private treatment records from Dr. Ferguson, the Veteran's primary care physician. The Veteran should be requested to sign the necessary authorization for release of any private medical records to VA. All attempts to procure such records must be documented in the file. 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. Thereafter, the Veteran should be scheduled for a VA respiratory examination with a different pulmonologist (i.e., not the physician who examined him in November 2009 and July 2011). 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 report of the examiner. The examiner's report should reflect consideration of the Veteran's documented medical history and assertions. All necessary tests and studies should be accomplished and all clinical findings reported in detail. The examiner should arrange for PFT studies to be accomplished, with forced vital capacity (FVC) and diffusion capacity of the lung for carbon monoxide by the single breath method (DLCO (SB)) results required by the rating schedule. The examiner should comment on the Veteran's effort. If any of these particular test results cannot be obtained, the examiner must provide an explanation. If past results are deemed sufficient, they may be used if that is explained. The Board notes that the claims file contains a diagnosis of COPD. The examiner must specifically address the etiology of COPD and opine whether it is at least as likely as not, i.e., is there a 50/50 chance, that it is related to service, to include asbestos exposure therein. The examiner must also address whether the Veteran's asbestosis-related pleural disease aggravates his COPD. If it is determined COPD is not associated with the Veteran's service or aggravated by his asbestosis-related pleural disease, the examiner must attempt to distinguish symptoms due to COPD from his asbestosis-related pleural disease. If the symptoms cannot be differentiated, the physician should so state in the report, and explain why. Specifically, the examiner should comment as to whether the Veteran's medications and treatment, including outpatient oxygen therapy, are for COPD symptoms or asbestos-related pleural disease. If possible, the examiner should explain the differences in symptoms between COPD and asbestosis-related pleural disease. Finally, the examiner should explain whether the FVC and DLCO values are indicative of impairment due to asbestosis-related pleural disease, impairment due to COPD, or a combination of the two. The examiner should set forth all examination findings, together with the complete rationale for the comments and opinions expressed. 3. Thereafter, arrange for claims file review by the November 2009 VA examiner to obtain a supplemental opinion as to hearing loss and tinnitus. If the reviewer determines that additional examination of the Veteran is necessary to provide a reliable opinion, such examination should be scheduled. The Veteran, however, should not be required to report for another examination as a matter of course, if it is not found to be necessary. 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 report of the examiner. The examiner should be instructed that the Veteran's exposure to hazardous noise during service was highly probable and, therefore, in-service noise exposure is conceded. The examiner is asked to provide a supplemental opinion as whether it is at least as likely as not (50 percent or higher probability) that the Veteran's bilateral hearing loss and tinnitus are related to service. The term "at least as likely as not" does not mean "within the realm of medical possibility." Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. If any opinion cannot be provide without resort to speculation, the examiner should so state and then provide a rationale for why the requested opinion could not be provided without resort to speculation. 4. After completion of the above and any additional development deemed necessary, the issues on appeal should be reviewed with consideration of all applicable laws and regulations. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished an appropriate supplemental statement of the case and be afforded the opportunity to respond. 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). _________________________________________________ MICHAEL D. LYON 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).