Citation Nr: 1326565 Decision Date: 08/21/13 Archive Date: 08/29/13 DOCKET NO. 09-26 919 ) DATE ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for bilateral tinnitus. 2. Entitlement to service connection for bilateral sensorineural hearing loss. 3. Entitlement to service connection for a pulmonary disorder, to include chronic obstructive pulmonary disease, claimed as asbestosis, to include as secondary to herbicide and asbestos exposure. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD N. Holtz, Associate Counsel INTRODUCTION The Veteran had active duty service from January 1965 to March 1968, to include service in Vietnam. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In an August 2013 appellate brief, the Veteran's representative raised claims of entitlement to service connection for (1) ischemic heart disease, to include as secondary to herbicide exposure, and (2) an acquired psychiatric disorder, as well as (3) entitlement to a total disability rating based on individual unemployability and (4) entitlement to a nonservice-connected pension. These issues have not yet been adjudicated by the agency of original jurisdiction (AOJ), and thus the Board does not have jurisdiction over them; they are referred to the AOJ for appropriate development and adjudication. The issues are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. Appellant will be notified if additional action is required. REMAND The Veteran claims that his hearing loss and tinnitus have existed since a mortar shell exploded nearby when he was in Vietnam. His service treatment records, including a separation examination are without complaints or findings of hearing loss or tinnitus. When hospitalized for VA treatment in 1986, he gave a history of the onset of hearing loss about 10 years earlier, and the onset of tinnitus about 5 years earlier. No particular cause or etiology of hearing loss was noted in those records. The pertinent VA medical report on file, with particular reference to the service treatment records, concludes that the hearing loss and tinnitus are unrelated to service. The Veteran's representative has argued that the examination report is inadequate for rating purposes as it does not address the etiology of the hearing loss or tinnitus, to include whether it could have resulted from a delayed onset as a result of the claimed in-service acoustic trauma. In order to assure appellant every consideration of the claim, the matter will be returned to the prior examiner with a request for additional opinion. The remaining claim must also be remanded, in part for due process consideration, and in part for an additional opinion from the examiner who did the pulmonary examination. In part, the appellant's representative has submitted numerous articles concerning pulmonary disorders, including interstitial lung disease (ILD). In part these articles note that ILD is not usually the result of smoking. There is no waiver of RO review of this information. Moreover, there is a 2005 private finding that the Veteran may have mild ILD. Thus, the articles may be pertinent. Most of the appellant's private physicians over the years have determined that he has chronic obstructive pulmonary disease (COPD). There is a history of childhood asthma, but no findings of any chronic asthma. The examiner who did the most recent VA examination did not make reference to ILD, and it is unclear whether any signs or symptoms existed. In any event, additional opinion as to whether there are indications of ILD and, if so, whether that might be related to service will provide a more complete examination for rating purposes. Accordingly, the case is REMANDED for the following action: 1. Return the claims file to the examiner who performed the April 2009 audiological examination for an addendum opinion regarding the etiology of the Veteran's bilateral sensorineural hearing loss and tinnitus. If the April 2009 examiner is no longer available, VA should determine whether a new examination is necessary, or whether a medical opinion without a new examination would address the questions presented. If a new examination is necessary, then one should be provided. The examiner should review this remand, the claims file, and any relevant records associated with the Veteran's Virtual VA electronic file (currently there are no medical records in that file). The addendum should indicate that this review occurred. In reviewing the examination and claims file, the examiner should indicate whether the type of hearing loss shown would be consistent with acoustic trauma, or might more likely related to disease, advancing age, or other pathology. The examiner is then asked to opine as to whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's bilateral sensorineural hearing loss and tinnitus are related to the reported in service acoustic trauma. Specifically, given the findings at separation, is it likely that hearing loss subsequently shown could have been delayed onset from the in-service acoustic trauma? A complete rationale must be provided for all opinions expressed. If the examiner is unable to provide a requested opinion without resort to speculation, he should indicate why such a response would be speculative. 2. Return the claims file to the examiner who did the 2009 respiratory examination for an addendum opinion regarding the lung disease, to include whether there are indications of chronic ILD, and if so, whether those findings might be related to service. If there is no ILD found, the examiner should reconcile/discuss the finding on the private record noting that mild ILD was suggested. If the examiner is not available, please forward the records to a similarly situated examiner for review. If additional examination is indicated it should be scheduled. A complete rationale for all opinions expressed is requested. 3. The RO/AMC should review the examination reports to ensure that they are adequate and comply with the directives contained in this remand. If a report is inadequate in any manner, the RO should take immediate corrective action. 4. After completion of the above and any additional development deemed necessary, the issues on appeal must be reviewed with consideration of all applicable laws and regulations, to include consideration of evidence submitted by the appellant in June 2011. If the claims are not granted to the Veteran's satisfaction, send him and his representative a Supplemental Statement of the Case concerning the claims and give him time to submit additional evidence and/or argument in response before returning the file to the Board for further appellate consideration of these claims. The appellant 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). 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).