Citation Nr: 1327160	
Decision Date: 08/26/13    Archive Date: 08/29/13

DOCKET NO.  10-22 135	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in San Diego, California


THE ISSUES

1.  Entitlement to service connection for a respiratory disorder, to include asthma and bronchitis, due to inservice herbicide exposure.  

2.  Entitlement to an initial compensable rating for hearing loss prior to August 16, 2012, and to a rating in excess of 30 percent thereafter.  


REPRESENTATION

Appellant represented by:	California Department of Veterans Affairs


ATTORNEY FOR THE BOARD

J. Fussell, Counsel



INTRODUCTION

The Veteran had active service from March 1968 to January 1970.  He served in the Republic of Vietnam.  

This matter initially comes before the Board of Veterans' Appeals (Board) on appeal of a December 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California, which, in pertinent part, denied service connection for a respiratory disorder and granted service connection for hearing loss of the right ear which was assigned a noncompensable rating, effective February 28, 2007 (date of receipt of original claim).  A notice of disagreement (NOD) was received on November 17, 2008 (in which the Veteran mentioned having had ringing in his ears since an inservice grenade explosion).  

A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal, except as otherwise stated herein.  

A June 2009 rating decision granted service connection for tinnitus, which was assigned an initial 10 percent rating, effective November 17, 2008.  An NOD as to the effective date for service connection for tinnitus was received later in June 2009.  

A March 2010 rating decision granted service connection for hearing loss of the left ear, effective August 10, 2009, but confirmed and continued the noncompensable disability rating for bilateral hearing loss.  

A May 2010 rating decision granted an earlier effective date for service connection and the 10 percent rating for tinnitus, as of February 28, 2007 (date of receipt of the original service connection claim).  This constituted a full grant of the benefit sought and, so, that matter is no longer in appellate status.  

A September 2012 rating decision granted an increase for bilateral hearing loss to 30 percent, effective August 16, 2012 (date of official rating examination).  

A claimant's identification of the benefit sought does not require any technical precision.  See Ingram v. Nicholson, 21 Vet. App. 232, 256-57 (2007).  A claimant may satisfy this requirement by referring to a body part or system that is disabled or by describing symptoms of the disability.  Brokowski v. Shinseki, 23 Vet. App. 79, 86-87 (2009); see also Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009) (to the effect that, when determining the scope of a claim, the Board must consider "the claimant description of the claim; the symptoms the claimant describes; and the information the claimant submits or that the Secretary obtains in support of that claim").  Inasmuch as private clinical records suggest that the Veteran has asthma and bronchitis, the claim for service connection for a respiratory disorder is recharacterized as stated on the title page. 

The issue of service connection for a respiratory disorder, to include asthma and bronchitis, due to inservice herbicide exposure, is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.


FINDINGS OF FACT

1.  Prior to August 16, 2012, the Veteran's hearing loss was manifested by no more than Level V hearing in the right ear and Level IV hearing in the left ear.  

2.  Since August 16, 2012, the Veteran's bilateral hearing loss has manifested by no more than Level VII hearing in the right ear and Level V hearing in the left ear.  


CONCLUSIONS OF LAW

1.  The criteria for a compensable evaluation for hearing loss, unilateral or bilateral, prior to August 16, 2012, are not met.  38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 3.321(b)(1), 3.383, 3.385, 4.2, 4.7, 4.10, 4.21, 4.85, 4.86, Diagnostic Code 6100 (2012).  

2.  The criteria for a rating in excess of 30 percent for bilateral hearing loss since August 16, 2012, are not met.  38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 3.321(b)(1), 3.383, 3.385, 4.2, 4.7, 4.10, 4.21, 4.85, 4.86, Diagnostic Code 6100 (2012).  


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

VA's Duties to Notify and Assist 

The Veterans Claims Assistance Act of 2000 (VCAA) mandates a VA duty to notify and assist claimants in claim substantiation.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012).  VA must inform a claimant of any information and medical or lay evidence not of record (1) needed to substantiate a claim; (2) which VA will seek to provide; and (3) which the claimant is expected to provide.  38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  

This applies to all elements of a service-connection claim, including information that a disability rating and an effective date for any award will be assigned if service connection is granted.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). 

VCAA notice was intended to be provided prior to an initial unfavorable decision on a claim by the RO.  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004).  

Here, the Veteran's claim for a higher rating for hearing loss arises from an appeal of the initial disability evaluation assigned by the December 2007 rating decision upon granting service connection, and prior to which VCAA notice was given in March 2007.  The Courts have held that once service connection is granted the claim is substantiated, additional notice is not required and any defect in the notice is not prejudicial.  Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007).  Therefore, no further notice is needed under VCAA with respect to the issue of the appropriate rating for the Veteran's hearing loss. 

Next, VA has a duty to assist the Veteran in the evidentiary development of a claim.  This duty includes assisting him in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. 

The Veteran was afforded official rating examinations in November 2007, August 2009, and August 2012 in conjunction with the claim.  Neither the Veteran nor his representative has alleged that such are inadequate for rating purposes.  Moreover, the Board finds that the examinations are adequate in order to evaluate the Veteran's hearing loss as they include an interview with the Veteran, audiometric testing, and addressed the relevant rating criteria.  Since the last examination in August 2012, the Board finds no credible lay or medical evidence demonstrating or alleging a decrease in hearing acuity.  Thus, there is no duty to provide further medical examination on this initial rating claim.  See VAOPGCPREC 11-95 (Apr. 7, 1995).

The Veteran declined the opportunity to testify in support of his hearing loss claim.  Also, he has submitted private clinical records in support of his claim for service connection for a respiratory disability but these private clinical records show that he was treated and evaluated for disabilities other than hearing loss.  Accordingly, these additional private clinical records are not relevant to the matter of the evaluation of the service-connected hearing loss.  Likewise, he has reported having received VA treatment for respiratory disability but has not alleged that there exist any VA treatment records pertaining to his hearing loss.  The Veteran's electronic VA medical records (CAPRI) contained in the Virtual VA paperless claims processing system note his history of a hearing loss in the right ear but no treatment for hearing disability.  

The Veteran has not identified any additional, outstanding records that have not been requested or obtained.  Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist him in the development of the claim.  Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002).  The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran.  See Bernard v. Brown, 4 Vet. App. 384 (1993).  

Background

On official examination in November 2007 the Veteran's inservice history of noise exposure during Vietnam combat was noted.  After military service he had worked for 6 years at "train master/office work" and had not entered a hearing conservation program.  He had worked in "sale/finance" for 31 years" and had not entered a hearing conservation program.  On the authorized audiological at that time, pure tone thresholds, in decibels, were as follows at the following frequencies as measured in Hertz (Hz):

Hertz (Hz)
500 Hz
1000 Hz
2000 Hz
3000 Hz
4000 Hz
Right Ear
20
15
20
25
40
Left Ear
10
10
10
30
10

Speech audiometry revealed speech recognition ability of 88 percent in the right ear and of 96 percent in the left ear.  It was noted that he had a sensorineural hearing loss in the right ear which was as likely as not due to inservice acoustic trauma.  

On official examination on August 10, 2009, the Veteran reported that he was not receiving treatment of hearing loss but that it caused functional impairment.  He had worked as a car salesman for 35 years.  On the authorized audiological evaluation at that time, pure tone thresholds, in decibels, were as follows at the following frequencies as measured in Hertz (Hz):

Hertz (Hz)
500 Hz
1000 Hz
2000 Hz
3000 Hz
4000 Hz
Right Ear
45
40
45
45
55
Left Ear
25
20
30
40
60

Speech audiometry revealed speech recognition ability of 60 percent in the right ear and of 68 percent in the left ear.  It was reported that he had a right mild to moderate sensorineural hearing loss in the right ear and a slight to severe sensorineural hearing loss in the left ear.  His complaint's included having difficulty hearing clearly, needing to keep the volume of a television "loud," and people having to speak loudly.  There was concern that there might be a retrocochlear or other medical factor contributing to his hearing loss as the word discrimination ability was very poor for the amount of hearing loss present.  His daily activities would be affected by the hearing loss.  

The Veteran's electronic VA medical records (CAPRI) contained in the Virtual VA paperless claims processing system contain information in January 2012 reflecting that the Veteran was in the car dealership business and worked 40 hours a week and had not lost any time from work.  

On official examination on August 16, 2012, an authorized audiological evaluation revealed, pure tone thresholds, in decibels, were as follows at the following frequencies as measured in Hertz (Hz):

Hertz (Hz)
500 Hz
1000 Hz
2000 Hz
3000 Hz
4000 Hz
Right Ear
45
30
35
40
55
Left Ear
25
30
30
50
65

Speech audiometry revealed speech recognition ability of 48 percent in the right ear and of 64 percent in the left ear.  It was noted that the Veteran reported that he had to strain to hear some words and that it was sometimes difficult to understand the clarity of spoken words.  He was interested in having bilateral digital amplification.  

General Rating Principles

Disability evaluations are determined by the application of the Schedule for Rating Disabilities, which assigns ratings based on the average impairment of earning capacity.  38 U.S.C.A. § 1155; 38 C.F.R. Part 4.  Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7.  
 
In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition.  Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991).  Where, as in the instant case, the appeal arises from the original assignment of a disability evaluation following an award of service connection, the severity of the disability at issue is to be considered during the entire period from the initial assignment of the disability rating to the present time.  See Fenderson v. West, 12 Vet. App. 119 (1999).  As in the instant case, separate ratings can be assigned for separate periods of time based on the facts found, a practice known as "staged" ratings.  Id. at 126.  

In evaluating service-connected hearing impairment, a disability rating is derived by a mechanical application of the Rating Schedule to the numeric designations assigned after audiometric evaluations are rendered.  Lendenmen v. Principi, 3 Vet. App. 345, 349 (1992).   The Rating Schedule establishes eleven auditory acuity levels under 38 C.F.R. § 4.85, Diagnostic Code 6100.

Table VI, "Numeric Designation of Hearing Impairment Based on Puretone Threshold Average and Speech Discrimination," is used to determine a Roman numeral designation (I through XI) for hearing impairment based on a combination of the percent of speech discrimination (horizontal rows) and the puretone threshold average (vertical columns).  The Roman numeral designation is located at the point where the percentage of speech discrimination and puretone threshold average intersect. 38 C.F.R. § 4.85(b).  

"Puretone threshold average," as used in Tables VI, is the sum of the puretone thresholds at 1000, 2000, 3000, and 4000 Hertz, divided by four.  This average is used in all cases to determine the Roman numeral designation for hearing impairment from Table VI.  38 C.F.R. § 4.85(d).  

Table VII, "Percentage Evaluations for Hearing Impairment," is used to determine the percentage evaluation by combining the Roman numeral designations for hearing impairment of each ear.  The horizontal rows represent the ear having the better hearing and the vertical columns the ear having the poorer hearing.  The percentage evaluation is located at the point where the row and column intersect.  38 C.F.R. § 4.85(e).  

When the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more, the rating will be determined by the Roman numeral designation for hearing impairment from either Table VI or Table VIa, whichever results in the higher numeral.  Each ear will be evaluated separately.  38 C.F.R. § 4.86(a).  When the puretone threshold is 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz, the rating will be determined by the Roman numeral designation for hearing impairment from either Table VI or Table VIa, whichever results in the higher numeral.  That numeral will then be elevated to the next higher Roman numeral.  Each ear will be evaluated separately.  38 C.F.R. § 4.86(b).  

"The Secretary [of VA], in an internal guidance document, recently reaffirmed the need for VA audiologists to describe the effect of a hearing disability on a claimant's occupational functioning and daily activities."  See Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007).  "The policy of describing the results of all tests conducted makes sense, particularly in the context of the extraschedular rating provision.  38 C.F.R. § 3.321(b).  Unlike the rating schedule for hearing loss, § 3.321(b) does not rely exclusively on objective test results to determine whether a referral for an extraschedular rating is warranted.  The Secretary's policy facilitates such determinations by requiring VA audiologists to provide information in anticipation of its possible application."  Id.  

Analysis

From February 28, 2007, until August 9, 2009, the Veteran was service-connected only for hearing loss in the right ear; and he has been service-connected for bilateral hearing loss since August 10, 2009.  Under 38 C.F.R. § 4.85(f), when service connection is in effect for hearing loss only in one ear, the other (nonservice-connected) ear will be assigned Roman numeral designation for hearing impairment of I.  In such circumstance, the hearing acuity in the service-connected ear (in this case the right ear from February 28, 2007, until August 9, 2009) would have to be at Roman numeral designation of either X or XI which would warrant a maximum rating for unilateral hearing loss of 10 percent.  

However, both ears will be considered service-connected for rating purposes under 38 C.F.R. § 3.383(a)(3) if hearing impairment in the service-connected ear is compensable at 10 percent or more and hearing impairment in the other, nonservice-connected ear, meets the provisions of 38 C.F.R. § 3.385.  

Under 38 C.F.R. § 3.385, for VA purposes, impaired hearing will be considered to be a disability when the auditory thresholds in any of the frequencies of 500; 1,000; 2,000; 3,000; 4,000 Hertz (Hz) is 40 decibels or greater; or when the auditory threshold for at least three of the cited frequencies are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent.  

Here, the test results in November 2007 show that the Veteran did not have a hearing loss in the left ear under 38 C.F.R. § 3.385 and, so, the left ear is assigned a Roman numeral designation of I.  That test revealed that the Veteran had hearing acuity in the right warranting assignment of Roman numeral designation of II.  This translates to a noncompensable degree of hearing loss.  

The test results in August 2009 show that the Veteran had a hearing loss in the left ear under 38 C.F.R. § 3.385.  However, to consider the impairment in the left ear, the right ear would have to been at Level X or XI, and here on the 2009 audiometric test it was only Level V.  

Even if impairment of hearing acuity in the left ear were considered for rating purpose, the August 2009 test revealed that he had hearing acuity in the left ear warranting assignment of Roman Numeral designation of IV and hearing acuity in the right ear assignment of Roman Numeral designation of V.  This would translate to a noncompensable degree of hearing loss.

The test results on August 16, 2012, by which time the Veteran was service-connected for bilateral hearing loss, show that he had hearing acuity in the left ear warranting assignment of Roman numeral designation of V and hearing acuity in the right ear assignment of Roman numeral designation of VII.  This translates to no more than a 30 percent degree of hearing loss. 

Moreover, the results of the audiology examinations in 2007, 2009, and 2012 show that the Veteran does not have an exceptional pattern of hearing loss under 38 C.F.R. § 4.86(a) or (b).  

The Board has considered the Veteran's statements as to the impact of his bilateral hearing loss.  Nevertheless, here, the evidence shows that the Veteran was able to carry on conversations with others at the VA audiology examinations, and no difficulty in communication was reported at any of the examinations.  Moreover, it is only recently that there has been a suggestion that his hearing acuity could be improved with hearing aids.  The results of the rating examinations covering a span of a number of years show that any progression in the severity of his hearing loss is compensated by the staged ratings which have been assigned.  This is sufficient to comply with the applicable VA policies.  See Martinak, Id.  

The Board has considered whether additional staged ratings under Fenderson, supra, are appropriate for the Veteran's service-connected hearing loss, or whether a compensable rating is warranted prior to August 16, 2002; however, the Board finds that his symptomatology has been adequately compensated by the schedular ratings assigned throughout the appeal period.  From the record, the Board cannot factually ascertain when the decreased hearing acuity demonstrated on VA examination on August 16, 2002 first manifested.  To the extent that the Veteran has argued a specific worsening at a specific time period, the Board finds that the objective audiometric and word recognition test results obtained by trained professionals greatly outweigh his subjective perceptions of a decrease in hearing acuity.  As such, there is no factually reliable evidentiary basis for consideration of any further compensation for any period of time other than the "staged" rating already provided.  See Fenderson, supra. 

Additionally, the Board has contemplated whether the case should be referred for extra-schedular consideration.  To accord justice in an exceptional case where the schedular standards are found to be inadequate, the RO is authorized to refer the case to the Chief Benefits Director or the Director, Compensation and Pension Service for assignment of an extraschedular evaluation commensurate with the average earning capacity impairment.  38 C.F.R. § 3.321(b)(1).

An extra-schedular disability rating is warranted if there is an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that application of the regular schedular standards would be impracticable.  Id.  The Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R. § 3.321(b)(1) in the first instance; however, the Board is not precluded from raising this question, and in fact is obligated to liberally read all documents and oral testimony of record and identify all potential theories of entitlement to a benefit.  Floyd v. Brown, 9 Vet. App. 88 (1996).  

In Thun v. Peake, 22 Vet. App. 111 (2008), the Court clarified the analytical steps necessary to determine whether referral for extraschedular consideration is warranted.  It must first be determined whether the schedular rating criteria reasonably describe the Veteran's disability level and symptomatology.  Id. at 115.  If so, the assigned schedular evaluation is adequate, referral for extraschedular consideration is not required, and the analysis stops.

If the schedular evaluation does not contemplate the Veteran's symptomatology and level of disability, it must be determined whether the Veteran's exceptional disability picture includes other related factors such as marked interference with employment and frequent periods of hospitalization.  Id. at 116.  If so, the matter is referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for the third step of the analysis, determining whether justice requires assignment of an extraschedular rating.  Id.

Here, the rating criteria reasonably describe the Veteran's disability levels and symptomatology pertaining to his service-connected bilateral hearing loss.  As indicated above, the Veteran reports the inability to understand noise and speech. The Board finds that the Rating Schedule measures and contemplates these aspects of the Veteran's hearing loss disability. 

As explained in the proposed rule for the current version of DC 6100, the criteria of DC 6100 were revised in 1987 with the goal of recognizing the impact of hearing loss in higher frequencies, and to provide a more accurate picture of true hearing impairment.  See 52 Fed. Reg. 17607 (May 11, 1987).  As a result, VA changed its testing methods and, in conjunction with the Department of Medicine and Surgery, developed amendments to 38 C.F.R. § 4.85, 4.86a, 4.87a and Tables VI and VII.  In particular, puretone averaging was to be accomplished using tone bursts at 1000, 2000, 3000 and 4000 Hertz, and speech recognition was to be measured using the Maryland CNC word lists which contained words with sounds in the 3000 and 4000 Hertz range.

Overall, the new schedule was intended to evaluate hearing loss based on a combination of puretone averages and speech discrimination, which was thought to provide for a more accurate representation of actual hearing impairment by recognizing that individuals with slight to moderate decibel loss as determined by puretone averaging may have significant impairment of speech and vice versa. 

Additionally, the rating schedule was revised to accommodate language difficulties and other factors which produced inconsistent speech audiometry scores, and to recognize exceptional patterns of hearing impairment.  Notably, VA determined that "Table VII was developed during months of consultations with our Department of Medicine and represents the best judgment of experts in this field."

Based upon the stated factors and considerations undertaken by VA and medical experts in developing the current criteria of DC 6100, the Board finds that the schedular rating currently assigned reasonably describes the Veteran's disability level and symptomatology.  The Veteran's description of an inability to hear and discriminate speech has been measured according to puretone averages and speech discrimination.  The Board further observes that VA examinations are conducted without use of hearing aids, see 38 C.F.R. § 4.85, and that the use of hearing aids would, if anything, provide better hearing than demonstrated on audiometric examination.  See 52 Fed. Reg. 44117 (Nov. 18, 1987).  As such, extraschedular consideration is not warranted. 

In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a claim for a total disability rating based on individual unemployability (TDIU) is part of an increased rating claim when such claim is expressly raised by the Veteran or reasonably raised by the record.  When evidence of unemployability is submitted at the same time that the Veteran is appealing the initial rating assigned for a disability, the claim for TDIU will be considered part and parcel of the claim for benefits for the underlying disability.  Id.  

In this case, the official examinations have noted that the Veteran has been gainfully employed for many years and has not reported that he had any occupational impairment or had lost time from work due to his hearing loss.  Additionally, the Veteran has not suggested or intimated that he is now unemployed.  

Therefore, the Board finds that the issue of entitlement to a TDIU is not expressly raised by the Veteran or reasonably raised by the record and, consequently, further consideration of such is not necessary.

As the preponderance of the evidence is against the claim an initial compensable rating for either unilateral or bilateral hearing loss prior to August 16, 2012, and against a rating in excess of 30 percent for bilateral hearing loss since August 16, 2012, the benefit-of-the-doubt rule does not apply, and the Board must deny the claim.  See U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  


ORDER

An initial compensable rating for hearing loss prior to August 16, 2012, and to a rating in excess of 30 percent thereafter is denied.  


REMAND

The claim for service connection for a respiratory disorder, to include asthma and bronchitis, due to inservice herbicide exposure, requires further development before being decided.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.  Although the Board sincerely regrets the additional delay that inevitably will result as a consequence of this remand, the additional development of this claim is necessary to ensure there is a complete record upon which to adjudicate the claim and to afford the Veteran every possible consideration. 

The Veteran served in Vietnam during the Vietnam Conflict and contends that a treating private physician indicated that his current respiratory disability is or could be due to inservice herbicide exposure.  

The STRs are negative for respiratory disability, including the January 1970 service separation examination, at which time a chest X-ray was within normal limits.  Correspondence from the Veteran reflects, in summary, that he was treated in California beginning in or after 1980 by Dr. N. in Seal Beach, California, who had referred the Veteran to Dr. A.  The Veteran had had a number of tests and Dr. A. had stated to the Veteran's wife that the Veteran breathing disorder was the result of Agent Orange exposure.  He had then been referred to Dr. L. and over the next 26 years he was hospitalized a number of times for, in part, respiratory problems.  He had discontinued being treated by Dr. L. in 2007 and began receiving VA treatment.  However, Dr. N. and Dr. A. were now deceased and the Veteran could no longer obtain their records or records of the hospitals with which they were affiliated.  The office manager of Dr. L. informed him that Dr. L's records had been destroyed in a flood.  The only records from Dr. L. were those which were already in VA's possession.  

The Veteran's electronic VA medical records (CAPRI) contained in the Virtual VA paperless claims processing system cover the period from June 2009 to August 2012.  These reflect that he took medication for asthma, which at times was described as uncontrolled.  

In light of foregoing, the Veteran should be given another opportunity to obtain or provide information as to any other private clinical sources that treated or evaluated him for respiratory disability since military service.  Also, the only VA treatment record on file is dated in 2002 from Long Beach, California.  Since the Veteran alleges having received VA treatment since 2007, all VA treatment records since 2002 to June 2009, as well as since August 2012 should be obtained and the Veteran should be requested to provide information as to the dates and places of any other VA treatment.  See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159; Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency and must be obtained if they could be determinative of the claim).

The Veteran has not yet had a VA examination to obtain a medical opinion as to the etiology of any current respiratory pathology.  Governing law provides that VA is obligated to provide an examination when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability, the record indicates that the disability or signs and symptoms of disability may be associated with active service; and the record does not contain sufficient information to make a decision on the claim.  38 U.S.C.A. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79 (2006).  When determining whether a VA examination is required under 38 U.S.C.A. § 5103A(d)(2), the law requires competent evidence of a disability or persistent or recurrent symptoms of a disability, but does not require competent evidence of a nexus, only that the evidence indicates an association between the disability and service.  See Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010).  

While the reasoning behind the reported physician opinion is unknown, the Veteran's report that a physician had attributed his respiratory disability to herbicide exposure has some probative value.  See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (noting that a layperson is competent to report a contemporaneous medical diagnosis).

The Board finds that in light of the medical evidence on file showing that the Veteran has been treated for asthma and bronchitis, in addition to the Veteran's lay statements regarding the reported etiology of his current respiratory disability, a VA examination is warranted to determine the etiology of any current respiratory disability.  McLendon, supra; Wallin v. West, 11 Vet. App. 509, 512 (1998); McQueen v. West, 13 Vet. App. 237 (1999); Velez v. West, 11 Vet. App. 148, 158 (1998).  

Accordingly, the case is REMANDED for the following action:

1.  Request that the Veteran to provide the names and addresses of all VA or private medical care providers that have evaluated or treated him for respiratory disability since service other than Dr. N., Dr. A., and Dr. L.  With his authorization, obtain all identified records that are not already in the claims file.  All reasonable attempts should be made to obtain any identified records.  If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 

Also request that the Veteran provide the inclusive dates and places of all VA outpatient treatment from 2002 to June 2009, as well as since August 2012, for respiratory disability.  The appropriate steps should then be taken to obtain those records and associate them with the claim file.  

2.  After obtaining all outstanding treatment records, schedule a VA examination to determine whether the Veteran has current pulmonary disability that is related to service, including inservice exposure to herbicides.  The claims file must be provided to and reviewed by the examiner.  All necessary tests should be performed. 

Based on review of the claims file the examiner is asked to indicate whether it is at least as likely as not that the Veteran has a chronic pulmonary disability that had its onset in service or, alternatively, is related to the Veteran's military service, including inservice exposure to herbicides.  

The examiner must discuss the rationale of any opinion offered, whether favorable or unfavorable, based on the findings on examination and information obtained from review of the record.  Additionally, the examiner should comment as to whether there is any medical reason to accept or reject the Veteran's contentions that his respiratory disorder began in service.

3.  After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, readjudicate the Veteran's claim for service connection for a respiratory disorder, to include asthma and bronchitis, due to inservice herbicide exposure, in light of any additional evidence.  If the claim is not granted to the Veteran's satisfaction, send him and his representative a supplemental statement of the case and give them an opportunity to submit additional evidence and/or argument in response before returning the file to the Board for further appellate consideration of the claim. 

The appellant has the right to submit additional evidence and argument on the matter the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim 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).



______________________________________________
T. MAINELLI
Acting Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs