Citation Nr: 1427334	
Decision Date: 06/17/14    Archive Date: 06/26/14

DOCKET NO.  11-26 348A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Indianapolis, Indiana


THE ISSUES

1.  Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a lung condition.

2.  Entitlement to service connection for a lung disorder, to include as due to asbestos exposure.

3.  Entitlement to service connection for residuals of a broken left leg.

4.  Entitlement to service connection for left ear hearing loss.

5.  Entitlement to an evaluation in excess of 10 percent disabling for residuals of a fracture of the right third toe.

6.  Entitlement to a compensable evaluation for residuals of herpes progenitalis.

7.  Entitlement to a compensable initial evaluation for right ear hearing loss.


WITNESSES AT HEARING ON APPEAL

Appellant and Appellant's Spouse


ATTORNEY FOR THE BOARD

Robert J. Burriesci, Counsel


INTRODUCTION

The Veteran served on active duty from March 1970 to January 1972.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana.

The Veteran and his spouse testified at a hearing held before a Veterans Law Judge of the Board in April 2014.  The transcript has been associated with the claims file.

The Veteran perfected an appeal of the issue of entitlement to service connection for hepatitis C.  In a March 2014 RO rating decision, service connection for hepatitis C was granted and assigned an evaluation of 10 percent disabling, effective May 14, 2009.  As this represents a complete grant of the benefit sought, the issue is no longer on appeal before the Board.

An additional VA treatment record was associated with the claims file in March 2014.  It is unclear whether this record was considered in the March 2014 Supplemental Statement of the Case; however, as the record is not pertinent to the claims presently on appeal, the Board finds that it may proceed with adjudication.  

The issue of entitlement to service connection for residuals of a fracture of the right leg has been raised by the Veteran.  The Board refers this raised claim to the RO for appropriate action.

The issues of entitlement to service connection for a lung disorder, to include as due to asbestos exposure, entitlement to service connection for left ear hearing loss, entitlement to a compensable evaluation for residuals of herpes progenitalis, and entitlement to a compensable initial evaluation for right ear hearing loss are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDINGS OF FACT

1.  A June 2006 RO rating decision denied the appellant's claim of entitlement to service connection for a lung condition.  The appellant was notified but did not perfect an appeal of the decision.

2.  Evidence associated with the claims file after the final denial in June 2006 is neither cumulative nor redundant of the evidence of record at that time and, when considered with the previous evidence of record, raises a reasonable possibility of substantiating the claim.

3.  The preponderance of the evidence is against finding that the Veteran has residuals of a fracture of the left leg related to service.

4.  Throughout the rating period on appeal, the Veteran's residuals of a fracture of the right third toe have not manifested more than moderate foot injury and have not manifested actual loss of use of the foot.



CONCLUSIONS OF LAW

1.  The June 2006 RO rating decision is final.  38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.1103 (2013).

2.  Evidence received since the June 2006 RO decision which denied entitlement to service connection for a lung condition is new and material; therefore, the claim is reopened.  38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156, 20.302, 20.1103 (2013).

3.  The criteria for service connection for residuals of a fracture of the left leg have not been met.  38 U.S.C.A. §§ 1110, 1154, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2013).

4.  The criteria for entitlement to an evaluation in excess of 10 percent disabling for residuals of a fracture of the right third toe have not been met.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.2, 4.3, 4.7, 4.71a, Diagnostic Cods 5282, 5283, 5284 (2013).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Duties to Notify and Assist

VA has a duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013).  

Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide in accordance with 38 C.F.R. § 3.159.  This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ).  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004).  

In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the U.S. Court of Appeals for Veterans Claims (Court) held that, upon receipt of an application for a service-connection claim, 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded.

Here, the duty to notify was satisfied by way of a letter sent to the appellant in June 2009 that fully addressed all notice elements and was sent prior to the rating action on appeal.

VA has a duty to assist the Veteran in the development of the claim.  This duty includes assisting the Veteran 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 Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant.  See Bernard v. Brown, 4 Vet. App. 384 (1993).  The RO has obtained VA treatment records.  The Veteran submitted private treatment records, and was provided an opportunity to set forth his contentions during the hearing before the undersigned Veterans Law Judge.  The appellant was afforded VA medical examinations in October 2009 and July 2012, and a medical opinion was obtained in March 2013.

The Veteran has not been afforded a VA medical examination in regard to his claim of entitlement to service connection for residuals of a broken left leg.  In determining whether the duty to assist requires that a VA medical examination be provided or medical opinion obtained with respect to a Veteran's claim for benefits, there are four factors for consideration.  These four factors are:  (1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumption period; (3) whether there is an indication that the disability or symptoms may be associated with the Veteran's service or with another service-connected disability; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim.  38 U.S.C.A. § 5103A(d) and 38 C.F.R. § 3.159(c)(4).  

With respect to the third factor above, the Court has stated that this element establishes a low threshold and requires only that the evidence "indicates" that there "may" be a nexus between the current disability or symptoms and the Veteran's service.  The types of evidence that "indicate" that a current disability "may be associated" with military service include, but are not limited to, medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation.  McLendon v. Nicholson, 20 Vet. App. 79 (2006).  

In this case, as there is no evidence that the Veteran broke his left leg in service or has residuals of a broken left leg related to service, the Board finds it unnecessary to afford the Veteran an examination.

Significantly, the appellant has not identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained.  Hence, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant 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).

II.  Application to Reopen

In a June 2006 RO rating decision, the Veteran's claim for service connection for a lung condition as a result of asbestos exposure was denied.

The evidence before the VA at the time of the denial consisted of the Veteran's service treatment records and private treatment records from Internal Medical Group.  The private treatment records indicate asbestos exposure and that the Veteran did not have obvious lung damage from asbestos exposure.  

It is noted that service personnel records associated with the claims file indicate that they were received by the RO in 2005, prior to the final denial.  

The Veteran's claim was denied on the basis that there was no chronic lung condition diagnosed in service and no evidence indicating exposure to asbestos while on active duty.  It was noted that the evidence tended to show exposure to asbestos during employment with the railroad which was not during service.  

A finally adjudicated claim is an application which has been allowed or disallowed by the agency of original jurisdiction, the action having become final by the expiration of one year after the date of notice of an award or disallowance, or by denial on appellate review, whichever is the earlier.  38 U.S.C.A. § 7105; 38 C.F.R. §§ 3.160(d), 20.302, 20.1103 (2013).  Additional evidence was not received within one year of the June 2006 RO rating decision.  The Veteran did not appeal the June 2006 RO rating decision.  Thus, the RO rating decision became final.  See 38 C.F.R. § 3.156(b); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); see also Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2010).

The claim may be reopened if new and material evidence is submitted.  Manio v. Derwinski, 1 Vet. App. 140 (1991).  The Veteran filed this application to reopen his claim in May 2009.  New evidence means existing evidence not previously submitted to agency decision makers.  Material evidence means existing evidence that, by itself or when considered with the previous evidence of record, relates to an unestablished fact necessary to substantiate the claim.  New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim.  38 C.F.R. § 3.156(a).  The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low."  See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010).  Furthermore, in determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the Secretary's duty to assist or through consideration of an alternative theory of entitlement.  Id. at 118.  In determining whether evidence is new and material, the credibility of the new evidence is presumed.  Justus v. Principi, 3 Vet. App. 510 (1992). 

In May 2009 the Veteran filed an application to reopen the claim for service connection for a lung disorder, claimed as asbestos poisoning.  

Subsequent to the June 2006 RO denial VA treatment records were associated with the claims file that include notations of a history of asbestos exposure and possible asbestosis.  Specifically, a May 2009 VA treatment note indicates possible asbestosis.  The Veteran testified that he believed that he was exposed to asbestos in the insulation of shelters that he stayed in as a missile crewman in service and that he had trouble breathing shortly after separation from service while working with the railroad.

The Board has carefully reviewed the newly received evidence and Board finds that the evidence is both new and material.  The evidence is new as it was not of record at the time of the prior denial.  The evidence is also material because it shows that the Veteran had a lung disease, possibly asbestosis.  In light of the above, the Board finds that the evidence received since the prior final denial regarding the claim of entitlement to service connection for a lung disorder, to include as due to asbestos exposure is both new and material and, therefore, the request to reopen is granted.  38 C.F.R. § 3.156(a).

III.  Service Connection

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a).  Service connection generally requires credible and competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service.  See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Hickson v. West, 12 Vet .App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995).

In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology.  See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge).  Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.  Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007).  When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent.  Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau, 492 F.3d at 1376-77 . 

The Board is charged with the duty to assess the credibility and weight given to evidence.  Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001).  Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability.  Id. at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002).  Moreover, the Court has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence.  Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). 

As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing.  See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996).

Service treatment records do not reveal any complaint, diagnosis, or treatment for any left leg fracture.  In a treatment note dated in May 2009 the Veteran was reported to have a history of a left lower leg fracture.  However, the same note indicated that the Veteran had a history of a fracture of the left toes.  The post service treatment records do not reveal any diagnosis of any fracture of the left leg or any residuals of a left leg fracture or any indication that any left leg fracture may be related to service.  It is notable that at the hearing before the undersigned, the Veteran reported that he had a right leg disability and not a left leg disability.  As the evidence is against finding that the Veteran has residuals of a left leg fracture associated with the Veteran's active service, service connection is denied.

IV.  Higher Evaluation

Disability ratings are intended to compensate impairment in earning capacity due to a service-connected disorder.  38 U.S.C.A. § 1155.  Separate diagnostic codes identify the various disabilities. Id. It is necessary to rate the disability from the point of view of the Veteran working or seeking work, 38 C.F.R. § 4.2, and to resolve any reasonable doubt regarding the extent of the disability in the Veteran's favor.  38 C.F.R. § 4.3.  If there is a question as to which disability rating to apply to the Veteran's disability, the higher rating will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7.

In considering the severity of a disability, it is essential to trace the medical history of the Veteran.  38 C.F.R. §§ 4.1, 4.2, 4.41.  Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present.  38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991).  While the Veteran's entire history is reviewed when assigning a disability rating, 38 C.F.R. § 4.1, where service connection has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern.  Francisco v. Brown, 7 Vet. App. 55 (1994).  However, the Board notes that the Veteran is appealing the initial assignment of a disability rating, and as such, the severity of the disability is to be considered during the entire period from the initial assignment of the disability rating to the present time.  Fenderson v. West, 12 Vet. App. 119 (1999).  Additionally, in determining the present level of a disability for any increased rating claim, the Board must consider the application of staged ratings.  See Hart v. Mansfield, 21 Vet. App. 505 (2007).  In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary.

The Veteran's residuals of a fracture of the third right toe are currently rated as 10 percent disabling pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5283.

Under Diagnostic Code 5283, a 10 percent rating is warranted for malunion or nonunion of the tarsal or metatarsal bones which is moderate in degree.  A 20 percent rating is warranted for malunion or nonunion of the tarsal or metatarsal bones which is moderately severe degree.  A 30 percent rating is warranted for malunion or nonunion of the tarsal or metatarsal bones which is severe in degree.  A 40 percent rating may be assigned if there is actual loss of use of the foot.

Under Diagnostic Code 5284, foot injuries, other, that are moderate in severity warrant an evaluation of 10 percent disabling.  Moderately severe foot injuries warrant an evaluation of 20 percent disabling.  Severe foot injuries warrant an evaluation of 30 percent disabling.  A 40 percent rating may be assigned if there is actual loss of use of the foot.

The terms "mild," "slight," "moderate," and "severe" are not defined in VA regulations, and the Board must arrive at an equitable and just decision after having evaluated the evidence.  38 C.F.R. § 4.6 (2013).

The Veteran was afforded a VA medical examination in October 2009.  The Veteran reported pain, weakness, and stiffness.  There was no swelling, heat and redness, fatigability, or lack of endurance.  The Veteran reported not much pain at five out of ten.  He noted stiffness.  The Veteran had no symptoms at rest.  He had symptoms with walking and standing.  He had pain/cramping with walking two to three blocks.  Examination of the right foot revealed no painful motion, swelling, instability or weakness.  Examination revealed slight tenderness over the third toe distal interphalangeal joint (DIP).  There was no evidence of abnormal weight bearing.  There were no callosities, skin breakdown, or unusual shoe wear patterns.  There were no abnormalities of the skin or vasculature.  The Veteran was noted to have hammertoes of the third and fourth toe and to have no claw foot.  There was no hallux valgus or rigidus and no acquired pes cavus.  There were no periods of flare-ups.  The foot was worse with standing or walking.  The examiner noted that there was no additional limitation of motion or functional impairment during a flare-up.  The Veteran walked unaided by an assistive device.  Functional assessment revealed that the condition affected the Veterans mobility, recreational activities, standing, and walking.  The Veteran had difficulty with prolonged walking and standing.  The condition did not affect the Veteran's activities of daily living, usual occupation, or driving.  X-rays impression as limited evaluation of DIP joints of the right third and fourth toes due to persistent flexion.  Subluxation of DIP joint of the right third and fourth toe cannot be excluded on the study.  The examiner rendered the opinion that the Veteran's third toe distal phalynx was dislocated as a result of his service injury.  His foot pain was therefore a result of his service connected injury.  His fracture was healed, but he had residual slight pain and stiffness of a dislocated third toe.  His fourth toe was noted to may also be dislocated or just hammer toed.  

The Veteran was afforded a VA medical examination in July 2012.  The Veteran was noted to have been diagnosed with third right toe distal phalynx dislocation and osteopenia.  The Veteran noted that he was accidentally struck in the right foot and sustained a fracture dislocating the right third toe.  Since the injury he reported pain and difficulty walking on the ball of his toes.  He had recently started barber school and reported more pain and swelling in both of his feet especially in the eight month prior to the examination.  The Veteran did not have Morton's neuroma.  He had hammer toe of the third right toe.  He did not have hallux valgus or rigidus, or pes cavus.  There was no malunion or nonunion of the tarsal or metatarsal bones.  He had no other foot injuries.  There was no evidence of bilateral weak foot.  He did not have any scars related to the condition.  He did not have any other pertinent physical findings, complications, conditions, signs and/or symptoms related to any conditions in the diagnosis section.  He did not use an assistive device for locomotion.  The functional impairment of the extremity was not such that no effective function remained other than that which would be equally well served by an amputation with prosthesis.  Imaging studies of the foot were noted to reveal degenerative or traumatic arthritis of the right foot.  However there was not degenerative or traumatic arthritis documented in multiple joints of the same foot.  The Veteran was noted to have osteopenia in the right foot.  The functional impact was noted to be pain and swelling since he had been standing on his feet in barber school.  The examiner reported that the Veteran had no swelling and had normal pulses in his feet.  He had minimal discomfort of the injury site with good color movement and sensation.  

A VA examination addendum was prepared in March 2013.  The examiner rendered the opinion that the Veteran's osteopenia was less likely than not proximately due to or a result of the Veteran's service connected condition.  The rationale provided was that osteopenia is decreased bone density and is not related to in-service residuals of fractured third right toe.  The examiner further noted that there was no arthritis and that one small osteophyte does not indicate arthritis.  

Entitlement to an evaluation in excess of 10 percent disabling is not warranted during any period on appeal.  During the period on appeal the Veteran reported symptoms with standing and walking and reported pain and cramping with walking.  He indicated that he had no symptoms at rest.  There was slight tenderness over the third DIP joint.  It was noted in October 2009 that the Veteran the condition affected the Veteran's mobility, recreational activities, standing, and walking; however, it did not have an effect on the Veteran's activities of daily living, usual occupation, or driving.  In addition, in October 2009 it was noted that the Veteran had residual slight pain and stiffness.  In July 2012 the Veteran had increased symptoms with the standing involved while at barber school.  The functional impact of the disability was pain and swelling with standing.  The examiner in July 2012 indicated that the functional impairment of the extremity was not such that no effective function remained other than that which would be equally well served by an amputation with prosthesis.  At no time did the Veteran use an assistive device for walking.  The Veteran's right third toe disability does not manifest malunion or nonunion of the tarsal or metatarsal bones which is moderately severe or severe in degree.  In addition, the Veteran's disability does not manifest actual loss of use of the foot.  Therefore, entitlement to an evaluation in excess of 10 percent disabling pursuant to Diagnostic Codes 5283 and 5284 is not warranted.

The Board has also considered Diagnostic Code 5282 for hammer toes; however, a compensable rating is available only where all five toes are involved; single toes are given a noncompensable rating.  The service-connected disability here involves only one toe.  For these reasons, the Board concludes that a higher evaluation is not warranted pursuant to Diagnostic Code 5282.

Additionally, the evidence does not establish functional loss not contemplated by the rating assigned by this decision.  38 C.F.R. §§ 4.40, 4.45 (2013); DeLuca v. Brown, 8 Vet. App. 202 (1995).

As such, entitlement to an evaluation in excess of 10 percent disabling for residuals of a fracture of the right third toe is denied.

The discussion above reflects that the rating criteria reasonably describes and contemplates the severity and symptomatology of the Veteran's service-connected residuals of a right third toe disability.  As discussed above, there are higher ratings available under the diagnostic codes addressed in this decision, but the Veteran's residuals of a right third toe disability is not productive of the manifestations that would warrant a higher rating.  Thus, consideration of whether the Veteran's disability picture exhibits other related factors such as those provided by the regulations as "governing norms" is not required and referral for an extraschedular rating is unnecessary.  Thun v. Peake, 22 Vet. App. 111 (2008).

The Board also considered whether a claim of total disability based on individual unemployability was inferred in accordance with Rice v. Shinseki, 22 Vet. App. 447 (2009).  However, as the Veteran was noted to be employed in January 2012 and as there is no indication that the Veteran is unemployable, the question of entitlement to a TDIU is not raised.


ORDER

New and material evidence having been received, the claim for service connection for a lung disorder, to include as due to asbestos exposure, is reopened.

Service connection for residuals of a broken left leg is denied.

An evaluation in excess of 10 percent disabling for residuals of a fracture of the right third toe is denied.


REMAND

At the hearing in May 2014 the Veteran reported that he went to see the nurse approximately two months prior because he was running out of batteries for his hearing aid.  Review of the records does not reveal any VA treatment records dated subsequent to April 2012.  As such, the Board finds it necessary to remand for attempts to obtain additional VA treatment records.  See 38 U.S.C.A. § 5103A(b)(1); 38 C.F.R. § 3.159(c)(1).

At the hearing before the undersigned the Veteran reported that his right ear hearing loss disability had become more severe.  In response to a question of whether the Veteran's hearing loss had gotten worse over the prior year, the Veteran responded that it has been getting worse since service.  The Veteran was most recently afforded a VA medical examination in regard to his hearing loss disability in July 2012.  As the Veteran has reported that his condition has become more severe, the Board finds it necessary to afford the Veteran another VA medical examination.  See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997).

As this remand orders that the Veteran be afforded a VA medical examination in regard to his hearing loss and as the Veteran has been denied entitlement to service connection for left ear hearing loss for failure to meet the requirements set forth in 38 C.F.R. § 3.385, the Board finds that the Veteran's claim of entitlement to service connection for left ear hearing loss is intertwined with the remanded claim for a higher evaluation for right ear hearing loss.  Harris v. Derwinski, 1 Vet. App. 180 (1991).  

Regarding asbestos-related claims, there is no specific statutory guidance and the Secretary has not promulgated any regulations.  VA has issued a circular on asbestos-related diseases, however.  DVB Circular 21-88-8, Asbestos-Related Diseases (May 11, 1988), provides guidelines for considering compensation claims based on exposure to asbestos.  The information and instructions contained in the DVB Circular have since been included in the VA Adjudication Procedure Manual with updates.  See VBA Adjudication Procedure Manual M21-1 Manual Rewrite (M21-1MR), Part IV, Subpart ii, Ch.2 Section C, Topic 9 and Ch. 1 Section H, Topic 29.  In this regard, the M21-1MR provides the following non-exclusive list of asbestos-related diseases/abnormalities: asbestosis, interstitial pulmonary fibrosis, tumors, effusions and fibrosis, pleural plaques, mesotheliomas of pleura and peritoneum, lung cancer, bronchial cancer, cancer of the larynx, cancer of the pharynx, cancer of the urogenital system (except the prostate), and cancers of the gastrointestinal tract.

The M21-1 MR also provides the following non-exclusive list of occupations that have higher incidents of asbestos exposure: mining, milling, work in shipyards, insulation work, demolition of old buildings, carpentry and construction, manufacture and servicing of friction products such as clutch facings and brake linings, and manufacture and installation of roofing and flooring materials, asbestos cement sheet and pipe products, and military equipment.

The applicable sections of the M21-1MR note that the latency period for asbestos-related diseases varies from 10 to 45 or more years between the first exposure and development of a disease and that the exposure may have been direct or indirect. The guidelines point out that asbestos fiber masses have a tendency to break easily into tiny dust particles that can float in the air, stick to clothes, and may be inhaled or swallowed.  They further specify that asbestos fibers may produce asbestosis, pleural effusions and fibrosis, pleural plaques, mesothelioma of the pleura and peritoneum, lung cancer, and cancers of the lung, bronchus, gastrointestinal tract, larynx, pharynx, and urogenital system, except the prostate.  See M21-1MR, Part IV.ii.2.C.9.

With respect to claims involving asbestos exposure, VA must determine whether or not military records demonstrate evidence of asbestos exposure during service, develop whether or not there was pre-service and/or post-service occupational or other asbestos exposure, and determine whether there is a relationship between asbestos exposure and the claimed disease.  

The VA treatment records indicate that the Veteran possibly had asbestosis.  As it is unclear whether the Veteran has a current lung disorder related to asbestos exposure the Board finds it necessary to afford the Veteran a VA medical examination.  McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006); see also 38 U.S.C.A. § 5103A(d)(2); 38 C.F.R. § 3.159.

A VA treatment note dated in November 2009 indicates that the Veteran was prescribed Valacyclovir.  The prescription lists in December 2009, February 2010, March 2010, July 2010, and October 2010 indicate that the Veteran had a prescription for Valacyclovir.  In October 2010 it was noted that the prescription was last filled for a five day course in March 2010.  The Veteran reported at his hearing before the undersigned in April 2014 that he is prescribed pills when he has outbreaks of his herpes.  As such, it is necessary to remand the Veteran's claim for the Veteran to be afforded another VA medical examination to determine the current severity of the Veteran's herpes progenitalis skin disability, including a determination of whether the Veteran receives intermittent systemic therapy.

Accordingly, the case is REMANDED for the following action:

1.  Attempt to obtain and associate with the claims file all VA treatment records regarding the Veteran dated since April 2012.  Any additional pertinent records identified by the appellant during the course of the remand should also be obtained, following the receipt of any necessary authorizations from the appellant, and associated with the claims file.

2.  The RO must take all appropriate action consistent with the M21-1MR to determine whether the Veteran's duties during service, including the presence in the reported shelters, exposed the Veteran to asbestos. 

3.  Thereafter, the Veteran should be afforded an appropriate VA examination to determine the nature, extent and severity of his hearing loss disability.  The claims folder should be made available to and reviewed by the examiner.  All indicated tests, including an audiological evaluation, must be performed.  The results should conform to VA regulations governing evaluation of hearing loss.  The examiner should also fully describe the functional effects of the Veteran's hearing loss disability.  The examiner should set forth a complete rationale for all findings and conclusions in a legible report.

4.  Thereafter, the RO must afford the Veteran a VA medical examination for an opinion to be obtained regarding the etiology of any lung disorder found to be present.  The examiner should: 

a) interview the Veteran regarding his service and his pre- and post-service occupational/recreational history in order to ascertain her history of likely asbestos exposure.  A clinical examination with appropriate tests and studies must be performed. 

b) indicate which, if any, respiratory disorders the Veteran currently has; 

c) with respect to any respiratory/pulmonary disease found, state whether it is at least as likely as not that such is related to the Veteran's active service, to include as due to asbestos exposure; 

The claims file and a copy of this remand must be provided to the examiner.  The examiner must indicate receipt and review of these documents in any report generated.  A clear rationale for all opinions should be provided, along with a discussion of the facts and medical principles.  The claims file must be made available to the examiner for review in connection with the examination.

If the requested opinion cannot be provided without resort to speculation, the examiner should so state and explain why an opinion cannot be provided without resort to speculation.

5.  Thereafter, the Veteran should be scheduled for a VA skin examination to determine the nature and severity of his service-connected herpes progenitalis.  To the extent possible, VA should attempt to schedule the examination during an active stage of the Veteran's disability, particularly since skin conditions by their very nature tend to have active versus inactive stages.  See Ardison v. Brown, 6 Vet. App. 405 (1994). 

The examination should include any diagnostic testing or evaluation deemed necessary, and the examiner should opine as to the percentage of the total area of the body affected, as well as the exposed areas affected by the disability based on the physical examination.  If the examination must take place during an inactive stage of disability, separate percentages based on a review of the record and the Veteran's description of his symptoms during an exacerbation should be provided.  The examiner should also indicate whether the Veteran's disability requires treatment with systemic therapy such as corticosteroids or other immunosuppressive drugs.  A report should be prepared and associated with the Veteran's VA claims file.

6.  Then, readjudicate the appeal.  If the benefits sought on appeal remain denied, the Veteran should be provided with a Supplemental Statement of the Case.  An appropriate period of time should be allowed for response.

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 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. 2013).



______________________________________________
MICHAEL MARTIN
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs