Citation Nr: 1510639 Decision Date: 03/13/15 Archive Date: 03/24/15 DOCKET NO. 13-03 279 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for asbestos related pleural disease (claimed as lung cancer). 2. Entitlement to service connection for right ear hearing loss. 3. Entitlement to an initial compensable evaluation for gout of the right foot. 4. Entitlement to an initial compensable evaluation for left ear hearing loss. REPRESENTATION Appellant represented by: Florida Department of Veterans Affairs ATTORNEY FOR THE BOARD Y. Curtis, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1962 to October 1983. This matter is before the Board of Veterans' Appeals (Board) on appeal of a March 2010 rating decision of the St. Petersburg, Florida, Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran limited the appeal to the four issues identified on the title page. The decision below addresses the right ear hearing loss claim. The remaining claims on appeal are REMANDED to the agency of original jurisdiction. VA will notify the appellant if further action is required. FINDING OF FACT The Veteran's right ear hearing loss had its onset in service. CONCLUSION OF LAW The criteria for service connection for right ear hearing loss have been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.385 (2014). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran contends that service connection is warranted for right ear hearing loss as a result of exposure to loud noise during service. He states the noise occurred during his duties as a hull maintenance technician. Significantly, service connection for left ear hearing loss has already been awarded. A February 2010 VA examination shows that the Veteran currently has hearing loss in the right ear for VA purposes. See 38 C.F.R. § 3.385 (2014). The examiner provided an opinion that the Veteran's left ear hearing loss was related to service, but not the right ear. This was essentially because the Veteran's retirement examination did not show hearing loss for VA purposes, although this was only slightly the case. Nevertheless, the Veteran's other service treatment records affirmatively document bilateral sensorineural hearing loss. He was even put on a hearing conservation board as having significant hearing loss. Multiple audiograms taken in the 1970s, which was during the Veteran's service, show hearing loss in the right ear for VA purposes. Thus, the evidence at least raises a reasonable doubt as to when the Veteran's right ear hearing loss began. When reasonable doubt is resolved in his favor, the Board finds that the Veteran's right ear hearing loss had its onset during service. See 38 U.S.C.A. § 5107(b) (West 2014); 38 C.F.R. § 3.102 (2014). Accordingly, service connection is warranted for right ear hearing loss. See 38 U.S.C.A. §§ 1110, 1131 (West 2014); 38 C.F.R. § 3.303 (2014). ORDER Service connection for right ear hearing loss is granted. REMAND The Board finds it necessary to remand the remaining three claims for additional development. A VA examination was conducted in February 2010 in connection with the Veteran's claim of service connection for asbestos related pleural disease. After reviewing the claims file and examining the Veteran, the examiner commented that there was no acute objective evidence to support a diagnosis of asbestos related pleural disease. Specifically, the examiner stated that there was no objective finding of residual functional limitation. The examiner could not formulate an opinion as to whether the Veteran's condition was due to his exposure to asbestos during service without resorting to mere speculation. On remand, the Veteran should be scheduled for another VA examination and another medical opinion should be requested. While the examiner noted the impression of two chest x-rays that noted bilateral pleural plaques and asbestos related pleural disease in July 1999 and April 2003 respectively, the examiner did not fully explain why the aforementioned impressions did not constitute objective evidence to support a diagnosis of asbestos related pleural disease. See Jones v. Shinseki, 23 Vet. App. 382 (2010). Additionally, it is unclear if the examiner reviewed impressions from April and May 2008, which also revealed asbestos related pleural disease. Accordingly, a new examination is required. The most recent VA audiological examination was conducted in February 2010. The Veteran is now also service connected for right ear hearing loss and the disability may have increased in severity. Moreover, the Veteran indicated that he is not sure if he properly responded during the last examination. Therefore, the Board finds that another VA examination is warranted to ascertain the current severity of his service-connected bilateral hearing loss. Diagnostic Code 5017 provides for evaluation of gout under the "rheumatoid arthritis" provisions of Diagnostic Code 5002. See 38 C.F.R. § 4.71a, Diagnostic Code 5017 (2014). Under Diagnostic Code 5002, a 20 percent rating is warranted for incapacitating exacerbations occurring three or more times a year. See 38 C.F.R. § 4.71a, Diagnostic Code 5002. On VA examination in February 2010, the Veteran reported subjective symptoms of right foot gout pain with flare ups three to four times a year. It is unclear, however, whether the Veteran's right foot gout flare ups were incapacitating. VA's duty to assist includes conducting a thorough and contemporaneous examination of the Veteran which takes into account the records of prior examinations and treatment as well as to provide a medical examination or, obtain a medical opinion, when such an examination or opinion is necessary to make a decision on the claim. See 38 U.S.C.A. § 5103A(d) (West 2014); 38 C.F.R. § 3.326 (2014); see also Green v. Derwinski, 1 Vet. App. 121, 124 (1991). Thus, another VA examination is warranted for this claim. Lastly, the RO indicated that they reviewed Virtual VA records in the November 2012 statement of the case. The RO concluded that the results of the review were negative for medical records pertinent to the Veteran's claim. The VA treatment records have not been associated with the claims file. On remand, VA treatment records must be added to the claims file for review. Accordingly, these issues are REMANDED for the following actions: 1. Obtain the Veteran's complete VA treatment records and associate the records with the paper or electronic claims file. 2. Then, schedule the Veteran for a VA examination by an appropriate medical professional for his claimed lung disability. The entire claims file must be reviewed by the examiner. After examining the Veteran and reviewing the claims file, the examiner is to provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that any current lung disease is due to an event or incident of the Veteran's period of active service, including exposure to asbestos, which has been established. The examination report must include a complete rationale for all opinions expressed. The evidence identified in the remand section regarding prior testing showing asbestos-related disease must be considered. If the examiner feels that a requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). 3. Schedule the Veteran for a VA audiological examination to ascertain the severity of the Veteran's bilateral hearing loss. The entire claims file must be reviewed by the examiner. Appropriate audiometric testing must be conducted. The examination report must include a complete rationale for all opinions expressed. 4. Schedule the Veteran for a VA examination to assess the severity of the Veteran's gout. The entire claims file must be reviewed by the examiner. All indicated studies should be performed. The clinical findings should be set forth in detail, and the examination report should include range of motion findings of the affected joints. Any further limitation of motion due to pain should be noted. The examiner should also ascertain whether the disability results in weakened movement, excess fatigability, or incoordination; if so, and if feasible, these determinations should be expressed in terms of the degree of additional range of motion lost due to such factors. Additionally, the examiner should indicate whether weight loss and anemia productive of severe impairment of health or severely incapacitating exacerbations are present and, if so, the number of incapacitating episodes in a year. The examination report must include a complete rationale for all opinions expressed. 5. Finally, readjudicate the issues remaining on appeal. If any of the benefits sought remain denied, issue a supplemental statement of the case and return the case to the Board. 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). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). _________________________________________________ RYAN T. KESSEL Veterans Law Judge, Board of Veterans' Appeals