Citation Nr: 1631785 Decision Date: 08/10/16 Archive Date: 08/23/16 DOCKET NO. 13-08 400 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to service connection for chronic obstructive pulmonary disease (COPD) with bronchitis. 2. Entitlement to service connection for a right lung disorder, to include a collapsed lung with pneumothorax. 3. Entitlement to service connection for bilateral hearing loss. 4. Entitlement to service connection for tinnitus. 5. Entitlement to service connection for a right hip disorder. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD A. N. Nolley, Associate Counsel INTRODUCTION The Veteran had active service from June 1976 to November 1979. This case comes before the Board of Veterans' Appeals (Board) on appeal of November and December 2011 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. In May 2016, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. The record before the Board consists of the Veteran's electronic records within Virtual VA and the Veterans Benefits Management System. REMAND Respiratory and Right Lung The Veteran asserts that his currently diagnosed COPD with bronchitis and claimed right lung disorder are the result of an in-service accident. Service treatment records show that the Veteran suffered a fall from a cliff in June 1977. He sustained injuries to his chest and ribs, which resulted in a right hemopneumothorax and fractured right ribs. The Veteran was hospitalized and a chest tube was inserted into his thorax and then removed. A physical examination revealed rales of the right lung. A sputum culture revealed gram positivococci and he was found to have posttraumatic pneumococcal pneumonia. The Veteran was treated with ampicillin and then Keflex. Subsequent chest x-rays showed no evidence of pneumothorax. The Veteran was discharged with a diagnosis of traumatic hemopneumothorax, right. A subsequent evaluation revealed a clear chest, with good expansion of the chest, and some discomfort. Later service treatments showed that the Veteran complained of a sore throat, congestion, mucous in the throat, and a cough. The Veteran was advised to gargle with warm water and given Cepacol throat lozenges. The Veteran submitted private treatment records from Waxhaw Family Physicians. In December 1996, the Veteran presented with a cough, cold, sore chest, and sore muscles. He was diagnosed with sinusitis. In September 1997, the Veteran's nose showed pale, boggy mucosa. He was diagnosed with allergic rhinitis and treated with Allegra. A few days later, the Veteran developed a cough with a choking sensation and thick whitish sputum. Examination of the chest revealed some wheezes, but no rhonchi. The assessment was bronchitis. A November 1997 record showed the Veteran was prescribed Zyban for smoking cessation. It was noted that he smoked at least one pack of cigarettes a day for 20 years. The Veteran was treated for sinusitis in November 1998. His symptoms included yellow to green material in his nose, a mild cough, and a sore throat. His chest showed a few wheezes on end exhalation, but no rales or rhonchi. In April 1998, the Veteran reported a fever, shortness of breath, wheezing, myalgias, and rhinorrhea. The Veteran was breathing easily, but did have some coarse rhonchi throughout the lung fields. The assessment was bronchitis. The Veteran underwent a VA examination in October 2010. The Veteran reported that he had chronic bronchitis treated with Advair as needed. The examiner noted the Veteran's history of productive cough, wheezing, dyspnea, and bronchiectasis. The Veteran's chest expansion was normal. A chest x-ray revealed a normal chest. An x-ray of the ribs showed no evidence of rib fracture, lung contusion, hemothorax, or pneumothorax. The Veteran's pulmonary function test was consistent with mild obstructive impairment. The examiner diagnosed fractured right ribs with right hemopneumothorax, and COPD. The examiner opined that the COPD was less likely than not related to the hemopneumothorax. The Veteran was provided another VA examination in September 2011. The Veteran reported a history of bronchitis treated with antibiotics and inhalers, as well as a recurring cough and constant wheezing. The Veteran stated that he developed a cold about two to three weeks ago. His symptoms included dark green sputum in his nose and when he coughed. The Veteran believed the symptoms indicated bronchitis and he treated them with over the counter medication. The examiner determined that the Veteran's symptoms indicated an upper respiratory infection. The examiner found that the Veteran's wheezes were expiratory and that the rhonchi cleared after coughing. The examiner noted the Veteran's 20 year history of smoking tobacco. The Veteran explained that he quit in the mid to late 1990s. On review of the October 2010 x-ray results, the examiner found no evidence of rib fracture, lung contusion, hemothorax, or pneumothorax. The examiner diagnosed chronic bronchitis, a type of obstructive lung disease. The examiner provided a negative nexus opinion. The examiner concluded that the Veteran's COPD caused his breathing difficulty, and that the COPD was likely due to his long extensive tobacco use history because smoking cigarettes is the leading cause of COPD. The examiner also stated that the Veteran fully recovered from his in-service accident, with no service treatment records or proximate post-service treatment records to indicate any breathing or respiratory condition as a result of the in-service accident. In May 2016, the Veteran testified that he noticed his respiratory symptoms within three to five years after separation from service. The Veteran's wife testified that she met the Veteran in 1981, and shortly after she noticed that he wheezed at night. The Veteran also testified that during service he continued to seek treatment for cold symptoms and a recurring cough. He stated that he was given cough drops. With respect to the right lung disorder, a review of the record reveals a discrepancy as to whether the Veteran has a diagnosis of hemopneumothorax. The October 2010 VA examiner found no evidence of hemothorax or pneumothorax on x-ray, but diagnosed a right hemopneumothorax. The September 2011 VA examiner found that the chest x-ray showed no evidence of hemothorax or pneumothorax and did not provide a diagnosis of hemopneumothorax. Accordingly, the Board finds that a remand is necessary to clarify whether the Veteran has a right lung disorder, and if so, whether such disorder is related to service. With respect to the Veteran's currently diagnosed COPD with bronchitis, the Board finds the examinations of record inadequate. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The October 2010 VA examiner found that the Veteran's COPD was not related to the hemopneumothorax, but did not include rationale to support the conclusion. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (noting that a medical opinion must contain clear conclusions with supporting data and a reasoned medical explanation connecting the two.). The September 2011 VA examiner found that the Veteran's respiratory disorder was caused by his extensive smoking history, however, the evidence of record indicated that the Veteran started smoking in the mid to late 1970s. The Veteran and his wife testified that the Veteran's respiratory symptoms were apparent within a few short years after his November 1979 separation from service. In addition, the September 2011 VA examiner did not consider the Veteran's in-service diagnosis of and treatment for pneumococcal pneumonia, and whether his in-service diagnosis caused his current respiratory disorder. Furthermore, the service treatment records documented complaints of and treatment for a cough, congestion, and mucous in the throat. Post-service treatment records continued to show complaints of chest congestion, a cough, and mucous. The examiner did not discuss the significance, if any, of the medical records which showed the Veteran experienced the same or similar symptoms during and after service, to include at the most recent VA respiratory examination. As such, a remand is necessary to afford the Veteran another VA examination. Bilateral Hearing Loss and Tinnitus The Veteran asserts that his currently diagnosed bilateral hearing loss and tinnitus were caused by in-service noise exposure. The Veteran underwent a VA audiological examination in October 2010. The Veteran reported noise exposure from serving in a tank unit. The examiner noted that the Veteran's military occupational specialty was materials supply specialist in Germany. The Veteran was diagnosed with a bilateral hearing loss disability in accordance with 38 C.F.R. § 3.385, as well as tinnitus. The examiner determined that tinnitus was likely associated with his currently diagnosed bilateral hearing loss. In November 2011, the examiner provided an addendum opinion: The veteran served as a supply specialist and did not serve in a combat role nor was he exposed to combat situations. Documented hearing test results on November 20, 1978 revealed normal hearing or minimal threshold elevation at 500 Hz at both ears and 4000 Hz at the right ear. The threshold elevation at 500 Hz is somewhat questionable and may be the result of testing conditions, earphone placement, accumulation of earwax, background noise or operator error. Noise induced hearing loss is generally not associated with threshold elevation at 500 Hz. There are no complaints of hearing loss or tinnitus at the time of military separation or during the active military service period. There is no known evidence of chronicity or continuity of care regarding hearing loss or tinnitus. Considering all available information, it is the opinion of this examiner that it is less likely as not that the hearing loss and subsequent tinnitus are caused by, or the result of, noise exposure encountered during military service. The Veteran testified that although he worked in military supply during service, he was exposed to continuous noise from monster diesel vehicles and tanks inside of a motor pool. He stated that he was responsible for maintaining and distributing parts for tanks, monster diesels, and Bradley vehicles. He explained that his unit required him to be more interactive, so in addition to distributing parts, he had to operate and maintain vehicles and fire the tanks. He also stated that every year he spent six to eight months on maneuvers off-base. The Veteran testified that during that time he was exposed to a very excessive amount of noise on the firing range or in the motor pool. The Veteran also testified that he experienced tinnitus after his in-service fall. The Board finds the November 2011 addendum opinion inadequate. The examiner noted the threshold elevation at 500 Hz, but found that it was "somewhat questionable" and "may" be the result of various causes. The Board finds this language to be speculative, and cannot form the basis of an adequate opinion. See Obert v. Brown, 5 Vet. App. 30, 33 (1993) (finding that medical opinions expressed in terms of "may" also imply "may or may not" and are too speculative to establish medical nexus). Furthermore, the medical opinion was based, at least in part, on the Veteran's military occupational specialty. However, as the Veteran explained at the Board hearing, his military duties were not limited to material supply. He stated that he engaged in the operation and maintenance of vehicles, fired tanks, worked inside of a loud motor pool, and participated in off-base maneuvers. In addition, the examiner did not consider whether the in-service fall caused the Veteran's hearing loss and tinnitus. As such, the Board finds that a remand is required to obtain a new VA examination and opinion regarding the etiology of the Veteran's diagnosed hearing loss and tinnitus. Right Hip The Veteran asserts that he has a right hip disorder caused by injuries he sustained to his right lung, right ribs, and spine during an in-service accident. A September 1997 private treatment record shows that the Veteran reported on and off hip pain that randomly disappeared. He was diagnosed with a hip strain and prescribed medication for hip discomfort. In December 1997, the Veteran reported to his private physician that his occupational duties required him stand for long hours on concrete floors, climb ladders, and crawl under spaces. The Veteran testified that his hip disorder was the result of a spine fracture he sustained due to the in-service accident. He stated that he noticed issues with his thigh about four or five years ago, but noticed his hip pain about 23 to 27 years ago. Generally, a VA medical examination is required for a service connection claim when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing that an event, injury, or disease occurred in-service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the VA to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006); see also 38 U.S.C.A. § 5103A(d)(2), 38 C.F.R. § 3.159(c)(4)(i). The third prong, which requires that the evidence of record "indicate" that the claimed disability or symptoms "may be" associated with the established event, disease or injury is a low threshold. McLendon, 20 Vet. App. at 83. The Board finds the low threshold necessary to provide an examination has been established in this case. During his hearing, the Veteran testified that he recently underwent magnetic resonance imaging (MRI), however, a copy of the MRI does not appear to be of record. On remand, all relevant ongoing medical records, to include the recent MRI, should be obtained. 38 U.S.C.A. § 5103A(c) (West 2014); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Accordingly, the case is REMANDED for the following action: 1. The RO should undertake appropriate development to obtain any outstanding records pertinent to the Veteran's claims, to include any more recent treatment records related to the claimed disabilities and the recent MRI. If any requested records are not available, the record should be annotated to reflect such and the Veteran notified in accordance with 38 C.F.R. § 3.159(e). 2. Thereafter, the RO should afford the Veteran a VA examination by an examiner with sufficient expertise to address the etiology of the Veteran's respiratory disorder and any right lung disorder. All pertinent evidence of record must be made available to and reviewed by the examiner. Any indicated studies should be performed. Following a review of the relevant records and lay statements, the examiner should state an opinion with respect to whether the Veteran's respiratory disorder is at least as likely as not (a 50 percent probability or greater) originated during his period of active service or is otherwise etiologically related to his active service, to specifically include his in-service accident. In doing so, the examiner must consider and discuss the (1) Veteran's statements that his 20 year smoking history started in the mid to late 1970s and that he experienced respiratory symptoms shortly after his November 1979 separation from service; (2) service treatment records and private treatment records showing complaints of and treatment for the same or similar symptoms; and (3) the in-service diagnosis of and treatment for pneumococcal pneumonia. The examiner should also confirm or rule out a diagnosis of hemopneumothorax. If the examiner determines that hemopneumothorax has not been present during the period of the claim, the examiner should explain why a diagnosis is not warranted. If the examiner determines that a hemopneumothorax has been present for any portion of the period of the claim, the examiner should state an opinion as to whether it is at least as likely as not (a 50 percent probability or greater) that the hemopneumothorax is etiologically related to the Veteran's active service, to include the in-service accident. In doing so, the examiner must discuss the October 2010 examination report showing a diagnosis of hemopneumothorax. The examiner must provide a complete rationale for all proffered opinions. If the examiner is unable to provide any required opinion, he or she should explain why. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed. 3. Thereafter, the RO should afford the Veteran a VA examination by an examiner with sufficient expertise to address the etiology of the Veteran's bilateral hearing loss and tinnitus. All pertinent evidence of record must be made available to and reviewed by the examiner. Any indicated studies should be performed. Following a review of the relevant records and lay statements, the examiner should state an opinion with respect to whether the Veteran's bilateral hearing loss and tinnitus are at least as likely as not (a 50 percent probability or greater) originated during his period of active service or is otherwise etiologically related to his active service, to include his in-service accident. In doing so, the examiner must consider and discuss the Veteran's statements regarding his in-service noise exposure, ringing in the ears since the in-service accident, and post-service occupational noise exposure. The examiner must provide a complete rationale for all proffered opinions. If the examiner is unable to provide any required opinion, he or she should explain why. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed. 4. Then, the RO or the AMC should afford the Veteran a VA examination by an examiner with sufficient expertise to address the etiology of the Veteran's claimed right hip disorder. All pertinent evidence of record must be made available to and reviewed by the examiner. Any indicated studies should be performed. Following a review of the relevant records and lay statements, the examiner should state an opinion with respect to all diagnosed right hip disorders present during the period of the claims. Specifically, the examiner should state whether any diagnosed disability at least as likely as not (a 50 percent probability or greater) originated during his period of active service or is otherwise etiologically related to his active service, to specifically include the Veteran's in-service fall. The examiner must provide a complete rationale for all proffered opinions. In this regard, the examiner must discuss and consider the Veteran's competent lay statements. If the examiner is unable to provide any required opinion, he or she should explain why. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed. 5. The RO or the AMC should also undertake any other indicated development. 6. Finally, the RO or the AMC should readjudicate the issues on appeal. If the benefits sought on appeal are not granted to the Veteran's satisfaction, the Veteran and his representative should be furnished an appropriate supplemental statement of the case and be afforded the requisite opportunity to respond. Thereafter, the case should be returned to the Board for further appellate action. By this remand, the Board intimates no opinion as to any final outcome warranted. The Veteran need take no action until he is otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. Kutscherousky v. West, 12 Vet. App. 369 (1999). This REMAND must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). _________________________________________________ T. REYNOLDS Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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) (2016).