Citation Nr: 1638024 Decision Date: 09/28/16 Archive Date: 10/07/16 DOCKET NO. 12-33 796 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUES 1. Entitlement to service connection for a respiratory disorder, to include asbestosis, silicosis, obstructive/ reactive airways disease, asthma, and chronic obstructive pulmonary disorder (COPD). 2. Entitlement to a compensable disability rating for bilateral hearing loss disability. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and his wife ATTORNEY FOR THE BOARD J. J. Tang, Associate Counsel INTRODUCTION The Veteran served on active duty in the U.S. Navy from December 1960 to December 1962. This case is before the Board of Veterans' Appeals (Board) on appeal from April 2011 and June 2013 rating decisions by a Regional Office (RO) of the Department of Veterans Affairs (VA). Records in the Virtual VA paperless claims processing system and Veterans Benefits Management System have been reviewed, including the transcript of the July 2016 Board hearing presided over by the undersigned Veterans Law Judge. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2015). 38 U.S.C.A. § 7107(a)(2) (West 2014). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Veteran contends that he has a respiratory disability that is related to reported exposure to asbestos in service. The Veteran submitted a January 2003 private treatment record from Dr. R. L., who noted findings typical of previous occupational exposure to silica dust and asbestos dust and stated that the chest x-ray is diagnostic of asbestosis and silicosis. The Veteran also submitted a June 2009 private medical opinion from Dr. S. P. that stated that the Veteran has asbestosis. The Veteran has reported in-service and post-service occupational asbestos dust exposure. In the July 2016 Board hearing, the Veteran reported that his ship, the U.S.S. Little Rock was full of asbestos, and he stated that whenever his ship would hit rough water, he could see a dust or film in the air. The Veteran reported that he had a pipe running above his top bunk on the ship and the wrapping around the asbestos was cracked, and whenever the ship would roll, he saw a little dust coming off. The Veteran testified that after service, he worked in the oil field for 28 years, and then he worked for 16 or 17 years in the oil refineries and chemical plants, and the Veteran testified as to the nature and extent of asbestos exposure on the job. The Veteran has also testified that he noticed having breathing problems not long after he got discharged. The Veteran was afforded a VA examination in July 2014. The VA examiner diagnosed the Veteran with asthma and stated that the Veteran's asthma is not related to any asbestos exposure. The July 2014 VA medical opinion considered only whether the Veteran's asthma is related to reported asbestos exposure in service, and the opinion did not address whether the Veteran's asthma is otherwise related to service. Further, the July 2014 VA medical opinion did not consider any respiratory diagnoses such as asbestosis that may have resolved during the appeal period and only provided an opinion as to the contemporaneous presence of asbestosis and silicosis. The VA examiner also did not have a chance to address the Veteran's testimony that he noticed having breathing problems not long after he got discharged from service. Accordingly, an addendum medical opinion should be obtained to determine the Veteran's current respiratory disorder(s) and the etiology thereof. McClendon v. Nicholson, 20 Vet. App. 79, 81 (2006). Hearing Loss The Veteran was last afforded a VA audiological examination in October 2014, in which the Veteran reported that he has to ask other people to repeat what they say a lot. In the July 2016 Board hearing, the Veteran's wife essentially testified that that the Veteran does not hear when she talks to him and he does not respond to her. This testimony tends to indicate a worsening in the Veteran's hearing loss symptoms. Because the Veteran has not been afforded a VA examination since October 2014, and based on reports of worsening symptoms, the Board finds that a new VA examination is warranted to determine the current nature and severity of the Veteran's bilateral hearing loss disability. Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Please take any appropriate measures to determine whether or not the Veteran's ship, the U.S.S. Little Rock, had asbestos dust in the ship's living quarters during the Veteran's period of service on the ship. 2. Please contact the Veteran and request that he provide information as to any outstanding private treatment records pertinent to bilateral hearing loss and a respiratory disorder. The Veteran should be asked to authorize the release of any outstanding pertinent non-VA medical records. 3. Please obtain all outstanding relevant VA treatment records, to include any outstanding VA records dating during the appeal period. 4. Afterwards, please obtain a VA medical opinion from the examiner who rendered the July 2014 VA examination (or suitable substitute) to determine the etiology of a respiratory disability. Make the claims file available to the examiner for review of the case. The examiner should review all records associated with the claims file (including Virtual VA and VBMS) and should note that this case review took place. a. Please address each diagnosis(es) of the Veteran's respiratory disability at any time during the appeal period (July 2010 to present). In other words, please address each diagnosis of a respiratory that the Veteran has had during the appeal period, even if such diagnosis(es) has resolved during the appeal period. For purposes of this opinion, please provide an opinion as to whether it is at least as likely as not (probability of 50 percent) that the Veteran has had silicosis and/or asbestosis at any point during the appeal period. Attention is invited to the January 2003 medical findings by Dr. R. L. and the June 2009 medical findings by Dr. S. P. The examiner's attention is also invited to the July 2014 VA examiner's diagnosis of asthma and to the lay report that the Veteran has a diagnosis of COPD. b. Regarding each diagnosis above, please provide an opinion as to whether it is at least as likely as not (probability of 50 percent) that a respiratory disorder first manifested in service, or is otherwise etiologically related to service, to include exposure to dust in service. The examiner's particular attention is invited to the following: (1) The Veteran's testimony that he began to have breathing problems not long after he got discharged. (2) The Veteran's reports as to in-service and post-service dust exposure: In the July 2016 Board hearing, the Veteran reported that while serving on his ship, the U.S.S. Little Rock, and when the ship would hit rough water, he could see a dust or film in the air. The Veteran reported that he had a pipe running above his top bunk on the ship, whenever the ship would roll, he saw a little dust coming off. In the July2016 Board hearing, the Veteran also testified as to the nature and extent of his asbestos exposure post-service. The examiner is asked to explain the reasons behind any opinions expressed and conclusions reached. Please note that that entitlement to service connection does not require that service be the sole cause for a disability. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. Please note that the July 2014 VA medical opinion considered only whether the Veteran's asthma is related to reported asbestos exposure in service, and the opinion did not address whether the Veteran's asthma is otherwise related to service, to include exposure to dust. Further, the July 2014 VA medical opinion did not consider any respiratory diagnoses that may have resolved during the appeal period and only provided an opinion as to the contemporaneous presence of asbestos and silicosis. The medical opinion also did not address the Veteran's report of respiratory symptoms not long after discharge. 5. Afterwards, please schedule the Veteran for a VA audiological examination determine the severity of bilateral hearing loss. Provide the VA examiner with the claims file for review of the case. After performing all necessary testing, the examiner is asked to address the severity and all symptoms of the Veteran's bilateral hearing loss under the normal VA protocol for such audiometric evaluations. The examiner is asked to provide complete rationale for all conclusions and opinions expressed. 6. Complete the above development and any additional development that is deemed warranted. Then readjudicate the claims on appeal, and furnish the Veteran and his representative a supplemental statement of the case if a matter is not resolved to the Veteran's satisfaction. Provide an opportunity to respond before the claims are returned 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). 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 2014). ______________________________________________ MICHAEL A. PAPPAS 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) (2015).