Citation Nr: 1642212 Decision Date: 11/02/16 Archive Date: 11/18/16 DOCKET NO. 13-03 355A ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for a pulmonary disorder. 2. Entitlement to an initial compensable rating for bilateral hearing loss. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD J. E. Miller, Associate Counsel INTRODUCTION The Veteran served in the U.S. Marine Corps from December 1968 to September 1970. He served in the Republic of Vietnam. This matter came before the Board of Veterans' Appeals (Board) on appeal from a November 2011 decision of the Montgomery, Alabama, Regional Office (RO). On his February 2013 VA Form 9, the Veteran requested a Board hearing at his local VA office. In an August 2014 statement, the Veteran indicated that he wished to withdraw his hearing request. Therefore, the Board considers the hearing request cancelled, and will proceed to adjudicate the case based on the evidence of record. See 38 C.F.R. § 20.704(e) (2015). The issues of service connection for diabetic retinopathy, diabetic nephropathy, and restless leg syndrome have been raised by the record in an August 2016 Fully Developed Claim application, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2015). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Remand of the issue of service connection for a pulmonary disorder is required to obtain a new VA examination. An August 2010 note from a private pulmonologist states that the Veteran had "mild obstruction and restrictive lung dysfunction." In October 2011, the Veteran was afforded a VA respiratory conditions examination. It lists a 2006 diagnosis of asbestosis based on a report by the Veteran but also noting "[n]o radiographic evidence of acute pulmonary or pleural disease." The examiner also indicated that the Veteran has multiple unspecified respiratory conditions. When VA undertakes to either provide an examination or to obtain an opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Therefore, a new VA examination is required to determine what pulmonary disorder(s) the Veteran has and to obtain a medical opinion as to whether any identified disorder was caused by service. Remand is also necessary to obtain private treatment records. Bell v. Derwinski, 2 Vet. App. 611 (1992). On his February 2013 VA Form 9, the Veteran wrote that his private pulmonologist, Dr. L. Carmichael, had diagnosed him with chronic obstructive pulmonary disorder (COPD). Treatment records are not of record. Remand of the issue of an initial compensable rating for bilateral hearing loss is necessary as the Veteran wrote on his February 2013 VA Form 9 that his hearing has worsened and he now wears hearing aids. He has not had a VA audiological examination since October 2011. Therefore, a new examination is required. The case is REMANDED for the following action: 1. Advise the Veteran that he may submit any additional medical and non-medical evidence relating to his claimed pulmonary and hearing loss disorders that is not already in VA's possession. Specifically request authorization to obtain treatment records from Dr. L. Carmichael. 2. AFTER COMPLETING THE ABOVE DEVELOPMENT, return the file to the VA examiner who conducted the October 2011 VA medical examination. If the examiner is not available, have the file reviewed by a similarly-qualified examiner. If necessary to respond to the inquiries below, schedule the Veteran for a VA pulmonary examination to obtain an opinion as to the nature and etiology of his lung disorder. All indicated tests and studies should be accomplished and the findings reported in detail. All relevant medical records must be made available to the examiner for review of pertinent documents. The examination report should specifically state that such a review was conducted. The examiner must provide a comprehensive explanation for all opinions provided. The examiner should address the following: a. whether the Veteran has any pulmonary disorder(s). If any diagnosis conflicts with any prior diagnosis, the examiner must explain why and must address the prior diagnosis. b. whether any identified pulmonary disorder(s) originated during active service or was caused by active service. IN ADDITION TO ANY RECORDS ADDED TO THE FILE AS A RESULT OF THE ABOVE DEVELOPMENT, the examiner's attention is drawn to the following: *DD214 stating that the Veteran's MOS was an automobile mechanic. *July 2010 informal claim where the Veteran stated he was exposed to asbestos daily in-service as a result of fixing brakes on jeeps and trucks while working in the motor pool. *July 2007 private pulmonary function test. VBMS Entry 7/26/2010. *August 2010 note from a private pulmonologist stating that the Veteran had mild obstruction and restrictive lung dysfunction and that, "[g]iven excessive asbestos exposure this could certainly be related to asbestosis." *February 2013 VA Form 9 where the Veteran stated he was diagnosed with COPD. 3. Schedule the Veteran for a VA audiology examination to obtain an opinion as to the current nature of his bilateral hearing loss. All indicated tests and studies should be accomplished and the findings reported in detail. All relevant medical records must be made available to the examiner for review of pertinent documents. The examination report should specifically state that such a review was conducted. The examiner must provide a comprehensive explanation for all opinions provided. 4. Readjudicate the issues on appeal. If any benefit sought on appeal remains denied, the Veteran should be provided a supplemental statement of the case (SSOC). An appropriate period of time should be allowed for response before the case is returned to the Board. The Veteran has the right to submit additional evidence and argument on the matter or 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 or by the United States Court of Appeals for Veterans Claims (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). _________________________________________________ Vito A. Clementi Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board is appealable to the Court. 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).