Citation Nr: 1634448 Decision Date: 09/01/16 Archive Date: 09/09/16 DOCKET NO. 14-18 505 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to service connection for right ear hearing loss. 2. Entitlement to service connection for a respiratory disorder, including chronic obstructive pulmonary disease, to include as due to exposure to asbestos. . 3. Entitlement to an initial compensable evaluation for left ear hearing loss. REPRESENTATION Appellant represented by: Penelope Gronbeck, Esq. WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD K. L. Wallin, Counsel INTRODUCTION The Veteran served on active duty from July 1972 to June 1976. This case comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision rendered in August 2013 by the Department of Veteran Affairs (VA) Regional Office in Roanoke, Virginia. REMAND In this case, the Veteran last underwent a VA examination to assess his service-connected left ear hearing loss in March 2012, more than four years ago. Since that time, evidence has been added to the record, which suggests that the Veteran's left ear hearing loss disability may have worsened. Specifically, the Veteran testified to decreased hearing, especially when there is background noise, in the December 2015 hearing before the Board. Accordingly, a new VA examination is necessary where there is evidence, including the Veteran's statements that his service-connected disability has worsened since the last examination. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). VA also has a duty to assist veterans to obtain evidence needed to substantiate a claim. On VA examination in 2012, the Veteran did not meet the criteria for right ear hearing loss for VA compensation purposes under 38 C.F.R. § 3.385 (2015). Particularly, the auditory thresholds were not greater than 25 decibels at one or more frequencies in the 500 to 4000 Hertz range; however, there was hearing loss at 6000 hertz (35 decibels), which the VA examiner found to be "more likely than not" due to noise exposure while in the military. Noise exposure was found when awarding service-connection for left ear hearing loss and confirmed by the service personnel records showing he served aboard the USS Ranger performing duties as a boatswain's mate. Based on the Veteran's testimony that his hearing loss has worsened, an examination is needed to address whether the Veteran currently has right ear hearing loss for VA compensation purposes. McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Veteran claims that he developed chronic obstructive pulmonary disorder (COPD), from in-service exposure to paint fumes and lead paint. Specifically, in December 2012 and April 2013 statements, the Veteran claimed that his respiratory disorder was the result of performing duties as a boatswain's mate, which including painting the ship exposing him to paint fumes and toxic material in the paints, including red lead primer and lead based paints. The Veteran also claims that he developed COPD, from in-service exposure to asbestos. He asserts that he was exposed to asbestos in 1975 when his ship, the USS Ranger (CV-61), was refitted at the shipyard in Long Beach, California. He asserted in December 2012 and April 2013 statements that he was still assigned to the ship while the renovation took place and there were no controls in place during the yard work, exposing him to asbestos during the removal. There are no specific statutory or regulatory criteria governing claims of entitlement to service connection for residuals of asbestos exposure. McGinty v. Brown, 4 Vet. App. 428, 432-33 (1993). Likewise, applicable criteria provide no presumption of service connection for asbestos exposure claims. See Dyment v. West, 13 Vet. App. 141, 145 (1999) (holding that M21-1 does not create a presumption of exposure to asbestos solely from shipboard service). VA has, however, provided guidelines for the adjudication of asbestos exposure claims in the Adjudication Procedure Manual M21-1R (M21-1R), Part IV, Subpart ii, Chapter 1, Section H, Paragraph 29. Additional guidance is found in M21-1R, Part IV, Subpart ii, Chapter 2, Section C, Paragraph 9. These M21-1R guidelines establish claim development procedures which adjudicators are required to follow in claims involving asbestos-related diseases. VAOPGCPREC 4-2000; 65 Fed. Reg. 33422 (2000). Specifically, the manual provides that VA must determine whether military records demonstrate evidence of asbestos exposure in service; whether there is pre-service and/or post-service evidence of occupational or other asbestos exposure; and then make a determination as to the relationship between asbestos exposure and the claimed diseases, keeping in mind the latency and exposure information pertinent to the veteran. M21-1MR IV.ii.2.C.9.h. These guidelines provide that the latency period varies from 10 to 45 years between first exposure and development of the disease. The exposure to asbestos may be brief (as little as a month or two) or indirect (bystander disease). M21-1MR IV.ii.2.C.9.d. VA also recognizes that inhalation of asbestos fibers can produce fibrosis and tumors. The most common disease is interstitial pulmonary fibrosis (asbestosis). Asbestos fibers may also produce pleural effusions and fibrosis, pleural plaques, mesotheliomas of pleura and peritoneum, lung cancer, and cancers of the gastrointestinal tract, larynx, pharynx, and urogenital system (except the prostate). M21-1MR IV.ii.2.C.9.b. VA's Manual also lists some of the common materials that may contain asbestos, including steam pipes for heating units and boilers, ceiling tiles, roofing shingles, wallboard, fire proofing materials, and thermal insulation. M21-1MR IV.ii.2.C.9.a. Some of the major occupations involving exposure to asbestos include mining, milling, shipyard work, 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 products such as roofing and flooring materials, asbestos cement sheet and pipe products, and military equipment. M21-1MR IV.ii.2.C.9.f. Review of the evidence of record shows that an attempt to verify whether or not the Veteran was likely exposed to asbestos during his service has not yet been completed. While the RO obtained the Veteran's service personnel records, there was not attempt to verify his claimed asbestos exposure by requesting this information via the Personnel Information Exchange System (PIES) and no other efforts have been undertaken to investigate whether the Veteran's duties during service or the locations where he served would have exposed him to asbestos. Indeed, the available service records show he was a boatswain's mate aboard the USS Ranger. There has been no investigation regarding the source of asbestos exposure claimed by the Veteran to have occurred during this assignment. Thus, the RO must investigate the Veteran's claimed exposure to asbestos, as well as document all steps taken to verify any exposure. A new examination is also needed to address the etiology of the Veteran's current respiratory disorder, as the prior examination in 2013 was inadequate. The examiner opined that COPD was not likely incurred in service because the available service treatment records did not indicate any evidence of respiratory complaints, treatment, or diagnoses. The examiner indicated there was insufficient evidence at that time to establish a relationship. However, service treatment records contain complaints of shortness of breath of two to three month duration, exacerbated by high humidity and heat in August 1975. The Veteran also reported chest pain and persistent cough in 1976. The examiner also failed to address the Veteran's contentions of asbestos and toxic paint and fume exposure. Private medical records dated in April 2009 contain a chest x-ray with previous pulmonary nodules, which were calcified. The provider indicated it was unclear whether there was undiagnosed interstitial lung disease or possible occupational asbestos induced interstitial fibrosis. If VA undertakes to provide an examination, even if not required to do so, the examination must be adequate, or the Veteran informed as why one cannot or will not be provided. Daves v. Nicholson, 21 Vet. App. 46, 52 (2007). The failure to address pertinent treatment records and lay statements of the Veteran renders the examination inadequate and a new one must be provided. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Efforts must also be made to obtain outstanding private medical records pertinent to the claim for COPD. In April 2013, the Veteran submitted VA Form 21-4142, Authorization and Consent to Release Information to VA, from the Apple Blossom Family Practice for treatment of COPD from April 2009 to the present. There are some records from this provider, but they do not appear complete. The RO indicated in their September 2013 rating decision that they did not request records from this provider because "there [was] no reasonable possibility that obtaining these records would substantiate [his] claim." As noted above, VA has a duty to assist veterans to obtain evidence needed to substantiate a claim and thus, these records must be obtained. See 38 U.S.C.A. § 5103A(c) (West 2014); 38 C.F.R. § 3.159 (2015). Accordingly, the case is remanded for the following action: 1. The RO must attempt to procure copies of all records from the Apple Blossom Family Practice for treatment of COPD from April 2009 to the present. If an updated consent form is necessary, one must be obtained from the Veteran. When requesting records not in the custody of a Federal department or agency, such as private treatment records, the RO must make an initial request for the records and at least one follow-up request if the records are not received or a response that records do not exist is not received. All attempts to secure this evidence must be documented in the electronic record by the RO. If, after making reasonable efforts to obtain named records the RO is unable to secure same, the RO must notify the Veteran and (a) identify the specific records the RO is unable to obtain; (b) briefly explain the efforts that the RO made to obtain those records; (c) describe any further action to be taken by the RO with respect to the claim; and (d) that he is ultimately responsible for providing the evidence. The Veteran and his representative must then be given an opportunity to respond. 2. The RO must take appropriate action to develop evidence of whether the Veteran was exposed to asbestos during service, to include requesting information from the appropriate resources regarding his military occupational specialty(ies), assigned duties, and locations of service, particularly while stationed aboard the USS Ranger (CV-61) to include assertions that the ship was refitted in 1975 at the shipyard in Long Beach, California. 3. Thereafter, the RO must obtain a VA medical opinion from an appropriate physician regarding whether any respiratory disorder, to include COPD, is related to his military service. The electronic claims file and a copy of this remand must be reviewed by the examiner. All pertinent symptomatology and findings must be reported in detail. Any indicated diagnostic tests and studies must be accomplished. The examiner must review and specifically discuss the Veteran's assertions as to in-service asbestos exposure, as well as exposure to paint fumes and toxic paint materials, including red lead primer and lead based paints. After a thorough review of the Veteran's electronic claims file and with consideration of the Veteran's statements, the examiner must provide an opinion as to whether any currently or previously diagnosed respiratory disorder, to include COPD, is related to his military service, to include as due to asbestos exposure and/or toxic paint materials and fumes. The examiner must also address private medical records dated in April 2009 that contain a chest x-ray with previous pulmonary nodules, which were calcified. The provider indicated it was unclear whether there was undiagnosed interstitial lung disease or possible occupational asbestos induced interstitial fibrosis. The examiner must provide a complete rationale for all opinions expressed. If the examiner cannot provide the requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The examiner must indicate whether there was any further need for information or testing necessary to make a determination. The examiner must indicate whether an opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. 4. The Veteran must also be afforded a VA examination to determine the severity of his service-connected left ear hearing loss and whether the Veteran has right ear hearing loss for VA compensation purposes. The electronic claims file must be made available to the examiner, and the examiner must specify in the examination report that these records have been reviewed. Examination findings pertinent to the Veteran's hearing loss for both ears must be reported to allow for application of VA rating criteria for hearing impairment, to include controlled speech discrimination test (Maryland CNC) and a puretone audiometry test results. 5. The RO must notify the Veteran that it is his responsibility to report for any VA examination scheduled, and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claims. 38 C.F.R. §§ 3.158, 3.655. In the event that the Veteran does not report for any scheduled examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. Copies of all documentation notifying the Veteran of any scheduled VA examination must be placed in the Veteran's electronic record. 6. The examination reports must be reviewed to ensure they are in complete compliance with the directives of this remand. If a report is deficient in any manner, the RO must implement corrective procedures. 7. After completing the above actions, and any other development as may be indicated by any response received as a consequence of the actions taken above, the RO must readjudicate the Veteran's claims on appeal in light of all the evidence of record. If any benefit on appeal remains denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. No action is required by the Veteran until he receives further notice; however, he may present additional evidence or argument while the case is in remand status at the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). _________________________________________________ JOY A. MCDONALD 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).