Citation Nr: 1757557 Decision Date: 12/13/17 Archive Date: 12/28/17 DOCKET NO. 14-10 833A ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona THE ISSUES 1. Entitlement to service connection for right spontaneous pneumothorax with scars, claimed as a right lung collapse. 2. Entitlement to an increased (compensable) rating for sensorineural hearing loss of the left ear. REPRESENTATION Appellant represented by: Arizona Department of Veterans Services WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD C. D. Simpson, Counsel INTRODUCTION The Veteran, who is the appellant, served on active duty from July 1993 to April 2000, from November 2006 to December 2007, and from February 2010 to April 2011. He had additional service in the Army National Guard. This appeal before the Board of Veterans' Appeals (Board) arose from a December 2012 rating decision in which the RO, inter alia, denied claims for service connection for spontaneous pneumothorax with scars and for an increased (compensable) rating for sensorineural hearing loss, left ear. The Veteran filed a notice of disagreement (NOD) with those denials in March 2013. The RO issued a statement of the case (SOC) in March 2014, and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to Board of Veterans' Appeals) in April 2014. In February 2017, the Veteran was afforded a Board hearing before the undersigned Veterans Law Judge at the local RO. The hearing transcript is of record. During the hearing, the Veteran submitted additional evidence. Although not required, as the Veteran's substantive appeal in this case was received after February 2, 2013, the Veteran also provided a waiver of initial RO consideration of this additional evidence. See 38 C.F.R. §§ 20.800, 20.1304 (2017); see also Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012, Pub. L. No. 112-154, 126 Stat. 1165 (amending 38 U.S.C. § 7015 (e)(1) to provide an automatic waiver of initial AOJ review of evidence at the time of or subsequent to the submission of a substantive appeal where the substantive appeal is filed on or after February 2, 2013). Also, after the hearing, the case was held in abeyance for 60 days for the submission of additional evidence. While the Veteran previously had a paper claims file, this appeal is now being processed utilizing the paperless, electronic Veterans Benefits Management System (VBMS) and Virtual VA (Legacy Content Manager) claims processing systems. The Board's decision addressing the claim for service connection for right spontaneous pneumothorax with scars is set forth below. The remaining claim on appeal is addressed in the remand following the order; this matter is being remanded to the agency of original jurisdiction (AOJ). VA will notify the Veteran when further action, on his part, is required. FINDINGS OF FACT 1. All notification and development actions needed to fairly adjudicate the claim herein decided have been accomplished. 2. The Veteran's assertions of exposure to significant sand, dust and dirt during a period of service in Arizona is credible and consistent with the circumstances of such service. 3. The Veteran was treated, and underwent surgery for, right spontaneous pneumothorax shortly after his November 2006 to December 2007 period of service, and competent, uncontradicted medical opinion evidence indicates that there is as likely as note a medical relationship between the Veteran's his right spontaneous pneumothorax with scars and his environmental exposures during active service. CONCLUSION OF LAW Resolving all reasonable doubt in the Veteran's favor, the criteria for service connection for right spontaneous pneumothorax with scars are met. 38 U.S.C. §§ 1110, 5107 ( 2012); 38 C.F.R. §§ 3.102, 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION At the outset, the Board notes that the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a). Given the favorable disposition of the claim herein decided, the Board finds that all notification and development action needed to fairly adjudicate this claim has been accomplished. Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty, or from aggravation of a preexisting injury suffered or disease contracted in the line of duty. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury that was incurred or aggravated in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires (1) the existence of a present disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). See also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The determination as to whether elements are met is based on an analysis of all the evidence of record and the evaluation of its competency, credibility and probative value. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. 38 C.F.R. § 3.102. See also 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Service department records confirm that the Veteran was on active duty from November 2006 until December 8, 2007. See Form DD 214 received May 2012 and Form DD 215 issued February 2012. His military occupational specialty (MOS) from this period of service is listed as a motor transport operator. The DD 214 reflects an assignment for Border Security and Operations. It also confirms that he entered into and separated from this period of active service in Arizona. December 24, 2007 private medical records show that the Veteran was hospitalized for spontaneous pneumothorax. He had developed right sided chest pain the day before and was assessed as having a large right sided pneumothorax. On December 26, 2007, Dr. M.K. performed thoracic surgery and talc pleurodesis for treatment. December 30, 2007 hospital records reflect that the Veteran was discharged with a diagnosis of spontaneous pneumothorax status post-surgery, chest tube placement and status post chest tube removal with associated pain. He was instructed to continue follow up treatment on an outpatient basis. June 2008 private medical records by Dr. M.K. show that the veteran complained about right sided musculoskeletal chest pain with prolonged running. A May 2012 VA examination report notes the above history and an assessment of December 2007 spontaneous pneumothorax. In the April 2014 substantive appeal, the Veteran reported that he was exposed to sand and dirt from working in the desert during his period of active duty from November 2006 to December 2007. He reported his treating physician informed him about a nexus between these environmental exposures and his subsequent lung collapse. In October 2014, Dr. M.K. provided an initial evaluation for coronary artery disease. He listed an assessment of collapsed lung. Dr, M,K. stated that he had a very long discussion with the Veteran about the 2007 pneumothorax. He opined that the Veteran's pneumothorax could certainly have been caused by either inhalation agents or from trauma in righting and driving border vehicles. He stated that it was not possible to pin down the exact cause, but it was very possible that the Veteran acquired the disorder secondary to service. During the February 2017 Board hearing, the Veteran testified that he was exposed to a lot of dust during his November 2006 to December 2007 active duty service for border security operations. He also indicated that he developed a collapsed right lung approximately two and half weeks following separation. Dr. M.K. treated him. He stated that he had informed Dr. M.K. about his service on the border and dust exposure, and that Dr. M.K. told him that dust or similar environmental exposure while serving on the border seemed to be the most likely cause for his collapsed lung. In March 2017, the Veteran submitted a March 2017 treatment record from Dr. M.K which reflects continued assessments of collapsed lung and pneumothorax. Dr. M.K. noted that the Veteran had just returned for a military border mission on December 8, 2007 when he had his pneumothorax. He treated the Veteran from December 24, 2007 to January 1, 2007. He stated that the condition was as likely as not a result of the active duty environment. He cited the Veteran's presence in a very dust filled region with other potential harmful pulmonary agents. The Board finds that, with resolution of all reasonable doubt in the Veteran's favor, he is entitled to service connection for right spontaneous pneumothorax with scars. See 38 C.F.R. §§ 3.102, 3.303(d). Service department records confirm that the Veteran had been on active duty for border security operations in Arizona approximately two and half weeks before hospitalization. Thus, his reports of in-service dust exposure shortly before disability onset-a matter about which he is competent to assert-appear to be consistent with the circumstances of his service. See 38 U.S.C. § 1154 (2012) As the Board finds no reason to question the veracity of the Veteran's assertions in this regard, they are considered credible. Moreover, the December 2007 private hospitalization records reflect that Dr. M.K. treated the Veteran for pneumothorax with operative intervention. The medical evidence indicates the Veteran currently has scars and intermittent residual chest pain. The remaining matter is the question of medical nexus. Dr. M.K.'s October 2014 and March 2017 statements indicate that there is as likely as not a medical relationship between the /veteran's reports show that the evidence is at least in a state of relative equipoise as to a military dust exposure nexus for the December 2007 pneumothorax. Since he is qualified as a medical doctor, he is competent to provide a nexus for the disability under consideration. ter. See 38 C.F.R. § 3.159(a)(1) (2017); Jandreau, supra. Moreover, the Board accepts the opinion as probative. Although Dr. M,K, did not provide a detailed rationale, it is reasonable to infer that the temporal sequence of events, (i.e. relatively short time lapse between military environmental exposures and disability) suggest a medical nexus. Notably, there is no contrary medical opinion of record. Finally, while Dr .M.K.'s opinion is not definitive, it was expressed in terms sufficient to warrant application of the benefit-of-the-doubt doctrine. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. See 38 C.F.R. § 3.102; see also 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. at 53-56. Given the totality of the evidence and resolving all reasonable doubt on certain elements of his claim in the Veteran's favor, the Board finds that the criteria for service connection for right spontaneous pneumothorax with scars are met. Id. ORDER Service connection for right spontaneous pneumothorax with scars is granted. REMAND The Board's review of the claims file reveals that further action on the claim for an increased (compensable) rating for sensorineural hearing loss of the left ear, prior to appellate consideration, is warranted. A veteran must be afforded a thorough and contemporaneous examination when the record does not adequately reveal the current state of his disability. Hart v. Mansfield, 21 Vet. App. 505, 508 (2007) (citing, inter alia, Green v. Derwinski, 1 Vet. App. 121, 124 (1991)). The record is inadequate and the need for a contemporaneous examination occurs when there is evidence (including a veteran's statements) of a possible increase in disability since the last examination. Hart, 21 Vet. App. at 508 (2007) (citing, inter alia, Snuffer v. Gober, 10 Vet. App. 400, 403 (1997)). The evidence suggests that the Veteran's service-connected left ear hearing loss disability may have worsened since his last VA examination in February 2015. During the February 2017 Board hearing, the Veteran reported that his left ear hearing loss had worsened since the most recent VA audiology examination. See February 2017 hearing transcript, p. 3. Given this evidence, the Board finds that a new examination to obtain more contemporaneous audiological findings is needed to assess the severity of the service-connected left ear hearing loss. Id; See also 38 U.S.C. § 5103A ( 2012); 38 C.F.R. § 3.159 (2017). The Veteran is hereby notified that failure to report to the scheduled examination, without good cause, may result in denial of his claim. See 38 C.F.R. § 3.655(b) (2017). Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant and death of an immediate family member. If the Veteran fails to report to the scheduled examination, obtain and associate with the claims file any copy(ies) of correspondence-referencing the date and time of the examination-preferably, any notice(s) of examination-sent to him by the pertinent medical facility. Prior to arranging for the Veteran to undergo further VA examination, to ensure that all due process requirements are met, and that the record is complete, the AOJ should undertake appropriate action to obtain and associate with the claims file all outstanding, pertinent records. As regarding VA records, the claims file includes records of the Veteran's treatment at the Phoenix VA Medical Center (VAMC) through February 28, 2014. There may be additional VA treatment records that have not yet been obtained. The Board emphasizes that records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Therefore, the AOJ should obtain all outstanding, pertinent records of VA evaluation and/or treatment of the Veteran, following the current procedures prescribed in 38 C.F.R. § 3.159(c) as regards requests for records from Federal facilities. The AOJ should also give the Veteran another opportunity to provide information and/or evidence pertinent to the remaining matter on appeal (particularly as regards any private (non-VA) treatment, explaining that he has a full one-year period for response. See 38 U.S.C. § 5103(b) (2012); but see 38 U.S.C. § 5103(b)(3) (clarifying that VA may make a decision on a claim before the expiration of the one-year notice period). Thereafter, the AOJ should attempt to obtain any additional evidence for which the Veteran provides sufficient information, and, if needed, authorization, following the current procedures prescribed in 38 C.F.R. § 3.159 (2017). The actions identified herein are consistent with the duties imposed by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5103, 5103A ( 2012); 38 C.F.R. § 3.159 (2017). However, identification of specific actions requested on remand does not relieve the AOJ of the responsibility to ensure full compliance with the VCAA and its implementing regulations. Hence, in addition to the actions requested above, the AOJ should also undertake any other development and/or notification action deemed warranted prior to adjudicating the remaining matter on appeal. In adjudicating the claim, the AOJ should consider all evidence added to the claims file since the last adjudication. Adjudication of the increased rating claim should include consideration of whether staged rating of the disability-assignment of different ratings for distinct periods of time based on the facts found-is appropriate. Accordingly, this matter is hereby REMANDED for the following action: 1. Obtain all outstanding, pertinent records of VA evaluation and/or treatment of the Veteran, to particularly include records from the Phoenix VAMC dated from February 28, 2014. Follow the procedures set forth in 38 C.F.R. § 3.159(c) (2017) with respect to requesting records from Federal facilities. All records/responses received should be associated with the file. 2. Furnish to the Veteran and his representative a letter requesting that the Veteran provide information and, if necessary, authorization, to obtain any additional evidence pertinent to the increased rating claim for left ear hearing loss on appeal that is not currently of record. Specifically request that the Veteran furnish, or furnish appropriate authorization to obtain, all outstanding, pertinent private (non-VA) treatment records. Clearly explain to the Veteran that he has a full one-year period to respond (although VA may decide the matters within the one-year period). 3. If the Veteran responds, obtain all identified records, following the procedures set forth in 38 C.F.R. § 3.159. All records and responses received should be associated with the file. If any records sought are not obtained, notify the Veteran and his representative of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 4. After all records and/or responses received from each contacted entity have been associated with the claims file, arrange for the Veteran to undergo a VA audiology examination, by an audiologist or appropriate physician, for evaluation of his service-connected left ear hearing loss. The contents of the entire, electronic claims file (in VBMS and Virtual VA (Legacy Content Manager)), to include a complete copy of this REMAND, must be made available to the designated professional, and the examination report should reflect consideration of the Veteran's documented medical history and assertions. All appropriate test and studies-in particular, audiometry and speech discrimination testing-should be accomplished, with all results made available to the examiner prior to the completion of his or her report. For the left ear, the examiner must provide numeric interpretation of any hearing tests conducted. The examiner should also set forth numeric values for each of the pure tone thresholds at 1000, 2000, 3000, and 4000 Hertz and then provide the average pure tone threshold for these four frequencies. The reported numeric values and speech recognition scores (utilizing the Maryland CNC list) must be in conformity with the requirements of 38 C.F.R. § 4.85. The examiner should also fully describe the functional effects of the Veteran's left ear hearing loss on his activities of daily living, to include employment. All testing results, along with complete, clearly-stated rationale for the conclusions reached, must be provided. 5. If the Veteran fails to report to the scheduled examination, obtain and associate with the claims file any copy(ies) of correspondence referencing the date and time of the examination-preferably, any notice(s) of examination-sent to him by the pertinent medical facility. 6. To help avoid future remand, ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. See Stegall v. West, 11 Vet. App. 268, 271 (1998). 7. After completing the requested actions, and any additional notification and/or development deemed warranted, adjudicate the remaining claim on appeal. If the Veteran fails, without good cause, to report to the scheduled examination, in adjudicating the increased rating claim, apply the provisions of 38 C.F.R. § 3.655(b), as appropriate. Otherwise, adjudicate the higher rating claim in light of all pertinent evidence (to include all that added to the Virtual VA and/or VBMS (Legacy Content Manager) file(s) since the last adjudication) and all legal authority (to include consideration of whether staged rating of the disability is appropriate). 8. If less than the full benefit sought on appeal remains denied, furnish to the Veteran and his representative an appropriate supplemental SOC that includes clear reasons and bases for all determinations, and afford them an appropriate time period for response. The purpose of this REMAND is to afford due process and to accomplish additional development and adjudication; it is not the Board's intent to imply whether the benefit requested should be granted or denied. The Veteran need take no action until otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999). This REMAND must be afforded expeditious treatment. The law requires that all claims 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. §§ 5109B, 7112 (2012). ______________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs