Citation Nr: 1805171 Decision Date: 01/25/18 Archive Date: 02/05/18 DOCKET NO. 12-14 573 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to a compensable rating for pulmonary asbestosis. 2. Entitlement to an initial compensable rating for bilateral hearing loss. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD K.C. Spragins, Associate Counsel INTRODUCTION The Veteran had active service in the United States Navy from May 1952 to September 1956. This matter comes to the Board of Veterans' Appeals (Board) on appeal from rating decisions dated in March 2009 and April 2012 from Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge in September 2015. A transcript from that proceeding is associated with the Legacy Content Manager Documents folder. The Board notes that the Veteran also requested a Decision Review Officer (DRO) hearing. See February 2013 Statement from Representative. However, the Veteran withdrew this request in May 2013. Thus, there are no outstanding hearing requests. In an October 2015 decision, the Board remanded the case to the Agency of Original Jurisdiction (AOJ) for additional development and adjudication. The case has since been returned to the Board for appellate review. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). REMAND In response to the October 2015 remand, the Veteran underwent a VA examination to assess the severity of his pulmonary asbestosis in May 2017. The examiner stated that the Veteran had trouble maintaining a tight seal around the mouthpiece during the pulmonary function test (PFT). The examiner added that due to the Veteran's poor effort during the test, an interpretation of the results was limited, and the results could be an unreliable measurement of the Veteran's lung function. The Veteran later disputed the examiner's assessment of his effort as poor, stating that no one told him during the May 2017 VA examination that he was not maintaining a tight seal around the mouthpiece. See Statement received in September 2017. Based on the discrepancies in the record regarding the Veteran's effort during the test, the Board finds that a new examination fully addressing the necessary rating criteria is required to ascertain the current severity and manifestations of the service-connected lung disability. The Veteran also stated that the examiner yelled at him during the May 2017 examination, and that the same examiner yelled at him during his VA examination in December 2015. However, the record does not show that the Veteran was provided with a VA examination in December 2015. The Veteran's previous VA examination for his lung disability was conducted in December 2008 by a VA examiner who was different from the one who conducted the May 2017 VA examination. VA treatment records did state that the Veteran completed a PFT in December 2015. However, the full results of these tests are not included in the available treatment records. Thus, they should be obtained on remand. See Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). In addition, the record reflects that the Veteran was last provided with a VA examination to evaluate his bilateral hearing loss in 2012. During the September 2015 Board hearing, the Veteran testified that his hearing had worsened. See September 2015 Board Hearing Transcript (Tr.), page 6-7. The Veteran also reported in an April 2016 VA treatment record that his overall hearing was worse since he had a stroke in February 2016. Although the Veteran's hearing was evaluated at that time, the record indicated that the results were unreliable. In light of this evidence, the Board finds that a remand is warranted to obtain a contemporaneous VA examination concerning the Veteran's bilateral hearing loss. VAOPGCPREC 11-95 (April 7, 1995); see also Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994). 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. The AOJ should request that the Veteran provide the names and addresses of any and all health care providers who have records of treatment for his pulmonary asbestosis and bilateral hearing loss disabilities that are not associated with his electronic claims folder. After acquiring this information and obtaining any necessary authorization, the AOJ should obtain and associated these records with the claims file. The AOJ should also secure any outstanding, relevant VA medical records, to include records from the West Palm Beach VA Medical Center dated since October 2017. The RO should also obtain the results of the pulmonary function testing that the Veteran completed at VA on December 7, 2015. 2. After completing the preceding development in paragraph 1, provide the Veteran with a VA examination to ascertain the current severity and manifestations of his pulmonary asbestosis disability. The examination must be conducted by an examiner who is different from the one who conducted the May 2017 VA examination. All indicated tests should be conducted. The electronic claims file must be made available to the examiner. An explanation for all opinions expressed must be provided. The examiner must report all signs and symptoms necessary for evaluating the Veteran's pulmonary asbestosis under the rating criteria and in accordance with the appropriate Disability Benefits Questionnaire worksheet. If there is a medical reason that the Veteran is unable to complete the PFT (as opposed to difficulty understanding the test instructions), the examiner must state so in the report and provide an explanation consistent with 38 C.F.R. § 4.96(d)(1) (2017). It is noted that the May 2017 VA examiner stated that the Veteran demonstrated poor effort during the PFT and had difficulty maintaining a tight seal around the mouthpiece. However, the Veteran reported that he had not been informed during the examination that there was a problem with his seal around the mouthpiece. The examiner must also identify and describe any residuals of the service-connected lung disability, including any surgical scars, and provide the necessary findings in accordance with the appropriate Disability Benefits Questionnaire worksheet. If the examiner deems additional examinations are warranted by a different examiner, such shall be ordered. 3. After completing the preceding development in paragraph 1, provide the Veteran with a VA examination to ascertain the current severity and manifestations of his bilateral hearing loss disability. All indicated tests should be conducted. The electronic claims file must be made available to the examiner. An explanation for all opinions expressed must be provided. The examiner should identify the auditory thresholds, in decibels, at frequencies of 1000, 2000, 3000, and 4000 Hertz. A Maryland CNC speech discrimination test should also be administered to determine speech recognition scores. 4. Review each examination report to ensure that it is in complete compliance with the directives of this remand. If the report is deficient in any manner, the AOJ must implement corrective procedures. Stegall v. West, 11 Vet. App. 268, 271 (1998). 5. After completing the above actions, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claims must be readjudicated. If the claims remain 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. 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 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). _________________________________________________ GAYLE E. STROMMEN Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), 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) (2017).