Citation Nr: 1805313 Decision Date: 01/26/18 Archive Date: 02/07/18 DOCKET NO. 15-12 906 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUES 1. Entitlement to service connection for a heart disorder, to include as due to exposure to asbestos. 2. Entitlement to service connection for hypertension, to include as due to exposure to asbestos. 3. Entitlement to service connection for diabetes mellitus, type II (diabetes), to include as due to exposure to asbestos. 4. Entitlement to service connection for scars on the neck, claimed as due to residuals of a carotid endarterectomy, claimed as secondary to a heart disorder. 5. Entitlement to service connection for a left groin disorder, to include any residual scars, claimed as secondary to a heart disorder. 6. Entitlement to an initial compensable rating for bilateral hearing loss. 7. Entitlement to an initial rating in excess of 10 percent for tinnitus. REPRESENTATION Veteran represented by: Halmon L. Banks, Attorney at Law WITNESSES AT HEARING ON APPEAL The Veteran and R.S. ATTORNEY FOR THE BOARD K. Clark, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1955 to September 1959. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in October 2013 by a Department of Veterans Affairs (VA) Regional Office (RO). In November 2017, the Veteran and R.S. testified at a Board hearing before the undersigned Veterans Law Judge. A hearing transcript is associated with the record. The Board notes that, following the Veteran's November 2017 hearing, he elected a representative in December 2017. As such, the Board recognizes the appointment of his designed representative. The Board further acknowledges that the Veteran's representative has not had an opportunity to submit evidence or argument on the Veteran's behalf in connection with his appeal. However, as the Veteran's claims are remanded herein, he will have an opportunity to submit evidence and argument on the Veteran's behalf prior to the Board's final adjudication of the matters. The issue of entitlement to service connection for a stroke has been raised by the record in the Veteran's February 2014 Application for Disability Compensation and Related Compensation Benefits, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2017). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C.A. § 7107(a)(2) (2012). The appeal is REMANDED to the AOJ. VA will notify the Veteran if further action is required. REMAND Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration. See 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159 (2017). With regard to the Veteran's service connection claims, he contends that he has a heart disorder, hypertension, and diabetes that are related to his military service, to include his claimed in-service exposure to asbestos. He further alleges that his claimed residual scars of the neck and left groin disorder, to include any residual scars, are secondary to a heart disorder as he has prior surgeries for such disorder. In this regard, the record reflects that the Veteran served aboard the USS Barton as a boiler technician. There is no specific statutory or regulatory guidance with regard to claims for service connection for asbestos-related diseases; however, VA issued a circular on asbestos-related diseases in 1998 which provided guidelines for considering asbestos compensation claims and which are now included in the amended/rewritten VA Adjudication Procedure Manual (Manual). See M21-1, Part IV, Subpart ii, Chapter 1, Section I, Paragraph 3, "Developing Claims for [Service Connection] for Asbestos-Related Diseases." The Manual provides that veterans who were exposed to asbestos while in service and developed a disease related to that asbestos exposure may receive compensation benefits. Claims based on exposure to asbestos require a military occupational skill with exposure to asbestos or other exposure event associated with service sufficient to request an examination with medical opinion as described in M21-1, IV.ii.1.I.3.f, and a diagnosed disability that has been associated with in-service asbestos exposure. The Manual also provides a table to determine the probability of asbestos exposure by military occupational specialty (MOS). The Manual further states that if an MOS is listed as minimal, probable, or highly probable in the table, asbestos exposure for purposes of scheduling an examination should be conceded. In the instant case, the Veteran's MOS was listed as BT, or boiler technician. Upon a review of the Manual, a MOS of boiler technician reflects that exposure to asbestos is highly probable. See IV.ii.1.I.3.c. Thus, the Board finds that a remand is warranted to afford the Veteran a VA examination to determine if he has a heart disorder, hypertension, and/or diabetes that are related to his military service, to include his acknowledged in-service exposure to asbestos. The examiner should also determine if the Veteran has residual scars of the neck and/or a left groin disorder, to include residual scars, which are secondary to a heart disorder. With regard to the Veteran's claims for higher initial ratings for his bilateral hearing loss and tinnitus, the Veteran and R.S. testified at the November 2017 Board hearing that such disorders had worsened since his last VA examination in September 2013. Therefore, the Board finds that a remand is necessary in order to provide the Veteran another VA examination to assess the current nature and severity of his bilateral hearing loss and tinnitus. See Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994); VAOPGCPREC 11-95 (1995). Furthermore, R.S. stated that the Veteran may have balance issues related to such disorders. In this regard, the Board notes that the Veteran is already in receipt of the highest schedular rating available for tinnitus. However, as there is sworn testimony that the Veteran has balance issues that may have resulted from his bilateral hearing and/or tinnitus, the examiner should also determine if the Veteran has balance issues that are typical of such disorders and, if so, to discuss the functional effects. Moreover, at the November 2017 Board hearing, the Veteran stated that he was going to have a hearing test done in December 2017 and, while the undersigned held the record open to receive such record, it was not submitted. Thus, the Veteran should be given another opportunity to submit additional evidence related to his remanded claims. Furthermore, updated VA treatment records dated from June 2013 to the present should be obtained for consideration in the Veteran's appeal. Additionally, the December 2014 statement of the case does not indicate that the AOJ reviewed the numerous private treatment records, including diagnoses and treatment relating to his claims, received in June 2014 and July 2014. Thus, the AOJ should readjudicate the issues on appeal based on the entirety of the evidence, to include the aforementioned private treatment records. Accordingly, the case is REMANDED for the following action: (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 Veteran should be given an opportunity to identify any outstanding private or VA treatment records relevant to his claims on appeal. After obtaining any necessary authorization from the Veteran, all outstanding records should be obtained, to include updated VA treatment records dated from June 2013 to present. For private treatment records, make at least two (2) attempts to obtain records from any identified sources. If any such records are unavailable, inform the Veteran and afford him an opportunity to submit any copies in his possession. For federal records, all reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. After all outstanding records have been associated with the record, the Veteran should be afforded an appropriate VA examination to determine the nature and etiology of his heart disorder as well as his scars on the neck and a left groin disorder, to include residuals scars. The record, to include a copy of this Remand must be made available to and be reviewed by the examiner. Any indicated evaluations, studies, and tests should be conducted. (A) The examiner must identify all currently diagnosed heart disorders, to include coronary artery disease and congestive heart failure. (B) For all identified heart disorders, the examiner must opine as to whether such disorder at least as likely as not (a 50 percent or greater probability) had its onset in, or is otherwise related to the Veteran's military service, to include his acknowledged exposure to asbestos. The examiner is advised that the sole basis of a negative opinion cannot be the fact that the Veteran's service treatment records are silent as to a heart disorder. (C) The examiner should also offer an opinion as to whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran's heart disorder manifested within one year of his September 1959 separation from service, i.e., by September 1960, and, if so, describe the manifestations. (D) If a heart disorder is found to be related to service, the examiner should offer an opinion as to whether the Veteran's scars on the neck and a left groin disorder, to include residuals scars, are at least as likely as not (a 50 percent or greater probability) caused by OR aggravated by a heart disorder, to include any surgeries thereof? For any aggravation found, the examiner should state, to the best of their ability, the baseline of symptomatology and the amount, quantified if possible, of aggravation beyond the baseline symptomatology by the aggravation. A rationale for any opinion offered should be provided. 3. After all outstanding records have been associated with the record, the Veteran should be afforded an appropriate VA examination to determine the nature and etiology of his hypertension. The record, to include a copy of this Remand must be made available to and be reviewed by the examiner. Any indicated evaluations, studies, and tests should be conducted. Following a review of the claims file, the examiner must opine as to the following: (A) Whether the Veteran's hypertension at least as likely as not (a 50 percent or greater probability) had its onset in, or is otherwise related to the Veteran's military service, to include his acknowledged exposure to asbestos. The examiner is advised that the sole basis of a negative opinion cannot be the fact that the Veteran's service treatment records are silent as to hypertension. (B) The examiner should also offer an opinion as to whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran's hypertension manifested within one year of his September 1959 separation from service, i.e., by September 1960, and, if so, describe the manifestations. A rationale for any opinion offered should be provided. 4. After all outstanding records have been associated with the record, the Veteran should be afforded an appropriate VA examination to determine the nature and etiology of his diabetes. The record, to include a copy of this Remand must be made available to and be reviewed by the examiner. Any indicated evaluations, studies, and tests should be conducted. Following a review of the claims file, the examiner must opine as to the following: (A) Whether the Veteran's diabetes at least as likely as not (a 50 percent or greater probability) had its onset in, or is otherwise related to the Veteran's military service, to include his acknowledged exposure to asbestos. The examiner is advised that the sole basis of a negative opinion cannot be the fact that the Veteran's service treatment records are silent as to any treatment or diagnosis of diabetes. (B) The examiner should also offer an opinion as to whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran's diabetes manifested within one year of his September 1959 separation from service, i.e., by September 1960, and, if so, describe the manifestations. A rationale for any opinion offered should be provided. 5. After all outstanding records have been associated with the record, the Veteran should be afforded a VA audiological examination in order to determine the current nature and severity of his bilateral hearing loss and tinnitus. Specifically, the examiner should identify auditory thresholds, in decibels, at frequencies of 500, 1000, 2000, 3000, and 4000 Hertz. A Maryland CNC Test should also be administered to determine speech recognition scores. Any additional evaluations, studies, and tests deemed necessary by the examiner should be conducted. The examiner is requested to describe the functional effects caused by the Veteran's bilateral hearing loss and tinnitus. The examiner is also asked to discuss whether the Veteran's claimed balance issues are typical symptoms of bilateral hearing and/or tinnitus. If so, discuss any functional effects. 6. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claims should be readjudicated based on the entirety of the evidence, to include the private treatment records received in 2014. If the claims remain denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. The Board intimates no opinion as to the outcome of this case. The Veteran need take no action until so informed. The purpose of this REMAND is to ensure compliance with due process considerations. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims 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 for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). _________________________________________________ A. JAEGER 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).