Citation Nr: 1805826 Decision Date: 01/30/18 Archive Date: 02/07/18 DOCKET NO. 14-19 057 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to service connection for a lung disorder, including chronic obstructive pulmonary disease (COPD). 2. Whether the reduction of the disability rating for bilateral hearing loss from 10 percent to a noncompensable rating, effective August 1, 2017, was proper. REPRESENTATION Veteran represented by: Missouri Veterans Commission ATTORNEY FOR THE BOARD J. George, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1973 to April 1975. The service connection claim comes before the Board of Veterans' Appeals (Board) on appeal from rating decision issued in January 2013 by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran's hearing loss rating was reduced in a May 2017 rating decision. In his May 2014 substantive appeal, the Veteran requested a Travel Board hearing. In August 2017, the canceled the hearing. The appeal is REMANDED to the RO. VA will notify the Veteran if further action is required. REMAND Lung Disorder A remand is warranted to afford the Veteran a VA examination of his claimed lung disorder. A September 2011 VA treatment records the Veteran's complaints of shortness of breath such that he cannot go up a flight of stairs. It notes that a doctor had previously told the Veteran he had a lung problem. By the Veteran's assertions, he states that being stationed at Camp Lejeune caused his COPD. No examination has yet been conducted. Therefore, a remand for a VA examination is necessary to assess the Veteran's claimed lung disorder. See McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). A medical opinion as to whether the Veteran's lung disorder is related to service is also necessary. There is a presumption that Veterans who served at Camp Lejeune during the Veteran's period of service were exposed to contaminated water and that contaminated water causes certain diseases. 38 C.F.R. § 3.309(f). However, COPD or any other lung disorder is not one of those diseases. Nonetheless, service connection is available on a non-presumptive basis. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). As a result, the examiner should also provide a medical opinion as to whether the Veteran's lung disorder, in the absence of a presumption, is related to service. There is an indication in the file that the Veteran, before reaching age 62, was receiving benefits administered by the Social Security Administration (SSA). This makes it reasonably possible that he was receiving a disability benefit. SSA records have not yet been requested. Therefore, a remand to request any existing SSA disability records is necessary. The September 2011 VA treatment record noted above states that the Veteran received treatment for a lung disorder in 2003 in St. Louis. On remand, the RO should ask the Veteran to identify the clinician providing this treatment and for the Veteran to provide VA with, or authorize VA to obtain, such records. Rating Reduction In September 2016, the RO proposed reducing the Veteran's rating for service-connected bilateral hearing loss form 10 percent to a noncompensable rating. This reduction was effectuated in a May 2017 rating decision and became effective August 1, 2017. Thereafter, the Veteran filed a notice of disagreement (NOD) with the reduction in July 2017. No statement of the case (SOC) has yet been issued. Therefore, the Board is remanding the claim for issuance of a SOC. Manlincon v. West, 12 Vet. App. 238 (1999). Accordingly, the case is REMANDED for the following actions: 1. Issue an SOC readjudicating the rating reduction of the Veteran's bilateral hearing loss from 10 percent to a noncompensable rating. This issuance should include notification of the need to timely file a substantive appeal to perfect an appeal on the issue. 2. Obtain SSA records. 3. Ask the Veteran to identify the provider who treated him for a lung disorder in 2003 in St. Louis and to provide VA with or authorize VA to obtain a copy of such records. 4. After completing steps 2 and 3 above, afford the Veteran was a VA examination of his claimed lung disorder by an appropriate clinician. After examination and a review of the entire claims file, the examiner should address the following. Identify the Veteran's lung disorders, including whether he has COPD. Then, provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran's lung disorder(s), to include any COPD, is related to service, to include as due to presumed exposure to contaminated water at Camp Lejeune. The examiner should note that veterans who served at Camp Lejeune during the Veteran's period of service are presumed to have been exposed to contaminated water. Further, although COPD is not one of the presumptive conditions listed in 38 C.F.R. § 3.307(f), veterans are still entitled to service connection on a non-presumptive basis if the at least as likely as not standard is met. A complete rationale should be provided for any opinion rendered. Please consider all relevant lay statements of record. 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. _________________________________________________ RYAN T. KESSEL Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252, only a decision of the Board 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).