Citation Nr: 18139984 Decision Date: 10/02/18 Archive Date: 10/02/18 DOCKET NO. 16-20 538 DATE: October 2, 2018 REMANDED Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for tinnitus is remanded. Entitlement to an initial compensable rating for service-connected pleural plaques is remanded. REASONS FOR REMAND The Veteran served honorably on active duty with the United States Navy from October 1963 to October 1967. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from March 2012 and March 2015 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin. The March 2012 rating decision denied entitlement to service connection for hearing loss and tinnitus; the March 2015 rating decision granted service connection and assigned a noncompensable rating for pleural plaques. The Veteran’s claim of entitlement to an initial compensable rating for service-connected pleural plaques was most recently adjudicated by the agency of original jurisdiction (AOJ) in a June 2016 Statement of the Case (SOC). Subsequently, the Veteran submitted new evidence in the form of an internet article. The Veteran did not submit a signed waiver of initial AOJ review. Nevertheless, under 38 U.S.C. § 7105(e), for cases in which substantive appeals are received on or after February 2, 2013, if the claimant or the claimant’s representative submits evidence to the AOJ or the Board for consideration in connection with the issues on appeal, the Board may consider such evidence in the first instance unless the claimant or representative requests in writing that the AOJ initially review such evidence. See 38 C.F.R. §§ 19.31, 19.37, 20.1304. Therefore, as the Veteran’s substantive appeal was received in August 2016, and as he generated and submitted the evidence without a request for initial AOJ review, explicit waiver of initial AOJ consideration is not required. Regrettably, for the reasons discussed below, the Veteran’s claims must be remanded for further development. 1. The claims of entitlement to service connection for bilateral hearing loss and tinnitus are remanded. The Veteran contends that he has bilateral hearing loss and tinnitus as a result of exposure to hazardous noise while serving on active duty with the United States Navy. He was afforded a VA examination in connection with his claim in January 2012. The examiner diagnosed the Veteran with bilateral hearing loss and tinnitus but initially declined to offer an opinion as to whether the conditions were related to service, indicating that service treatment records (STRs) were unavailable for review. It appears the examiner was able to review the Veteran’s STRs later, because he provided a handwritten nexus opinion covering the Veteran’s hearing loss and tinnitus at the end of his examination report. The handwriting is barely legible but appears to be negative nexus opinions, noting no complaints of hearing loss or tinnitus in service. However, the examiner failed to address the fact that the audiometer test result section of the Veteran’s September 1967 discharge examination was blank. The examiner also failed to consider the lay statements of record from the Veteran, the Veteran’s brother, and a fellow Navy veteran concerning the nature and onset of the Veteran’s hearing loss and tinnitus. The Board finds no reason to doubt the credibility of the lay evidence provided by the Veteran in this case. The Veteran, his brother, and his fellow Navy veteran are all competent to provide lay evidence of the Veteran’s in-service noise exposure, their description of the Veteran’s tinnitus and decreased hearing acuity following separation from service is credible even when not documented in medical treatment records. See Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009). Moreover, the absence of documentation of recurrent symptoms of a disability does not alone negate the credibility of the Veteran’s statements to the contrary. See Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). Therefore, remand is necessary to afford the Veteran another examination concerning his bilateral hearing loss and tinnitus. 2. The claim of entitlement to an initial compensable rating for service-connected pleural plaques is remanded. The Veteran asserts that he is entitled to a compensable rating for his service-connected pleural plaques, which have been rated under 38 C.F.R. § 4.97, Diagnostic Code 6833. Diagnostic Code 6833 applies to asbestosis and rates the disability based on predicted Veteran’s Forced Expiratory Volume in one second to Forced Vital Capacity (FEV-1/FVC) or Diffusion Capacity of the Lung for Carbon Monoxide by the Single Breath (DLCO (SB)) scores. Under the regulation, post-bronchodilator studies are required when pulmonary function tests are performed for disability evaluation purposes, except in instances where the results of pre-bronchodilator PFTs are normal or when the examiner determines that post-bronchodilator studies should not be done. Post-bronchodilator results are to be used in applying the evaluation criteria in the Rating Schedule unless the post-bronchodilator results were poorer than the pre-bronchodilator results. The pre-bronchodilator values are to be used for rating purposes in those instances. 38 C.F.R. § 4.96 (d)(5). The Veteran underwent a private pulmonary function testing (PFT) in April 2014. The FEV-1/FVC results were 74 percent predicted, 82 percent “pre drug” predicted, and 85 “post drug” predicted. Diffusion was 89 percent “pre drug” predicted. The Veteran was subsequently afforded a VA examination in March 2015. The examiner diagnosed interstitial lung disease and asbestos-related pleural plaques. The examiner reproduced the results of the April 2014 private PFT in his examination report and indicated that the FVC predicted test most accurately reflected the Veteran’s level of disability. The examiner did not include the FEV-1/FVC test result showing 74 percent predicted. The examiner determined that the Veteran’s mild chronic interstitial changes were predominantly responsible for his limitation in pulmonary function but did not offer a rationale for this conclusion. Overall, the Board finds that the March 2015 VA examination is inadequate for rating purposes. First of all, no post-bronchodilator DLCO results are of record, and the examiner did not indicate whether the omission was because the results of the pre-bronchodilator PFTs were normal or because post-bronchodilator studies should not have been done. Second, the examiner did not address the FEV-1/FVC test result showing 74 percent predicted—a result which could directly impact the rating assigned to the Veteran’s disability. Finally, the examiner did not indicate which of the Veteran’s symptoms were due to his service-connected pleural plaques, and which were due to his nonservice-connected interstitial lung disease. Accordingly, the matters are REMANDED for the following actions: 1. With any necessary assistance from the Veteran, obtain and associate with the claims file any outstanding private or VA medical treatment records. 2. Then, send the claims file to the January 2012 examiner for an addendum opinion to determine the nature and etiology of the Veteran’s currently diagnosed bilateral hearing loss. If the examiner is unavailable, send the file to an alternate examiner with appropriate expertise. If the examiner determines an additional examination of the Veteran is necessary, one is to be arranged. The entire claims file must be provided to the examiner for review. After a thorough review of the Veteran’s entire claims file, the examiner is asked to provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s bilateral hearing loss and tinnitus are causally or etiologically related to his period of active service, to include any conceded noise exposure. A complete rationale must be offered for all opinions expressed, including a discussion of the evidence and medical principles which led to the conclusions reached. The examiner must identify and explain the medical basis or bases for each opinion, with identification of the evidence of record. The examiner is specifically asked to address the lack of audiometer test results on the Veteran’s discharge examination. The examiner is reminded that the absence of STRs showing in-service evidence of acoustic trauma is not fatal to the Veteran’s claim for service connection and should assume that the Veteran and other witnesses are credible with regard to their lay testimony concerning the nature and etiology of the Veteran’s hearing loss. 3. Schedule the Veteran for a VA examination to assess the current severity of his service-connected pleural plaques. The electronic claims folder must be made available and reviewed by the examiner. All signs and symptoms necessary for rating the Veteran’s asbestosis should be reported in detail (including all information for rating this disability under 38 C.F.R. § 4.97, Diagnostic Code 6833). All necessary tests and studies are to be performed, including pulmonary function tests. It is essential that the pulmonary function study contain the full range of results necessary to rate the disability under the diagnostic criteria (FEV-1, FVC, FEV- 1/FVC, DLCO (SB), maximum exercise capacity, maximum oxygen consumption with cardio-respiratory limitation). It is specifically noted that post-bronchodilator studies are required when PFT’s are done for disability evaluation purposes except when the results of pre-bronchodilator pulmonary function tests are normal or when the examiner determines that post-bronchodilator studies should not be done and states why. The examiner is also asked to specifically address which of the Veteran’s pulmonary symptoms are associated with his service-connected pleural plaques, and which are associated with his nonservice-connected interstitial lung disease. Kristy L. Zadora Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD G. T. Raftery, Associate Counsel