Citation Nr: 18148316 Decision Date: 11/07/18 Archive Date: 11/07/18 DOCKET NO. 18-03 064 DATE: November 7, 2018 ORDER New and material evidence having been received, the claim to reopen service connection for a left shoulder disability is granted. New and material evidence having been received, the claim to reopen service connection for a lung condition, claimed as due to exposure to asbestos, is granted. REMANDED Entitlement to service connection for a lung disability, claimed as due to exposure to asbestos, is remanded. Entitlement to service connection for a left shoulder disability is remanded. Entitlement to service connection for a right shoulder disability is remanded. Entitlement to service connection for tinnitus is remanded. Entitlement to service connection for hypertension is remanded. Entitlement to service connection for headaches is remanded. Entitlement to service connection for obstructive sleep apnea is remanded. FINDINGS OF FACT 1. In a February 2014 rating decision, the RO denied the Veteran's claim for service connection for a left shoulder disability. The Veteran did not appeal that decision and it is final. 2. The evidence received since the February 2014 rating decision is new and raises a reasonable possibility of substantiating the claim for service connection for a left shoulder disability. 3. In an August 2014 rating decision, the RO denied the Veteran's claim for service connection for a lung disability, claimed as due to exposure to asbestos. The Veteran did not appeal that decision and it is final. 4. The evidence received since the August 2014 rating decision is new and raises a reasonable possibility of substantiating the claim for service connection for a lung disability, claimed as due to exposure to asbestos. CONCLUSIONS OF LAW 1. The February 2014 rating decision that denied service connection for a left shoulder disability is final. 38 U.S.C. § 7105 (2012). 2. New and material evidence has been presented to reopen the claim of entitlement to service connection for a left shoulder disability. 38 U.S.C. § 5108 (2012); 38 C.F.R.§ 3.156 (a) (2018). 3. The August 2014 rating decision that denied service connection for a lung disability claimed as due to exposure to asbestos is final. 38 U.S.C. § 7105 (2012). 4. New and material evidence has been presented to reopen the claim of entitlement to service connection a lung disability, claimed as due to asbestos. 38 U.S.C. § 5108 (2012); 38 C.F.R.§ 3.156 (a) (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1971 to November 1972. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a June 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). New and Material Evidence The evidence received since the February 2014 and August 2014 rating decisions denying entitlement to service connection for a left shoulder condition with pain and weakness and a lung condition, respectively, includes additional medical records and lay statements from the Veteran regarding his left shoulder disability and lung disability. The additional evidence added to the record is new and material. In that regard, the additional evidence is not cumulative or redundant of the evidence previously of record and raises a reasonable possibility of substantiating the claims of entitlement to service connection for left shoulder and lung disabilities. Reopening of the claims of entitlement to service connection for a left shoulder disability and a lung disability is warranted. To that extent only, the claims are allowed. REASONS FOR REMAND Right and Left Shoulder Disabilities The Veteran has a complicated orthopedic disability picture. His service treatment records show that he was treated in service in February 1972 for complaints of urticaria and for arthralgia of some joints, including the shoulders. He was prescribed Indocin at the time. Post-service evidence includes records from the Social Security Administration showing that the Veteran injured his left shoulder in a fall in 2011, but that he reported having shooting pains in his left shoulder before the injury. He was diagnosed in February 2011 as having probable subacromial right shoulder bursitis. He was subsequently diagnosed in June 2011 as having left rotator cuff tendinopathy. VA treatment records beginning in 2013 show continuing complaints of right and left shoulder pain. The Veteran attributes his right and left shoulder pain to service. In light of the above evidence showing in-service and post-service shoulder complaints, as well as the Veteran’s assertion that his shoulder pain is related to service, the Board finds that the requirements have been met to afford him a VA examination to determine the nature and etiology of the claimed shoulder disabilities. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). Also, the record shows that the Veteran first sought medical treatment with VA in 2013. Prior to that time, he was treated for various orthopedic and neurology complaints by private doctors. While some of these records are on file by way of the Veteran’s Social Security Administration records, a request should be made to obtain any missing, relevant records. 38 U.S.C. 5103A(b), 38 C.F.R. 3.159. Lung Disability, Claimed as Due to Exposure to Asbestos The RO noted in its February 2014 rating decision that there was a high probability that the Veteran was exposed to asbestos during service due to his assigned duties as a fireman recruit and fireman apprentice. However, the evidence on file is inconsistent with respect to whether he currently has a lung disability. Evidence that suggests a lung disability includes private medical records in 1999 and 2000 that note that the Veteran had interstitial lung disease and asbestosis due to occupational asbestos exposure, and VA opt records noting asbestosis in the systems review sections. Evidence that does not suggest a lung disease include post-service x-ray reports showing clear lung fields, and the same VA treatment records that while noting asbestosis in the respiratory system review section, do not show treatment for a lung disability, including asbestosis, or assess the Veteran as having asbestosis or any other lung disability. Accordingly, the Veteran should be afforded a VA examination in order to clarify whether he has a lung disability, to include asbestosis, and if so, whether it is at least as likely as not related to service, including exposure to asbestos. Tinnitus In 2016, a VA examiner negated a nexus between the Veteran’s tinnitus and service. However, the rationale that he provided does not include a discussion of tinnitus. Rather, the examiner discussed the likelihood of a nexus between in-service noise exposure and delayed onset noise-induced hearing loss. Accordingly, an addendum opinion must be obtained that adequately addresses the likelihood of a nexus between the Veteran’s diagnosed tinnitus and service. 38 U.S.C. 5103A(d). Hypertension The earliest notation of hypertension on file is a May 2000 private medical record which notes in the medical history section that the Veteran had hypertension. That notation suggests that the initial diagnosis of hypertension was made at some point prior to May 2000. Determining the date of onset of the Veteran’s hypertension is essential in order to properly evaluate the claim in light of VA regulations that provide for presumptive service connection for hypertension if such disability becomes manifest to a degree of 10 percent or more within one year of service. 38 U.S.C. 1112 (2012); 38 C.F.R. 3.307, 3.309. Headaches and Obstructive Sleep Apnea An October 2016 rating decision denying service connection for headaches and for obstructive sleep apnea has been the subject of a notice of disagreement (NOD) in November 2016, but no Statement of the Case (SOC) has been issued. See 38 C.F.R. § 19.9 (c); Manlincon v. West, 12 Vet. App. 238 (1999). Accordingly, these issues are remanded for the issuance of a SOC. The matters are REMANDED for the following action: 1. Issue a Statement of the Case (SOC) on the issues of entitlement to service connection for headaches and obstructive sleep apnea and inform the Veteran of his appellate rights. If the Veteran properly perfects and appeal of either or both issues, return them to the Board. 2. Contact the Veteran and afford him the opportunity to identify by name, address and dates of treatment or examination any relevant medical records with respect to his claimed hypertension and lung disability. After securing the proper authorizations where necessary, make arrangements to obtain all the records of treatment or examination from all the sources listed by the Veteran which are not already on file. All information obtained must be made part of the file. All attempts to secure the evidence must be documented in the claims file, and if, after making reasonable efforts to obtain identified records, they are not able to be secured, provide the required notice and opportunity to respond to the Veteran and his representative. 3. Return the claims file to the May 2018 VA audiological examiner, if available, for an addendum opinion regarding the etiology of the Veteran’s tinnitus. If the original examiner is not available, the file should be reviewed by another examiner of similar qualifications to obtain the opinion. If an additional examination is deemed necessary by the examiner to respond to the question presented, one should be authorized. After review of the entire record, the examiner is asked to specifically address the question of whether it is at least as likely as not (50 percent or greater probability) that the Veteran has tinnitus that is related to service. In forming the opinion, the examiner must consider the Veteran’s lay statements regarding the onset and continuity of his symptoms. The examiner must include a complete rationale for all conclusions reached. 4. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any currently present lung disability. The examiner must opine whether it is at least as likely as not that any currently present lung disability is related to an in-service injury, event, or disease, including exposure to asbestos. In forming the opinion, the examiner must comment on the evidence of record indicating possible asbestosis. The examiner must include complete rationale for all conclusions reached. 5. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any shoulder disabilities. The examiner must opine whether it is at least as likely as not that any currently present right and/or left shoulder disability is related to an in-service injury, event, or disease, including treatment for arthralgia in February 1972. In forming the opinion, the examiner must consider the Veteran’s lay statements regarding the onset and continuity of his symptoms. The examiner must include complete rationale for all conclusions reached. 6. Confirm that the VA examination reports and all medical opinions provided comport with this remand, and undertake any other development determined to be warranted. 7. Then, readjudicate the remaining issues on appeal. If a decision is adverse to the Veteran, issue a Supplemental Statement of the Case and allow appropriate time for response. Then, return the case to the Board. Kristin Haddock Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Shawkey, Counsel