Citation Nr: 1808137 Decision Date: 02/08/18 Archive Date: 02/20/18 DOCKET NO. 14-20 432A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUES 1. Entitlement to service connection for bilateral hearing loss disability. 2. Entitlement to service connection for sleep apnea. 3. Entitlement to service connection for lung disability, to include as the result of asbestos and herbicide exposure. 4. Entitlement to service connection for diabetes mellitus type II (diabetes), to include as the result of herbicide exposure. REPRESENTATION Appellant (Veteran) represented by: AMVETS WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Christopher McEntee, Counsel INTRODUCTION The Veteran served on active duty from July 1972 to March 1975. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. In September 2017, the Veteran testified before the Board in a videoconference hearing convened at the RO. A transcript of the hearing is included in the record. The record consists of electronic claims files and has been reviewed. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND A remand is warranted for additional development and medical inquiry. With regard to hearing loss disability, the Veteran underwent VA audiological examination in April 2013. The examination report indicates that the Veteran did not then have hearing loss disability under 38 C.F.R. § 3.385 (2017). During his Board hearing, however, he testified that his hearing had worsened since the examination. In light of his statements, and given that he was likely exposed to loud noises during service on ships in the U.S. Navy, he should be provided with another examination. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). With regard to sleep apnea, the evidence indicates that the Veteran has been diagnosed with sleep apnea during the appeal period (i.e., since his service connection claims in May 2012). Further, service treatment records (STRs) note sleep problems during service. He should be provided with a VA compensation examination into his claim. See McLendon, supra. With regard to lung disability, the evidence indicates that the Veteran has been diagnosed with a lung disability. The evidence also indicates that he may have served near asbestos while onboard naval vessels in the early 1970s. The Veteran also asserts that he was exposed to herbicides during service. He should be provided with a VA compensation examination into his claim. See McLendon, supra. With regard to diabetes, the evidence documents that the Veteran has been diagnosed with diabetes. He asserts that he incurred the disorder as a result of unhealthy food on naval vessels, and as a result of exposure to herbicides while serving in the Philippines. See 38 C.F.R. §§ 3.303, 3.307, 3.309. He also indicated during his hearing that the disorder may be secondary to service-connected hepatitis C. See 38 C.F.R. § 3.310. He should undergo VA medical examination into his claim. See McLendon, supra. Further, the Veteran should be provided with an additional opportunity to detail in a statement the circumstances surrounding his claimed exposure to herbicides while serving in the Philippines. Accordingly, the case is REMANDED for the following action: 1. Undertake appropriate development to obtain any outstanding records pertinent to the Veteran's claims, to include any outstanding VA treatment records, the most recent of which are dated in April 2015. All records/responses received must be associated with the electronic claims file. 2. Request that the Veteran provide an additional statement detailing the circumstances surrounding his claimed exposure to herbicides while serving in the Philippines. 3. If appropriate, the AOJ should then request information corroborating the claim from the Joint Services Records Research Center (JSRRC). See VA Adjudication Procedures Manual, M21-1, Part IV, Subpart ii, Chapter 1. 4. After the foregoing development has been conducted, schedule the Veteran for appropriate VA medical examinations to determine the nature and etiology of any diagnosed disabilities subject to this appeal (i.e., hearing loss, sleep apnea, respiratory disability, or diabetes). The examiners should review the claims folder, examine and interview the Veteran, and answer the following questions. Hearing Loss: (a) Does the Veteran have a current hearing loss disability under 38 C.F.R. § 3.385 (2017)? (b) If so, is it at least as likely as not (i.e., probability of 50 percent or higher) that hearing loss disability is related to an in-service disease, event, or injury? In answering (b), please consider and discuss the Veteran's credible claims of noise exposure during service. Please also discuss the significance of the July 1972 enlistment report of medical examination and the associated audiogram, and whether this evidence indicates any hearing problems prior to service. Sleep Apnea: (a) What sleep disorder(s) has the Veteran been diagnosed with since his service connection claim in May 2012? (b) Is it at least as likely as not (i.e., probability of 50 percent or higher) that any sleep disorder is related to an in-service disease, event, or injury? In answering (b), please consider and discuss the STRs noting the Veteran's trouble with bad dreams, and the July 1972 enlistment report of medical history, in which the Veteran reported "frequent trouble sleeping." Lung Disorder: (a) What lung disorder(s) has the Veteran been diagnosed with since his service connection claim in May 2012? (b) Is it at least as likely as not (i.e., probability of 50 percent or higher) that any lung disorder is related to an in-service disease, event, or injury? In answering (b), please consider and discuss the Veteran's service aboard naval vessels, his likely exposure to asbestos during such service, his assertions that he was exposed to herbicides and gases during service, and whether such exposures would relate to any current lung problem. Please also consider and discuss the May 2012 private CT scan of his lungs indicating a lung disorder. Diabetes: (a) Is it at least as likely as not (i.e., probability of 50 percent or higher) that the Veteran's diagnosed diabetes is related to an in-service disease, event, or injury? In answering (a), please consider and discuss the Veteran's claims regarding environmental hazards during service, and his assertion that food aboard naval vessels caused his diabetes. Please also consider and discuss any relevant information found in the STRs, to include any laboratory data noted (or not noted) in the March 1975 discharge report of medical examination. (b) If the answer to (a) is negative, is it at least as likely as not that diabetes is proximately due to or the result of service-connected disability (e.g., hepatitis C)? (c) If the answers to (a) and (b) are negative, is it at least as likely as not that diabetes is aggravated (i.e., worsened beyond the natural progress) by service-connected disability (e.g., hepatitis C)? If aggravation is found, the examiner should address the following medical issues: (1) the baseline manifestations of the disorder found prior to aggravation; and (2) the increased manifestations which, in the examiner's opinion, are proximately due to the service-connected disorder(s). Please explain in detail any opinion provided. 5. After the completion of any action deemed appropriate in addition to that requested above, the Veteran's claims should be readjudicated. All evidence received since the May 2015 Supplemental Statement of the Case (SSOC) should be considered. If any benefit sought remains denied, the Veteran should be provided another SSOC. The Veteran and his representative have 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 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). _________________________________________________ MICHAEL A. PAPPAS 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).