Citation Nr: 21070963 Decision Date: 11/29/21 Archive Date: 11/29/21 DOCKET NO. 17-46 021 DATE: November 29, 2021 ORDER Entitlement to service connection for tinnitus is granted. REMANDED Entitlement to service connection for a respiratory condition, to include shortness of breath due to asbestos exposure, is remanded. Entitlement to service connection for right ear hearing loss is remanded. Entitlement to a compensable rating for left ear hearing loss is remanded. Evaluation in excess of 50 percent for residuals stab wound, left forearm is remanded. FINDING OF FACT Resolving reasonable doubt in the Veteran's favor, his tinnitus is at least as likely as not related to his active duty service. CONCLUSION OF LAW The criteria for entitlement to service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Navy from June 1971 to July 1973. This matter comes before the Board of Veterans Appeals (Board) on appeal from an October 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). This matter was previously before the Board in June 2017 when it was remanded to the Agency of Original Jurisdiction (AOJ) to issue a Statement of the Case. Evidence in the record suggests that the Veteran has been diagnosed with respiratory conditions aside from shortness of breath; therefore, the Board will broadly construe the issue of service connection for shortness of breath due to asbestos exposure as a claim for service connection for a respiratory condition to include shortness of breath as due to asbestos exposure. Clemons v. Shinseki, 23 Vet. App. 1, 6 (2009) (holding that the Board must consider any disability that "may reasonably be encompassed by" the description of the claim and symptoms and other submitted information). Entitlement to service connection for tinnitus Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110. Generally, the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Certain chronic diseases, such as tinnitus (as an organic disease of the nervous system), are subject to presumptive service connection if manifest to a compensable degree within one year from separation from service even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). An alternative method of establishing the second and third Shedden elements for disabilities identified as chronic diseases in 38 C.F.R. §§ 3.309(a) is through a demonstration of continuity of symptomatology. 38 C.F.R. §§ 3.303(b). Continuity of symptomatology may be shown if the condition is observed during service or any applicable presumption period, continuity of symptomatology is demonstrated thereafter, and competent evidence relates the present condition to that symptomatology. Savage v. Gober, 10 Vet. App. 488, 498 (1997). The Veteran received a VA examination in April 2013, confirming his tinnitus diagnosis. Accordingly, the requirements of Shedden element (1) have been satisfied. The question for the Board is whether the Veteran's current diagnosis of tinnitus began during active service or is etiologically related to an in-service disease or injury. The Board finds that competent, credible, and probative evidence establishes that the Veteran's tinnitus is etiologically related to his active service. The Veteran asserts that he has tinnitus as a result of in-service noise exposure. The Veteran reported exposure to hazardous noise in service related to working as a flight crewman in Vietnam. The Veteran was afforded a VA examination in April 2013. The examiner provided a positive opinion with respect to whether the Veteran's tinnitus is related to service, noting it was at least as likely as not caused by or the result of military noise exposure. The examiner noted the Veteran's tinnitus began while still in service. However, the examination is inconsistent as the examiner also stated the Veteran's tinnitus began after service. The Board finds that the evidence is at least in equipoise regarding whether the Veteran's tinnitus is etiologically related to his period of active service. As such, and resolving all reasonable doubt in the Veteran's favor, service connection for tinnitus is granted. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND 1. Entitlement to service connection for a respiratory condition, to include shortness of breath due to asbestos exposure, is remanded. The Veteran contends his shortness of breath is due to asbestos exposure in service. Despite the Veteran's assertions regarding his exposure to asbestos, development has not been completed to determine whether the Veteran's job duties actually required him to handle asbestos or whether he was otherwise exposed to asbestos during service. VA must determine whether military records demonstrate evidence of asbestos exposure during service, develop whether there was pre-service and/or post-service occupational and other asbestos exposure, and determine whether there is a relationship between asbestos exposure and the claimed disease. The Veteran received a VA examination for respiratory conditions in September 2013. The examiner did not find a current diagnosis of a respiratory condition and provided a negative opinion. Medical records received since the last examination reflect the Veteran has since been diagnosed with asthma. See Medical Treatment Record Government Facility, received January 2021. Accordingly, an examination to determine the nature and etiology of the Veteran's respiratory conditions such as asthma, to include shortness of breath due to asbestos exposure, is warranted. 2. Entitlement to service connection for right ear hearing loss is remanded. The Board notes that the last VA hearing examination undergone by the Veteran was in April 2013. At the time, right ear hearing loss for VA rating purposes was not found. However, the Veteran contends, through his representative, that his hearing loss has worsened since that time. See Third Party Correspondence, received February 2021. VA has a duty to provide the Veteran with a thorough and contemporaneous medical examination. Green v. Derwinski, 1 Vet. App. 121, 124 (1991). An examination too remote for rating purposes cannot be considered contemporaneous. Caffrey v. Brown, 6 Vet. App. 377, 381 (1994). Accordingly, remand for a current VA hearing exam is warranted. 3. Entitlement to a compensable rating for left ear hearing loss is remanded. 4. Evaluation in excess of 50 percent for residuals stab wound, left forearm is remanded. The Board notes that where the evidence indicates that a service-connected disability has worsened since the last VA examination, and that examination is too remote to constitute a contemporaneous examination, a new examination is required. See 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4); see also Snuffer v. Gober, 10 Vet. App. 400 (1997); Green v. Derwinski, 1 Vet. App. 121; Caffrey v. Brown, 6 Vet. App. 377, 381 (1994). The Veteran was last afforded VA examinations to assess the severity of his left ear hearing loss and left forearm stab wound residuals in April 2013. In February 2021 correspondence, the Veteran's representative related the Veteran's contentions that his hearing loss had worsened and that he was experiencing additional symptoms for his left forearm. Under these circumstances, the Board finds a remand is warranted for a current VA examination. The matters are REMANDED for the following action: 1. Take appropriate action to develop evidence of whether the Veteran was exposed to asbestos during service, to specifically include seeking information as to whether his job duties involved working with or near asbestos. Such development should include a determination regarding the extent to which his duties would have exposed him to asbestos. Information regarding the use of asbestos on the ships on which the Veteran served should be obtained. In particular, the AOJ should contact the Department of the Navy Medical Liaison Office and request verification of the Veteran's alleged in-service exposure to asbestos. The AOJ must enclose a copy of the Board's remand and a copy of the Veteran's service personnel records. The AOJ must request that the Liaison Office verify the alleged sources of exposure and indicate whether it was likely that the Veteran was exposed to asbestos in the course of his assigned duties. 2. Obtain an addendum opinion to determine the nature and etiology of the Veteran's respiratory condition, to include shortness of breath as due to asbestos exposure. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file, including a copy of this remand, the Veteran's service treatment records, post-service medical records, and statements. It should be noted that the Veteran is competent to attest to factual matters of which he had first-hand knowledge. If there is a medical basis to support or doubt the history provided by the appellant, the examiner should provide a fully reasoned explanation. After examining the Veteranif deemed necessary by the examinerand considering his pertinent medical history and lay statements regarding his reported symptoms, the examiner should opine as to: Whether it is at least as likely as not (a 50 percent probability or greater) that his respiratory condition, to include shortness of breath and asthma, was incurred in, aggravated by, or etiologically related to his military service, to include as due to asbestos exposure. A clear rationale for all opinions must be provided and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 3. Obtain a VA examination to determine the nature and etiology of the Veteran's right ear hearing loss and the current severity of his left ear hearing loss. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file, including a copy of this remand, the Veteran's service treatment records, post-service medical records, and statements. It should be noted that the Veteran is competent to attest to factual matters of which he had first-hand knowledge. If there is a medical basis to support or doubt the history provided by the appellant, the examiner should provide a fully reasoned explanation. After examining the Veteran and considering his pertinent medical history and lay statements regarding his reported symptoms, the examiner should opine as to whether it is at least as likely as not (a 50 percent probability or greater) that his right ear hearing loss was incurred in, aggravated by, or etiologically related to his military service. The examiner must also provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's left ear hearing loss under the rating criteria, to include functional effects caused by his hearing loss. A clear rationale for all opinions must be provided and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 4. After any additional records are associated with the claims file, provide the Veteran with an appropriate examination to determine the severity of the service-connected residuals stab wound, left forearm. The entire claims file must be made available to and be reviewed by the examiner. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. Caroline B. Fleming Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Javed, Associate Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.