Citation Nr: 21029879 Decision Date: 05/17/21 Archive Date: 05/17/21 DOCKET NO. 16-15 605A DATE: May 17, 2021 REMANDED Entitlement to service connection for emphysema and pulmonary fibrosis, to include as due to in-service asbestos exposure, is remanded. Entitlement to service connection for right ear hearing loss is remanded. REASONS FOR REMAND The Veteran served on active duty from September 1964 to September 1966. He died in November 2017. The Appellant is the Veteran's widow, and she has been found to be a proper substitute. See February 2018 Substitution Notification Letter. This matter comes to the Board of Veterans' Appeals (Board) on appeal from June 2013 and May 2015 rating decisions by a Department of Veterans Affairs (VA) Regional Office (RO). In November 2019, the Board denied the claims for service connection for right ear hearing loss and emphysema and pulmonary fibrosis. The Appellant appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In September 2020, the Court granted a Joint Motion for Partial Remand (JMR) requesting vacatur and remand of the Board's decision. Service connection for emphysema and pulmonary fibrosis The September 2020 JMR found that the Board erred by relying on an inadequate VA examination. Specifically, the parties to the Joint Motion agreed that the November 2019 Board decision erred by relying on the inadequate February 2016 VA examination. The February 2016 examiner opined that there were no bronchoscopy or biopsy findings to "definitively show" the cause of the Veteran's fibrosis. The parties to the JMR agree that "definitive evidence" of causation is not required to establish a nexus and that the examiner applied the wrong standard in providing an opinion. As this is the only VA examination of record addressing the etiology of the Veteran's respiratory disability and as the opinion provided was inadequate, a remand is warranted to obtain an adequate opinion addressing the etiology of this disability. In accordance with the JMR and Court Order, a remand is warranted to obtain an adequate VA opinion addressing the nature and etiology of the Veteran's emphysema and pulmonary fibrosis, to include whether such is due to the conceded asbestos exposure during service. Service connection for right ear hearing loss The September 2020 JMR found that the Board erred by failing to provide an adequate statement of reasons and bases for its decision. Specifically, the parties to the Joint Motion agreed that the November 2019 Board failed to address the Veteran's contentions that his right ear hearing loss was caused by noise exposure in service and became progressively worse prior to his post-service 1986 motor vehicle accident. The VA hearing loss examinations failed to consider whether the Veteran's right ear hearing loss was related to his service and whether such was present prior to the post-service accident that ultimately resulted in further hearing loss. A VA examiner in June 2013 opined that it was not at least as likely as not that the Veteran's right ear hearing loss was caused by his military service, despite noting the Veteran's military noise exposure and the eventual loss of hearing caused by the later, post-service motor vehicle accident. In an August 2013 private treatment record, the Veteran reported that he had hearing loss in his right ear after his military service and prior to his accident and that he was exposed to a lot of loud noises while working in the engine room. At the February 2016 VA examination, the examiner once again indicateddespite the Veteran's noted military noise exposure from jet engines and boiler room noisethat his right ear hearing loss was not at least as likely as not due to his military service. The provided rationale with this opinion suggested that the Veteran's right ear hearing loss was related to his post-service accident but was not clear or direct in nature. The VA examinations of record are inadequate and failed to address whether the Veteran's right ear hearing loss began in, and continued since, service and existed prior to the 1986 motor vehicle accident. In accordance with the JMR and Court Order, a remand is warranted to obtain an adequate opinion addressing the etiology of the Veteran's right ear hearing loss, to include whether he had post-service hearing loss attributable to his military service prior to his post-service motor vehicle accident. Additionally, the Veteran reported at his August 2013 private treatment visit that he underwent a physical examination through the Department of Transportation (DOT) prior to beginning his work as a trucker and that hearing loss was noted in his right ear prior to his 1986 accident. While the record contains a request to, and a negative response from, the Social Security Administration (SSA), it does not appear that any effort has been made to obtain any outstanding records from the DOT that may relate to this claim. On remand, appropriate measures should be taken to associate any outstanding DOT records, including any physical examination records, with the claims file. Accordingly, these matters are REMANDED for the following action: 1. Obtain and associate with the claims file the Veteran's records from the Department of Transportation which pertain to any physical examination(s) performed. All efforts to obtain these records should be associated with the claims file and the Appellant and her representative should be provided notification if any requested records are unavailable. 2. Then, obtain a medical opinion from an appropriate examiner regarding the etiology of the Veteran's emphysema and pulmonary fibrosis. Upon review of the Veteran's claims file and this Remand, the examiner is asked to opine: Whether it is at least as likely as not (i.e., 50 percent probability or greater) that the Veteran's diagnosed emphysema and pulmonary fibrosis either began during, or were otherwise caused by, his military service, to include as due to his conceded asbestos exposure? The examiner is advised that the now-deceased Veteran was, and the Appellant is, competent to report symptoms/history and that such reports must be acknowledged and considered in formulating an opinion. If any lay reports are discounted, the examiner should provide a reason for doing so. In providing the requested opinions, the examiner is advised that the term "at least as likely as not" does not mean within the realm of possibility, but rather that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against causation. A rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that question. 3. Also, obtain a medical opinion from an appropriate examiner regarding the etiology of the Veteran's right ear hearing loss. Upon review of the Veteran's claims file and this Remand, the examiner is asked to opine: Whether it is at least as likely as not (i.e., 50 percent probability or greater) that the Veteran's diagnosed right ear hearing loss either began during, or were otherwise caused by, his military service? In providing this opinion, the examiner is asked to consider whether the Veteran had post-service hearing loss attributable to his conceded military noise exposure that existed prior to his post-service motor vehicle accident and/or whether this accident aggravated any right ear hearing loss he had experienced since service. The examiner is advised that in-service noise exposure has been conceded. See February 2016 VA Examination. The examiner is advised that the now-deceased Veteran was, and the Appellant is, competent to report symptoms/history and that such reports must be acknowledged and considered in formulating an opinion. If any lay reports are discounted, the examiner should provide a reason for doing so. In providing the requested opinions, the examiner is advised that the term "at least as likely as not" does not mean within the realm of possibility, but rather that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against causation. A rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that question. No action is required of the Appellant until she is notified by VA. However, she is advised that she has an obligation to cooperate in ensuring that VA's duty to assist is satisfied. Kowalski v. Nicholson, 19 Vet. App. 171 (2005). The Appellant is also advised that she has the right to submit additional evidence and argument with respect to this matter. 38 C.F.R. § 3.1010(f)(3). This appeal must be afforded prompt treatment. THERESA M. CATINO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Goreham 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.