Citation Nr: 0611343	
Decision Date: 04/20/06    Archive Date: 04/26/06

DOCKET NO.  04-37 299	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Hartford, 
Connecticut



THE ISSUE

Entitlement to an initial compensable rating for 
mesothelioma. 



ATTORNEY FOR THE BOARD

D. Powers, Associate Counsel




INTRODUCTION

The veteran served on active duty from August 1951 until May 
1954.

This case comes before the Board of Veterans' Appeals (Board) 
on appeal from a March 2003 rating decision by the Hartford, 
Connecticut, Regional Office (RO) of the Department of 
Veterans Affairs (VA).  In that decision, the RO granted 
service connection for mesothelioma and assigned a non-
compensable rating effective to the date of the claim, 
September 25, 2002.


REMAND

Initially, it is noted that the veteran has not undergone a 
recent compensation examination since 2002.  A current 
examination with pulmonary function studies and an opinion as 
to the proper diagnosis of the service connected lung 
disability are needed.  

Further, the record reveals that the veteran has not received 
the notice required under 38 U.S.C.A. § 5103(a) (West 2002) 
and 38 C.F.R. § 3.159(b) (2005).  Notice consistent with 
38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) must 
accomplish the following: (1) inform the claimant about the 
information and evidence not of record that is necessary to 
substantiate the claim; (2) inform the claimant about the 
information and evidence that VA will seek to provide; (3) 
inform the claimant about the information and evidence the 
claimant is expected to provide; and (4) request or tell the 
claimant to provide any evidence in the claimant's possession 
that pertains to the claim.  See Pelegrini v. Principi, 18 
Vet. App. 112 (2004) (Pelegrini II).  The notice requirement 
is applicable to all aspects of the claim, to include 
potential disability ratings.  See Dingess/Hartman v. 
Nicholson, Nos. 01-1917 and 02-1506 (Ct. Vet. App. Mar. 3, 
2006). 

In October 2002, the RO notified the veteran what evidence 
was necessary to establish his claim for service connection.  
However, the veteran has now filed a notice of disagreement 
with the initial rating assigned to his disability.  He has 
not received sufficient notice as to the criteria by which 
his disability is rated.  Thus, this case must be remanded to 
afford the veteran adequate notice regarding the rating 
criteria.

Accordingly, the case is hereby REMANDED to the RO via the 
Appeals Management Center in Washington, DC for the following 
actions:

1.  The RO should obtain all records of VA 
treatment at the VAMC since December 2003.  
All records obtained should be associated 
with the claims folder.  

2.  The veteran should be notified of the 
information and evidence necessary to 
substantiate his claim for a higher 
initial rating.  He should also be 
notified of information and evidence that 
VA will seek to provide and information 
and evidence that he is expected to 
provide.  The veteran should be asked to 
provide any evidence in his possession 
that pertains to the claim.  

3.  Arrangements should be made to have 
the veteran undergo a special pulmonary 
examination in order to ascertain the 
nature and severity of the service 
connected pulmonary disorder together with 
the proper diagnosis thereof.  All 
indicated tests should be conducted to 
include pulmonary function testing.  The 
claims folder should be made available to 
the examiner for review.  Following that 
review, the examiner is to specify the 
correct diagnosis of the veteran's 
pulmonary condition to include an 
assessment as to whether or not the 
mesothelioma is benign or malignant.  

4.  Following completion of the above, 
readjudicate the issue on appeal.  If any 
benefit sought on appeal remains denied, 
the RO should issue a supplemental 
statement of the case and allow the 
veteran an appropriate period of time to 
respond.

Thereafter, subject to current appellate procedures, the case 
should be returned to the Board for further appellate 
consideration, if appropriate.  The veteran need take no 
action until otherwise notified, but he may furnish 
additional evidence and argument while the case is in remand 
status.  Kutscherousky v. West, 12 Vet. App. 369 (1999); 
Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992); Booth v. 
Brown, 8 Vet. App. 109 (1995).  The purpose of this REMAND is 
to obtain additional information and to ensure due process of 
law.  No inference should be drawn regarding the final 
disposition of the claim as a result of this action.

This claim 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.  
38 U.S.C.A. §§ 5109B, 7112 (West 2002).

_________________________________________________
C.W. Symanski
Veterans Law Judge, Board of Veterans' Appeals

Under 38 U.S.C.A. § 7252 (West 2002), 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) (2005).