Citation Nr: 1007350 Decision Date: 02/26/10 Archive Date: 03/05/10 DOCKET NO. 04-15 032 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUES 1. Entitlement to a higher initial disability rating for status post left ankle sprain, currently rated as 20 percent disabling. 2. Entitlement to a total disability rating based on individual unemployability. 3. Entitlement to service connection for a lumbar spine disability, to include arthritis, claimed on a direct basis and as secondary to a service-connected left ankle disability. 4. Entitlement to service connection for osteoarthritis of the left hip, claimed on a direct basis and as secondary to a service-connected left ankle disability. 5. Entitlement to service connection for a lung disorder, diagnosed as COPD and calcified pleural plaques due to in- service asbestos exposure. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD M. Katz, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1966 to June 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from May 2003, April 2005, and August 2006 rating decisions by the Department of Veterans Affairs (VA) Regional Office in Boston, Massachusetts (RO) and a Board remand. The Veteran's claim for entitlement to service connection for a lung disability has previously been adjudicated as entitlement to service connection for asbestosis. The Veteran claims he was exposed to asbestos while serving in the Navy aboard ship. In view of the Veteran's assertions and considering the evidence the Board finds that the issue is most properly characterized as entitlement to service connection for a lung disorder, diagnosed as COPD and calcified pleural plaques due to in-service asbestos exposure. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). In its September 2008 decision, the Board referred the Veteran's claims for entitlement to service connection for diabetes mellitus and entitlement to a total disability rating based on individual unemployability (TDIU) to the RO for appropriate action. A review of the claims file does not reflect that the RO has developed or adjudicated either of these claims. The U.S. Court of Appeals for Veterans Claims (Court) recently held that a request for TDIU is not a separate claim for benefits, but rather involves an attempt to obtain an appropriate rating for a disability or disabilities, either as part of the initial adjudication of a claim or, if a disability upon which entitlement to TDIU is based has already been found to be service connected, as part of a claim for increased compensation. Rice v. Shinseki, 22 Vet. App. 447, 452-53 (2009) (finding that there is no freestanding claim for TDIU during the determination of an initial disability rating assigned). If the claimant or the record reasonably raises the question of whether the Veteran is unemployable due to the disability for which an increased rating is sought, then part and parcel to that claim for an increased rating is whether a total rating based on individual unemployability as a result of that disability is warranted. Id at 455. As the medical evidence of record reflects that the Veteran may be unemployable as a result of his service-connected left ankle disability, for which an appeal of the initial disability rating is pending, the issue of entitlement to TDIU is no longer referred to the RO for appropriate action, but is instead remanded to the RO. The claim for entitlement to service connection for diabetes mellitus is again referred to the RO for action deemed appropriate. The issues of entitlement to service connection for a lumbar spine disability and osteoarthritis of the left hip, to include on a direct basis and as secondary to a service- connected left ankle disability, entitlement to TDIU, and entitlement to an initial disability rating greater than 20 percent for a left ankle disability are addressed in the remand portion of the decision below, and are remanded to the RO via the Appeals Management Center in Washington, D.C. FINDINGS OF FACT 1. The evidence of record demonstrates that the Veteran was exposed to asbestos during active duty service. 2. The medical evidence of record shows that the Veteran's current lung disorder, diagnosed as COPD and calcified pleural plaques, is related to his in-service asbestos exposure. CONCLUSION OF LAW A lung disorder, diagnosed as COPD and calcified pleural plaques, was incurred in or aggravated by active military service, to include in-service asbestos exposure. 38 U.S.C.A. §§ 1110, 5103A, 5107 (West 2002); 38 C.F.R. § 3.303 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSION With regard to the Veteran's claim for entitlement to service connection for a lung disability, without deciding whether notice and development requirements have been satisfied in the present case, the Board is not precluded from adjudicating the issue. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2006); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2009). This is so because the Board is taking action favorable to the Veteran by granting the issue at hand. As such, this decision poses no risk of prejudice to the Veteran. See, e.g., Bernard v. Brown, 4 Vet. App. 384 (1993); see also Pelegrini v. Principi, 17 Vet. App. 412 (2004); VAOPGCPREC 16-92, 57 Fed. Reg. 49, 747 (1992). In addition, the RO will notify the Veteran of the applicable rating criteria and effective date pertinent to his claim when it effects the grant of his claim. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 484 (2006). In June 2005, the Veteran filed his present claim seeking service connection for a lung disorder. He alleges that he was exposed to asbestos while working aboard the USS CANOPUS, noting that he "worked in the engine room which was full of asbestos," and that he was exposed to asbestos while removing asbestos insulation from pipes. He reported that the only time that he was exposed to asbestos was while aboard the USS CANOPUS. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection may also be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); Cosman v. Principi, 3 Vet. App. 503, 505 (1992). In order to establish service connection for a claimed disorder, the following must be shown: (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. Hickson v. West, 12 Vet. App. 247, 253 (1999). The Veteran's service treatment records are negative for any findings of a lung disorder or asbestos exposure. A June 1965 enlistment examination reveals that the Veteran's lungs and chest were normal on examination. In a report of medical history, completed at that time, the Veteran denied a history of asthma, shortness of breath, and pain or pressure in the chest. A July 1966 examination also reflects that the Veteran's lungs and chest were normal on examination. However, in a July 1966 report of medical history, the Veteran complained of shortness of breath and pain or pressure in his chest. He also noted that he had a double heart valve, which he did not report at enlistment, and that he had a hard time breathing once in a while. The reviewing physician noted that the Veteran had dyspnea on two flights but no edema, nocturia, hemoptysis, or othopnea. The physician also indicated that the Veteran reported a history of pneumonia 15 years before. A September 1967 chest x-ray was normal. A June 1968 separation examination report reflects that the Veteran's lungs and chest were normal on examination. A veteran is considered to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, except where clear and unmistakable evidence demonstrates that an injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C.A. §§ 1111 (West 2002). Thus, veterans are presumed to have entered service in sound condition as to their health. 38 C.F.R. § 3.304(b) provides expressly that the term "noted" denotes "[o]nly such conditions as are recorded in examination reports," and that "[h]istory of preservice existence of conditions recorded at the time of examination does not constitute a notation of such conditions." 38 C.F.R. § 3.304(b) (2009). Thus, although the Veteran reported a history of trouble breathing, occasional dyspnea, and pneumonia 15 years before service on a July 1966 report of medical history, the Veteran's July 1965 entrance examination and a subsequent July 1966 examination both reflect that the Veteran's lungs and chest were normal on examination. Accordingly, in the absence of objective evidence of a lung disorder at the time of the Veteran's July 1965 enlistment examination, the Board finds that the presumption of soundness applies in this case. The Veteran's service personnel records reflect that he had service aboard the USS CANOPUS from July 1966 through June 1968. His military occupational specialty was engine mechanic. The Veteran's SSA records note complaints of and treatment for a lung disorder. In July 1995, the Veteran underwent a spirometer test. Neurological interpretation of the test results revealed notations indicating that there had been marked improvement in sleep architecture with continuous positive airway pressure machine (CPAP). A pulmonary interpretation reported that there were no obstructive events noted with the CPAP, and that there was overall marked improvement. A March 1998 private medical record from J. Meltzer, M.D. notes the Veteran's history of sleep apnea, prior nose surgery for breathing problems, and complaints of dyspnea on exertion. The Veteran denied a history of cigarette smoking, and stated that he was prescribed a CPAP machine which he did not find extremely helpful. The diagnosis was sleep apnea. A March 1998 report from Dr. LaBarge reveals that there was not clinical evidence of bronchospasm or dyspnea on exertion, and that the Veteran had sleep apnea and restrictive lung disease. The post-service private medical treatment records from Dr. LaBarge reflect diagnoses of and treatment for various lung disorders. An October 1997 treatment record notes a diagnosis of obstructive sleep apnea. A March 1998 record reflects that the Veteran reported that he spoke with his pulmonologist about his sleep apnea and about his thoughts of using a CPAP machine to sleep. The diagnosis was sleep apnea. In May 1998, the Veteran complained of shortness of breath with exertion and snoring at night. The treatment record indicated that the Veteran had been trying to lose weight. The diagnoses included sleep apnea and abnormal weight. A December 2000 treatment record reflects the Veteran's complaints of cough, cold, and congestion. The diagnosis was bronchitis. A July 2001 record notes the Veteran's complaints of cough, cold, congestion, and low- grade fever. He denied any shortness or breath, chest pain, or visual changes. He noted a similar episode several years prior with a full work-up and no findings. The diagnosis was bronchitis. In a June 2005 letter, Dr. LaBarge reported that the Veteran has had chronic cough and shortness of breath problems, and that recent chest x-rays showed that he developed some atelectasis and scarring in the bases of his lungs that appeared to be a long-standing problem. Dr. LaBarge noted that the Veteran's past medical history indicated that he "had an asbestosis exposure" during service, and that his current symptomatology and the x-ray findings "can be related to this exposure." In June 2006, the Veteran underwent a VA respiratory examination. The Veteran complained of a 10-year history of progressive shortness of breath, and noted that he had one- flight dyspnea after walking up a flight of stairs slowly. He reported that he was up at night with shortness of breath at times, and that he had minimal coughing with occasional sputum production and that he wheezed occasionally on exercise. Physical examination revealed blood pressure to be 120/65, and there was no clubbing or cyanosis of the extremities. The Veteran's height was 75 inches, and his weight was 298 pounds. He walked slowly with a limp and used a cane. The nasal passages were diffusely engorged with minimal passages on both sides. The pharyngeal membranes and structures were normal. Chest configuration showed an increased AP diameter. Lung fields were clear and there were no wheezes, rales, or rhonchi. Heart sounds were distant, and there were no abnormal sounds or murmurs. The diagnosis was chronic shortness of breath with a history of asbestos exposure. A June 2006 VA chest x-ray revealed the lungs to be hyperinflated, consistent with chronic obstructive pulmonary disease (COPD). There was a left pneumothorax. The lungs were clear of focal abnormality. The heart was not enlarged, and there was no evidence of congestive failure, adenopathy, or pleural effusion. The conclusion was left pneumothorax and COPD. A June 2006 private computed tomography (CT) scan of the chest revealed moderate pneumothorax of the left requiring follow-up. There were areas of bilateral subpleural bulla and atelectasis posteriorly at the left base which was closely associated with a small area of loculated pleural air. There was a right renal cyst, left renal calcification, and substernal extension of the thyroid gland. In a June 2006 letter, Dr. LaBarge reported that the Veteran was recently diagnosed with a 20% left spontaneous pneumothorax, and that a CT scan showed that he had multiple blebs and evidence of COPD "that could go along with his concerns about asbestos exposure that occurred while he was in the service." Dr. LaBarge further noted that the Veteran had difficulty with ambulation, needing to stop and pause after short distances to catch his breath. In an April 2007 letter, Dr. LaBarge noted that the Veteran suffered from multiple medical conditions, including COPD and emphysema with multiple small blebs and a couple episodes of pneumonia. Dr. LaBarge further reported that the Veteran had a spontaneous pneumothorax of one of the small blebs on his left side, requiring hospitalization and a tube thoracostomy, and that a repeated CT scan showed worsening of his COPD and enlarging of several blebs. In a July 2006 addendum to the June 2006 VA examination, the VA examiner indicated that June 2006 VA chest x-ray revealed hyperinflation consistent with chronic obstructive disease and a left pneumothorax. The VA examiner also reviewed the results of the June 2006 CT scan of the chest and Dr. LaBarge's June 2006 letter, and summarized that evidence. The examiner also reported that, because of the Veteran's "clinical state," he was not able to complete his scheduled pulmonary function testing, and this was cancelled. In March 2007, the Veteran underwent a left-sided thoracotomy with excision of large bullae. A March 2007 operative report notes pre- and post-operative diagnoses of large left upper lobe bulla. The operative report reveals that the Veteran underwent a "[l]eft video assisted thoracoscopy; takedown of adhesions; left thoracotomy; wedge resection, left upper lobe, large bulla; and parietopleural biopsy." The operative report also indicates that inspection of the hemithorax showed "quite a lot of calcified pleural plaques on the parietopleural surface, consistent with the patient's stated prior asbestos exposure." In July 2009, the Veteran underwent a VA examination. The Veteran reported that he was exposed to asbestos during service while removing asbestos insulation from pipes. He indicated that he never "breathed well" since service discharge, but that his breathing became worse after a bullectomy in 2007. He noted that he had to stop after walking 30 feet due to dyspnea, but denied chronic cough or hemoptysis. He stated that he had a history of smoking 1.5 packs per day for 25 to 30 years, and that he quit smoking 10 years ago. Physical examination revealed the Veteran to be alert, and huffing and puffing with exertion, but not visibly dyspneic at rest. The Veteran was 6 feet 2 inches tall, and weighed 370 pounds. His lungs were clear to auscultation, without crackles, rubs, or wheezes. A spirometry was performed. After a review of the Veteran's claims file, including a June 2006 VA chest x-ray, the VA examiner noted that the Veteran appeared to have calcified pleural plaques, suggesting past asbestos exposure based on an operative report from 2007. The VA examiner also noted that the Veteran appeared to have both mild pulmonary emphysema and mild restrictive pulmonary physiology. The VA examiner explained that, while asbestos pleural plaques, when severe, could cause restrictive physiology, the radiographic findings did not indicate extensive pleural plaques, and the restrictive physiology was "very likely (more than a 50% chance) to be due to obesity, as evidenced by the very low expiratory reserve volume . . . ." The examiner concluded that there was no radiographic or examination evidence of pulmonary fibrosis, making it unlikely that the reduced diffusing capacity reflected asbestosis. The Board notes that there are no statutes specifically dealing with asbestos and service connection for asbestos related diseases, and the Secretary of VA has not promulgated any specific regulations. However, in 1988, VA issued a circular on asbestos-related diseases that provided guidelines for considering asbestos compensation claims. See Department of Veterans Benefits, Veterans Administration, DVB Circular 21-88-8, asbestos-related diseases (May 11, 1988). The information and instructions contained in the DVB Circular have since been included in VBA's ADJUDICATION PROCEDURE MANUAL, M21-1MR, Part IV, Subpart ii, Chapter 2, Section C. (hereinafter M21-1MR). In addition, an opinion by VA's Office of General Counsel discussed the development of asbestos claims. VAOPGCPREC 4-00. VA has acknowledged that a relationship exists between asbestos exposure and the development of certain diseases, which may occur 10 to 45 years after exposure. M21-1MR. When considering VA compensation claims, rating boards have the responsibility of ascertaining whether or not military records demonstrate evidence of asbestos exposure in service and of ensuring that development is accomplished to ascertain whether or not there was pre-service and/or post-service evidence of occupational or other asbestos exposure. A determination must then be made as to the relationship between asbestos exposure and the claimed diseases, keeping in mind the latency and exposure information noted above. The Manual notes that asbestos particles have a tendency to break easily into tiny dust particles that can float in the air, stick to clothes, and may be inhaled or swallowed. Inhalation of asbestos fibers can produce fibrosis and tumors. The most common disease is interstitial pulmonary fibrosis (asbestosis). Asbestos fibers may also produce plural effusion and fibrosis, pleural plaque, mesotheliomas of pleura and peritoneum, lung cancer, and cancers of the gastrointestinal tract. The Manual also notes that lung cancer associated with asbestos exposure originates in the lung parenchyma, rather than the bronchi. Occupations involving asbestos exposure include mining and milling, shipyard and insulation work, demolition of old buildings, construction, manufacture and servicing of friction products such as clutch products and brake linings, manufacture and insulation of roofing and flooring materials, sheet and pipe products, and so forth. High exposure to asbestos and the high prevalence of disease have been noted in insulation and shipyard workers. This is significant considering that, during World War II, several million people were employed in shipyards and U.S. Navy Veterans were exposed to asbestos since it was used extensively in military ship construction. Many of these people have only recently come in for medical attention because the latency period varies from 10 to 45 or more years between first exposure and development of the disease. Also of significance is that the exposure to asbestos may be brief, (as little as a month or two) or indirect (bystander's disease). The Manual goes on to say that the clinical diagnosis of asbestosis requires a history of asbestos exposure and radiographic evidence of parenchymal lung disease. It should be noted that the pertinent parts of the Manual guidelines of service connection in asbestos-related cases are not substantive rules, and there is no presumption that a veteran was exposed to asbestos in-service. Dyment v. West, 13 Vet. App. 141, 145 (1999), aff'd, Dyment v. Principi, 287 F. 3d 1377 (Fed. Cir. 2002); VAOPGCPREC 4-2000. In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the evidence supports a finding of service connection for a lung disorder, diagnosed as COPD and calcified pleural plaques. Degmetich v. Brown, 104 F.3d 1328, 1333 (1997) (holding that the existence of a current disability is the cornerstone of a claim for VA disability compensation). In addition, the evidence demonstrates that the Veteran was likely exposed to asbestos during active duty service. Hickson, 12 Vet. App. at 253 (holding that service connection requires medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury and medical evidence of a nexus between the claimed in-service disease or injury and the current disability). In various lay statements, the Veteran reported that he was exposed to asbestos during service; specifically, that he was exposed to asbestos while removing asbestos insulation from pipes. Although the Veteran's service treatment records are negative for asbestos-related disease or any mention of asbestos exposure, the Veteran's service personnel records reflect that the Veteran's military duties included service as an engine mechanic, which likely would have required him to perform activities exposing him to asbestos during service, including insulation work and use of pipe products. See VA Adjudication Procedure Manual, M21-1, Part VI, para. 7.21. The Veteran is competent to provide evidence about matters of which he has personal knowledge; for example, he is competent to report that he experienced an event during service or that he had certain symptoms. See Falzone v. Brown, 8 Vet. App. 398, 405-406 (1995); Layno v. Brown, 6 Vet. App. 465 (1994). Therefore, the Veteran is competent to testify that he was exposed to asbestos during service. The Board also considers the Veteran's statements to be credible, as they are consistent with his personnel records which reflect that his military occupational specialty would likely have required some exposure to asbestos during service. See VA Adjudication Procedure Manual, M21-1, Part VI, para. 7.21. Thus, the Board finds that the Veteran's statements are credible and sufficient to establish that he was exposed to asbestos during active duty service. In addition, the medical evidence of record reflects that the Veteran's lung disorder, diagnosed as COPD and calcified pleural plaques, is related to in-service asbestos exposure. In a June 2005 letter, Dr. LaBarge reported that the Veteran's current symptomatology and x-ray findings could be related to asbestos exposure. In a June 2006 letter, Dr. LaBarge indicated that there was evidence on a CT scan of multiple blebs and COPD which were consistent with the Veteran's in-service asbestos exposure. A July 2009 VA examiner reported that the Veteran had calcified pleural plaques which suggested past asbestos exposure. As the evidence shows that the Veteran was exposed to asbestos during service and that the etiology of his current lung disorder, diagnosed as COPD and calcified pleural plaques, is consistent with asbestos exposure, the Board finds that the evidence is at least in equipoise with regard to this claim, and therefore, with application of the benefit of the doubt doctrine, service connection for a lung disorder, diagnosed as COPD and calcified pleural plaques, is warranted. Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Service connection for a lung disorder, diagnosed as COPD and calcified pleural plaques, to include as due to in-service asbestos exposure, is granted. REMAND I. Lumbar Spine and Left Hip Disabilities As discussed in the Board's September 2008 remand, the Veteran contends that he is entitled to service connection for lumbar spine and left hip disabilities, to include as secondary to his service-connected left ankle disability. By its September 2008 remand, the Board directed the RO to obtain a new VA examination to determine whether the Veteran's lumbar spine disability and left hip disability were related to service or to the Veteran's service-connected left ankle disorder. The Board specifically instructed that any opinion provided by the VA examiner be supported by rationale. The evidence of record includes several conflicting opinions as to the etiology of the Veteran's lumbar spine and left hip disabilities, but none of the opinions provided identify their basis or provide supporting rationale. Specifically, in a June 2004 letter, Dr. LaBarge stated that the Veteran reported chronic pain since an in-service left ankle fracture, and that his chronic pain made him limp, which worsened and aggravated his left hip and low back pain. In a February 2005 VA examination, the VA examiner concluded that, although the Veteran's left ankle disorder did not likely cause his osteoarthritis of the bilateral hips and lumbar spine, the left ankle disorder aggravated the arthritis of the lumbar spine and left hip "only to the degree of 10%." In February 2005, June 2005, June 2006 letters, Dr. LaBarge reiterated his opinion that, due to the Veteran's chronic pain in his left foot, he developed an abnormal gait and limp which aggravated his left hip and lower back pain. In a September 2006 response to the February 2005 VA examiner's opinion, Dr. LaBarge stated that he "again would like to offer [his] opinion that the injury to [the Veteran's] ankle can and did cause the abnormal wear to his hip and his spine and that he should again be considered for disability." In a November 2007 letter, Dr. LaBarge stated that he "firmly believe[s] that this chronic ankle injury that occurred during his service is a major cause for his disability, his inability to walk, ambulate, to stand, and for that matter for any significant work and feel that he should be classified as 100% disabled." In a June 2008 letter, R. Schmidt, D.C. concluded that the Veteran's "military injury contributed to his chronic pain syndrome and he should be considered for disability." In accordance with the Board's September 2008 remand, the Veteran was provided with another VA orthopedic examination in July 2009. The July 2009 VA examiner concluded that it was "less likely as not that the currently diagnosed lumbar spine disability was caused or aggravated by his service-connected post left ankle sprain" and that it was "less likely as not that the arthritis of the left hip was caused or aggravated by his service- connected left ankle sprain." Although there are numerous opinions concerning the etiology of the Veteran's left hip and lumbar spine disabilities, none of these opinions explain the bases for their findings or provide supporting rationale for their conclusions. Moreover, although specifically directed by the September 2008 Board remand, the July 2009 VA examination failed to provide the requisite supporting rationale and explanation for the conclusions stated therein. The Court has held that the Board is obligated by law to ensure that the AOJ complies with its directives, and where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. Stegall v. West, 11 Vet. App. 268, 271 (1998). In the present case, the AOJ failed to ensure that the July 2009 VA examiner provided supporting rationale and explanation for the conclusion that the Veteran's lumbar spine and left hip disabilities were not caused or aggravated by his service-connected left ankle sprain. As such, another remand is necessary to comply with the Court's holding in Stegall. In addition, the RO should provide notice to the Veteran that either of his private physicians who have submitted opinions in this case may submit additional statements explaining the bases of and rationale for their conclusions that the Veteran's lumbar spine and left hip disabilities were caused or aggravated by his service-connected left ankle disorder. II. TDIU and Left Ankle Disability As previously discussed, in Rice v. Shinseki, 22 Vet. App. 447, 454 (2009), the Court held that when entitlement to TDIU is raised during the adjudicatory process of an underlying disability or during the administrative appeal of the initial rating assigned for that disability, it is part of the claim for benefits for the underlying disability. In addition to submitting a formal claim for entitlement to TDIU in February 2007, the Veteran submitted evidence during the pendency of this appeal which pertains to the issue of entitlement to TDIU, including an opinion from his private physician that he is unemployable due to his service-connected left ankle disability, and a completed formal claim for TDIU (VA Form 21- 8940). As such, his claim for entitlement to TDIU is to be considered part of his claim for entitlement to an initial rating greater than 20 percent for a left ankle disability. See id. The Board is not precluded from separately adjudicating the claims of entitlement to TDIU and entitlement to an initial disability rating greater than 20 percent for a left ankle disability for purposes of remanding one and issuing a final decision on another, if there is a reasonable basis for doing so. Holland v. Brown, 6 Vet. App. 443 (1994) (finding that, although a TDIU claim predicated on a particular service-connected condition is "inextricably intertwined" with a rating increase claim regarding the same condition, it does not necessarily follow that a rating increase claim for a particular service-connected condition is "inextricably intertwined" with a TDIU rating claim predicated on that condition); see also Parker v. Brown, 7 Vet. App. 116, 118 (1994) (finding that the rating given to a service-connected disability is related, but not necessarily inextricably, to a separate claim for TDIU). However, the Board finds that, because the Veteran's private physician reported that the Veteran was "100% disabled" due to his left ankle disability and because development of the TDIU claim may produce evidence warranting an increased disability evaluation for the Veteran's left ankle disorder or entitlement to an extraschedular evaluation, the claims must be adjudicated at the same time. As such, the Veteran's claims of entitlement to TDIU and entitlement to an initial evaluation greater than 20 percent for a left ankle disability are remanded for adjudication. In addition, as the Board is granting the Veteran's claim for service connection for a lung disorder, diagnosed as COPD and calcified pleural plaques due to in-service asbestos exposure this disability must also be considered in the Veteran's claim for TDIU. The Board observes that the Veteran has presented for a number of VA examinations in the past. However, the reports of these examinations are completely devoid of opinions as to the effect of the Veteran's service-connected disabilities on his employability. Accordingly, the Board finds that a remand is necessary to obtain a new VA examination which includes a medical opinion addressing the impact of the Veteran's service-connected disabilities, including his left ankle disability, on his employability. See Moore v. Nicholson, 21 Vet. App. 211 (2007), citing Friscia v. Brown, 7 Vet. App. 294, 297 (1994) (the Board had a duty, where the critical issue was TDIU, to request a medical opinion to discuss what effect the veteran's service-connected disability had on his ability to work); Beaty v. Brown, 6 Vet. App 532, 537 (1994). In addition, the Board observes that the Veteran has not been provided notice in accordance with the VCAA as to the evidence and information necessary to establish entitlement to TDIU. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159. Thus, such notice must be provided. As the issues of entitlement to service connection for a lumbar spine disability and a left hip disability are remanded for additional development, the Board observes that, if service connection is granted by the RO upon remand, determination of entitlement to TDIU will also require consideration of the effects of those service-connected conditions on the Veteran's employability. For this reason, the RO must complete all development of the Veteran's claims for entitlement to service connection for lumbar spine and left hip disabilities, to include readjudication, prior to conducting the development required and adjudication of the Veteran's claim for entitlement to TDIU. Accordingly, the case is REMANDED for the following action: 1. The RO must provide the Veteran with a letter notifying him that either of the private physicians who have offered opinions in this case regarding the etiology of the Veteran's lumbar spine and left hip disabilities may submit additional statements explaining the bases of and rationale for their conclusions that the Veteran's lumbar spine and left hip disabilities were caused or aggravated by his service-connected left ankle disorder. 2. Thereafter, the RO must provide the Veteran with an appropriate VA examination to determine the etiology of any current lumbar spine and left hip disabilities found. The claims file and a copy of this remand must be provided to and reviewed by the examiner. All pertinent symptomatology and findings must be reported in detail. Any indicated diagnostic tests and studies must be accomplished. Following a review of the service and post-service medical evidence, the examiner must provide an opinion as to whether the Veteran's current lumbar spine disability was caused or aggravated by his military service, to include his service- connected left ankle disability. The examiner must also provide an opinion as to whether the Veteran's current left hip disability was caused or aggravated by his military service, to include his service- connected left ankle disability. A complete rationale for all opinions with appropriate reference to the evidence must be provided. 3. The RO must then readjudicate the issues of entitlement to service connection for a lumbar spine disability and entitlement to service connection for a left hip disability. After readjudicating the Veteran's claims of entitlement to service connection for a lumbar spine disability and a left hip disability, the RO must provide the Veteran with a letter satisfying the duty to notify provisions with respect to his claim of entitlement to TDIU. 4. Thereafter, the RO must provide the Veteran with an examination to determine the effects of all of his service- connected disabilities, to include his lung disability and left ankle disability, on his ability to maintain employment consistent with his education and occupational experience. The claims file must be made available to the examiner for review in conjunction with the examination. All necessary special studies or tests are to be accomplished. The examiner must elicit from the Veteran and record for clinical purposes a full work and educational history. Based on a review of the case and the claims file, the examiner must provide an opinion as to whether the Veteran's service-connected disabilities alone preclude him from securing and following substantially gainful employment consistent with his education and occupational experience. All opinions provided must include an explanation of the bases for the opinion. 6. The RO must notify the Veteran that it is his responsibility to report for all scheduled VA examinations, and to cooperate in the development of the claims. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2009). In the event that the Veteran does not report for any of the scheduled examinations, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. Copies of all documentation notifying the Veteran of any scheduled VA examination(s) must be placed in the Veteran's claims file. 7. The RO must then readjudicate the issue of entitlement to an initial disability evaluation greater than 20 percent for a left ankle disorder, and must adjudicate the issue of whether TDIU is warranted. If any claim on appeal remains denied, the Veteran and his representative must be provided a supplemental statement of the case. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). 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. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2009). ______________________________________________ STEVEN L. COHN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs