Citation Nr: 1028126 Decision Date: 07/28/10 Archive Date: 08/10/10 DOCKET NO. 08-27 204 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to an increased rating for pulmonary tuberculosis with segmental resection of the left upper lobe, currently evaluated as 60 percent disabling. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD M. Taylor, Counsel INTRODUCTION The Veteran served on active duty from January 1963 to January 1965. This case comes before the Board of Veterans' Appeals (the Board) on appeal from rating decisions of the Cleveland, Ohio, VA Regional Office (RO). The Board notes that in February 2007, the agency of original jurisdiction (AOJ) increased the evaluation for pulmonary tuberculosis with segmental resection of the left upper lobe to 60 percent. Since the increase to 60 percent did not constitute a full grant of the benefits sought, the increased rating issue remains in appellate status. AB v. Brown, 6 Vet. App. 35, 39 (1993). In connection with his appeal, the Veteran testified before the undersigned Veterans Law Judge in Washington, D.C., via videoconference in May 2010. A transcript of the hearing has been associated with the claims file. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND The Veteran seeks a higher evaluation for the degree of impairment due to his service-connected pulmonary tuberculosis with segmental resection of the left upper lobe. While not required to remand an appealed claim solely because of the passage of time since an otherwise adequate examination report was prepared, in this case, the Veteran has asserted that service-connected pulmonary tuberculosis with segmental resection of the left upper lobe has undergone an increase in severity and the Board finds that further development is required in that regard. The Board notes that in Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a total disability based on individual unemployability (TDIU) claim is part of an increased rating claim when such claim is raised by the record. At the hearing, he testified that since the most recent VA examination in January 2008, he has had inpatient treatment with an increased need for oxygen, and that he has received Social Security Administration (SSA) disability benefits. Transcript at 3-5 (2010). The Board notes that the SSA records and the up-to- date treatment records have not been associated with the claims file. In addition, the Board notes that the February 2007 rating decision reflects that the 50 percent evaluation for pulmonary tuberculosis was assigned under Diagnostic Code 6723, and increased to 60 percent based on the criteria in Diagnostic Code 6844 pertaining to post-surgical residuals of restrictive lung disease (lobectomy, pneumonectomy, etc), as noted in the July 2008 statement of the case. Diagnostic Code 6844 provides that post-surgical residuals of lobectomy will be rated under the general rating formula for restrictive lung diseases. A 100 percent disability rating is assigned for findings that show FEV-1 less than 40 percent of predicted value, or; the ratio of FEV-1/FVC less than 40 percent, or; DLCO (SB) less than 40-percent predicted, or; maximum exercise capacity less than 15 ml/kg/min oxygen consumption (with cardiac or respiratory limitation), or; cor pulmonale (right heart failure), or; right ventricular hypertrophy, or; pulmonary hypertension (shown by Echo or cardiac catheterization), or; episode(s) of acute respiratory failure, or; requires outpatient oxygen therapy. A 60 percent disability rating is assigned for FEV-1 of 40- to 55-percent predicted, or; FEV- 1/FVC of 40 to 55 percent, or; DLCO (SB) of 40- to 55-percent predicted, or; maximum oxygen consumption of 15 to 20 ml/kg/min (with cardiorespiratory limit). Accordingly, the case is REMANDED for the following action: 1. The AOJ should obtain all of the Veteran's SSA disability records, to include any decisions and the medical records, upon which any decision was based. 2. The AOJ should attempt to associate the relevant up-to-date records of treatment, to include inpatient records, with the claims file. All records obtained should be associated with the claims file. 3. After the above has been accomplished to the extent possible, the AOJ should schedule the Veteran for a VA examination to determine the degree of impairment due to service- connected pulmonary tuberculosis with segmental resection of the left upper lobe. The claims file must be made available for review in conjunction with the examination and the examiner's attention should be directed to this remand. All necessary tests should be accomplished. The opinion in regard to the degree of impairment due to pulmonary tuberculosis with segmental resection of the left upper lobe, should include a finding in regard to any impact on employability, including whether it is more likely than not (i.e., probability greater than 50 percent), at least as likely as not (i.e., probability of 50 percent), or less likely than not (i.e., probability less than 50 percent), that this disability causes the veteran to be unable to obtain and retain substantially gainful employment. If any increase in the degree of impairment is identified during the relevant period, the date of any increase should be reported, to the extent possible. A complete rationale should accompany all opinions provided. 4. In light of the above, the claim should be readjudicated. The AOJ should review all development for compliance with the directives herein and review all opinions obtained for adequacy. Any further development necessary in that regard should be accomplished prior to returning the claims file to the Board. If the benefits sought on appeal remain denied, a supplemental statement of the case should be issued and the Veteran afforded a reasonable opportunity in which to respond thereto. 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). _________________________________________________ MILO H. HAWLEY 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) (2009).