Citation Nr: 1300554 Decision Date: 01/08/13 Archive Date: 01/16/13 DOCKET NO. 09-14 806 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUE Entitlement to an initial evaluation in excess of 10 percent for pleural plaques due to asbestos exposure. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Jeanne Schlegel, Counsel INTRODUCTION The Veteran served on active duty from February 1965 to June 1985. This case comes before the Board of Veterans' Appeals (Board) on appeal from a November 2006 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) which granted service connection for pleural plaques and assigned an initial non compensable evaluation effective from October 2006. Subsequently, in a decision issued by a decision review officer in January 2009, an increased initial evaluation of 10 percent was granted for pleural plaques, effective from October 2006. A December 2012 review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND The Veteran seeks an initial evaluation in excess of 10 percent for pleural plaques due to asbestos exposure. The Board finds that additional development is necessary before a decision on the merits of the claim can be reached. For the entirety of the appeal period extending from October 4, 2006, the Veteran's service-connected pleural plaques due to asbestos exposure have been assigned a 10 percent evaluation under 38 C.F.R. § 4.97, DC 6833. Under this diagnostic code a 100 percent rating requires FVC less than 50 percent predicted, or; DLCO (SB) less than 40 percent predicted, or; maximum exercise capacity less than 15 ml/kg/min oxygen consumption with cardiorespiratory limitation, or; cor pulmonale or pulmonary hypertension, or; requires continuous outpatient oxygen therapy. 38 C.F.R. § 4.97, DC 6833 (2012). A 60 percent rating requires FVC of 50 to 64 percent predicted, or; DLCO (SB) of 40 to 55 percent predicted, or; maximum exercise capacity of 15 to 20 ml/kg/min oxygen consumption with cardio respiratory limitation. Id. A 30 percent rating requires FVC of 65 to 74 percent predicted, or; DLCO (SB) of 56 to 65 percent predicted. Id. A 10 percent rating requires FVC of 75 to 84 percent predicted, or; DLCO (SB) of 66 to 80 percent predicted. Id. The post-bronchodilator findings for these pulmonary function tests are the standard in pulmonary assessment. See 61 Fed. Reg. 46720, 46723 (Sept. 5, 1996) (VA assesses pulmonary function after bronchodilation). However, if the post-bronchodilator results are poorer than the pre-bronchodilator results, then the pre-bronchodilator results are used for rating purposes. See 38 C.F.R. § 4.96(d)(5) (2012). A brief review of the evidence indicates that Veteran underwent a VA examination in June 2008 at which time pulmonary function testing revealed DLCO (SB) of 75 percent predicted, warranting the assignment of a 10 percent evaluation under diagnostic code 6833. The Veteran last underwent a VA respiratory examination in September 2009. At that time, the Veteran complained of having some intermittent shortness of breath. Pulmonary function testing was conducted; however post bronchodilator results were not available, as bronchodilation was not done secondary to the Veteran's inability to tolerate a mouth piece. On VA Form 646, completed by the Veteran's representative in June 2010, it was noted that the Veteran maintained that his respiratory condition had worsened to the point that he experienced shortness of breath, even during activities such as watching TV and reading. Also mentioned were his reported symptoms of severe shortness of breath and violent coughing on activity. It has now been over 3 years since pulmonary function tests have been conducted on the Veteran by VA. The duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate VA examination was conducted. See VAOPGCPREC 11-95. However, a new examination is appropriate when there is an assertion of an increase in severity since the last examination, as is essentially the case here. See 38 C.F.R. § 3.159 (2012); see also Palczewski v. Nicholson, 21 Vet. App. 174, 181 (2007); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); VAOPGCPREC 11-95 (1995). Therefore, a new and contemporaneous examination should be administered to determine the manifestations and level of severity associated with the Veteran's service-connected respiratory disorder. In addition, it is not entirely clear in this case where the Veteran receives treatment for his respiratory condition. In this regard, it does not appear that any VA records have been sought for the file since the beginning of the appeal period in October 2006; however, it is not apparent that any such records actually exist. The Board notes that records generated by VA facilities that may have an impact on the adjudication of a claim are considered to be constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). As such, out of an abundance of caution, VA is requested to clarify whether any pertinent VA treatment records exist in this case and if so, VA records dated from October 2006 forward should be obtained for the file and consider in conjunction with the readjudication of the claim. See 38 U.S.C.A. § 5103A (b-c); 38 C.F.R. § 3.159(c). As the case is being remanded for the aforementioned reasons, the Board will also request that the Veteran submit or identify any additional private records pertinent to the claim for inclusion in the file. Accordingly, the case is REMANDED for the following action: 1. The Veteran shall be given an opportunity to identify any additional relevant medical treatment records, from either private or VA facilities, which pertain to his increased initial rating claim for his service-connected respiratory disorder, that have not yet been associated with the claims folder. Appropriate steps should be taken to obtain the identified records. 2. In the event that there are indications that the Veteran received VA treatment during the appeal period, the RO/AMC should take steps to associate the Veteran's VA medical records dated from October 2006 forward, with his claims file. Should no such records exist, this fact should be annotated for the record. 3. Afford the Veteran a VA respiratory examination to ascertain the current severity of his service-connected pleural plaques due to asbestos exposure. The claims file, including a copy of this REMAND, must be made available to the examiner for review, and the examination report should reflect that such a review was accomplished. The Veteran's lay reports of symptomatology should be recorded. 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 and to comment on the severity of the Veteran's respiratory condition. As part of this examination, the Veteran is to be afforded pulmonary function testing that includes results on FVC and DLCO (SB). If DLCO (SB) is not indicated, the examiner should explain why. Post-bronchodilator results should be obtained unless pre bronchodilator results are normal or the examiner determines that post-bronchodilator results should not be used and states the reason why. The examiner should indicate in as specific terms as possible, the extent of impairment considered due to service-connected pleural plaques due to asbestos exposure and should identify the nature and extent of any other respiratory impairment attributable to this condition. . 4. Thereafter, the claim for an increased initial rating for pleural plaques due to asbestos exposure should be readjudicated by the RO, to include consideration of whether staged ratings, and/or an extraschedular evaluation is warranted under 38 C.F.R. § 3.321(b). If this readjudication does not result in a complete grant of all benefits sought by the Veteran in connection with this claim, the Veteran and his representative should be provided a supplemental statement of the case and an appropriate period of time be allowed for response. Thereafter, the case must be returned to the Board, as appropriate. The appellant 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). No action is required of the appellant until further notice. However, the Board takes this opportunity to advise the appellant that the conduct of the efforts as directed in this remand, as well as any other development deemed necessary, is needed for a comprehensive and correct adjudication of his claim. His cooperation in VA's efforts to develop his claim, including reporting for any scheduled VA examination, is both critical and appreciated. The appellant is also advised that failure to report for any scheduled examination may result in the denial of a claim. 38 C.F.R. § 3.655. 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. 2012). _________________________________________________ MARJORIE A. AUER 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) (2012).