Citation Nr: 1301986 Decision Date: 01/17/13 Archive Date: 01/23/13 DOCKET NO. 10-33 847 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to an initial disability rating in excess of 30 percent for asbestosis, rated as 100 percent disabling from July 8, 2008. 2. Entitlement to a total disability evaluation based on individual unemployability due to service-connected disabilities (TDIU) prior to July 8, 2008. REPRESENTATION Appellant represented by: Virginia Girard-Brady, Attorney ATTORNEY FOR THE BOARD J.M. Rutkin, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1943 to March 1946. These matters are on appeal before the Board of Veterans' Appeals (Board) from a June 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina, which granted service connection for asbestosis and assigned a 30 percent disability rating, effective August 29, 2000, the date of his service connection claim. The Veteran contested the assigned disability rating and the RO issued a March 2010 rating decision assigning a 100 percent disability rating, effective July 8, 2008. The Veteran has continued this appeal, and contends that a 100 percent rating with TDIU is warranted from August 29, 2000 to July 7, 2008. See AB v. Brown, 6 Vet. App. 35, 38 (1993) (holding that a grant of a higher rating during the course of an appeal, but less than the maximum benefits allowable, does not abrogate the appeal). The Veteran requested a hearing before the Board in his May 2003 substantive appeal (VA Form 9), but subsequently withdrew this request in an April 2004 statement. 38 C.F.R. § 20.704 (2012). The Board denied the matters at issue in a February 2012 decision. The Veteran appealed this decision to the Court of Appeals for Veterans Claims (Court). In an October 2012 Order, the Court remanded these matters, pursuant to an October 2012 joint motion for remand. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). The appeal is REMANDED to the Department of Veterans Affairs Regional Office. VA will notify the appellant if further action is required. REMAND In the October 2012 joint motion for remand, the parties agreed that the Board had relied on an inadequate VA medical opinion in denying the claims. Therefore, the Board has been instructed to provide a new VA examination or opinion responsive to the deficiencies identified in the joint motion, as explained in the following discussion. In a June 2011 VA examination report and September 2011 addendum opinion, the examiner stated that she could not determine without resorting to speculation whether the Veteran's unemployability was due to interstitial lung disease between August 29, 2000 and July 7, 2008. The examiner noted, in part, that the Veteran's asbestosis was more likely related to post-service asbestos exposure than to such exposure during active service. However, service connection for interstitial disease due to asbestos exposure has already been established. The examiner also apparently relied on her findings in the June 2011 VA examination, to include the Veteran's reported ability to tend a home garden, his ability to walk more than 50 yards without a cane, and the fact that he did not use supplemental oxygen all of the time. She did not explain how these current findings related to the earlier period of time from August 29, 2000 to July 7, 2008. Finally, she mentioned private treatment records dated in 2002, 2003, and 2004 documenting heart and knee conditions, but did not discuss the treatment records pertaining to the Veteran's respiratory problems. The parties found that because service connection for asbestos exposure has been established, it was ambiguous whether the examiner's opinion was incorrectly based on the premise that the Veteran's asbestosis was not service connected. The parties also found that the examiner's "significant" reliance on the findings in the June 2011 VA examination was misplaced, as they pertained to the current severity of the Veteran's interstitial lung disease rather than to its severity from August 29, 2000 to July 8, 2008. Thus, in focusing on the Veteran's current functional impairment, the examiner did not sufficiently address his functional impairment during the time frame at issue. Finally, the parties agreed that the examiner only discussed private treatment records focusing on the Veteran's nonservice-connected heart and knee conditions, which were not relevant to the issue of the degree of severity of the Veteran's lung disease. The parties noted that there were extensive private treatment records documenting the Veteran's respiratory problems between 2000 and 2008 which the examiner did not address. In light of the deficiencies discussed above, the parties instructed the Board to obtain a new VA examination or opinion "that is based on a review of the relevant evidence of record and is premised on the fact that [the Veteran] is service connected [sic] for asbestosis." On remand, a VA opinion must be obtained from a medical professional with an appropriate background in respiratory disorders, such as a pulmonologist, in accordance with the instructions below. Accordingly, the case is REMANDED for the following actions: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. Obtain a VA opinion from a medical professional with an appropriate background in respiratory disorders, such as a pulmonologist. The Veteran need not be scheduled for an examination unless deemed necessary by the RO or by medical professional rendering the opinion. The following considerations will govern the opinion: a) The examiner must review the claims file and note in the report that the claims file has been reviewed. b) The examiner must provide an opinion, supported by a complete clinical explanation, as to whether the following were manifestations of the Veteran's service-connected interstitial lung disease (asbestosis) or whether they were manifestations of an unrelated respiratory disorder: * The Veteran's nodule or lesion of the upper right lobe in November 2004, for which he underwent a CT-guided biopsy that resulted in a small pneumothorax and minor hemoptysis requiring chest tube insertion. * The Veteran's private hospitalizations in February 2006, March 2007, February 2008 for "COPD exacerbation[s]" with coughing, shortness of breath, and chest pressure, and his December 2007 private emergency room visit in which he reported two episodes of coughing up blood. c) If the examiner finds that the Veteran's nodule of the upper right lung and hospitalizations between 2006 and 2008 were not related to his asbestosis/interstitial lung disease, the examiner must specify, to the extent possible, which respiratory disorder caused the above problems and explain why it is not related to the Veteran's asbestosis/interstitial lung disease. d) The examiner must provide an opinion as to whether the Veteran's service-connected interstitial lung disease (asbestosis) was sufficiently incapacitating as to prevent him from working (i.e. engaging in substantially gainful activity) DURING ANY OR ALL of the period from August 29, 2000 to July 7, 2008. The examiner must take the following into account: * If the examiner finds that the Veteran's service-connected respiratory disorder rendered him unable to work for only part of the period between August 29, 2000 and July 7, 2008, the examiner must specify the dates of each period of unemployability. * THE VETERAN'S AGE AND NON-SERVICE-CONNECTED DISABILITIES- NAMELY ANY DISORDER OTHER THAN THE SERVICE-CONNECTED RESPIRATORY DISORDER MAY NOT BE CONSIDERED in determining whether his respiratory disorder prevents him from obtaining or maintaining substantially gainful employment. * IT IS NOT SUFFICIENT FOR THE EXAMINER TO STATE THAT AN OPINION CANNOT BE PROVIDED WITHOUT RESORT TO SPECULATION SIMPLY BECAUSE OF THE PRESENCE OF OTHER, NON-SERVICE-CONNECT DISABILITIES. Rather, the examiner must focus on whether the degree of severity of the Veteran's interstitial lung disease, as shown in pulmonary function tests, diagnostic imaging studies, reported symptoms, and other pertinent evidence was severe enough in and of itself to prevent him from doing work that is more than marginal for all or part of the period between August 29, 2000 and July 7, 2008. * In support of this opinion, the examiner must discuss all functional impairment associated with the Veteran's respiratory disorder and its impact on his ability to work between August 29, 2000 and July 7, 2008. The examiner must also take into account the Veteran's prior work history, level of education, and skills training in determining whether he would be able to engage in more than marginal employment within the restrictions imposed by his respiratory disorder from August 29, 2000 to July 7, 2008. In this regard, from 1970 to 1989 (when the Veteran retired), he worked as a Boiler Tender and then a Steam Plant Supervisor. * The EXAMINER IS ALSO ADVISED THAT THE FACT THAT THE VETERAN MAY HAVE HAD ASBESTOS EXPOSURE AFTER SERVICE MAY NOT BE CONSIDERED IN PROVIDING THE REQUESTED OPINION. Service connection for interstitial lung disease (asbestosis) has been established and all disability resulting from it is assumed to be related to service. e) The examiner must provide a complete explanation for his or her opinion(s), based on his or her clinical experience, medical expertise, and established medical principles. The examiner is asked to cite to specific evidence in the file and provide examples, if necessary, in support of the conclusions reached. 2. Next, review the medical opinion discussed above and ensure that it complies with the Board's remand directives and is otherwise adequate. If the opinion is deficient, request the examiner to provide further discussion as necessary. Please ensure that the opinion is adequate before returning the case to the Board. 3. After the above development is completed, and any other development that may be warranted based on any additional information or evidence received, readjudicate the matters at issue on the merits. If the benefits sought are not granted, the Veteran and his representative must be furnished a supplemental statement of the case (SSOC) and afforded a reasonable opportunity to respond before the record is returned to the Board for further 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). No action is required of the Veteran until further notice. However, the Board takes this opportunity to advise the Veteran 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 claims. His cooperation in VA's efforts to develop his claim, including reporting for any scheduled VA examination, is both critical and appreciated. The Veteran 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 (2012). 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). _________________________________________________ VITO A. CLEMENTI 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).