Citation Nr: 1313129 Decision Date: 04/19/13 Archive Date: 05/02/13 DOCKET NO. 12-08 047A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to a rating in excess of 60 percent for bilateral hearing loss, prior to September 15, 2011. 2. Entitlement to a rating in excess of 60 percent for residuals of a left lobectomy. 3. Entitlement to a total disability rating by reason of individual unemployability (TDIU), prior to September 15, 2011. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD G. E. Wilkerson, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1941 to October 1945. These matters come before the Board of Veterans' Appeals (Board) on appeal from a November 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Board notes that while the record reflects that the Veteran only filed a claim for a TDIU in July 2010, the RO included claims for increased rating for bilateral hearing loss and residuals of a left lobectomy pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009). During the course of the Veteran's appeal, in an April 2012 rating decision, the RO awarded a total 100 percent rating for bilateral hearing loss effective September 15, 2011. As such, the Board will only address the propriety of the rating assigned prior to September 15, 2011. As regards the claim for a TDIU, the Board is cognizant of the decision of the United States Court of Appeals for Veterans Claims (Court) in Bradley v. Peake, 22 Vet. App. 280 (2008) in which the Court held that, although no additional disability compensation may be paid when a total schedular disability rating is already in effect, a separate award of TDIU predicated on a single disability may form the basis for an award of special monthly compensation (SMC). Here, however, the RO also granted the Veteran a SMC in an April 2012 rating decision, effective September 15, 2011. Hence, the concerns addressed in Bradley are not present in the current case as the Veteran has already been awarded SMC. As such, the Board will address entitlement to a TDIU only for the period on appeal prior to September 15, 2011. With regard to the issue of entitlement to a rating in excess of 60 percent for residuals of a left lobectomy, remanded below, even if a decision favorable to the Veteran is ultimately rendered, that determination will not change the disposition of the TDIU claim as the Veteran already eligible for a TDIU on a schedular basis. Accordingly, the Board finds that the claim for TDIU for the period prior to September 15, 2011 is not inextricably intertwined with the claim for a rating in excess of 60 percent for residuals of a left lobectomy, and need not be deferred pending adjudication of the increased rating claim. The Veteran was also scheduled for a Board videoconference hearing in January 2013. However, the Veteran failed to appear. The Veteran has not presented a reason for his failure to appear, nor has he requested rescheduling of the hearing. Therefore, his request for a Board hearing is deemed withdrawn. See 38 C.F.R. § 20.704(d) (2012). A review of the Veteran's Virtual VA electronic claims file reveals no additional records. In the Veteran's representative's July 2012 statement in support of appeal, the representative raised this issues of entitlement to service connection for tinnitus and for left lobectomy scarring. As these matters are not currently before the Board, they are referred to the RO for additional development. 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 issue of entitlement to a rating in excess of 60 percent for residuals of a left lobectomy is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. Prior to September 15, 2011, the Veteran's bilateral hearing loss disability was manifested by level IX hearing in each ear. 2. Prior to September 15, 2011, the Veteran's service-connected disabilities did not render him unable to secure or follow a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 60 percent for bilateral hearing loss disability, prior to September 15, 2011, have not been met. 38 U.S.C.A. § 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.10, 4.85, 4.86, Diagnostic Code 6100 (2012). 2. The criteria for the award of a TDIU prior to September 15, 2011, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. The Veterans Claims Assistance Act The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012)) redefined VA's duty to assist the Veteran in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Under the VCAA, VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must request that the claimant provide any evidence in his possession that pertains to the claim. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004); 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). The United States Court of Appeals for Veterans Claims (Court) has also held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 1) Veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In an August 2011 pre- rating letter, the RO notified the Veteran of the evidence needed to substantiate the claim for an increased rating for bilateral hearing loss and the claim for TDIU. This letter also satisfied the second and third elements of the duty to notify by delineating the evidence VA would assist in obtaining and the evidence it was expected that he would provide. Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002); Charles v. Principi, 16 Vet. App. 370 (2002). The Veteran has substantiated his status as a veteran. The Veteran was notified of all other elements of the Dingess notice, including the disability rating and effective date elements of his claim, in the August 2011 letter. The Board further finds that VA has complied with the duty to assist by aiding the appellant in obtaining evidence. In this case, VA obtained the Veteran's service treatment records and all of the identified post-service private and VA treatment records. While he was provided an opportunity to provide testimony at a Board hearing, he failed to appear. The Veteran was also provided with VA examinations in April 2010, October 2010, September 2010, and September 2011 as to his disabilities on appeal and his claim for a TDIU. As these examinations were based on review of the Veteran's symptoms and complaints regarding his ability to work, and discuss his hearing loss disability in relation to the pertinent rating criteria, they are adequate for adjudication purposes. For the reasons set forth above, the Board finds that VA has complied with the VCAA's notification and assistance requirements. The claims on appeal are thus ready to be considered on the merits. II. Bilateral Hearing Loss Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Where, as here, entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Here, as explained below, a uniform 60 percent rating for the period on appeal is warranted. The Veteran's service-connected bilateral hearing loss is rated as 60 percent disabling for the period prior to September 15, 2011, pursuant to 38 C.F.R. § 4.85, Diagnostic Code 6100. Under the rating criteria, the method for rating bilateral hearing loss disability is based on examination results including a controlled speech discrimination test (Maryland CNC), and a pure tone audiometric test of pure tone decibel thresholds at 1000, 2000, 3000, and 4000 Hz with an average pure tone threshold obtained by dividing these thresholds by four. 38 C.F.R. § 4.85. Once these test results have been obtained, employing Table VI, a Roman numeral designation of auditory acuity level for hearing impairment is ascertained based on a combination of the percent of speech discrimination and pure tone threshold average. Once a Roman numeral designation of auditory acuity level for each ear has been determined, Table VII is used to determine the percentage evaluation for bilateral hearing loss by combining the Roman numeral designations of auditory acuity level for hearing impairment of each ear. 38 C.F.R. § 4.85. There is an alternative method of rating hearing loss in defined instances of exceptional hearing loss. Exceptional hearing exists when the pure tone threshold at the frequencies of 1000, 2000, 3000, and 4000 Hertz is 55 decibels or more; or where the pure tone threshold is 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz. See 38 C.F.R. § 4.86. On VA examination in September 2010, the Veteran complained of bilateral hearing loss that impacted his ability to work. On audiological evaluation pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 RIGHT 75 100 105 105 LEFT 75 80 80 80 Speech audiometry revealed speech recognition ability of 40 percent in the left ear. The examiner noted that the Veteran's right ear speech recognition ability was too unreliable to score. She indicated that only puretone thresholds should be used for the right ear for rating purposes since the speech recognition score was too unreliable to score. The examiner diagnosed moderately severe to profound sensorineural hearing loss at 500 Hertz to 8000 Hertz in the right ear and severe to profound sensorineural hearing loss at 500 Hertz to 8000 Hertz in the left ear. With respect to functional impact, the examiner noted that the Veteran reported having significant hearing difficulties in general conversations with others. He lived with his son, who was present at the examination. The son indicated that the Veteran had difficulties hearing family members. The Veteran noted that he heard better when speakers were near his left ear and when the speaker was directly in front of him in view. He reported that he was unable to hear speakers on his state-issued amplified phone and he did not understand speakers on television. The examiner concluded that, based on examination findings, the Veteran would have significant hearing difficulties in noisy environments, hearing speakers on the phone, and hearing certain speakers in general even with hearing aids. The examiner noted that the Veteran did answer her questions on examination during the history interview in a quiet environment with mild difficulties. The examiner opined that the Veteran's hearing loss would not hinder the average person from obtaining and maintaining gainful employment, as most occupations do not set out physical requirements for hearing, with exceptions such as law enforcement, firefighters, and pilots. Using Table VI, the Veteran's September 2010 examination results revealed level IX hearing in the left ear. Given that the Veteran's right ear speech discrimination score was unreliable, Table VIA is for application to determine the numeric designation of hearing impairment. See 38 C.F.R. § 4.85(c). Using Table VIA for the right ear, level IX hearing impairment was shown. Combining these levels according to Table VII results in a 60 percent rating. Given that the frequencies of 1000, 2000, 3000, and 4000 Hertz were 55 decibels or more on examination, the Board must also considered whether the Veteran is entitled to a higher rating under Table VIA. Use of Table VIA results in level IX hearing in the right ear and level VII hearing in the left ear, which combined results in a 50 percent rating. Consequently, it is not to the Veteran's advantage to rate his hearing loss as an exceptional pattern of hearing loss for this examination, as a 60 percent rating is otherwise warranted. On VA examination in September 2011, the Veteran reported that he had difficulty hearing in all situations, but indicated that his left hearing aid did help him a lot. On audiological evaluation pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 RIGHT 70 100 105 105+ LEFT 70 90 85 85 Speech audiometry revealed speech recognition ability of 0 percent in the right ear and 32 percent in the left ear. The examiner noted that there was no language or other barriers noted during the examination. She found the combined use of pure tone and speech recognition data to be appropriate in this case. She diagnosed severe to profound sensorineural hearing loss in the right ear and severe sensorineural hearing loss in the left. The examiner noted that the Veteran had severe to profound hearing loss with poor word understanding in a quiet environment for both ears. He stated that he did have a hearing aid for the left ear and did report that the hearing aid was beneficial to him. He did not wear a hearing aid in the right ear due to the degree of loss and very poor understanding in the right ear. The examiner commented that the Veteran was able to follow directions and answer all questions correctly during the examination, which was in a quiet room with face-to-face conversation. She found that the Veteran would be able to be employed in a quiet setting with face-to-face contact and written instruction for additional help. In her opinion, hearing loss, when considered without regard to other disabilities, does not render an individual unable to perform all types of sedentary and physical types of employment. Using Table VI, the Veteran's September 2011 examination results revealed level XI hearing in the each ear. Combining these levels according to Table VII results in a 100 percent rating. The above evidence reflects that application of the rating schedule to the numeric designations assigned based on valid audiological examination report in September 2011, the Veteran clearly met the criteria for a 100 percent rating at that time. However, with respect to the period prior to September 15, 2011, the valid audiological examination report indicates that the appropriate rating for the bilateral hearing loss is 60 percent for this period. The Veteran did not meet the criteria for a higher rating during any discrete period involved in this appeal. In reaching this determination, the Board has considered whether one examination was more thorough that the other, versus a change in pure tone results. We conclude that the tested pure tone results demonstrate an actual change. Furthermore, the speech results also reflect a change from unreliable results to reliable results. The Veteran's lay statements regarding his hearing difficulties including hearing telephone conversation and the television, but these statements are inadequate to establish that he meets the requisite criteria under VA's Schedule for Rating Hearing Impairment for a higher rating. In this regard, disability ratings for hearing loss are derived from a mechanical application of the rating schedule to the numeric designations resulting from audiometric testing as set out above. 38 C.F.R. § 4.85; see also Lendenman v. Principi, 3 Vet. App. 345 (1992). As such, the Veteran is not entitled to a rating in excess of 60 percent for bilateral hearing loss for the period prior to September 15, 2011. As to consideration of referral for an extraschedular rating, such consideration requires a three-step inquiry. See Thun v. Peake, 22 Vet. App. 111 (2008), aff'd sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The first question is whether the schedular rating adequately contemplates the Veteran's disability picture. Thun, 22 Vet. App. at 115. If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. If the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, then the second inquiry is whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as governing norms. If the Veteran's disability picture meets the second inquiry, then the third step is to refer the case to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether an extraschedular rating is warranted. The discussion above reflects that the symptomatology associated with the Veteran's disabilities is fully contemplated by the applicable rating criteria. The symptomatology reported by the Veteran and shown on examination is contemplated by the rating criteria used to assign disability evaluations, and there is no characteristic or manifestations shown that is outside the purview of the applicable rating criteria or is so exceptional as to render the criteria in applicable. All potentially relevant rating codes have been considered and evaluated. Consideration of whether the Veteran's disability picture exhibits other related factors such as those provided by the regulations as "governing norms" is therefore not required. In any event, the Veteran did not claim, and the evidence does not reflect, that there has been marked interference with employment rather than a general impact on employment, frequent hospitalization, or that the Veteran's symptoms have otherwise rendered impractical the application of the regular schedular standards. The evidence of record certainly shows that the Veteran's disabilities have impacted his ability to work. However, the level of interference shown is contemplated by the numerous disability evaluations already assigned to the Veteran's disorders. Therefore, referral for consideration of an extraschedular rating for bilateral hearing loss appeal is not warranted. 38 C.F.R. § 3.321(b)(1). For the foregoing reasons, the Board concludes that there is no basis for additional staged rating of the Veteran's bilateral hearing, as his symptoms have been primarily the same throughout the appeal period prior to September 15, 2011. III. TDIU Total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. If the total rating is based on a disability or combination of disabilities for which the Schedule for Rating Disabilities provides an evaluation of less than 100 percent, it must be determined that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age. 38 C.F.R. § 3.341. In evaluating total disability, full consideration must be given to unusual physical or mental effects in individual cases, to peculiar effects of occupational activities, to defects in physical or mental endowment preventing the usual amount of success in overcoming the handicap of disability and to the effects of combinations of disability. 38 C.F.R. § 4.15. If the schedular rating is less than total, a total disability evaluation can be assigned based on individual unemployability if a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disability, provided that he has one service-connected disability rated at 60 percent or higher; or two or more service-connected disabilities, with one disability rated at 40 percent or higher and the combined rating is 70 percent or higher. 38 C.F.R. § 4.16(a). For the purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, (2) disabilities resulting from common etiology or a single accident, (3) disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal neuropsychiatric, (4) multiple injuries incurred in action, or (5) multiple disabilities incurred as a prisoner of war. Id. It is provided further that the existence or degree of non-service-connected disabilities or previous unemployability status will be disregarded where the percentages referred to above for the service-connected disability or disabilities are met and, in the judgment of the rating agency, such service-connected disabilities render a veteran unemployable. Id. Marginal employment shall not be considered substantially gainful employment. For purposes of 38 C.F.R. § 4.16, marginal employment generally shall be deemed to exist when a Veteran's earned annual income does not exceed the amount established by the U.S. Department of Commerce as the poverty threshold for one person. Marginal employment may also be held to exist, on a facts found basis (includes but is not limited to employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold. Consideration shall be given in all claims to the nature of the employment and the reason for termination. Id. A veteran's service-connected disabilities, alone, must be sufficiently severe to produce unemployability. Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). In determining whether unemployability exists, consideration may be given to a veteran's level of education, special training, and previous work experience, but not to his or her age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. A veteran's employment history, his or her educational and vocational attainment, as well as his or her particular physical disabilities are to be considered in making a determination on unemployability. In order for a veteran to prevail in his claim for TDIU, the record must reflect circumstances, apart from non-service-connected conditions, that place him or her in a different position than other veterans who meet the basic schedular criteria. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment. The ultimate question is whether the veteran, in light of his or her service-connected disorders, is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. See Van Hoose v. Brown, 4 Vet. App. 361 (1993). In the present case, with respect to the period prior to September 15, 2011, the Veteran is in receipt of service connection for bilateral hearing loss, rated as 60 percent disabling, residuals of left lobectomy, rated as 60 percent disabling, and residuals of a fracture of the right 5th finger, rated as noncompensable. His combined rating for this period was 80 percent. A review of the evidence of record shows that the Veteran was previously employed in plumbing. On his VA Form 21-8940, Application for Increased Compensation Based Upon Unemployability, the Veteran reported that he last worked in 1984. The Veteran also indicated that he completed grade school education, but had not had any additional training or education. On VA respiratory examination in April 2010, the examiner noted that the Veteran's residual of left lung lobectomy would impact his usual occupation and caused work problems in that he would need to be assigned different work duties due to decreased mobility and lack of stamina. The examiner also noted that the disability impacted daily activities such as daily chores and recreation and prevented exercise and sports. On VA examination in October 2010, the examiner noted that the Veteran retired in 1983 due to age or duration of work. The Veteran denied any problems with the right 5th finger. After physical examination, the examiner determined that this service-connected disability posed no significant effects on usual occupation or daily activities. As regards the service-connected residuals of left lobectomy, the Veteran reported that he experienced marked increase in shortness of breath and had one episode of bronchitis that required antibiotic treatment. The examiner noted that the resulting impact of the disability on work would be assignment of different duties, as the disability caused decreased mobility, problems with lifting and carrying, and lack of stamina. The disability also caused moderate impact on daily chores, recreation, travel and shopping and prevented exercise and sports. The examiner noted that the service-connected disability of residuals of fracture of the right 5th finger would not impact employment requiring physical or sedentary roles. As regards the residuals of left lobectomy, the examiner noted that while this disability would prevent employment in physically demanding roles at any level, it would not preclude employment in predominantly sedentary roles such as a telephone representative, customer service, office or clerical work, data entry, or retail sales with limited walking. On VA audiometry examination in September 2010, the examiner concluded that, based on examination findings, the Veteran would have significant hearing difficulties in noisy environments, hearing speakers on the phone, and hearing certain speakers in general even with hearing aids. The examiner noted that the Veteran did answer her questions on examination during the history interview in a quiet environment with mild difficulties. The examiner opined that the Veteran's hearing loss would not hinder the average person from obtaining and maintaining gainful employment, as most occupations do not set out physical requirements for hearing, with exceptions such as law enforcement, firefighters, and pilots. On VA examination in September 2011, the examiner determined that the Veteran's residuals of left lobectomy would not prevent employment in predominantly sedentary roles such as data entry, telephone sales/representative, or clerical or office however. However, she noted that he would need frequent breaks and it was doubtful he would have the stamina for a full-time position. On September 2011 VA audiology examination, the examiner found that the Veteran would be able to be employed in a quiet setting with face-to-face contact and written instruction for additional help. In her opinion, hearing loss, when considered without regard to other disabilities, does not render an individual unable to perform all types of sedentary and physical types of employment. After considering the totality of the record, the Board finds the preponderance of the evidence establishes that the Veteran's service-connected disabilities do not render him unable to secure or follow a substantially gainful occupation. Rather, the evidence shows that while the Veteran's service-connected disabilities certainly impacted or limited his work duties and performance, they did not prevent him from employment in a variety of fields. Treatment records and VA examinations also reflect that the Veteran has a positive history for a number of other non-service connected disability including myocardial infarction, hypertension, and congestive heart failure. While the Veteran has offered general contentions that he is no longer employable due to his service-connected disabilities, the Board finds the probative weight of these lay assertions to be less than that of the VA medical opinions which have described the Veteran as employable. In the absence of probative evidence to the contrary, other than the Veteran's own contentions, a TDIU must be denied by the Board. For the foregoing reasons, the preponderance of the evidence is against the claim for a TDIU prior to September 15, 2011. The benefit of the doubt doctrine is therefore not for application, and the claim must be denied. ORDER Entitlement to a rating in excess of 60 percent for bilateral hearing loss prior to September 15, 2011, denied. Entitlement to a TDIU prior to September 15, 2011, is denied. REMAND The Board's review of the claims file reveals that additional development on the remaining claims is warranted. The Veteran's service-connected residuals of a left lobectomy is rated as 60 percent disabling under the provisions of 38 C.F.R. § 4.97, Diagnostic Code 6844, post-surgical residuals of lobectomy. This Diagnostic Code provides that the disability is to be rated under the General Rating Formula for Restrictive Lung Disease. Under this formula, a 100 percent rating is assigned for findings that show FEV-1 less than 40 percent of predicted value, or; the ratio of forced expiratory volume in one second to forced vital capacity (FEV-1/FVC) less than 40 percent, or; diffusion capacity of the lung for carbon monoxide by single breath method (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 cardio-respiratory limit). In this case, the Veteran was afforded a VA examination in April 2010 to determine the severity of his residuals of a left lobectomy. While the examiner performed pulmonary function tests and reported the scores for FVC, FEV- 1 and FEV- 1/FVC, there is no indication that testing for DLCO (SB) was performed. The examiner also did not comment as to whether the maximum exercise capacity was less than 15 ml/kg/min oxygen consumption (with cardiac or respiratory limitation). These findings are necessary to determine whether the Veteran is entitled to a higher rating. Under these circumstances, the Board finds that a more contemporaneous examination with medical findings responsive to the applicable criteria for rating the disability under consideration is needed. See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. See also Green v. Derwinski, 1 Vet. App. 121, 124 (1991) (VA has a duty to provide a veteran with a thorough and contemporaneous medical examination). Accordingly, the case is REMANDED for the following action: (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. The RO/AMC should send to the Veteran and his representative a letter requesting that the Veteran provide sufficient information, and if necessary, authorization, to enable it to obtain any additional evidence pertinent to the claim for increased rating for residuals of left lobectomy. If the Veteran identifies any other pertinent medical records that have not been obtained, the RO/AMC should undertake appropriate development to obtain a copy of those records. If the RO or the AMC is unsuccessful in its efforts to obtain any such evidence, it should so inform the Veteran and his representative and request them to submit the outstanding evidence. 2. Then, the RO/AMC should schedule the Veteran for an appropriate VA examination to determine the nature and severity of the service-connected residuals of a left lobectomy. The entire claims file must be made available to the examiner designated to examine the Veteran. All indicated tests and studies should be accomplished, and all clinical findings should be reported in detail. The examiner should report FEV-1 percent predicted; FEV-1/FVC percent; DLCO (SB) predicted; and, maximum oxygen consumption in ml/kg/min (with cardiorespiratory limit). If any of the above cannot be measured, the examiner may provide an estimate of the value that would likely be obtained if the test were provided. The examiner should comment on whether there is cor pulmonale; right ventricular hypertrophy; pulmonary hypertension (shown by Echo or cardiac catheterization); episodes of acute respiratory failure; or, requires outpatient oxygen therapy. The examiner should set forth all examination findings, along with the complete rationale for any conclusions reached 3. The RO/AMC should undertake any additional development deemed warranted. 4. Then, the RO/AMC should readjudicate the Veteran's claim. If the benefits sought on appeal are not granted, the Veteran and her representative should be provided a Supplemental Statement of the Case and afforded the requisite opportunity to respond before the case is returned to the Board. 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). 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). ______________________________________________ H. N. SCHWARTZ ` Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs