Citation Nr: 1314513 Decision Date: 05/02/13 Archive Date: 05/15/13 DOCKET NO. 08-05 146 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to higher initial evaluations for asbestos-related pleural disease than the zero percent rating assigned prior to December 8, 2011, and than the 10 percent evaluation assigned effective December 8, 2011. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD D. Schechter, Counsel INTRODUCTION The Veteran served on active military duty from July 1969 to January 1986. The appeal comes before the Board of Veterans' Appeals (Board) from a May 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois, effectuating the Board's May 2005 grant of service connection for asbestos-related pleural disease, and assigning an initial noncompensable rating for the condition. The Agency of Original Jurisdiction (AOJ) has subsequently changed to the RO in Cleveland, Ohio, based on a change of address of the Veteran. The Board in October 2011 remanded the initial rating claim for additional development. By a July 2012 decision, the Decision Review Officer (DRO) at the Cleveland RO granted an increased evaluation to 10 percent for asbestos-related pleural disease effective December 8, 2011. The case now returns to the Board for further review. 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 Objective findings of absence of attributable asbestos-related pleural disease upon most recent VA examination for compensation purposes and associated pulmonary function testing in December 2011 and January 2012, are consistent with past findings upon prior examination. As the Board noted in its May 2005 decision when it granted service connection for a lung disorder secondary to asbestos exposure (which it characterized as asbestos-related pleural disease), there was arguably not adequate evidence then of current disability. The Board nonetheless then granted service connection. The Board then document medical findings within obtained records as follows: A March 1998 private medical statement from Dr. A. reflects that based on the veteran's record of service aboard ships during service and chest X-rays with findings of bilateral pleural thickening, Dr. A. concluded that the veteran suffered from asbestos-related pleural disease. This physician further indicated that to a responsible degree of medical certainty, the veteran's shipboard exposure to loose asbestos fibers was amply indicative of his present malady being caused by this asbestos exposure. VA chest X-rays from January 1999 were interpreted to reveal pulmonary infiltration in both lower lobes, more prominent on the left side. These results were not noted in X-rays from October 1999. VA chest X-rays from April 2000 were interpreted to reveal findings that suggested old granulomatous disease, but no acute pneumonic infiltrates. VA respiratory examination in April 2000 revealed that X-rays indicated no pulmonary infiltrates, thickening, or plaques. Pulmonary function results were also reviewed, and the impression was history of asbestos exposure without evidence of current cardiorespiratory effect. Early December 2001 VA chest X-rays were found to indicate a very faint right suprahilar density, and further X-rays were suggested. X-rays from later in December 2001 were interpreted to reveal the same density and a very tiny density in the left base. There was also minimal pleural thickening laterally in the mid lung field on the right. The evidentiary record does not reflect any significant treatment or findings addressing the nature and severity of the Veteran's asbestos-related pleural disease in treatment records subsequent to December 2001 and prior to the newly obtained pulmonary function test and VA examination, in December 2011 and January 2012. Upon VA examination for compensation purposes to address his service-connected asbestos-related pleural disease in December 2011, with a supplemental opinion following a January 2012 pulmonary function test, the examiner noted the past history of diagnosed asbestosis, as well as the Veteran's current complaints of chest pressure and dyspnea with worse symptoms in the evenings, unaffected by activity. The Veteran reported that the symptoms had been present for ten years, but were sporadic, adding that they necessitated his sitting down for symptom improvement. The Veteran contended that he quit smoking several years ago, but reported daily cough with mucous production. The examiner noted that the Veteran's respiratory condition did not require parenteral corticosteroid medications, oral bronchodilators, antibiotics, or oxygen therapy. The examiner also found that a chest x-ray obtained in December 2011 was normal. A VA pulmonary function test performed in January 2012 revealed a blood oxygen level in room air of 98 percent. Pre-bronchodilator readings were FVC 4.7, or 91 percent of predicted; FEV1 3.5, or 98 percent of predicted; FEV1/FVC 75 percent. Post-bronchodilator readings were FEV 4.8, or 94 percent of predicted; FEV1 3.6, or 101 percent of predicted; FEV1/FVC 75 percent. Total lung capacity was normal. DLCO was 80 percent and DLVA was 90 percent. The December 2012 VA examiner provided an addendum based on these pulmonary function test findings, assessing a normal study, with no suggestion of any lung disease attributable to exposure to asbestos. The Veteran's authorized representative in a March 2013 Informal Hearing Presentation informed that the Veteran asserted that he was using Flunisolide nasally twice daily, and that this was a steroid used for bronchodilation. The Veteran alleged worsening of the asbestosis with needed use of this nasal spray. The Veteran's treating VA physician in a January 2012 treatment report noted the Veteran's ongoing tobacco abuse, in contradiction of the Veteran's report at the December 2011 examination of his having quit smoking several years earlier. Also in that report, the treating physician informed that the Veteran was frequently using an over-the-counter nasal decongestant spray for nasal congestion. The examiner did not inform that this was for treatment of any asbestos-related respiratory condition. The Veteran's recent contentions as related by his authorized representative in March 2013 present a question of increased severity of disability. Thus, unfortunately, the Board cannot now proceed with adjudication and is compelled to remand the case to obtain additional treatment records and provide an additional VA examination again addressing the current severity of the Veteran's asbestos-related pleural disease. An examination will be requested whenever VA determines, as in this case, that there is a need to verify the severity of a disability. See 38 C.F.R. § 3.159(c)(4) (2012). Accordingly, the case is REMANDED for the following action: 1. Afford the Veteran the opportunity to submit additional evidence or argument in furtherance of the remanded claim. 2. Undertake appropriate development to obtain any outstanding records pertinent to the Veteran's remanded claim, to include any relevant VA treatment records dated from 2001 to present. In particular, all records of treatment by VA physician J.P.Z must be obtained, as well as any other records of treatment for respiratory disorders. 3. Then, afford the Veteran an examination by an examiner with sufficient expertise to determine the nature and severity of his current asbestos-related pleural disease. The claims files and any pertinent evidence in Virtual VA that is not contained in the claims files must be made available to and reviewed by the examiner. Any indicated studies should be performed including pulmonary function tests (FEV-1, FEV-1/FVC, and DLCO(SB)). The RO or the AMC should ensure that the examiner reports all signs and symptoms necessary for rating the Veteran's disability under the rating criteria. The examiner also should include an opinion concerning the impact of asbestos-related pleural disease on the Veteran's ability to work without regard to any other disabilities. The examiner should be directed to accept the Veteran's statements of symptoms only to the extent both that these statements are credible and that there is a medical basis for attributing these symptoms to the claimed asbestos-related pleural disease. In this regard, the examiner should be advised that the Veteran at his prior VA examination in December 2011 apparently provided a false statement concerning tobacco use, asserting that he had quit smoking several years earlier, whereas contemporaneous treatment records including one in January 2012 reflect ongoing tobacco abuse. Thus, the examiner is advised to exercise significant caution about the credibility of any assertions of the Veteran regarding his claimed asbestos-related pleural disease. The rationale for each opinion expressed must also be provided. 4. Undertake any other indicated development. 5. Thereafter, readjudicate the remanded claim. If any benefit sought is not granted to the Veteran's satisfaction, the Veteran and his representative should be provided with a supplemental statement of the case and afforded the appropriate opportunity to respond thereto. 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). _________________________________________________ SARAH B. RICHMOND Acting 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).