Citation Nr: 1315593	
Decision Date: 05/10/13    Archive Date: 05/15/13

DOCKET NO.  11-11 827A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina


THE ISSUES

1.  What evaluation is warranted for bilateral hearing loss from December 6, 2010 to September 17, 2012?

2.  What evaluation is warranted for bilateral hearing loss from September 18, 2012?

3.  What evaluation is warranted for asbestos lung disease from September 11, 2009 to April 6, 2010?

4.  What evaluation is warranted for asbestos lung disease since April 7, 2010?

5.  What evaluation is warranted for diabetes mellitus from September 11, 2009?

6.  Entitlement to a total evaluation based on individual unemployability due to service-connected disabilities prior to March 28, 2010.



REPRESENTATION

Appellant represented by:	North Carolina Division of Veterans Affairs


ATTORNEY FOR THE BOARD

S. Mishalanie, Counsel


INTRODUCTION

The Veteran served on active duty from October 1953 to July 1959 and July 1960 to August 1973.  

These matters initially came before the Board of Veterans' Appeals (Board) on appeal from rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina.  In August 2012, the Board remanded the claims for additional development.

In addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claim.  The Virtual VA file has been reviewed in conjunction with the disposition of the issues on 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 questions what evaluation is warranted for asbestos lung disease from April 7, 2010, and entitlement to a total evaluation based on individual unemployability prior to March 28, 2010, are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.


FINDINGS OF FACT

1.  From December 6, 2010 to September 17, 2012, the evidence does not demonstrate a combined numeric designation of hearing loss based on puretone threshold averages and speech discrimination which would warrant a higher evaluation.

2.  From September 18, 2012, audiometric testing revealed no greater than a level II right ear hearing loss, and no greater than a level VIII left ear hearing loss.

3.  From September 11, 2009 to April 6, 2010, the Veteran's service-connected asbestos lung disease was not manifested by Forced Vital Capacity (FVC) less than 65 percent of the predicted value or Diffusion Capacity of the Lung for Carbon Monoxide by the Single Breath Method (DLCO (SB)) less than 56 percent of predicted value.

4.  From September 11, 2009, diabetes mellitus, type II requiring insulin and restricted diet, or oral hypoglycemic agent and restricted diet is not demonstrated. 


CONCLUSIONS OF LAW

1.  From December 6, 2010 to September 17, 2012, the criteria for a compensable initial evaluation for bilateral hearing loss were not met.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.385, 4.1, 4.2, 4.7, 4.85, 4.86, Diagnostic Code 6100 (2012).

2.  From September 18, 2012, the criteria for an initial evaluation in excess of 10 percent for bilateral hearing loss have not been met.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.385, 4.1, 4.2, 4.7, 4.85, 4.86, Diagnostic Code 6100.

3.  From September 11, 2009 to April 6, 2010, the criteria for an initial evaluation in excess of 30 percent for asbestos lung disease were not met.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.7, 4.96, 4.97, Diagnostic Code 6833 (2012).

4.  From September 11, 2009, the criteria for an initial evaluation in excess of 10 percent for diabetes mellitus, type II have not been met.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107; C.F.R. §§ 3.159, 4.1, 4.2, 4.7, 4.119, Diagnostic Code 7913 (2012). 


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Duties to Notify and Assist

Because service connection, initial ratings, and effective dates have been assigned, the notice requirements of the Veterans Claims Assistance Act (VCAA), 38 U.S.C.A. § 5103(a) have been met.  Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007).  Consequently, discussion of VA's compliance with VCAA notice requirements as they relate to the increased rating claims would serve no useful purpose.

VA fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate the claims, and as warranted by law, affording VA examinations.  The Board notes that the September 2012 VA audiology examiner indicated that the puretone threshold test results were invalid because the Veteran was unable to provide responses in accordance with speech reception thresholds due to cognitive abilities despite repeated instruction.  (VA outpatient treatment records indicate that the Veteran has Alzheimer's type dementia).  The examiner indicated that the results were significantly worse than the results from less than a year ago, suggesting that his reported hearing loss was worse than his actual hearing loss.  In any event, as will be explained below, even assuming the test results are valid for rating purposes, a higher evaluation is not warranted.  Furthermore, because of the Veteran's cognitive abilities, remand for additional testing is unlikely to render valid results.  Therefore, the Board will evaluate the disability based on the existing evidence.  

Regarding asbestos lung disease and diabetes mellitus, the Board finds that the examinations are adequate to make a determination on the issues addressed herein on the merits.

In sum, there is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication.  38 C.F.R. § 3.159(c).

Analysis

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 her 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 (2012).  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 rating will be assigned.  38 C.F.R. § 4.7 (2012).

Where the claimant has expressed dissatisfaction with the assignment of an initial rating following an initial award of service connection for that disability, separate ratings can be assigned for separate periods of time based on the facts found - a practice known as "staged" ratings.  Fenderson v. West, 12 Vet. App. 119 (1999). 

Bilateral Hearing Loss

In a March 2010 rating decision, the RO granted service connection and assigned an initial noncompensable rating for bilateral hearing loss effective September 11, 2009.  In an August 2012 decision, the Board denied entitlement to a compensable rating for bilateral hearing loss from September 11, 2009 to December 5, 2010.  The Board remanded the issue of what evaluation is warranted for bilateral hearing loss from December 6, 2010.  In a March 2013 rating decision, the AMC awarded a higher 10 percent rating for bilateral hearing loss effective September 18, 2012.

Evaluations of defective hearing are based on organic impairment of hearing acuity as measured by the results of controlled speech discrimination testing together with the average hearing threshold level as measured by pure tone audiometric tests in the frequencies 1,000, 2,000, 3,000 and 4,000 Hertz.  38 C.F.R. § 4.85, Diagnostic Code 6100.  

To evaluate the degree of disability from defective hearing, the rating schedule requires assignment of a Roman numeral designation, ranging from I to XI. Other than exceptional cases, VA arrives at the proper designation by mechanical application of Table VI, which determines the designation based on results of standard test parameters.  Id.  Table VII is then applied to arrive at a rating based upon the respective Roman numeral designations for each ear.  Id.  See generally Lendenmann v. Principi, 3 Vet. App. 345, 349 (1993) (the assignment of a disability rating for hearing loss is a "mechanical" process of comparing the audiometric evaluation to the numeric designations in the rating schedule). 

An exceptional pattern of hearing loss occurs when the pure tone threshold at 1000, 2000, 3000, and 4000 Hertz is 55 decibels or more, or when the pure tone threshold is 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz.  38 C.F.R. § 4.86.  In exceptional pattern cases, the rating specialist will determine the Roman Numeral designation for hearing impairment from either Table VI or Table VIA, whichever results in the higher numeral. 

In Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007), the United States Court of Appeals for Veterans Claims (Court) held that, relevant to VA audiological examinations a VA audiologist must fully describe the functional effects caused by a hearing disability in his or her final report.  In this regard, the September 2012 VA examiner described the functional effects of the Veteran's hearing loss.

A December 2010 VA audiology consultation note reflects the Veteran's complaints of decreased hearing and difficulty hearing others during conversation.  Audiometric pure-tone testing for the right ear revealed essentially normal hearing from 250 to 2,000 Hertz, and a sloping to a mild to severe sensorineural hearing loss from 3,000 to 8,000 Hertz.  Results for the left ear revealed essentially normal hearing from 250 to 1,000 Hertz, and a sloping to a mild to severe sensorineural hearing loss from 2,000 to 8,000 Hertz.  Word recognition scores were 96 percent for the right ear and 92 percent for the left ear.  The audiologist indicated that the Veteran would benefit from hearing amplification and hearing aids were ordered.

A December 2011 VA audiology note reflects that the Veteran was seen for a routine follow up.  Right ear test results revealed normal hearing from 250 to 500 Hertz with mild sloping to profound sensorineural hearing loss from 1,000 to 8,000 Hertz.  Left ear test results revealed normal hearing at 250 Hertz with mild sloping to severe sensorineural hearing loss from 500 to 8,000 Hertz.  Word recognition scores were judged to be excellent at 96 percent.  The impression was hearing loss consistent with that documented at the last evaluation with no significant threshold or word recognition change.  It was noted that the Veteran would benefit from continued use of hearing aids.  

At the September 18, 2012 VA audiological evaluation, pure tone thresholds, in decibels, were as follows:


HERTZ

A
1000
B
2000
C
3000
D
4000
A+B+C+D
AVG.
RIGHT
45
65
70
75
63.75
LEFT
75
85
95
105
90

Maryland CNC Word List Speech Recognition testing revealed a speech recognition score of 96 percent in the right ear and a score of 56 percent in the left ear.  Regarding functional impairment, it was noted that the Veteran had a hard time communicating with others in a quiet or noisy environment without his hearing aids.  

The examiner opined that the puretone test results were not valid for rating purposes because the Veteran was unable to provide responses in accordance with speech reception thresholds due to cognitive abilities even after repeated instruction.  The examiner indicated that the thresholds obtained were significantly worse than those obtained less than a year ago in December 2011.  The Veteran's wife also reported that the appellant was having significant cognitive difficulty, and as noted VA treatment records indicate that he has Alzheimer's type dementia.  

Despite the examiner's opinion that the test results were not valid for rating purposes, the AMC awarded a 10 percent rating for bilateral hearing loss based on the September 18, 2012 audiometric results.  Application of the September 2012 results to Table VI in 38 C.F.R. § 4.85 yields findings of Level II hearing in the right ear and Level VIII hearing in the left ear.  Application of these findings to Table VII reveals a 10 percent rating.  38 C.F.R. § 4.85, Diagnostic Code 6100.  An exceptional pattern of hearing impairment was shown in the left ear pursuant to 38 C.F.R. § 4.86; however, application of the results to Table VIA yields the same findings of Level VIII hearing in the left ear.  Thus, with respect to the left ear, it does not matter whether Table VI or Table VIA is applied.  An exceptional pattern of hearing impairment was not shown in the right ear.  

Considering the objective evidence of record, findings on VA examination on September 18, 2012 correspond to a 10 percent evaluation under Table VII.  At no time prior to September 18, 2012 does the evidence provide a basis to conclude that a compensable evaluation was warranted.  

Asbestos Lung Disease

In a July 2010 rating decision, the RO granted entitlement to service connection and assigned an initial 10 percent rating for asbestos lung disease effective September 11, 2009.  The Veteran appealed the initial evaluation assigned.  In the April 2011 statement of the case, the RO increased the evaluation to 30 percent effective September 11, 2009.  Although the RO did not issue a separate rating decision specific to the 30 percent increase for asbestos lung disease, the increased evaluation was noted on a corresponding rating code sheet that was issued with that statement of the case.  

The Veteran's asbestosis is rated under 38 C.F.R. § 4.97, Diagnostic Code 6833 for asbestosis, which in turn is evaluated under the General Rating Formula for Interstitial Lung Disease.  Under General Rating Formula, a 30 percent rating is warranted for FVC of 65 to 74 percent predicted, or a DLCO (SB) of 56 to 65 percent predicted.  

A 60 percent evaluation 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 cardiorespiratory limitation.  Id.

These criteria are disjunctive.  See Johnson  v. Brown, 7 Vet. App. 95 (1994) (finding only one disjunctive "or" requirement must be met in order for an increased rating to be assigned).  Furthermore, the rating criteria contemplate pulmonary function test results post-therapy, which is the standard basis for comparison of pulmonary function.  See 38 C.F.R. § 4.96(d)(5) .

If the DLCO (SB) test is not of record, evaluation may be based on alternative criteria as long as the examiner states why that test would not be useful or valid in a particular case.  38 C.F.R. § 4.96(d)(2). When the pulmonary function tests are not consistent with clinical findings, evaluation is based on the pulmonary function tests unless the examiner states why they are not a valid indication of respiratory functional impairment in a given case.  38 C.F.R. § 4.96(d)(3).  Post-bronchodilator studies are required when pulmonary function tests are done for disability evaluation purposes except when the results of pre-bronchodilator pulmonary function tests are normal or when the examiner determines that post-bronchodilator tests should not be done and states why.  38 C.F.R. § 4.96(d)(4) .

When evaluating based on pulmonary function tests, post-bronchodilator results are used in applying evaluation criteria in the rating schedule unless the post-bronchodilator results were poorer than the pre- bronchodilator results, in which case the pre-bronchodilator values are used for rating purposes.  38 C.F.R. § 4.96(d)(5).  When there is a disparity between the results of different pulmonary function tests forced expiratory volume in one second (FEV-1) and FVC, so that the level of evaluation would be different depending on which test result is used, the test result is used that the examiner states most accurately reflects the level of disability.  38 C.F.R. § 4.96(d)(6).

For the period from September 11, 2009 to April 6, 2010, the evidence preponderates against entitlement to an evaluation higher than 30 percent for asbestos lung disease.  

Indeed, during this time period, the claims file does not contain any pulmonary function test findings until the April 2010 VA examination.  Prior to September 2009, a private March 2009 pulmonary function test revealed that FVC was 97 percent pre-bronchodilator and 102 percent post-bronchodilator.  DLCO (SB) was 64 percent of the predicted value.  The DLCO results most closely approximate a 30 percent rating under the General Rating Formula.  

A September 2009 private radiological report indicates that the Veteran had stable asbestos lung disease with previous probable left lower lobe lobectomy and no evidence of acute disease.  

A March 2010 private treatment record from Dr. Gallaher reflects that the Veteran was having trouble breathing and was being treated with Combivent.  It was noted that his lungs were clear and chest X-rays were stable with nonspecific findings.  

VA outpatient treatment records during this time period reflect that the Veteran's lungs were clear to auscultation.  

The report of an April 6, 2010 VA examination reflects the Veteran's complaints of cough with sputum, night sweats, pain or discomfort over the chest area on exertion, labored breathing, oxygen level drops, headaches, lack of energy, and increase in heart rate.  On physical examination, breath sounds were symmetric without rhonchi or rales.  The expiratory phase was within normal limits.  Pulmonary function testing revealed that FVC was 94 percent of the predicted value pre- and post- bronchodilator; DLCO was normal at 74 percent of the predicted value.  X-rays showed stable asbestos lung disease.  The examiner indicated that the effect of the disorder on the appellant's occupation was increased stress, an inability to do outdoor chores, and shortness of breath with exertion which affected his ability to think.  

Based on the foregoing, the Board finds that entitlement to a 60 percent rating for asbestos lung disease is not warranted.  At no time from September 11, 2009 through April 6, 2010, did pulmonary function testing show that FVC was less than 65 percent of the predicted value, or that DLCO was less than 56 of the predicted value.  The Board notes that maximum exercise capacity was not tested during this period, therefore the condition must be evaluated on alternative criteria.  38 C.F.R. 4.96(d)(i).  The Board also notes that there is no evidence of cor pulmonale or pulmonary hypertension and the Veteran has not required outpatient oxygen therapy.  In sum, the evidence indicates that an initial evaluation in excess of 30 percent rating is not warranted for asbestos lung disease from September 11, 2009 to April 6, 2010.  

Diabetes Mellitus

In a March 2010 rating decision, the RO granted entitlement to service connection and assigned an initial 10 percent rating for diabetes mellitus effective September 11, 2009.  

Diabetes mellitus is evaluated pursuant to 38 C.F.R. § 4.119, Diagnostic Code 7913.  Pursuant to the rating schedule, diabetes mellitus that is manageable by restricted diet only warrants a 10 percent rating.  38 C.F.R. § 4.119, Diagnostic Code 7913.  To warrant a higher 20 percent rating, diabetes mellitus must require insulin and restricted diet, or oral hypoglycemic agent and restricted diet.  Id.. 

The rating criteria for diabetes are successive and consideration of 38 C.F.R. § 4.7 is not required.  See Camacho v. Nicholson, 21 Vet. App. 360, 366 (2007).  "Successive" rating criteria is where the evaluation for each higher disability rating includes the criteria of each lower disability rating, such that if a component is not met at any one level, the Veteran can only be rated at the level that does not require the missing component.  Tatum v. Shinseki, 23 Vet. App. 152, 156 (2008). 

In an October 2009 Physician's Statement for Diabetes, Dr. Crisp indicated that the Veteran's diabetes was manageable by restricted diet only.  

VA outpatient treatment records reflect that the Veteran's diabetes mellitus was controlled with diet and that he did not require insulin or hypoglycemic agents.  In February 2011, it was noted that the appellant had abnormal glucose levels and an A1c study was ordered.  The physician noted that consideration would be given to starting the Veteran on Metformin if the results came back elevated, but subsequent records dated in December 2011 and July 2012 indicate that the appellant had borderline diabetes mellitus that he was controlling with diet.  Hypoglycemic agents were not prescribed.

The report of a September 2012 VA examination reflects that the Veteran's diabetes mellitus was managed by restricted diet only.  He did not require insulin or oral hypoglycemic agents.  The examiner opined that the Veteran's erectile dysfunction and cardiac disorder were at least as likely as not due to diabetes mellitus.  

In this case, the evidence preponderates against finding that a rating in excess of 10 percent is warranted for diabetes mellitus.  The record consistently reflects that the Veteran's diabetes has been managed with restricted diet only, and he has not required insulin or oral hypoglycemic agents.  Furthermore, to the extent the Veteran's erectile dysfunction is related to diabetes mellitus, in a March 2013 rating decision, the AMC assigned a separate noncompensable rating along with special monthly compensation based on loss of use of a creative organ.  Furthermore, in an October 2011 rating decision, the RO granted entitlement to service connection and assigned an initial 60 percent rating for ischemic heart disease from September 11, 2009, and a 100 percent rating from March 28, 2010.  Therefore, to the extent the September 2012 VA examiner indicated that these conditions were due to diabetes mellitus, separate evaluations have been assigned.  See 38 C.F.R. § 4.119, Diagnostic Code 7913, Note (1).  

All Claims

In reaching these decisions, the Board considered the Veteran's lay statements.  Although his nonservice connected cognitive difficulties may impair him in this regard, he is generally competent to report his observations with regard to the severity of his hearing loss, asbestos lung disease, and diabetes mellitus.  See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007).  To the extent he argues his symptomatology is more severe, his statements must be weighed against the other evidence of record.  Here, the specific examination findings of trained health care professionals to be of greater probative weight than the Veteran's general lay assertions.  

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 Veteran's reported symptomatology is reasonably contemplated by the applicable rating criteria.  Regarding hearing loss, the Veteran has described difficulty hearing and communicating in groups or noisy situations without his hearing aids.  The applicable rating criteria contemplate decreased hearing abilities with respect to both puretone thresholds and word recognition.  Regarding asbestos lung disease, the Veteran has primarily described having shortness of breath on exertion, which is contemplated in the applicable rating criteria based on pulmonary function testing.  Regarding diabetes mellitus, the Veteran has not identified any specific symptomatology, however, records reflect that his blood sugar levels are checked and he maintains a restricted diet, but does not require insulin.  Here, the rating criteria reasonably describe the Veteran's disabilities and symptomatology.   Furthermore, the evidence does not reflect that there has been marked interference with employment or frequent hospitalization due to any of the disabilities on appeal.  Hence, the Board finds that the degree of impairment in this case does not rise to the level that application of the regular schedular standards are impractical.  Therefore, referral for consideration of extraschedular ratings is not warranted.  38 C.F.R. § 3.321(b)(1) .

In this case, the Board concludes that entitlement to a compensable rating for bilateral hearing loss is not warranted from December 6, 2010 to September 17, 2012, and that a rating in excess of 10 percent is not warranted from September 18, 2012; that a rating in excess of 30 percent for asbestos lung disease is not warranted from September 11, 2009 to April 6, 2010; and that a rating in excess of 10 percent for diabetes mellitus is not warranted from September 11, 2009.  

In reaching these decisions, the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the appellant's claims, the doctrine is not for application.  Gilbert v. Derwinski, 1 Vet.App. 49 (1990).


ORDER

For the period from December 6, 2010 to September 17, 2012, entitlement to an initial compensable rating for bilateral hearing loss is denied.

For the period from September 18, 2012, entitlement to an initial evaluation in excess of 10 percent for bilateral hearing loss is denied.

For the period from September 11, 2009 to April 6, 2010, entitlement to an initial evaluation in excess of 30 percent for asbestos lung disease is denied.

From September 11, 2009, entitlement to an initial evaluation in excess of 10 percent for diabetes mellitus is denied.


REMAND

Regarding asbestos lung disease, the Board finds that the September 2012 VA examination is inadequate.  Specifically, the examiner did not conduct pulmonary function testing nor did the examiner explain why pulmonary function testing was not required.  As explained above, pulmonary function tests are required to evaluate asbestosis lung disease under Diagnostic Code 6833 except under certain circumstances.  38 C.F.R. § 4.96(d).  The examiner did not indicate whether any exceptions applied in this case and none are apparent from the record.  Hence, a remand is necessary for a VA examination that includes pulmonary function testing or an explanation as to why pulmonary function testing is not required.

The September 2012 VA examiner who conducted the VA examination for the asbestos lung disease opined that the Veteran's respiratory condition impacted his ability to work and that he could no longer work as a mechanic "mainly due to the lungs and heart."  Although the Veteran has been awarded a 100 percent combined evaluation and special monthly compensation pursuant to 38 U.S.C.A. § 1114(k) from March 28, 2010, entitlement to a total evaluation based on individual unemployability is still possible prior to that date.  In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a claim of entitlement to a total disability evaluation based on individual unemployability due to service connected disorders is "part of," and not separate from, a claim of entitlement to an increased rating.  Id. at 453.  While the claim of entitlement to a total disability evaluation based on individual unemployability has not been certified for appeal, in light of the binding precedent set forth in Rice, the Board is compelled to remand this issue. 

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 obtain any outstanding treatment records regarding care for asbestos lung disease dating since July 2012.  Any records obtained must be associated with the Veteran's claims folder.  If the RO cannot locate any identified record, the RO/AMC must specifically document the attempts that were made to locate them, and explain in writing why further attempts to locate or obtain any government records would be futile.  The RO/AMC must then: (a) notify the claimant of the specific records that it is unable to obtain; (b) explain the efforts VA has made to obtain that evidence; and (c) describe any further action it will take with respect to the claim.  The claimant must be given an opportunity to respond.

2.  Thereafter, the Veteran must be scheduled for a VA pulmonary examination performed by an appropriate examiner to determine the current severity of his asbestos lung disease.  The claims folder and access to Virtual VA must be provided to and reviewed by the examiner prior to the conduct of any requested study.  All indicated tests and studies must be performed, including pulmonary function test studies with all values required under Diagnostic Code 6833 reported.  All clinical findings should be reported in detail.  The results of DLCO(SB) must be specifically reported, and if unobtainable, the reasoning such results are unobtainable should be explained.  The examiner should review the results of any testing prior to completion of the examination report. 

The examiner must address whether the Veteran has: i) cor pulmonale (right heart failure) due to asbestos lung disease, or; ii) pulmonary hypertension, or; iii) whether he requires outpatient oxygen therapy due to asbestos lung disease alone.  Any respiratory impairment caused by a disorder other than asbestos lung disease must be carefully differentiated from that which is caused by asbestos lung disease.  If differentiation is not possible, the examiner must explain why not.  A rationale for any opinion expressed must be provided. 

3.  The Veteran is to be advised in writing that it is his responsibility to report for any VA examination, to cooperate with the development of his claim, and that the consequences for failure to report for a VA examination without good cause include denial of the claim.  38 C.F.R. §§ 3.158, 3.655 (2012).

4.  Thereafter, the RO/AMC must review the claims folders and ensure that the foregoing development actions, as well as any other development that may be in order, has been conducted and completed in full.  The RO/AMC must review the examination report to ensure that it is in complete compliance with the directives of this REMAND.  If the report is deficient in any manner, the RO/AMC must implement corrective procedures at once. 

5.  Then, readjudicate the issue of what evaluation is warranted for asbestos lung disease from April 7, 2010, to include the question of entitlement to a total evaluation based on individual unemployability due to service connected disorders prior to March 28, 2010.  All applicable laws and regulations should be considered.  If any benefit is not granted, the Veteran and his representative should be provided a supplemental statement of the case.  An appropriate period of time should be allowed for response. 

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).

These claims must be afforded expeditious treatment.  The law requires that all claims 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).



______________________________________________
DEREK R. BROWN
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs