Citation Nr: 1321312	
Decision Date: 07/02/13    Archive Date: 07/12/13

DOCKET NO.  06-26 282	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Des Moines, Iowa


THE ISSUES

1.  Entitlement to service connection for a respiratory disability, to include bronchitis, chronic obstructive pulmonary disease (COPD), emphysema, and asbestosis, to include as due to exposure to asbestos during service, and as secondary to service-connected disability. 

2.  Entitlement to an increased rating for service-connected bilateral pneumothorax, spontaneous, with left thoracotomy, currently evaluated as 30 percent disabling. 

3.  Entitlement to a total rating on the basis of individual unemployability due to service-connected disability (TDIU). 

4. Whether new and material evidence has been received to reopen a claim for service connection for bilateral hearing loss.


REPRESENTATION

Appellant represented by:	Disabled American Veterans
ATTORNEY FOR THE BOARD

F. Yankey, Counsel


INTRODUCTION

The Veteran served on active duty from December 1952 to December 1954. 

This matter comes before the Board of Veterans' Appeals (the Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Des Moines, Iowa.  In March 2004, the RO, in pertinent part, denied service connection for bronchitis and COPD, argued as due to service-connected disability, and denied a claim for an increased rating for service-connected bilateral pneumothorax, spontaneous, with left thoracotomy, evaluated as 30 percent disabling.  In October 2006, the RO denied service connection for hearing loss.  In March 2009, the RO denied a claim for a TDIU.  The RO subsequently expanded the scope of the claim for service connection for COPD to include asbestosis and emphysema, to include as due to exposure to asbestos during service.  See supplemental statement of the case, dated in January 2012.  The Board has consolidated and recharacterized the claims for respiratory disabilities as stated on the cover page of this decision.

In September 2012, the Board remanded the case for further development.  The case has been returned to the Board for further appellate action.

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 issues of entitlement to service connection for a respiratory disability and entitlement to a TDIU 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.  VA will notify the appellant if additional action is required on his part.

FINDINGS OF FACT

1.  During the period on appeal, the Veteran's respiratory disorders have been manifested by FEV-1 of 40 to 55 percent predicted and DLCO of 40 to 55 percent predicted; the Veteran's residuals of bilateral pneumothorax, spontaneous, with left thoracotomy, are clinically stable and minimal.  Pulmonary function test results are affected by other lung disorders.  

2.  In an unappealed December 2001 rating decision, the RO denied the Veteran's claim for service connection for bilateral hearing loss.  

3.  The evidence associated with the claims file subsequent to the December 2001 rating decision is cumulative or redundant of the evidence previously of record or is not sufficient to raise a reasonable possibility of substantiating the claim for service connection for bilateral hearing loss.


CONCLUSIONS OF LAW

1.  The criteria for a rating in excess of 30 percent for bilateral pneumothorax, spontaneous, with left thoracotomy, have not been met.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.7, 4.97, Diagnostic Code 6843 (2012). 

2.  New and material evidence has not been received to reopen a claim of entitlement to service connection for bilateral hearing loss.  38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

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) defined VA's duty to assist a 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; and (3) that the claimant is expected to provide.  Pelegrini v. Principi (Pelegrini II), 18 Vet. App. 112, 120-21 (2004), see 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).

VCAA notice in a new and material evidence claim (1) must notify a claimant of the evidence and information that is necessary to reopen the claim and (2) must notify the claimant of the evidence and information that is necessary to establish entitlement to the underlying benefit sought by the claimant.  Kent v. Nicholson, 20 Vet. App. 1 (2006).

The VCAA requires, in the context of a claim to reopen, that VA look at the bases for the denial in the prior decision and to respond with a notice letter that describes what evidence would be necessary to substantiate that element or elements required to establish service connection that were found insufficient in the previous denial.  Therefore, the question of what constitutes material evidence to reopen a claim for service connection depends on the basis on which the prior claim was denied.  Id. 

The Court had held that at a minimum, adequate VCAA notice in an increased rating claim required that VA notify the claimant that, to substantiate such a claim: (1) the claimant must provide, or ask VA to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life; (2) if the diagnostic code under which the claimant is rated contains criteria necessary for entitlement to a higher disability rating that would not be satisfied by the claimant demonstrating a noticeable worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life (such as a specific measurement or test result), the Secretary must provide at least general notice of that requirement to the claimant; (3) the claimant must be notified that, should an increase in disability be found, a disability rating will be determined by applying relevant diagnostic codes; and (4) the notice must also provide examples of the types of medical and lay evidence that the claimant may submit (or ask VA to obtain) that are relevant to establishing entitlement to increased compensation.  Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008).

The Federal Circuit has overturned the requirement that VA provide notice that the claim could be substantiated by evidence of a disability's impact on daily life and that VA provide notice with regard to potential diagnostic code criteria (element 2).  Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009).  

In November 2005 and March 2006 letters, issued prior to the initial adjudication of the claim, and in subsequently issued January 2007 and December 2012 letters, the agency of original jurisdiction notified the Veteran of the evidence needed to substantiate his claim for service connection and of the evidence required under Kent, supra, regarding new and material evidence to reopen a previously denied claim.  The December 2012 letter specifically told him of the reasons for the Board's 2001 denial.  

In January 2003, October 2003 and December 2012 letters, the RO or AMC notified the Veteran of the evidence needed to substantiate his claim for an increased rating.  The letters also told the Veteran that he could substantiate the claim for an increased rating with evidence that the disability had worsened.  It satisfied the second and third elements of the duty to notify by informing the Veteran that VA would try to obtain medical records, employment records, or records held by other Federal agencies, but that he was nevertheless responsible for providing any necessary releases and enough information about the records to enable VA to request them from the person or agency that had them.

The Veteran has substantiated his status as a veteran.  He was notified of all elements of the Dingess notice, including the disability-rating and effective-date elements of the claims in the aforementioned March 2006, January 2007 and December 2012 letters.  

VCAA notice should be provided to a claimant before the initial unfavorable decision on a claim.  Pelegrini v. Principi, 18 Vet. App. 112 (2004); see also Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003).  However, VA's notice requirements may, nonetheless, be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant.  Id. 

There was a timing deficiency in that the December 2012 letter was sent after the initial adjudication of the increased rating claim.  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006).  The timing deficiency was cured by readjudication of the claim in an April 2013 statement of the case.  Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007).

The Duty to Assist

The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d).  This "duty to assist" contemplates that VA will help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim.  38 C.F.R. § 3.159(c)(4).  The VCAA also provides that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim.

VA has obtained records of treatment reported by the Veteran, including service treatment records and VA and private treatment records.  The Veteran was also provided proper VA examinations in December 2012 and March 2013, to evaluate his bilateral pneumothorax, and there is no evidence that there has been a change in the Veteran's symptoms since the last examinations in December 2012 and March 2013.

The Board remanded the case in September 2012, to obtain medical evidence pertinent to the increased rating claim, and to provide the Veteran with a VA examination to evaluate the current level of severity of his service-connected bilateral pneumothorax.  The medical evidence was obtained and is discussed further below, and as noted above, the requested examinations were conducted in December 2012 and March 2013.  Therefore, the Board finds that with regard to the issues being decided below, the remand instructions were thereby complied with.  Stegall v. West, 11 Vet. App. 268 (1998).

For the reasons set forth above, the Board finds that VA has complied with the VCAA's notification and assistance requirements.  The appeal is thus ready to be considered on the merits.

Increased Rating

Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2012).  The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations.  38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (2012).

Each disability must be considered from the point of view of the veteran working or seeking work.  38 C.F.R. § 4.2 (2012).  Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7.

In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances.  38 C.F.R. § 4.21 (2012).

The veteran's entire history is to be considered when making a disability determination.  See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995).  Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern.  See Francisco v. Brown, 7 Vet. App. 55, 58 (1994).  This includes consideration of the evidence pertaining to the level of disability from the time period one year before the claim was filed.  38 U.S.C. § 5110.  In addition, the Court has determined that when a veteran takes issue with the initial rating assigned when service connection is granted for a particular disability, the Board must evaluate the relevant evidence since the effective date of the award and may assign separate ratings for separate periods of time based on facts found - a practice known as "staged" ratings.  Fenderson v. West, 12 Vet. App. 119 (1999).

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant.  38 U.S.C.A. § 5107(b).

Analysis

The Veteran's service-connected bilateral pneumothorax, spontaneous, with left thoracotomy, is currently rated as 30 percent disabling under Diagnostic Code (DC) 6843, which is in turn rated under the General Rating Formula for Restrictive Lung Disease, which is based on the results of pulmonary function tests (PFTs).  The Veteran asserts that he is entitled to a rating in excess of 30 percent

In an August 1964 rating decision, the RO granted service connection for bilateral pneumothorax spontaneous with left thoracotomy, evaluated as noncompensably disabling.  The award was based on the service treatment records showing the Veteran underwent a left lateral thoracotomy in 1953.  The rating was increased to 10 percent in September 1964.  In November 1997, the Veteran filed a claim for an increased rating, and in September 2002, in accordance with an August 2002 Board decision, the rating was increased to 30 percent, effective November 3, 1997.  The Veteran filed another claim for an increased rating in December 2002.  In a March 2004 rating decision, the 30 percent evaluation was continued.  The Veteran filed a notice of disagreement, and the current appeal ensued.

Residuals of pneumothorax are presently evaluated pursuant to Diagnostic Code 6843 (traumatic chest wall defect, pneumothorax, hernia, etc.).  Under this code, a 10 percent evaluation is warranted when Forced Expiratory Volume in one second (FEV-1) is 71 to 80 percent of predicted, or when the ratio of FEV-1 to Forced Vital Capacity (FVC) is 71 to 80 percent, or when Diffusion Capacity of the Lung for Carbon Monoxide by the Single Breath Method (DLCO (SB)) is 66 to 80 percent of predicted.  A 30 percent evaluation is warranted when FEV-1 is 56 to 70 percent of predicted, or when the ratio of FEV-1 to FVC is 56 to 70 percent, or when DLCO (SB) is 56 to 65 percent of predicted.  A 60 percent evaluation is warranted when FEV-1 is 40 to 55 percent of predicted, or when the ratio of FEV-1 to FVC is 40 to 55 percent, or when DLCO (SB) is 40 to 55 percent of predicted, or when maximum oxygen consumption is 15 to 20 ml/kg/min (with cardiorespiratory limit).  A 100 percent evaluation is warranted when pulmonary function studies show that FEV-1 is less than 40 percent of predicted, or when the ratio of FEV-1 to FVC is less than 40 percent, or when Diffusion Capacity of the Lung for Carbon Monoxide by the Single Breath Method (DLCO (SB)) is less than 40 percent of predicted, or when maximum exercise capacity is less than 15 ml/kg/min of oxygen consumption (with cardiac or respiratory limitation), or when there is cor pulmonale (right heart failure), or when there is right ventricular hypertrophy, or when there is pulmonary hypertension (shown by echo or cardiac catheterization), or when there are episodes of acute respiratory failure, or when outpatient oxygen therapy is required.  38 C.F.R. § 4.97, Diagnostic Code 6843. 

Upon review, the Board finds that the Veteran's bilateral pneumothorax spontaneous with left thoracotomy does not warrant a 60 or 100 percent rating.  The evidence shows that the results of PFTs conducted in January 2005 showed FEV-1 of 55 percent of predicted, PFTs conducted in February 2006 showed FEV-1 of 44 percent of predicted, PFTs conducted in October 2008 showed FEV-1 of 45 and 53 percent of predicted, PFTs conducted in May 2009 showed FEV-1 of 54 percent of predicted, PFTs conducted in March 2010 showed FEV-1 of 49 percent of predicted, PFTs conducted at VA examination in December 2012 showed DLCO of 53 percent of predicted, and PFTs conducted during VA examination in March 2013 showed DLCO of 49.3 percent of predicted.  While the March 2013 examiner indicated that the PFT results did not adequately reflect the functioning of the Veteran's current service-connected lung condition as there are other lung conditions contributing to the findings of the current PFTs, no attempt was made by this examiner to differentiate impairment due to service-connected disability from impairment due to nonservice-connected disability, other than noting that bilateral pneumothorax residuals would be minimal.  The Board is unable to so differentiate symptoms in the absence of medical evidence doing so.  Nevertheless, the December 2012 VA examiner noted that there had been no change in the present condition due to residuals of bilateral pneumothorax, spontaneous.  Residuals were no more than mild.  The August 2003 VA examiner pointed out that any residuals of the pneumothoraces would be restrictive; however, PFTs showed the Veteran has obstructive lung disease.  As there is no indication the disability at issue has increased in severity during any portion of the appeal period and that the disability is, at most, mild, the criteria for an increased rating have not been met.

However, the criteria for an evaluation in excess of 60 percent are not met as the pulmonary function studies do not show an FEV-1 of less than 40 percent of predicted, or an FEV-1/FVC of less than 40 percent of predicted, or a DLCO (SB) of less than 40 percent of predicted.

Extraschedular Consideration

Pursuant to § 3.321(b)(1), the Under Secretary for Benefits or the Director, Compensation and Pension Service, is authorized to approve an extraschedular evaluation if the case "presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards."  38 C.F.R. § 3.321(b)(1) (2012).

The question of an extraschedular rating is a component of a claim for an increased rating.  See Bagwell v. Brown, 9 Vet. App. 337, 339 (1996).  Although the Board may not assign an extraschedular rating in the first instance, it must specifically adjudicate whether to refer a case for extraschedular evaluation when the issue either is raised by the claimant or is reasonably raised by the evidence of record.  Barringer v. Peake, 22 Vet. App. 242 (2008).

If the evidence raises the question of entitlement to an extraschedular rating, the threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate.  Therefore, initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability.  Thun v. Peake, 22 Vet. App. 111 (2008).

Under the approach prescribed by VA, 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.  In the second step of the inquiry, however, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms."  38 C.F.R. 3.321(b)(1) (related factors include "marked interference with employment" and "frequent periods of hospitalization").

The Veteran's bilateral pneumothorax, as discussed above, is manifested by symptomatology contemplated by the rating criteria.  Higher ratings are provided for greater levels of impairment.  He has reported that his disability has caused marked interference with employment.  However, the Board notes that the rating schedule contemplates the effects of the disability on the Veteran's ability to function under the ordinary conditions of daily life, including employment.  38 C.F.R. § 4.10 (2012).  The rating schedule is meant to compensate for considerable time lost from work.  38 C.F.R. § 4.1 (2012).  Therefore, the Board finds that the current 30 percent rating contemplates the effects of the Veteran's disability on his occupation and daily functioning, and the disability is not manifested by symptoms outside the rating schedule.  In addition, there is no evidence of record showing that he has required frequent hospitalizations for his service-connected disability.  Hence, referral for consideration of an extraschedular rating is not warranted.

New and Material Evidence to Reopen

Generally, a claim which has been denied in an unappealed RO decision or an unappealed Board decision may not thereafter be reopened and allowed.  38 U.S.C.A. §§ 7104(b), 7105(c) (West 2002).  The exception to this rule is 38 U.S.C.A. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim.

New evidence is defined as evidence not previously submitted to agency decision-makers.  Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim.  New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim.  38 C.F.R. § 3.156(a) (2012).

For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence, although not its weight, is to be presumed.  Justus v. Principi, 3 Vet. App. 510, 513 (1992).  

The evidence which must be considered in determining whether there is a basis for reopening the claim is that evidence added to the record since the last disposition in which the claim was finally disallowed on any basis.  See Evans v. Brown, 9 Vet. App. 273 (1996).

Analysis

The Veteran originally filed a claim for service connection for hearing loss in October 1997.  In June 1998, the RO issued a denial of the Veteran's claim based on a finding that there was no evidence of hearing loss in service or within one year of the Veteran's discharge from service, and there was no medical evidence showing that the claimed condition existed and was linked to the Veteran's active military duty.  Subsequent to the June 1998 decision, the Veteran submitted a September 1998 treatment report from his private physician, showing that he had been diagnosed with bilateral sensorineural hearing loss.  In a December 2001 rating decision, the RO again denied the Veteran's claim for hearing loss, this time based on a finding that no new and material evidence had been submitted to reopen the claim.  Specifically, the RO found that there was no evidence of hearing loss or noise exposure in service, and no medical evidence which objectively established that the Veteran's current hearing loss was due to noise exposure in service.  The Veteran did not file an appeal and the decision became final.  The Veteran's current claim to reopen was submitted in April 2005.  

The evidence of record at the time of the December 2001 decision included service treatment records which were negative for any evidence of hearing loss in service, and showed that at the time of his separation examination in December 1954, the Veteran's hearing was normal, based on whispered voice test, and ear drums were normal with no perforation.  The evidence also included the Veteran's DD-214, showing that he was assigned to the 8th Transportation Company in service.  The evidence also included post-service treatment records showing that the Veteran had reported noise exposure from gunfire and artillery fire in service, as well as post-service occupational noise exposure from farming and working as a cabinetmaker and upholsterer.  The records also show that the Veteran reported hearing loss since active duty in 1953.  He also reported ear infections in the left ear, for which he was treated by a private physician, with no residual hearing loss.  The post-service treatment records also showed that the Veteran was diagnosed with and treated for bilateral sensorineural hearing loss since 1998.  See June 1998 VA examination.

The evidence added to the record since the previous final decision includes VA outpatient treatment records showing that the Veteran continued to be treated for bilateral hearing loss and that he had been issued hearing aids.  The evidence also includes the Veteran's statements linking his current bilateral hearing loss to noise exposure in service.  Also included in the record, is the report of a July 2007 VA audio examination.  The examiner opined that it was less than likely that the Veteran's hearing loss could be due to military noise exposure.  

The evidence received since the prior denial is duplicative of that previously considered.  It shows a current hearing loss disability documented in 1998, many years after service, and the Veteran's reports that the disability began in service in 1953, as a result of noise exposure.  The presence of hearing loss had previously been established.  The Veteran's statements are also essentially cumulative or redundant in nature since similar statements of the Veteran were previously of record.  As such, the newly received evidence is not new and material.


ORDER

A rating in excess of 30 percent for bilateral pneumothorax, spontaneous, with left thoracotomy, is denied.

New and material evidence has not been received; reopening of a claim for service connection for bilateral hearing loss is denied.


REMAND

The Veteran contends that he has a current respiratory disability, including COPD, as a result of his active military service, including exposure to asbestos during service, and as secondary to his service-connected bilateral pneumothorax, spontaneous, with left thoracotomy.

Service treatment records show that in December 1952, the Veteran complained of pain in the right chest for more than a week, and some dyspnea for the past several months.  A diagnosis of left pneumothorax was made and a thoracentesis was done in February 1952.  In April 1953, he underwent decortications and excision of a skin tumor of the back.  The skin tumor was found to be a pigmented intra-dermal  nevus.  He was discharged back to duty in July 1953, with a final diagnosis of congenital cystic disease of the lungs.  An x-ray taken at that time revealed complete pneumothorax on the right.  

A VA examination report, dated in August 2003, shows that the Veteran complained of shortness of breath, and "pulmonary problems," since his service.  The Veteran was noted to have a history of coronary artery disease (CAD), hypertension, possible COPD, hyperlipidemia, and history of transient ischemic attack (TIA) in 1996.  The diagnoses were COPD and chronic bronchitis.  The examiner stated that she had reviewed the Veteran's C-file, and she concluded that the Veteran's obstructive lung disease and chronic bronchitis were less likely than not due to his previous pneumothoraces.  She explained that any such residual lung disease would be restrictive type; however, recent PFTs showed that he had obstructive lung disease. 

Subsequent to the August 2003 VA examination report, the Veteran underwent additional treatment for respiratory symptoms.  Specifically, private treatment reports from Spencer Family Care, dated between 2004 and 2006, contain notations of COPD, bronchitis, and emphysema. 

A VA examination report, dated in February 2006, notes that a CT of the thorax in January 2006 showed pleural-based calcification in the anterior aspect of the right upper chest that could indicate prior exposure to asbestos. 

Reports from the McKennan Hospital and University Health Center, dated in March 2010, include a CT (computerized tomography) of the chest which notes pleural plaques consistent with asbestos exposure.

In accordance with the Board's September 2012 remand, the Veteran was afforded VA examinations in December 2012 and March 2013.  

The December 2012 examiner noted that the Veteran's history of asbestos exposure in service was minimal, and at best, was for a period of 3-4 months.  He noted further that the Veteran had been complaining of symptoms of shortness of breath since the mid 1960's, which was far too early to expect any pulmonary conditions related to asbestos, which required a latency period of 20-40 years until the presence of lung findings or symptoms, and according to medical evidence, also requires a prolonged period of asbestos exposure of at least four years or more.  Therefore, he opined that it is less likely as not that the Veteran's current respiratory symptoms are caused by his brief period of asbestos exposure during his period of service.  

The March 2013 examiner noted the Veteran's reports of being exposed to asbestos in the barracks he worked in during active duty, and indicated that he had no access to information regarding whether there was actually asbestos in the barracks.  However, the examiner did note that there was no radiological evidence of asbestosis present on the x-rays reviewed at that time, as there was no plaquing present.  

With regard to the Veteran's diagnosed pneumothorax, the examiner noted that the medical literature review does not note asbestos as the cause of pneumothorax.  Therefore, he opined that the history of the pneumothorax in service is less likely as not caused by the Veteran's presumed exposure to asbestos.

With regard to the Veteran's diagnosis of COPD, the examiner noted that the Veteran did have a history of COPD as well as an asthmatic component, and it is well-documented that he had difficulty with the dust while working in his upholstery shop.  The first evaluation from a pulmonary standpoint was in 1983, many years after service, and he did not receive any further treatments until at least the 1990's.  He also noted that there was no clinical evidence in the medical literature reviewed that any type of possible asbestos exposure causes COPD or a reactive component.  Therefore, he opined that the Veteran's COPD and reactive airway component are less likely as not possibly incurred by the possibility of previous asbestos exposure.

The examiner also noted that the Veteran does have a history of a calcific density in the right upper lung which has been followed and has remained stable and there is no increase in scarring to indicate any type of aggravation.  He noted further that the calcific finding is a nonspecific finding and given that it was stable and unchanged over many years, he opined that it is less likely as not caused by any possible exposure to asbestos and service.

With regard to the relationship of the Veteran's service-connected pneumothorax to his current respiratory symptoms, including COPD, the December 2012 examiner noted that the Veteran's chart indicated a diagnosis of COPD, but concluded that in looking at his previous and current PFTs, the pattern was primarily of an obstructive component with a significant history of reversibility, which would much more likely fit the diagnosis of asthma rather than COPD, and was not related to his period of service.  Specifically, he explained that the Veteran developed symptoms of hyperactivity of his airways in 1964 while working around dust in an upholstery shop, and that he did not receive treatment for the reactive airway/COPD symptoms until 1991, and that was with an Albuterol inhaler.  He also noted that the Veteran has had a series of CT scans of his lungs/thorax that have shown a small nonspecific tiny pulmonary nodule in the right lung, and minimal stable pleural calcification on the left.  A September 2011 chest x-ray showed a normal heart size, lungs expanded and free of any infiltrate, a calcific density seen projective over the right upper lung, unchanged from March 2010, and chronic elevation of the left hemidiaphragm.  He noted that there was no significant increase in scarring of the Veteran's lung to indicate that there was an aggravation of the previous pneumothorax, or that this condition contributed to his present asthma or COPD-like obstructive symptoms.  The examiner also noted that the right-sided pulmonary nodule, which was 5-9 mms in size, and had been confirmed as being stable, was a non-specific finding, with no association specifically with asbestos exposure.  The tiny pulmonary nodule, he noted, was not large enough to cause any symptoms.  In addition, he noted that follow-up CT scans did not show progressive scarring of the lung (aggravation), and the Veteran had normal PFTs in 1971, eighteen years after his pneumothorax.  Therefore, he opined that it was less likely as not that the Veteran's current respiratory symptoms/COPD were incurred or caused by his period of service, and primarily his injury/pneumothorax in service, which was noted later to have been healing well.  

The March 2013 examiner also found that as medical literature does not state that pneumothorax is secondary to asbestos exposure, but rather is idiopathic, it would not cause present symptoms of COPD and/or asthma, wheezing, shortness of breath, etc.  Therefore, he opined that it is less likely than not that the Veteran's current respiratory symptoms were incurred or caused by his period of service, including his brief period of asbestos exposure, and primarily his pneumothorax.

As noted above, the examiners opined that the Veteran's current respiratory symptoms were not directly related to service, to include exposure to asbestos in service.  They also opined that the Veteran's current respiratory symptoms were not caused by his service-connected bilateral pneumothorax.  However, although they were directed to do so in the Board's September 2012 remand, neither examiner discussed whether the service-connected bilateral pneumothorax aggravated the Veteran's current respiratory symptoms, pursuant to 38 C.F.R. § 3.310(a) & (b) (2012); see also Allen v. Brown, 7 Vet. App. 439, 448 (1995).  The Board is required to consider all issues, and theories of entitlement, raised by the appellant.  See Robinson v. Peake, 21 Vet. App. 545 (2008), citing Schroeder v. West, 212 F.3d 1265 (Fed. Cir. 2000).  

Furthermore, a remand by the Board confers on an appellant the right to VA compliance with the terms of the remand order and imposes on the Secretary a concomitant duty to ensure compliance with those terms.  See Stegall v. West, 11 Vet. App. 268, 271 (1998).  In Stegall the Court held that "where . . . the remand orders of the Board . . . are not complied with, the Board itself errs in failing to insure compliance."  Id.

In light of the Veteran's contentions and the evidence of record, another VA opinion is needed to determine the etiology of any current respiratory disorder.  38 U.S.C.A. § 5103A(d) (West 2002). 

The appellant is advised that it is his responsibility to report for the examination and to cooperate in the development of the case, and that the consequences of failure to report for a VA examination without good cause may include denial of the claim.  See 38 C.F.R. §§ 3.158 and 3.655 (2012).

Turning to the TDIU claim, the Board notes that, because the outcome of the claim for service connection for a respiratory disability may have a bearing on the issue of entitlement to TDIU, any Board action on the TDIU matter would be premature.  See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final decision on one issue cannot be rendered until a decision on the other issue has been rendered).  This also avoids piecemeal adjudication of the claims with common parameters.  See Ephraim v. Brown, 82 F.3d 399 (Fed. Cir. 1996).  Additionally, the Court has held that there is no freestanding claim for TDIU.  See Rice v. Shinseki, 22 Vet. App. 447, 451 (2009).  Therefore, the Board will defer action on 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.  Ask the examiner who conducted the December 2012 or the March 2013 VA examination to provide an opinion as to whether there is a 50 percent or better probability that the Veteran has a current respiratory disorder, separate from his service-connected bilateral pneumothorax, spontaneous, with left thoracotomy, that was caused by his service, to include exposure to asbestos during service.  The examiner must also express an opinion as to whether it is at least as likely as not (a 50 percent or better probability) that the Veteran has a respiratory disorder that was caused by, or aggravated by, his service-connected bilateral pneumothorax.  

The examiner should review the claims folder and provided a clear rationale for all opinions and conclusions expressed.  The examiner is advised that the Veteran is competent to report injuries and symptoms and that his reports must be considered in formulating the requested opinions.

If the examiner cannot provide an opinion without resort to speculation, the examiner should provide an explanation as to why this is so and whether there is additional evidence that would permit the opinion to be provided.  

If the December 2012 or March 2013 examiners are not available, another qualified medical professional should review the claims file and provide the necessary opinions.  If further examinations are needed, they should be provided. 

"Aggravation" means a chronic or permanent worsening of the underlying condition (versus a temporary flare-up of symptoms) beyond its natural progression.

2.  Thereafter, the AMC should readjudicate the Veteran's claims for service connection and entitlement to a TDIU.  If any benefit sought on appeal is not granted in full, the Veteran and his representative should be issued a supplemental statement of the case and provided an opportunity to respond.  The case should then be returned to the Board for further appellate consideration, if otherwise in order.

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).



______________________________________________
BARBARA B. COPELAND
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs