Citation Nr: 1325105 Decision Date: 08/07/13 Archive Date: 08/13/13 DOCKET NO. 08-12 808 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUE Entitlement to an increased initial rating for calcified pleural plaques consistent with asbestos exposure, rated as noncompensable from March 12, 2007, and as 10 percent disabling from March 21, 2010. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL The Veteran and his wife ATTORNEY FOR THE BOARD K. Osegueda, Associate Counsel INTRODUCTION The Veteran had active service from June 1948 to April 1952. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from an August 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. In April 2011, the Veteran and his wife presented testimony at a hearing held at the RO before the undersigned Acting Veterans Law Judge. A transcript of the hearing has been associated with the record. In April 2011, September 2011, and September 2012, the Board remanded the case for additional development and due process concerns. In addition to the paper claims file, there is a Virtual VA paperless file associated with the Veteran's case. A review of the documents in the paperless file reveals documents that are either duplicative of the evidence in the paper claims file or irrelevant to the issue 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 appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND A review of the record shows that some of the prior directives from the September 2012 remand were not completed. A remand by the United States Court of Appeals for Veterans Claims or the Board confers on the veteran or other claimant, as a matter of law, a right to compliance with the remand orders. Stegall v. West, 11 Vet. App. 268, 271 (1998). As such, compliance with the terms of the remand is necessary prior to further appellate review, and if not, "the Board itself errs in failing to ensure compliance." Stegall, 11 Vet. App. at 271. In the September 2012 remand, the Board directed the AMC to arrange for the Veteran to undergo a VA examination to determine the current severity of his respiratory disability, to include a pulmonary function test (PFT). Specifically, the remand included the following directives: All necessary tests, including a PFT, must be conducted, and clinical findings must be recorded in detail. The PFT must be conducted post-drug therapy and must so state. The examiner must review the results of any testing prior to completion of the report. Specifically, the PFT must provide a value for FVC and a value for DLCO (SB), both expressed as a percentage of predicted value. The PFT must also provide a value for the Veteran's maximum exercise capacity expressed as milliliters/kilograms/minutes of oxygen consumption (with cardiac or respiratory limitation). The examiner must opine as to the FVC and the DLCO (SB) percentage of the predicted value for only the Veteran's asbestosis. If the examiner is unable to determine the percentages of the predicted value for only the Veteran's asbestosis, the examiner must so state. The PFT report must be associated with the claims file. The examiner must further state whether the Veteran experiences cor pulmonale (right heart failure), right ventricular hypertrophy, pulmonary hypertension (shown by Echo or cardiac catheterization), episodes of acute respiratory failure, or requires outpatient oxygen therapy. If the examiner cannot provide any requested opinion without resorting to speculation, the examiner must explain why speculation is required. The examiner was also requested to comment on the 2010 VA examination and the October 2010 private records documenting respiratory failure. Following the remand, the Veteran was provided a VA examination in October 2012. A copy of an October 2012 PFT report was associated with the VA examination report. The PFT report included post-drug therapy FVC results; however, it did not include DLCO (SB) results. A summary of the PFT showed that the DLCO was "mildly reduced," but it did not include specific results. The VA examiner noted diagnoses of asbestosis and obstructive lung disease and reported that there was "no scientific basis to separate out pulmonary function values from asbestos and obstructive lung disease"; therefore, he indicated that he was unable to determine the FVC and the DLCO (SB) percentage of the predicted value for only the Veteran's asbestosis. Additionally, although the VA examiner noted that the Veteran did not require oxygen therapy, that the examination was negative for right heart failure, and that there was no evidence of right ventricular hypertrophy, he did not provide an opinion as to whether there was pulmonary hypertension or episodes of acute respiratory failure. Further, he did not comment on the 2010 VA examination report or the October 2010 private records documenting respiratory failure. In February 2013, the AMC returned the claims file for another VA examination, citing to the September 2012 remand directives that requested FVC and DLCO tests be completed during the respiratory examination. The AMC noted that the DLCO was not completed and there was no notation in the October 2012 PFT report of the VA examiner's report that indicated why the DLCO was not or could not be completed. In response to the AMC's request, a VA examiner provided the following in a March 2013 VA addendum opinion with the results of a March 2013 PFT: Mild restriction. There is a significant bronchodilator response. Normal diffusion. No significant change since [October 2012] except for an improvement in diffusion. The March 2013 PFT did not include DLCO test results and the examiner did not indicate why the DLCO was not or could not be completed. 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. Contact the appropriate VA Medical Center and obtain and associate with the paper or virtual claims file all outstanding records of treatment. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. 2. After any additional records are associated with the paper or electronic claims file, provide the Veteran with an appropriate examination to determine the current severity of his respiratory disability. The claims file, including a copy of this remand, must be made available to the examiner prior to the examination. All necessary tests, including a PFT, must be conducted, and clinical findings must be recorded in detail. The PFT must be conducted post-drug therapy and must so state. The examiner must review the results of any testing prior to completion of the report. Specifically, the PFT must provide a value for FVC and a value for DLCO (SB), both expressed as a percentage of predicted value. The PFT must also provide a value for the Veteran's maximum exercise capacity expressed as milliliters/kilograms/minutes of oxygen consumption (with cardiac or respiratory limitation). The examiner must opine as to the FVC and the DLCO (SB) percentage of the predicted value for only the Veteran's asbestosis. If the examiner is unable to determine the percentages of the predicted value for only the Veteran's asbestosis, the examiner must so state. The PFT report must be associated with the claims file. The examiner must further state whether the Veteran experiences cor pulmonale (right heart failure), right ventricular hypertrophy, pulmonary hypertension (shown by Echo or cardiac catheterization), episodes of acute respiratory failure, or requires outpatient oxygen therapy. If the examiner cannot provide any requested opinion without resorting to speculation, the examiner must explain why speculation is required. The examiner must also provide comment on the 2010 VA examination and the October 2010 private records documenting respiratory failure. The rationale for all opinions, with citation to relevant medical findings or medical authority, must be set forth in a legible report. 3. 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 AMC must implement corrective procedures. Stegall v. West, 11 Vet. App. 268, 271 (1998). 4. Then, the RO/AMC should readjudicate the appeal. If the benefit sought on appeal remains denied, the RO should issue the Veteran and his representative an appropriate Supplemental Statement of the Case (SSOC) that includes clear reasons and bases for all determinations, and affords the appropriate time period to respond. Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition. The Veteran has the right to submit additional evidence and argument on the matter 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). _________________________________________________ K. MILLIKAN 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).