Citation Nr: 1326601 Decision Date: 08/21/13 Archive Date: 08/29/13 DOCKET NO. 11-21 292 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to an evaluation in excess of 10 percent for asbestosis. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD L. Jeng, Counsel INTRODUCTION The Veteran served on active duty in the United States Navy from December 1957 to April 1962. This case comes before the Board of Veterans' Appeals (the Board) on appeal from a July 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania, which continued the 10 percent disability evaluation for asbestosis. The Board notes that, in addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claim. The Board has reviewed the documents in both the paper claims file and the electronic claims file in rendering this remand. 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 VA's duty to assist includes a duty to provide a medical examination or obtain a medical opinion only when it is deemed necessary to make a decision on the claim. 38 U.S.C.A. § 5103A (d) (West 2002); 38 C.F.R. § 3.159(c) (4) (2012). See also Robinette v. Brown, 8 Vet. App. 69, 76 (1995). The Veteran was last evaluated for his service-connected asbestosis in June 2009. The duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate VA examination was conducted. See VAOPGCPREC 11-95 (April 7, 1995). However, subsequent to that examination, in January 2012 statements, the Veteran and his representative essentially indicated that his disability had increased in severity and not all available medical records had been reviewed at the time of the 2009 examination. Accordingly, the Board finds that a contemporaneous VA medical examination is warranted to determine the current severity of the Veteran's asbestosis. See Littke v. Derwinski, 1 Vet. App. 90, 92 (1990) (noting that VA's duty to assist includes the conduct of a contemporaneous medical examination, in particular where it is contended that a service-connected disability has become worse); see also Snuffer v. Gober, 10 Vet. App. 400 (1997) (finding that a veteran is entitled to a new VA examination where there is evidence that the condition has worsened since the last examination). As this matter is being returned for additional development, all ongoing and outstanding VA and private medical records should also be obtained. 38 U.S.C.A. § 5103A(c) (West 2002); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (noting that VA medical records are in constructive possession of the agency and must be obtained if pertinent). Accordingly, the case is REMANDED for the following actions: 1. With any necessary assistance from the Veteran, obtain all outstanding private and VA treatment records. All efforts to obtain additional evidence must be documented in the claims folder. If VA is unable to secure these records, it must notify the Veteran and (a) identify the specific records it is unable to obtain; (b) briefly explain the efforts that it made to obtain those records; (c) describe any further action to be taken with respect to the claim; and (d) notify the Veteran that he is ultimately responsible for providing the evidence. 38 U.S.C.A. § 5103A (b) (2) (West 2002); 38 C.F.R. § 3.159(e) (1) (2012). 2. Arrange for a VA pulmonary examination of the Veteran to determine the extent and severity of his service-connected asbestosis. The claims file must be made available to the examiner and the examiner should note whether the claims file was reviewed. All indicated studies should be performed, to include a pulmonary function test (PFT) and maximum exercise capacity test. The examiner should review the results of all testing prior to completion of the examination report. The examiner should describe in detail all current manifestations of the Veteran's asbestosis. The results of a PFT are needed to determine: a) the percentage of predicted FVC and b) the percentage of predicted DLCO (SB). If a DLCO (SB) (Diffusion Capacity of the Lung for Carbon Dioxide by the Single Breath Method) test is not obtainable, evaluation may be based on alternative criteria as long as the examiner states why the test would not be useful or valid. The examiner should also address whether the Veteran's disability results in cardiorespiratory limitation, cor pulmonale (right heart failure), or pulmonary hypertension; or requires outpatient oxygen therapy. 3. Then, after ensuring any other necessary development has been completed, readjudicate the Veteran's claim. If action remains adverse to the Veteran, provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate opportunity to respond. Thereafter, the case should be returned to the Board. 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). _________________________________________________ BETHANY L. BUCK 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).