Citation Nr: 1327197 Decision Date: 08/26/13 Archive Date: 08/29/13 DOCKET NO. 11-21 757 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to an initial compensable disability rating prior to March 29, 2011, and a rating higher than10 percent since March 29, 2011, for asbestosis. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD Saira Spicknall, Counsel INTRODUCTION The Veteran served on active duty in the military from July 1955 to July 1959 and from October 1959 to April 1962. He appealed to the Board of Veterans' Appeals (Board/BVA) from an April 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), which granted his claim of entitlement to service connection for asbestosis and assigned an initial 0 percent (i.e., noncompensable) rating for this disability retroactively effective from February 3, 2010, the date of receipt of his claim. He appealed for a higher initial rating. See Fenderson v. West, 12 Vet. App. 119, 125-26 (1999) (When a Veteran appeals an initial rating, VA adjudicators must consider whether to "stage" the rating, meaning assign different ratings at different times since the effective date of the award if there have been occasions when the disability has been more severe than at others; this change in rating, over time, while compensate the Veteran for this variance in the severity of the disability). Another RO decision since issued in May 2013, during the pendency of this appeal, increased the rating for the asbestosis from 0 to 10 percent as of March 29, 2011, on the premise that was the date of a pulmonary function test (PFT) showing factual worsening of this condition. In response, the Veteran continued to appeal for an even higher rating. See his July 2013 statement in support of claim, on VA Form 21-4138, indicating he believes he is entitled to an even greater 30 percent rating. See also AB v. Brown, 6 Vet. App. 35, 38 (1993) (It is presumed a Veteran is seeking the highest possible rating for a disability, absent express indication otherwise). So his appeal now concerns whether he was entitled to an initial compensable rating (meaning a rating higher than 0 percent) from February 3, 2010, until March 28, 2011, and whether he has been entitled to a rating higher than 10 percent since March 29, 2011. The Board has advanced this appeal on the docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). Since the claim requires further development before being decided on appeal, however, the Board is remanding the claim to the RO via the Appeals Management Center (AMC) in Washington, DC. REMAND Although the Board sincerely regrets the further delay that inevitably will result from remanding, rather than immediately deciding, this claim, it is necessary to ensure it is fully developed and receives all due consideration. 38 U.S.C.A. § 5103A(a) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(c), (d) (2012). A review of the Veteran's claims file reflects that he had a VA respiratory examination pertaining to this claim in March 2010 at the VA Medical Center (VAMC) in Mountain Home, Tennessee. A PFT apparently was done during that evaluation, and the VA examination report indicates the results and addendum containing this information were included in the report. But, in actuality, it appears that only the addendum to the testing was included in the VA examination report. The VA examination report includes a notation stating "[s]ee Vist[a] Imaging for PFT report." The addendum to the PFT noted the Veteran had mild obstructive ventilatory defect, Forced Expiratory Volume in 1 Second (FEV1) greater than 70 percent predicted, normal diffusion, and modestly-improved expiratory airflow, post-bronchodilator. The April 2010 rating decision from which this appeal ensued references both the March 2010 VA examination as well as the March 2010 PFT results, which the RO documented as having reviewed in its adjudication of the Veteran's claim. The rating decision clearly reports that the March 2010 PFT results revealed forced vital capacity (FVC) of 104 percent, FEV1 of 86 percent and diffusion capacity of the lung for carbon monoxide by the single breath method (DLCO(SB)) also of 86 percent predicted. And although given this explanation of these findings the RO reviewed the VA examination report and VA PFT results in its April 2010 adjudication of the Veteran's claim, it does not appear these PFT results were actually associated with the claims file for the Board's consideration - either the physical claims file or electronic ("Virtual VA") file, i.e., e-folder. VA is required by the Veterans Claims Assistance Act of 2000 (VCAA) to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim, including relevant records from both Federal and private sources. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012). In particular, records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether the records are actually physically in the claims file. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Therefore, as the identified March 2010 VA PFT results have a definite bearing on the Veteran's claim, the RO/AMC needs to obtain these test results and actually associate them with the file for the Board's consideration. It is especially necessary to obtain these PFT results from the VA compensation examination in March 2010 since, in his more recent July 2013 statement in support of claim on VA Form 21-4138, the Veteran cited the results of another PFT done elsewhere - at the East Tennessee State University (ETSU) Heart Office - as purportedly evidencing his entitlement to an even greater 30 percent rating for his asbestosis if one considers the FVC he had during that additional test. Accordingly, this claim 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. Obtain the March 2010 VA PFT results from the VAMC in Mountain Home, Tennessee, which were reported in connection with the March 2010 VA compensation examination. Since the results of that PFT are in the custody of a Federal department or agency, namely, VA, the attempts to obtain them are governed by 38 C.F.R. § 3.159(c)(2). So make as many attempts to obtain these results as are necessary to comply with this VA regulation. Also, if unable to obtain these PFT results, the Veteran must be appropriately notified. 38 C.F.R. § 3.159(e)(1). 2. Then readjudicate this claim in light of this and all other additionally relevant evidence, including the additional PFT results (most notably his FVC) the Veteran cited in his recent July 2013 statement in support of claim on VA Form 21-4138 as supposedly establishing his entitlement to an even greater 30 percent rating. If a higher rating is not granted to his satisfaction, send him a supplemental statement of the case (SSOC) and give him time to submit additional evidence and/or argument in response before returning the file to the Board for further appellate consideration of this claim. He has the right to submit additional evidence and argument concerning this claim the Board is remanding. 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). _________________________________________________ KEITH W. ALLEN 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).