Citation Nr: 1332432 Decision Date: 10/18/13 Archive Date: 10/24/13 DOCKET NO. 08-01 448 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE 1. Entitlement to an initial compensable rating for asbestosis. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Robert E. P. Jones, Counsel INTRODUCTION The Veteran served on active duty from November 1955 to November 1959. This matter comes before the Board of Veterans' Appeals (Board) from a November 2005 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. The Veteran's asbestosis claim was remanded by the Board in March 2011. The Veteran also raised the issue of entitlement TDIU. In a September 2012 letter the Veteran indicated that he was unemployable due to his service-connected asbestosis and hearing loss disabilities. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court of Appeals for Veterans Claims held that a TDIU claim is part of a claim for a higher rating when such claim is raised by the record or asserted by the claimant. The Court further held that when evidence of unemployability is submitted at the same time that the claimant is appealing the initial rating assigned for a disability, the claim for TDIU will be considered part and parcel of the claim for benefits for the underlying disability. Id. Here, the claim for TDIU is part of the claim for a higher rating and as such, a determination must also be made with respect to this claim. A review of the Veteran's virtual VA folder reveals that all documents in that folder have already been considered by the RO in adjudicating the Veteran's claim. The issue of entitlement to service connection for chronic obstructive pulmonary disease (COPD) as secondary to asbestosis has been raised by the record, (see August 30, 2013 statement from the Veteran's representative), but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate 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 appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND The Veteran's claim was remanded by the Board in March 2011 in order that the Veteran could be provided a VA medical examination and so that an opinion could be obtained as to the level of disability that is attributable solely to the service-connected asbestosis. The Veteran was provided the VA examination in January 2012, and an addendum was obtained in January 2013. The examiner stated that the Veteran's COPD was predominantly responsible for the requirement for oxygen therapy. However, the VA examiner did not state the level of disability that is attributable solely to the service-connected asbestosis on the examination report or on the addendum. Accordingly, the Board finds that the opinions rendered in January 2012 and January 2013 are inadequate and that a new VA examination with opinion should be obtained. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The January 2012 VA examination report discusses a January 25, 2010 computed tomography (CT) scan, and the record does not contain the January 25, 2010 CT examination report. The report should be obtained. See 38 C.F.R. § 3.159(c). The Veteran reported that he was released from incarceration on November 12, 2009. A May 2013 supplemental statement of the case (SSOC) discusses review of VA treatment records at two VA facilities subsequent to the Veteran's release. These records are not contained in the Veteran's claims files and are not contained in the Veteran's virtual VA file. Copies of these VA treatment records should be obtained and associated with the Veteran's claims file. In a September 2012 letter to the RO, the Veteran stated that he was on oxygen due to his asbestosis and that he was legally deaf. He indicated that he was unemployable due to his service-connected asbestosis and hearing loss disabilities. The RO should provide the Veteran with notice of how to substantiate a claim for TDIU pursuant to the Veterans Claims Assistance Act and request that he complete a TDIU claim form. 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. Provide the Veteran with notice concerning how to substantiate TDIU and request that he complete a TDIU application form. Then undertake any development action that is deemed warranted. 2. Obtain copies of the Veteran's VA treatment records dating from 2009. 3. If the above request does not contain a January 25, 2010 CT scan report, take any necessary steps to obtain the report. All attempts to fulfill this development should be documented in the claims file. If after continued efforts to obtain the records it is concluded that it is reasonably certain they do not exist or further efforts to obtain them would be futile, the AMC must notify the Veteran and (a) identify the specific records the AMC is unable to obtain; (b) briefly explain the efforts that the AMC made to obtain those records; (c) describe any further action to be taken by the AMC with respect to the claim; and (d) inform the Veteran that he is ultimately responsible for providing the evidence. The Veteran must then be given an opportunity to respond. 4. When the above actions have been accomplished, afford the Veteran a VA examination to determine the current severity of his asbestosis. The examiner should identify and completely describe all current symptomatology. The Veteran's claims folder must be reviewed by the examiner in conjunction with the examination. All indicated tests and studies should be accomplished, and all clinical findings should be reported in detail. The examiner is asked to provide information as follows: a) FVC percent predicted; b) DLCO (SB) percent predicted; c) Maximum exercise capacity (in terms of ml/kg/min oxygen consumption) with cardiorespiratory limitation; and d) Whether the Veteran's service-connected asbestosis results in cor pulmonale, pulmonary hypertension or requires outpatient oxygen therapy. The examiner must indicate what specific symptoms are attributable to service-connected asbestosis, as opposed to other factors, including COPD. If possible, the examiner should provide DLCO (SB) and FVC measurements attributable only to asbestosis. If it is not possible or feasible to make the differentiation between the service-connected disability and any identified nonservice-connected disorder, please expressly indicate this and explain why this cannot be done. All opinions expressed must be supported by complete rationale. The VA examiner is further requested to opine as to whether it is at least as likely as not (a probability of 50 percent or greater) that the Veteran is incapable of securing and maintaining substantially gainful employment as the consequence of his asbestosis, either alone or in conjunction with his other service-connected disabilities, bilateral hearing loss and tinnitus. If the Veteran's service-connected disabilities do not singly or cumulatively render him unemployable, the examiner should report the type or types of employment in which the Veteran would be capable of engaging with his current service-connected disabilities, given his current skill set and educational background. 5. Thereafter, readjudicate all issues that are in appellate status and furnish the Veteran and his representative a supplemental statement of the case for all claims that remain less than fully favorable to the Veteran. [IT IS NOTED THAT TDIU IS INEXTRICABLY INTERTWINED WITH THE SERVICE CONNECTION ISSUE THAT WAS REFERRED TO THE AOJ IN THE INTRODUCTION]. The Veteran and his representative should be provided a supplemental statement of the case and be afforded the appropriate opportunity to respond before the case is returned to the Board. The appellant 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). _________________________________________________ S. S. TOTH 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).