Citation Nr: 1334029 Decision Date: 10/28/13 Archive Date: 11/06/13 DOCKET NO. 11-12 136 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUES 1. Entitlement to an evaluation greater than 60 percent from September 30, 2009 to June 1, 2011 and greater than 10 percent from June 1, 2011 for multiple bilateral pulmonary nodules partially calcified, with frequent infections and cough. 2. Entitlement to a total disability evaluation based on individual unemployability (TDIU) due to service-connected disabilities. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD L. M. Barnard INTRODUCTION The Veteran served on active duty from October 1955 to September 1959. This appeal arose before the Board of Veterans' Appeals from a December 2009 rating decision of the St. Paul, Minnesota Department of Veterans Affairs (VA), Regional Office (RO), which increased the evaluation assigned to the service-connected multiple bilateral pulmonary nodules partially calcified, with frequent infections and cough from 0 to 60 percent, effective September 30, 2009. In January 2011, the RO found clear and unmistakable error in the December 2009 rating decision that awarded a 60 percent evaluation and proposed that the evaluation be reduced to 10 percent. A March 2011 rating action reduced the evaluation to 10 percent, effective June 1, 2011. 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 After reviewing the record, the Board has determined that a remand is necessary. While the additional delay is regrettable, it is found that further development of the claims is needed in order to ensure that the record is complete before a final determination can be made. The Board does note that the Veteran has been afforded VA examinations in December 2009 and November 2011 (with an addendum provided in February 2012). The Veteran has also submitted the report of a private examination conducted in November 2012. After reviewing the findings, it is unclear to the Board what symptoms and what degree of reduced lung function are attributable solely to the Veteran's service-connected multiple bilateral pulmonary nodules partially calcified, with frequent infections and cough, as opposed to the nonservice-connected chronic obstructive pulmonary disease (COPD), diagnosed as emphysema secondary to smoking. Moreover, one examiner indicates that the FEV1/FVC was the best indicator of the Veteran's condition, while it was also noted that the FEV1 reading represented the obstructive component, that is, the COPD, which is not service-connected. In addition, the November 2012 private examination has little probative weight, since there is no indication that the examiner reviewed the findings of the November 2011 VA examination and its February 2012 addendum. Significantly, while pulmonary function test (PFT) results were provided, it is unclear whether these were obtained before or after the use of a bronchodilator. This is important because the Board must use post bronchodilator PFT results in evaluating the Veteran's pulmonary disorder. See 38 C.F.R. § 3.105(a) (2013). Therefore, the Board finds that another VA examination is needed in order to ascertain with a fair degree of medical certainty the amount of lung impairment that is attributable solely to the service-connected multiple bilateral pulmonary nodules partially calcified, with frequent infections and cough. The Veteran has also requested that he be awarded TDIU due to his service-connected disabilities. He is currently service-connected for multiple bilateral pulmonary nodules partially calcified, with frequent infections and cough, assigned a 10 percent disability evaluation and for bilateral hearing loss, assigned a 30 percent disability evaluation. His combined disability evaluation is currently 40 percent. A November 2010 VA examination indicated that the Veteran had last worked in 2000, having retired after working 40 years for the railroad. After examining the Veteran, the examiner concluded that it was likely that the Veteran would be precluded from working, "...except possibly on a part-time sedentary basis." Because his breathing had worsened over the last several years, it was deemed unlikely that he would have either the energy or the stamina to engage in work on a full-time basis, even sedentary work. In contrast, at the VA examination conducted in November 2011, the examiner checked "no" in answer to the question as to whether the Veteran's respiratory condition would impact the Veteran's ability to work. No rationale was provided. Based on this evidence, the Board finds that another opinion as to the impact of the Veteran's service-connected disabilities have upon his ability to work must be provided. The difference of opinion between the two examinations must be resolved. Significantly, it is also noted that neither examination took the Veteran's 30 percent evaluated hearing loss disability into consideration when rendering their opinions as to employability. This must be done before a final determination as to the TDIU claim is made. 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. Request that the Veteran provide the names and addresses of all health-care providers, both VA and non-VA, from whom he has sought treatment from January 2010 to the present. All attempts must be made to obtain any identified records; these attempts must be fully documented for inclusion in the claim folder. All efforts to obtain VA records will continue until it is determined that the records sought do not exist or that further efforts to obtain them would be futile. The Veteran must be informed of (a) the identity of the records VA was unable to obtain; (b) an explanation of the efforts VA made to obtain the records; (c) a description of any further action VA will take regarding the claim, including, but not limited to, notice that VA will decide the claim based on the evidence of record unless the claimant submits the records VA was unable to obtain; and (d) a notice that the claimant is ultimately responsible for providing the evidence. 2. Once the above-requested development has been completed, provide the Veteran a complete VA respiratory examination. This examination must include post bronchodilator PFT results. The claims folder and a copy of this remand must be made available to the examiner to review in conjunction with the remand; this review must be noted in the examination report. The examiner must differentiate, to the extent it is feasible, those respiratory symptoms related solely to the service-connected multiple bilateral pulmonary nodules partially calcified, with frequent infections and cough, as opposed to those related to any nonservice-connected disorders, such as COPD. If the symptoms cannot be differentiated, this must be so stated. A complete rationale for all opinions rendered must be provided; if an opinion cannot be made without resort to mere speculation, this must also be fully explained. 3. Provide whatever examinations are deemed necessary in order to provide an opinion as to whether the Veteran's service-connected multiple bilateral pulmonary nodules partially calcified, with frequent infections and cough and bilateral hearing loss disability render the Veteran unemployable. The examiners are reminded that marginal employment shall not be considered to be substantially gainful employment. The claims folder and a copy of this remand must be made available to the examiner to review in conjunction with the remand; this review must be noted in the examination report. A complete rationale for the opinion rendered must be provided; if an opinion cannot be made without resort to mere speculation, this must also be fully explained. 4. The Veteran must be advised of the importance of reporting to any scheduled VA examinations and of the possible adverse consequences of failing, without good cause, to so report. See 38 C.F.R. § 3.655 (2013). A copy of any notification letters sent to the Veteran advising him of the time, date, and location of the scheduled examination(s) must be included in the claims folder, and must reflect that they were sent to his last known address of record. If he fails to report to any scheduled examinations, the claims folder must indicate whether the notification letter was returned as undeliverable. 5. Once the above-requested development has been completed, readjudicate the claims for entitlement to an evaluation greater than 60 percent from September 30, 2009 to June 1, 2011 and greater than 10 percent from June 1, 2011 for multiple bilateral pulmonary nodules partially calcified, with frequent infections and cough and for TDIU. If any part of the Veteran's claim remains denied, he and his representative must be provided with an appropriate supplemental statement of the case and 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). _________________________________________________ DENNIS F. CHIAPPETTA 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).