Citation Nr: 1335493 Decision Date: 11/04/13 Archive Date: 11/13/13 DOCKET NO. 12-19 496 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUE 1. Entitlement to an initial compensable rating for asbestosis. 2. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Hager, Counsel INTRODUCTION The Veteran served on active duty from August 1966 to July 1968. This case comes before the Board of Veterans' Appeals (Board) from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California. In that decision, the RO granted service connection for asbestosis and assigned a noncompensable (0 percent) rating. The Veteran timely appealed the assigned rating. In March 2013, the Veteran testified during a hearing at the RO before the undersigned; a transcript of that hearing is part of the Virtual VA claims file and is also located in the Veterans Appeals Control & Locator System (VACOLS). 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 The Veteran's asbestosis is rated noncompensable under 38 C.F.R. § 4.97, Diagnostic Code (DC) 6833. Under the general rating formula for interstitial lung disease ("general rating formula"), ratings for asbestosis are based on forced vital capacity (FVC) or Diffusion Capacity of the Lung for Carbon Monoxide by the single breath method (DLCO(SB)). On the October 2011 VA examination, the examiner indicated that pulmonary function test results (PFT) were within normal limits. The PFT results contained the values for FVC but not DLCO. The VA examiner indicated that DLCO testing was not performed because the FVC and other results were sufficient to evaluate the pulmonary status of the Veteran. June and July 2013 private PFT scores contain results for DLCO, but these results were not in terms of percent predicted, which is the appropriate format for diseases evaluated under the general rating formula. The physician who interpreted the results noted a markedly decreased DLCO from June to July. 38 C.F.R. § 4.96 provides that when the DLCO test is not of record, alternative criteria should be used to rate the disability as long as the examiner states why the test would not be useful or valid in a particular case. In this case, however, there is some indication that the DLCO scores conflicted with the FVC scores and that a higher rating might have been warranted based on the DLCO scores, but the Board finds it cannot properly interpret the DLCO scores currently in the evidence of record. Consequently, the Board finds that the evidence is insufficient to decide the claim and a remand is warranted for a new VA examination. In addition, during the Board hearing, the Veteran indicated that, although age was a factor in his retirement from his job in construction, his asbestosis had had a negative effect on his ability to perform his job and was preventing him from working at a different job after his retirement. As there is evidence of unemployability in connection with the Veteran's claim for a higher initial rating, the issue of entitlement to a TDIU has been raised. See Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001); Rice v. Shinseki, 22 Vet. App. 447 (2009). The issue of entitlement to a TDIU must therefore be remanded to the RO, via the AMC, for adjudication. See Young (William) v. Shinseki, 25 Vet. App. 201, 204 (2012) ("when a claim (or a part or theory in support of a claim) erroneously is referred instead of remanded, a claimant loses his statutory right to expedited consideration absent Court correction"). See also Turner v. Shinseki, No. 11-0810, 2012 WL 2512892 (Davis, J., mem. dec., June 29, 2012) (applying Young to reverse the Board's finding that it did not have jurisdiction over the Veteran's TDIU claim, and instructing the Board to remand, rather than refer, the TDIU claim to the RO); Bethea v. Derwinski, 2 Vet. App. 252, 254 (1992) (single judge decisions may be relied upon for any persuasiveness or reasoning they contain). Accordingly, the case is REMANDED for the following actions: 1. Schedule the Veteran for a VA respiratory examination, to include PFT testing. The examination report should include both FVC and DLCO scores, as well as all other relevant data required to rate respiratory disorders. The examiner should comment as to whether VA findings are consistent with the private findings that have been submitted. To the extent there are significant inconsistencies, a medical rationale should be offered if possible. 2. After the above development has been completed, as well as any other development deemed appropriate, readjudicate the claim for an initial compensable rating for asbestosis and adjudicate the claim for a TDIU. If any benefit sought on appeal remains denied, furnish the Veteran and his representative a supplemental statement of the case and return the case to the Board. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims 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). _________________________________________________ MICHAEL D. LYON 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) (2013).