Citation Nr: 1337882 Decision Date: 11/19/13 Archive Date: 12/06/13 DOCKET NO. 07-02 466 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUE What evaluation is warranted for asbestosis effective from December 13, 2007? REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD N. Holtz, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1968 to October 1972. This case comes before the Board of Veterans' Appeals (Board) on appeal from an August 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York. In October 2010, the Board remanded this case for additional development. In an October 2011 decision, the Board found that a 30 percent disability rating was warranted between June 27, 2005, and August 30, 2007; a 60 percent rating was warranted between August 31, 2007, and December 11, 2007; and a 30 percent rating was warranted from December 12, 2007 for asbestosis. Also in the October 2011 decision, the Board remanded the claim to obtain outstanding treatment records and afford the Veteran a VA examination to address the nature and extent of any disability due to asbestosis since December 13, 2007. The matter returned to the Board in December 2012, at which time the appeal was again remanded, as the RO/AMC had not properly complied with the October 2011 remand directives. In the appellate brief presented by the appellant's representative correctly argues that the RO/AMC again failed to sufficiently comply with the Board's December 2012 remand instructions. Although the Board regrets the additional delay, for the reasons discussed below, another remand is necessary. 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 Under the applicable rating criteria for asbestosis, a 30 percent rating is assigned when forced vital capacity (FVC) is between 65 to 74 percent predicted, or when diffusion capacity of the lung for carbon monoxide by the single breath method (DLCO (SB)) is 56 to 65 percent predicted. A 60 percent evaluation is warranted when FVC is between 50 to 64 percent predicted; or DLCO (SB) is between 40 to 55 percent predicted; or maximum exercise capacity of 15 to 20 ml/kg/minute oxygen consumption with cardio respiratory limitation. A 100 percent rating is appropriate when FVC is less than 50 percent predicted; or DLCO (SB) is less than 40 percent predicted; or maximum exercise capacity less than 15 ml/kg/minute oxygen consumption with cardio respiratory limitation; or cor pulmonale or pulmonary hypertension; or requires outpatient oxygen therapy. 38 C.F.R. § 4.97, Diagnostic Code 6833 (2013). Under 38 C.F.R. § 4.96(d)(2) (2013), when rating asbestosis, the record must contain results of testing for the diffusion capacity of the lung for carbon monoxide by the single breath method (DLCO (SB)); asbestosis may only be rated without such evidence if an examiner "states why the test would not be useful or valid in a particular case." Following the October 2011 remand, the Veteran was afforded a VA examination. The ensuing report (not conducted by a pulmonologist, as requested, but reviewed by one) failed to provide the DLCO (SB) value, which the Board had specifically requested in its remand directives. Thus, in December 2012, the Board remanded for, inter alia, a new examination, to be performed by a pulmonologist. The examination report was to include both DLCO (SB) results and the Veteran's maximum exercise capacity. In April 2013, VA provided the Veteran with an examination in two parts. One part of the examination, including pulmonary function tests, was conducted by an attending physician, who is not shown to be a pulmonologist. A second aspect of the examination, which included an interview with the Veteran that was the basis for a completed Disability Benefits Questionnaire, was performed by a nurse practitioner. Hence, neither aspect of the April 2013 examination, at least as evidenced by the records in the claims file, was performed by a pulmonologist as was directed. Further, the April 2013 examination failed to (a) obtain DLCO (SB) results, or (b) obtain results regarding the Veteran's maximum exercise capacity. The Board acknowledges that there are "DLCO" results included with the pulmonary function test results, but the report fails to indicate that such testing was performed by the single breath method, as specifically instructed in the remand. Concerning the Veteran's maximum exercise capacity, a May 2013 note to file indicates that the nurse practitioner who completed the disability benefits questionnaire did not provide an exercise capacity examination "because [the appellant's] current condition did not warrant one." While such may be a valid reason for not performing an exercise capacity test, such a determination, at least in this case, must be made by a pulmonologist. As such, another VA examination, performed by a pulmonologist, and during which the indicated results are obtained, is necessary. See Stegall v. West, 11 Vet. App. 268, 271 (1998). While on remand any additional VA treatment records not currently associated with the claims file or the Virtual VA records system, especially as they pertain to the Veteran's pulmonary function, should be obtained and associated with the claims folder/Virtual VA. 38 U.S.C.A. § 5103A (West 2002). Accordingly, the case is REMANDED for the following action: 1. Obtain and associate with the claims folder any available outstanding private and VA treatment records, especially as they pertain to the Veteran's pulmonary disability due to asbestosis. If the RO cannot locate such records, the RO must specifically document the attempts that were made to locate them, and explain in writing why further attempts to locate or obtain any government records would be futile. The RO must then: (a) notify the claimant of the specific records that it is unable to obtain; (b) explain the efforts VA has made to obtain that evidence; and (c) describe any further action it will take with respect to the claims. The claimant must then be given an opportunity to respond. 2. Thereafter, the Veteran must be scheduled for a VA pulmonary examination performed by a pulmonologist to determine the current severity of his asbestosis. The claims folder and access to Virtual VA must be provided to and reviewed by the examining pulmonologist prior to the conduct of any requested study. All indicated tests and studies must be performed, including pulmonary function test studies with all values required under Diagnostic Code 6833 reported. All clinical findings should be reported in detail. The results of DLCO (SB) and the Veteran's maximum exercise capacity must be specifically reported, and if unobtainable, the reasoning such results are unobtainable should be explained. The pulmonologist must review the results of any testing prior to completion of the examination report. The pulmonologist must address whether the Veteran has: (i) cor pulmonale (right heart failure), or; (ii) pulmonary hypertension, or; (iii) whether he requires outpatient oxygen therapy due to asbestosis. Any respiratory impairment caused by a disorder other than asbestosis must be carefully differentiated from that which is caused by asbestosis. If differentiation is not possible, the pulmonologist must explain why not. A rationale for any opinion expressed must be provided. 3. The Veteran is to be advised in writing that it is his responsibility to report for any VA examination, to cooperate with the development of his claim, and that the consequences for failure to report for a VA examination without good cause include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2013). 4. Thereafter, the RO must review the claims folders and ensure that the foregoing development actions, as well as any other development that may be in order, has been conducted and completed in full. The RO must review the examination report to ensure that it is in complete compliance with the directives of this remand. If the report is deficient in any manner, the RO must implement corrective procedures at once. 5. Then, readjudicate the remaining issue on appeal. If the benefit sought is not granted, the appellant and his representative should be furnished with a supplemental statement of the case and afforded an opportunity to respond before the record 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. 2013). _________________________________________________ DEREK R. BROWN 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).