Citation Nr: 1338413 Decision Date: 11/22/13 Archive Date: 12/06/13 DOCKET NO. 10-47 870 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUES 1. Entitlement to an initial disability rating in excess of 30 percent for asbestosis prior to May 8, 2012, and a rating higher than 60 percent since. 2. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Heather Van Hoose, Attorney WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Tiffany Berry, Counsel INTRODUCTION The Veteran served on active duty from February 1952 to January 1956. This appeal to the Board of Veterans' Appeals (Board) is from a January 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia, that initially granted the Veteran's claim of entitlement to service connection for asbestosis, and assigned a noncompensable rating, effective from October 7, 2009. In an October 2010 rating decision, the RO increased the Veteran's disability rating to 30 percent, effective from October 7, 2009. Thereafter, a June 2012 rating decision assigned a 60 percent disability rating, effective from May 8, 2012. In July 2013, the Veteran testified at a Travel Board hearing before the undersigned Acting Veterans Law Judge (AVLJ). A transcript of the hearing has been associated with the claims file. The Board notes that the Veteran filed a VA Form 21-8940, Application for Increased Compensation Based on Unemployability, in July 2012. However, the RO has to yet to adjudicate the Veteran's claim of entitlement to a TDIU. Regardless, in Rice v. Shinseki, 22 Vet. App. 447 (2009), the United States Court of Appeals for Veterans Claims (Court) held that a claim for a TDIU is part of an initial rating claim when such claim is raised by the record. In this regard, the Veteran testified during his July 2013 hearing that he believes his asbestosis renders him unemployable. Therefore, the Board finds that the evidence raises a claim for a TDIU; accordingly, it has been included on the title page of this decision. The appeal is REMANDED to the Department of Veterans Affairs Regional Office. VA will notify the appellant if further action is required. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). 38 U.S.C.A. § 7107(a)(2) (West 2002). REMAND VA has a duty to assist claimants in the development of facts pertinent to claims and VA must accomplish additional development of the evidence if the record before it is inadequate. See 38 U.S.C.A. § 5103A. The Board regrets the additional delay that will result from this remand. Nevertheless, the Board is constrained by the fact that proper adjudication of the claims requires additional development. Concerning the Veteran's claim for an increased rating for his asbestosis, the record shows that the Veteran last underwent a VA examination for this disability in May 2012. As he testified in July 2013, the Veteran believes his asbestosis has worsened in severity since his last examination. He stated he cannot be around fumes of any kind and he suffers from increased shortness of breath. In light of this competent evidence indicating a worsening of symptoms, VA is required to afford him a contemporaneous VA examination to assess the current nature and severity of his disability. See Palczewski v. Nicholson, 21 Vet. App. 174, 181 (2007); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); see also VAOPGCPREC 11-95 (1995), 60 Fed. Reg. 43186(1995). As noted above, the Board has assumed jurisdiction over a claim for TDIU based on the evidence of record. See Mayhue v. Shinseki, 24 Vet. App. 273 (2011); Rice v. Shinseki, 22 Vet. App. 447 (2009). The Board finds that further development is necessary for a fair adjudication of the Veteran's TDIU claim. In this regard, upon remand, the AOJ should conduct all appropriate development, to include providing the Veteran with VCAA-compliant notice as to a claim for a TDIU, obtaining outstanding treatment records, and obtaining an opinion regarding the effect the Veteran's service-connected disabilities have on his employability. See Friscia v. Brown, 7 Vet. App. 294, 297 (1994). Finally, the Veteran also testified that he only receives treatment from the VA medical center in Huntington, West Virginia. However, the most recent VA treatment records associated with the Veteran's claims file are dated from May 2012. Therefore, on remand, any additional pertinent VA treatment records dated after May 2012 should be obtained. See 38 U.S.C.A. § 5103A(a) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(c)(2); Bell v. Derwinski, 2 Vet. App. 611 (1992); see also Stefl v. Nicholson, 21 Vet. App. 120, 125 (2007) (an adequate VA medical examination must consider the Veteran's pertinent medical history). 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) (2013). Expedited handling is requested.) 1. Provide the Veteran with notice as to the evidence and information necessary to substantiate a claim for TDIU. Allow him a reasonable opportunity to respond. 2. The AOJ should associate with the claims file any pertinent VA treatment records dated since May 2012. 3. After the above development is completed, schedule the Veteran for an examination to determine the nature and severity of his asbestosis. The claims folder should be made available to and reviewed by the examiner. The examiner is specifically requested to conduct a pulmonary function test (PFT) to determine the Veteran's current forced vital capacity (FVC) readings. Any additional tests as indicated by the examiner to determine the current severity of the Veteran's asbestosis should be performed. 4. Thereafter, the AOJ should arrange for the Veteran to undergo a social and industrial survey to ascertain if his only service-connected disability, asbestosis, precludes him from securing and maintaining substantially gainful employment in light of his work history and level of education. The Veteran's claims file must be made available to the examiner and reviewed in connection with the examination. It is imperative for the social and industrial survey examiner to understand that the focus of the inquiry is on whether or not the Veteran's service-connected asbestosis alone would preclude substantially gainful employment in light of his education and work history, without regard to the impact of nonservice-connected disabilities. If the examiner cannot respond to the question posed without resorting to mere speculation, the examiner must so state and must provide an explanation for why an opinion cannot be provided without resorting to mere speculation. 5. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claims should be adjudicated based on the entirety of the evidence. If the claims remain denied, the Veteran and his attorney should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. The Veteran 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). _________________________________________________ M. N. HYLAND Acting 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).