Citation Nr: 1416791 Decision Date: 04/15/14 Archive Date: 04/24/14 DOCKET NO. 10-13 565 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to an initial rating in excess of 10 percent for service-connected asbestos-related pleural plaques. 2. Entitlement to a total disability evaluation based on individual unemployability as due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD J. T. Sprague, Counsel INTRODUCTION The Veteran had active service in the United States Navy from July 1963 to July 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. The case has been before the Board on a previous occasion, and was remanded in September 2012 for remedial procedural compliance. While all actions required by that remand have been satisfied, for reasons discussed in detail below, the case requires additional evidentiary development. The entire claims file, to include the portion contained electronically, has been reviewed in this case. The Veteran had a Travel Board hearing in February 2011. A transcript is of record. At this hearing, the Veteran raised the issue of entitlement to service connection for an acquired psychiatric disability. The Board noted that the matter had been previously denied by the RO; however, that the Veteran now alleges that he experiences a current mental disorder as secondary to his service-connected asbestos-related pleural plaques. The Board directed, in its September 2012 remand, that the issue of entitlement to a reopening of a previously denied claim for entitlement to service connection for an acquired psychiatric disorder, to include as secondary to service-connected pleural plaques, be referred to the RO for appropriate action (the matter is not ripe for Board consideration). It does not appear as if this occurred as of yet, so the claim is again referred to the Agency of Original Jurisdiction for appropriate action. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Veteran in this case was awarded service connection for asbestos-related pleural plaques in November 2009, and at that time, a 10 percent rating was established. He posited a timely disagreement with this decision alleging, essentially, that his disability is more severe in nature than what is contemplating by the currently-assigned evaluation. At his hearing with the undersigned, the Veteran indicated that his disability had grown in severity since he was initially examined by VA personnel in 2009. Further, he has asserted throughout the appellate period that his service-connected lung disorder has prevented him from working. The RO, in noting his allegations of worsening symptomatology following his hearing with the Board, scheduled the Veteran for a new, comprehensive VA pulmonary examination. The Veteran, however, failed to report at his scheduled time of appointment. The RO subsequently adjudicated the claim based on the evidence of record. It is noted that the Veteran was scheduled for an examination after the case had been initially remanded by the Board for other procedural development regarding the securing of a waiver, and that a supplemental statement of the case was issued following the Veteran's failure to report for an examination and after the securing of additional evidence. With respect to the Veteran's failure to report at the scheduled time for his pulmonary examination, it is noted that the Veteran has submitted a letter attesting to the fact that he has changed his address so as to allow for a safer delivery of his mail (i.e. he placed the mailbox on a different side of the street), and that he did have some form of notice of a "meeting" with VA; however, he stated that he was not informed as to the nature of meeting. In his statement, it is implicit that the Veteran alleges not knowing of his scheduled appointment for a pulmonary examination due to a miscommunication. Upon review, it is evident that the Veteran has reported to two previous VA examinations (one to assesses a hearing loss disability and one to address the claimed pulmonary condition), and he has also presented himself at a hearing before the Board. Thus, he has demonstrated a willingness to cooperate with VA's development of his claim, and the failure to report to the most recently scheduled VA examination appears to be an aberration as opposed to continuance of a demonstrated pattern of absenteeism. Taking this into consideration with his written statement alleging that he had not been notified as to the specific nature of his required presence at the VA Medical Center in Columbia, South Carolina (along with his noted change of mailing address to the other side of his street), the Board can conclude that the Veteran is credible in his assertion of not knowing of a need to report for an examination. Thus, good cause as to his absence from such an examination has been shown. Given this, and given that the Veteran has reported a growing severity in his condition since the most recent pulmonary examination, a new, comprehensive VA lung examination should be scheduled. See Green v. Derwinski, 1 Vet. App. 121, 124 (1991); Hyder v. Derwinski, 1 Vet. App. 221 (1991). The RO should confirm the correct address prior to dispatching notice to the Veteran of the date and scheduled time of his assessment. It is noted that the Veteran has expressed some frustration with the VA Medical Center in Columbia, South Carolina, and has asked that any additional examinations be afforded at a different facility. If this is practicable for VA and the Veteran, such an arrangement should be made. Regardless of where the examination is scheduled, the Veteran is to be reminded that the duty to assist is not a "one-way street," and that it is in the best interest of his claim to report to any examination scheduled by the RO for evidentiary development. Additionally, it is noted that, in his claim for an increase, the Veteran has asserted that he cannot work as due to his service-connected lung disease. The U.S. Court of Appeals for Veterans Claims (Court) has stated that in any claim for an increase, when the issue of unemployability is raised, there is a separate part of the claim for benefits that raises the issue of entitlement to a total disability evaluation based on individual unemployability as due to service-connected disabilities (TDIU) (regardless of the overall disability percentage currently in effect). See Rice v. Shinseki, 22 Vet. App. 447 (2009). As this has been raised in this case, the Veteran is to be provided notice as to how to substantiate that portion of his claim prior to any adjudication. Thus, prior to the affording of the pulmonary examination indicated as necessary in this remand order, the Veteran should be given notice compliant with the Veterans Claims Assistance Act of 2000 (VCAA) regarding how to substantiate a claim for entitlement to a TDIU. With specific respect to the narrative portion of the aforementioned pulmonary examination, the examiner should address how the manifestations of the service-connected asbestos-related pleural plaques, in itself or in combination with other service-connected disablement, relate to the Veteran's ability to gain and maintain substantially gainful employment. Lastly, the record indicates that the Veteran is currently in receipt of benefits from the Social Security Administration (SSA). The Veteran is over 70 years-old, so the receipt of benefits from this agency, in itself, does not necessarily indicate that disability benefits have been paid. Nonetheless, VA should query the SSA and determine if disability benefits are being paid (or have ever been paid), and if so, such records should be obtained before any additional development occurs. See Bell v. Derwinski, 2 Vet. App. 611 (1992). Accordingly, the case is REMANDED for the following action: 1. Contact the SSA and determine if disability records exist for the Veteran. If so, copies of these records should be obtained and associated with the claims file. If no such records exist, so annotate the claims file. 2. Provide the Veteran with information, at his correct address, as to how to substantiate the TDIU portion of his claim. Inform the Veteran as to what he is required to do to support his claim, and as to what VA is required to do on his behalf. Should any evidence be received in support of the claim, associate it with the claims file. Further, should the Veteran identify any outstanding treatment records, after securing the appropriate waivers (with respect to private medical evidence), obtain copies of the records and associate them with the claims file. 3. Schedule the Veteran for a comprehensive VA pulmonary examination to address the severity of his service-connected asbestos-related pleural plaques. The examiner should examine the Veteran thoroughly and should conduct any tests necessary, to include pulmonary function testing, in coming to an opinion. Further, any opinion with respect to the severity of the service-connected condition should be accompanied by a rationale explaining the conclusions. The examiner should specifically reference the impact, if any, that the Veteran's asbestos-related pleural plaques, by themselves or in combination with other service-connected disabilities, have on his ability to obtain and maintain any type of gainful employment consistent with his skills, training, and education. The notice of the examination should specify the date and time of examination and, if feasible, should be scheduled at a facility other than the VA Medical Center in Columbia, South Carolina. The notification should be dispatched to the current and correct address, and the Veteran should be reminded that a failure to report at the scheduled time will be detrimental to his claim for a higher rating (to include the TDIU portion of the claim). 4. Following the above-directed development, re-adjudicate the claim for benefits. Should the claim not be granted in its entirety (to include the TDIU portion), issue an appropriate supplemental statement of the case and forward the claim to the Board for adjudication. 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. 2013). _________________________________________________ T. D. JONES 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).