Citation Nr: 1603705 Decision Date: 02/03/16 Archive Date: 02/11/16 DOCKET NO. 12-33 411 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an initial disability rating in excess of 10 percent for asbestosis with scattered calcified pleural plaques. 2. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected asbestosis. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD A. Dean, Associate Counsel INTRODUCTION The Veteran had active military service from April 1960 to April 1964. This matter comes before the Board of Veterans Appeals (Board) on appeal from an August 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Veteran and his spouse testified before the undersigned at an October 2015 video-conference hearing. The undersigned noted the issues on appeal and engaged in a colloquy with the Veteran toward substantiation of his claims. See Bryant v. Shinseki, 23 Vet. App. 488, 496-97 (2010). The undersigned kept the record open for 30 days to allow the Veteran to submit additional evidence. A transcript of the hearing is in the claims file. In October 2015 and December 2015, the Veteran waived RO consideration of newly submitted evidence. The issue of entitlement to TDIU is raised by the record. October 2015 Hearing Transcript, pp. 13-14 (testifying he is unable to work due to his lungs); see 38 C.F.R. §§ 3.340, 4.16 (2015); Rice v. Shinseki, 22 Vet. App. 447, 453-455 (2009) (holding that TDIU is not a separate claim for benefits; rather, it involves an attempt to obtain an appropriate rating for a disability or disabilities). This appeal was processed using the Veterans Benefits Management System (VBMS) paperless claims processing system. Any future review of the appeal should consider the electronic record. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Veteran and his wife have alleged that his asbestosis has worsened since his last VA examination in March 2011. Remand is warranted to obtain a new VA examination, to include clarification of the Veteran's medication regimen. Accordingly, the case is REMANDED for the following action: 1. Request that the Veteran identify and secure any relevant private medical records that are not in the claims file. Associate any records identified by the Veteran with the claims file. If any records are unavailable, document their unavailability within the claims file and advise the Veteran so that he can submit any copies of the unavailable records in his possession. 2. Obtain any outstanding VA medical records (VAMRs) and associate them with the claims file. 3. After the passage of a reasonable amount of time or upon the Veteran's response, return the claims file to the VA examiner who performed the March 2011 respiratory diseases examination for a new examination with opinion as to the severity of the Veteran's asbestosis. If the examiner is not available, a different examiner may conduct the examination. The entire claims file, to include a copy of this REMAND, must be provided to the VA examiner who must indicate its review. The following considerations must govern the examination: a. The examiner should identify the nature, frequency, and severity of the symptoms associated with the Veteran's asbestosis, as well as perform all necessary tests, to especially include a pulmonary function test (PFT). The examiner must report the results of the PFT, as well as whether the Veteran's asbestosis requires any of the following: i. Intermittent or daily inhalational or oral bronchodilator therapy. ii. Inhalational anti-inflammatory medication. iii. At least monthly visits to a physician for required care of exacerbations. iv. Intermittent (at least three times per year) courses of systemic (oral or parenteral) corticosteroids. v. Daily use of a systemic (oral or parenteral) high dose corticosteroid or immune-suppressive medication. b. After assessing the severity of the Veteran's asbestosis, the examiner must provide an opinion addressing the impact, if any, of the Veteran's symptoms on his occupational and social functioning. In particular, the examiner should state whether the Veteran's symptoms are sufficiently incapacitating to prevent him from working (i.e., engaging in substantially gainful activity) without regard to other factors such as age and nonservice-related disabilities. c. The examiner has an independent responsibility to review the entire record for pertinent evidence. IN ADDITION TO ANY RECORDS THAT ARE GENERATED AS A RESULT OF THIS REMAND, the examiner's attention is called to: January 2011 Private Medical Records (PMRs), including PFT results, radiology report, and treatment notes showing worsened cough with postnasal component and use of an ACE inhibitor. March 2011 VA Examination Report, noting positive history of clear, productive cough; daily wheezing; and dyspnea on moderate exertion. August 2011 PMRs, noting complaints of increased shortness of breath with congested cough, use of an inhaler, and recommendation to start use of a nebulizer. September 2011 Wife's Statement, reporting increased phlegm and shortness of breath. November 2011 Notice of Disagreement, reporting he runs out of breath very easily during the day with light activity. December 2012 PMRs, showing PFT results. April 2014 VA Medical Records (VAMRs), showing PFT results. October 2015 Hearing Transcript, including testimony that the Veteran wants to work but is unable due to his lungs. November 2015 PMRs, showing PFT results and list of medications, including Prednisone. 4. Then, review the VA examination report to ensure that it adequately responds to the above instructions. If the report is deficient in this regard, return the case to the VA examiner for further review and discussion. 5. After the above development, and any other development that may be warranted based on additional information or evidence received, is completed, readjudicate the issues of entitlement to an initial disability rating in excess of 10 percent for asbestosis and entitlement to a TDIU. If the benefits sought are not granted, the Veteran and his representative should be furnished with a Supplemental Statement of the Case (SSOC) and afforded a reasonable opportunity to respond to the SSOC before the record is returned to the Board for further review. 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 2014). _________________________________________________ Vito A. Clementi Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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) (2015).