Citation Nr: 1605051 Decision Date: 02/10/16 Archive Date: 02/18/16 DOCKET NO. 10-38 487 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to an initial compensable rating for interstitial lung disease, diagnosed as early asbestosis. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD L. Willis, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1967 to August 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. The Board notes that the Veteran perfected an appeal for his claim for entitlement to service connection for posttraumatic stress disorder (PTSD) in August 2010. However, in an April 2012 rating decision, the RO granted the claim for entitlement to service connection for PTSD with a cognitive disorder. As this constitutes a full grant of the benefits sought on appeal, that issue is no longer on appeal. This appeal was processed using the VBMS paperless claims processing system. Accordingly, any future consideration of this appellant's case should take into consideration the existence of this electronic record. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND First, a May 2011 pulmonary function test (PFT) from the Center for Occupational and Environmental Medicine (Occupational Center) indicates that the Veteran had a predicated forced vital capacity (FVC) of 89 percent, pre-bronchodilator and a 92 percent post-bronchodilator and a predicted diffusion capacity of the lung for carbon monoxide by the single breath method (DLCO SB) of 66 percent. An April 2014 spirometry report indicates that the Veteran had a predicated FVC of 56 percent. This report does not indicate whether the test was based on pre or post- bronchodilator. Post-bronchodilator studies are required when PFT's are done for disability evaluation purposes except when the results of pre-bronchodilator pulmonary function tests are normal or when the examiner determines that post-bronchodilator studies should not be done and states why. 38 C.F.R. § 4.96 (d)(4) (2015). A 10 percent rating is warranted for FVC of 75 to 80 percent predicted or DLCO of 66 to 88 percent predicted. The Board finds that a remand is necessary since the April 2014 report indicates a worsening of the Veteran's lung disease. In that regard, the Veteran's May 2011 PFT showed an 89 to 92 percent range for predicted FVC, while an April 2014 indicates only a 56 percent predicted FVC. Based on the foregoing, the Board finds that the Veteran should be afforded a new VA examination to determine the current nature and severity of his lung disability. See Weggenmann v. Brown, 5 Vet. App. 281 (1993); see also Snuffer v. Gober, 10 Vet. App. 400 (1997) (a Veteran is entitled to a new examination where there is evidence that the condition may have worsened since the last examination). Second, a May 2011 treatment note from Dr. M.H. of the Occupational Center indicates that the Veteran has diagnoses of interstitial lung disease, in particular asbestosis. He indicates that the Veteran's dyspnea on exertion is increasing and his "rales are louder." He references the Veteran's chart. There are other treatment notes from Dr. M.H. of record, but it is unclear if all treatment records from Dr. M.H. during the relevant period on appeal are of record. Further, the Veteran submitted a spirometry report in April 2014 ordered by Dr. Trosin of the McLaren Macomb Silvan Family Medicine (McLaren). The most recent records from McLaren are dated February 2014. Accordingly, as the Board is now on notice of the existence of private medical records that are pertinent to the Veteran's claim, reasonable efforts to obtain those records should be made on remand. Specifically, the Veteran should be requested to complete a VA Form 21-4142, Authorization and Consent to Release Information to VA, for the release of the private records. Third, at the May 2011 Decision Review Officer (DRO) hearing, the Veteran testified that he receives treatment at the Detroit VA Hospital. The most recent records (in Virtual VA) are dated January 2014. On remand, the Veteran's up to date treatment records should be obtained. Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and request that he provide or authorize the release of records from Dr. M.H. of Center for Occupational and Environmental Medicine and Dr. C.T. of McLaren Macomb Silvan Family Medicine, as well as any other records, not already of record, that are relevant to his claim. If, after making reasonable efforts to obtain non-VA records the AOJ is unable to secure same, the AOJ must notify the Veteran and (a) identify the specific records the AOJ is unable to obtain; (b) briefly explain the efforts that the AOJ made to obtain those records; (c) describe any further action to be taken by the AOJ with respect to the claim; and (d) inform the Veteran that he is ultimately responsible for providing the evidence. The Veteran must then be given an opportunity to respond. 2. Obtain and associate with the claims file all pertinent VA medical records dating from January 2014 to present. 3. Then, schedule the Veteran for a VA examination to assess the current severity of his service-connected lung disability. The electronic claims folder must be made available and reviewed by the examiner. All signs and symptoms necessary for rating the Veteran's asbestosis should be reported in detail (including all information for rating this disability under 38 C.F.R. § 4.97, Diagnostic Code 6833). All necessary tests and studies are to be performed, including pulmonary function tests. It is essential that the pulmonary function study contain the full range of results necessary to rate the disability under the diagnostic criteria (FEV-1, FVC, FEV- 1/FVC, DLCO (SB), maximum exercise capacity, maximum oxygen consumption with cardio-respiratory limitation). It is specifically noted that post-bronchodilator studies are required when PFT's are done for disability evaluation purposes except when the results of pre-bronchodilator pulmonary function tests are normal or when the examiner determines that post-bronchodilator studies should not be done and states why. 8 C.F.R. § 4.96 (d)(4) (2015). 4. Thereafter, ensure that the examination report complies with the remand directives set forth above, and then readjudicate the Veteran's claim. The AOJ is directed to consider: (a) the Veteran's DLCO of 66 percent on his May 2011 PFT; (b) his FVC of 56 percent on his April 2014 PFT; and (c) any additional records obtained through this remand from the Veteran's private or VA treatment for his lung disability. If the benefit sought on appeal remains denied, the Veteran and his representative should be provided with a Supplemental Statement of the Case and an appropriate period of time in which to respond before the case 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 2014). _________________________________________________ MICHAEL A. PAPPAS 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).