Citation Nr: 1622962 Decision Date: 06/08/16 Archive Date: 06/21/16 DOCKET NO. 09-33 515 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection of chronic obstructive pulmonary disorder (COPD). 2. Entitlement to service connection of chronic bronchitis. 3. Entitlement to service connection of emphysema. 4. Entitlement to service connection of mesothelioma. 5. Entitlement to service connection of tinnitus. 6. Entitlement to a compensable rating for asbestosis. 7. Entitlement to a total disability rating for individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Veteran represented by: Colin E. Kemmerly, Esq. WITNESSES AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD B. T. Callahan, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Marine Corps from March 1973 to March 1976. This case is before the Board of Veterans' Appeals (Board) on appeal from September 2011 and June 2015 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama, which denied the benefits sought on appeal. In March 2016, the Veteran testified before the undersigned Veterans Law Judge during a hearing conducted via videoteleconference. A transcript of the hearing has been associated with the claims file. The Board also notes that the Veteran has other issues on appeal to the Board. However, the Veteran offered testimony on those issues to another Veterans Law Judge in another hearing held in May 2012. As such, those issues will be addressed in a separate decision. This appeal has been processed utilizing the paperless, electronic Veterans Benefits Management System and Virtual VA claims processing systems. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND As was noted above, the Veteran was previously granted service connection for asbestosis, effective May 17, 2002, and in this case the Veteran is seeking an increased disability rating for it. In support of this claim, the Veteran testified that he has increasing difficulty with his breathing, and therefore his exertion. In fact, the Veteran testified that he would experience shortness of breath from attempting to ambulate approximately 30 feet. However, this case also involves claims for service connection for emphysema, COPD, mesothelioma, and chronic bronchitis, and the record does not make clear what respiratory disability is producing the Veteran's symptoms. The record is likewise unclear as to the relationship, if any, between respiratory disabilities other than asbestosis and service. An examination of the Veteran is necessary to clarify what current respiratory disability, apart from asbestosis, may be related to disease or injury in service, and to determine the disability/s responsible for any current respiratory impairment. In addition to the Veteran's claims relating to pulmonary disorders, the appeal also includes a claim for a total disability rating based on unemployability. Such a claim requires an analysis of the functional impact of the Veteran's service-connected disabilities on his ability to obtain and sustain substantially gainful employment. As such, the issue is inextricably intertwined with the other issues in this appeal, as well as the other appeal pending before another member of the Board. For that reason the TDIU claim must deferred. Finally, the Board notes that the Veteran submitted a claim for service connection of tinnitus in November 2007. That claim was denied in a June 2015 rating decision by the Montgomery RO. The Veteran submitted a timely notice of disagreement in September 2015, and no action has been taken on that claim since that time. For that reason, the Veteran's claim for tinnitus is also remanded back to the AOJ in order for the Veteran to be provided with a statement of the case, as is required by law. Accordingly, the case is REMANDED for the following action: 1. Issue a statement of the case to the Veteran and his representative with respect to the Veteran's claim for service connection of tinnitus. 2. Obtain any outstanding post-service VA treatment records relating to the Veteran not currently associated with the claims file. 3. Schedule the Veteran for a pulmonary examination with a qualified VA medical professional in order to determine the nature, extent, and etiology of the Veteran's pulmonary disabilities. In scheduling this examination, the examiner should be given access to the Veteran's entire claims file. The examiner should review the claims file in its entirety. After this examination, the examiner should specifically diagnose any and all respiratory disorders from which the Veteran suffers. The examiner should specifically address whether or not the Veteran has asbestosis, chronic bronchitis, emphysema, COPD, or mesothelioma. If the examiner determines that the Veteran suffers from any respiratory or pulmonary disorders, apart from asbestosis, the examiner is requested to offer an opinion as to whether it is at least as likely as not that any such disorder is causally or etiologically related to the Veteran's service, to include his exposure to asbestos in service. The examiner also should offer an opinion as to whether it is at least as likely as not that the Veteran's previously service-connected asbestosis caused or aggravated any other respiratory or pulmonary disorders which are identified. In offering this opinion, the examiner is reminded that the term "aggravated" has been defined as a permanent worsening of a disability, beyond the natural progression of the disability. The examiner is requested to clearly identify and delineate the symptoms and functional limitations caused by each identified pulmonary or respiratory disorder specifically, including the Veteran's asbestosis. The examiner also should provide clear supporting rationale for any and all conclusions or opinions, with specific reference to supporting evidence in the claims file. 4. After completing the above development, as well as any other warranted development, the Veteran's claims must be readjudicated based on the entirety of the evidence. If the Veteran's claims remain denied, the Veteran and his representative must be issued a supplemental statement of the case, and an appropriate period of time must be allowed for response. The appellant has the right to submit additional evidence and argument on the 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 remanded by the Board 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 E. KILCOYNE 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).