Citation Nr: 1752749 Decision Date: 11/16/17 Archive Date: 11/22/17 DOCKET NO. 07-18 310 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Providence, Rhode Island THE ISSUE Entitlement to an initial disability rating in excess of 30 percent for service-connected asthma with history of empyema, status post thoracotomies. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD T. Harper, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1983 to September 2005 and retired from the United States Air Force. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. Original jurisdiction for the Veteran's claim has now been transferred to the RO in Providence, Rhode Island. This matter was previously before the Board in October 2010 and August 2017, when it was remanded for further development. The Veteran waived a hearing before the Board in his August 2007 substantive appeal, via a VA Form 9. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Board most recently remanded this claim in August 2017 to afford the Veteran an additional VA examination to determine the current severity of the Veteran's service-connected asthma with history of empyema, status post thoracotomies. The Board notes that, in addition to the respiratory disabilities, the Veteran is service-connected for cardiovascular disabilities, to include chronic paroxysmal atrial fibrillation and hypertension. VA has a duty to ensure any medical examination it provides is adequate. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (overruled on other grounds, Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013)). If an examination report does not contain sufficient information, it is incumbent upon the Board to return the report as inadequate for rating purposes. 38 C.F.R. § 4.2 (2017). The Board remanded the claim for a new VA examination in August 2017 because the previous VA examination, dated August 2005, did not adequately address the required rating criteria and did not reflect the current severity of the Veteran's disability. Specifically, the examination did not include test results from diffusion capacity of the lung for carbon monoxide by the single breath method (DLCO(SB)) or a conclusion by the examiner indicating this test would not be useful or valid in this Veteran's case. Although Diagnostic Code 6602 (relating to asthma) does not include DLCO(SB) in its criteria, Diagnostic Code 6844 (relating to post-surgical residuals) uses the General Rating Formula for Restrictive Lung Disease. Thus, consideration of DLCO(SB) is required unless an examiner indicates the test would not be useful or valid in the Veteran's case. See 38 C.F.R. §§ 4.96, 4.97. Although the Schedule of Ratings for the Respiratory System expressly prohibits ratings under Diagnostic Codes 6600 through 6817 and 6822 through 6847 from being combined with each other, it requires assessment under both applicable diagnostic codes with a single rating being assigned under the diagnostic code which reflects the predominant disability. See 38 C.F.R. § 4.96. While the September 2017 VA examination disability benefit questionnaire addressed Diagnostic Code 6602 and reported pulmonary function testing that included DLCO(SB) results, not all of the rating criteria listed under DC 6844 were discussed. Specifically not addressed in this examination is whether the Veteran has reduced exercise capacity less than 15 ml/kg in oxygen consumption (with cardiac or respiratory limitation) or cor pulmonale (right heart failure) or right ventricle hypertrophy or pulmonary hypertension (shown by Echo or cardiac catheterization). As the Veteran is service-connected for a heart disability which has been related to the thoracotomies undergone during service, these rating criteria need to be addressed. See March 2017 VA examination. Additionally, the examiner did not indicate which respiratory disability is the predominant disability or opine whether the overall disability level warrants elevation to the next higher rating criteria. 38 C.F.R. § 4.96(a). Of note, the Board reviewed a March 2017 VA examination related to the Veteran's claim for increased rating related to his service-connected cardiovascular disabilities. The examiner found the Veteran's service-connected chronic paroxysmal atrial fibrillation was etiologically related to the Veteran's previous thoracotomies during active service. Further the March 2017 examination found the Veteran had cardiac hypertrophy but did not have left ventricle hypertrophy; however, it did not determine whether there was right ventricle hypertrophy. Additionally, exercise testing was not performed. Therefore, another VA opinion should be obtained to address all of the rating criteria under DC 6844. 38 U.S.C. § 5103A (d) (2012); 38 C.F.R. § 3.159 (c)(4) (2017); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Additionally, although the Veteran identifies his primary residence as being overseas, he currently resides and works in the continental United States. Updated VA treatment records should be requested and associated with the claims file, if any exist. Finally, the Veteran indicated that there are private medical records in Australia and Germany that may be relevant to the claim. See March 2017 report of general information. The RO requested that the Veteran identify these treatment providers, but the Veteran did not respond. See April 2017 letter. As the claim is already being remanded for other reasons, an additional effort to obtain these medical records should be undertaken. Accordingly, the case is REMANDED for the following action: 1. Obtain all outstanding VA treatment records and associate them with the claims file. 2. Contact the Veteran and request he identify all treatment providers not already of record who have treated him for the service-connected respiratory disability after discharge from service. Request the Veteran execute authorizations as required and obtain any outstanding treatment records from the identified providers. 3. Obtain an addendum VA medical opinion to address the rating criteria listed in the General Rating Formula for Restrictive Lung Disease that were not already addressed in the September 2017 VA examination and medical opinion. All required diagnostic testing should be undertaken. A complete rationale must be provided for all conclusions. The claims file must be made available to and reviewed by the examiner. Whether a new examination of the Veteran is required is left to the examiner's discretion. The examiner should discuss the following: (a) Identify the Veteran's predominant service-connected respiratory disability (i.e. asthma or post-surgical residuals related to the 1999 thoracotomy). (b) Discuss whether the overall severity of the Veteran's service-connected respiratory disabilities warrants an "elevation to the next higher evaluation." See 38 C.F.R. § 4.96 (a). (c) Address the full rating criteria under the General Rating Formula for Restrictive Lung Disease. Specifically, discuss the rating criteria listed other than the pulmonary function and DLCO(SB) testing results. 4. After the above development and any additional development deemed necessary by the RO is complete, readjudicate the issue on appeal. If any benefit sought on appeal remains denied, issue a supplemental statement of the case. Then, return the case to the Board, if otherwise in order. 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 §§ 5109B, 7112 (2012). _________________________________________________ JENNIFER HWA Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), 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) (2017).