Citation Nr: 18143656 Decision Date: 10/19/18 Archive Date: 10/19/18 DOCKET NO. 08-22 081 DATE: October 19, 2018 REMANDED Entitlement to service connection for bronchitis or other respiratory disorder, other than service-connected asthma with interstitial lung disease, to include as secondary to exposure to asbestos or as due to a respiratory disorder resulting from exposure to asbestos, is remanded. Entitlement to an initial rating in excess of 10 percent prior to April 4, 2016, and in excess of 30 percent from April 4, 2016, for asthma with interstitial lung disease due to asbestos exposure, is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disability is remanded. REASONS FOR REMAND The Veteran had active military service in the Navy from January 1977 to December 1980, followed by periods of reserve service through 1986. This appeal comes to the Board of Veterans’ Appeals (Board) from October 2007 and August 2011 rating decisions of the Department of Veterans Affairs (VA) Regional Office, (RO) in Pittsburgh, Pennsylvania. In September 2009, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the claims file. In February 2010, the Board, in pertinent part, reopened the claim of entitlement to service connection for asbestos-related lung disease and remanded the underlying service connection claim along with the claims for service connection for bronchitis and asthma for further development. In August 2011, the RO granted service connection for asthma with interstitial lung disease due to asbestos exposure with an evaluation of 10 percent effective August 15, 2006. In September 2011, the Veteran disagreed with the assigned initial evaluation. In February 2013, the Board, in pertinent part, remanded the issues of entitlement to service connection for bronchitis or other respiratory disorders and entitlement to an initial increased rating for asthma for further development. A May 2016 rating decision increased the rating for asthma with interstitial lung disease to 30 percent disabling, effective April 4, 2016. The Board finds that entitlement to a TDIU has been raised by the evidence of record and has re-characterized the issues on appeal to include entitlement to a TDIU. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). 1. Entitlement to service connection for bronchitis or other respiratory disorder, other than service-connected asthma with interstitial lung disease, to include as secondary to exposure to asbestos or as due to a respiratory disorder resulting from exposure to asbestos is, remanded. In January 2016, the Veteran had a VA examination for respiratory conditions. The VA examiner opined that the Veteran did not have any lung condition other than asthma, and he only had symptoms that had etiology over the years and sometimes did not have etiology over the years. The VA examiner also noted that the Veteran had been diagnosed with bronchitis over the years, which resolved unrelated to interstitial lung disease. In September 2017, the VA examiner diagnosed the Veteran with recent acute bronchitis as of August 2017. However, there is no opinion of record addressing whether it is related to his exposure to asbestos or secondary to his service-connected asthma. The Board notes that the requirement that a current disability be present is satisfied “when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim...even though the disability resolves prior to the Secretary’s adjudication of the claim.” McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Therefore, on remand, this matter should be addressed. 2. Entitlement to an initial rating in excess of 10 percent prior to April 4, 2016, and in excess of 30 percent from April 4, 2016, for asthma with interstitial lung disease due to asbestos exposure, is remanded. A remand is warranted for a new VA examination to determine the current nature and severity of the Veteran’s asthma. As part of his claim, the Veteran underwent a pulmonary function test (PFT) in July 2017, and had a VA examination in September 2017. On the September 2017 VA examination report, it was noted that the PFT results were “suboptimal.” It was found that the results did not accurately reflect the Veteran’s current pulmonary function. Therefore, in order to effectively rate the Veteran’s respiratory conditions, a new examination is necessary. 3. Entitlement to a TDIU is remanded. Finally, as noted above in the Introduction, the issue of entitlement to a TDIU has been raised and is part of the Veteran’s appeal. Rice v. Shinseki, 22 Vet. App. 447 (2009). The Board also finds that the TDIU issue is inextricably intertwined with the issues being remanded. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). There, it also must be remanded. The matters are REMANDED for the following action: 1. Obtain any pertinent VA treatment or private treatment records and associate with the claims file. Specifically, the RO should request the Veteran to complete and return a VA Form 21-4142, Authorization and Consent to Release Information, for records from any private facilities, such as hospitals, where the Veteran received treatment for his asthma. The RO should then obtain the Veteran’s medical records from these facilities. 2. Following completion of the above, schedule the Veteran for a VA examination to determine the current nature, severity, and etiology of his respiratory conditions. The record and a copy of this remand must be made available and reviewed by the examiner in conjunction with the examination. A complete history should be obtained from the Veteran. All necessary tests should be completed. The VA examiner should address the following: (a.) The examiner should specifically note the Veteran’s FEV-1 and FEV-1/FVC consumption. He/she should also note whether the Veteran: has monthly visits to a physician for required care of exacerbations; takes intermittent (at least three per year) courses of systemic (or parenteral) corticosteroids; has more than one attack per week with episodes of respiratory failure; or, has daily use of systemic (oral or parenteral) high dose corticosteroids or immuno-suppressive medications. (b.) Whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s acute bronchitis that was diagnosed in August 2017 is related to his military service, to include asbestos exposure. See September 2017 VA examination. (c.) Whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s acute bronchitis is caused by his service-connected asthma with interstitial lung disease due to asbestos exposure. (d.) Whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s acute bronchitis is aggravated (any worsening beyond normal progression of the disability) by his service-connected asthma with interstitial lung disease due to asbestos exposure. If aggravation is found, the examiner should also state, to the extent possible, the baseline level of disability prior to aggravation. This may be ascertained by the medical evidence of record and also by the Veteran’s statements as to the nature, severity, and frequency of observable symptoms over time. BARBARA B. COPELAND Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Crawford, Associate Counsel