Citation Nr: 1808864 Decision Date: 02/13/18 Archive Date: 02/23/18 DOCKET NO. 14-15 368 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to an initial compensable rating for service-connected interstitial lung disease diagnosed as calcified pleural plaques. 2. Whether new and material evidence has been received to reopen a claim for service connection for chronic obstructive pulmonary disease (COPD). REPRESENTATION The appellant represented by: The American Legion ATTORNEY FOR THE BOARD N. Robinson, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1955 to April 1959. The appellant is his surviving spouse. This matter is before the Board of Veterans' Appeals (Board) on appeal from a May 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. As a procedural matter, the Board notes that the Veteran originally claimed service connection for COPD due to in-service asbestos exposure. The RO denied this claim in July 2008, and the Veteran did not appeal. In May 2012, he filed to reopen this claim for service connection for a pulmonary disability, submitting evidence of asbestosis. In May 2013, the RO granted service connection for interstitial lung disease diagnosed as pleural plaques secondary to asbestos exposure and assigned a noncompensable rating. In his September 2013 notice of disagreement (NOD), the Veteran disagreed with the assigned rating AND asserted entitlement to service connection for COPD (in addition to interstitial lung disease/pleural plaques) because he believed that his interstitial lung disease aggravated his COPD. As such, the Board has identified the issues as stated on the title page. See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (holding that the Board must consider any disability that "may reasonably be encompassed by" the claimant's description of the claim and symptoms, and other submitted information In a December 2013 statement of the case (SOC), the RO denied the increased rating claim but did not specifically respond to the secondary service connection claim, as required. Therefore, the Board must remand this issue for such action. 38 C.F.R. § 19.26(a); see Manlincon v. West, 12 Vet. App. 238 (1999). The Board notes that it will have full jurisdiction in this matter only if the appellant files a substantive appeal (VA Form 9) after an SOC is issued. The appeal is REMANDED to the AOJ. VA will notify the appellant if further action is required. REMAND Issuance of SOC/Manlincon The RO has not yet issued an SOC for whether new and material evidence has been received to reopen a previously denied claim for service connection for COPD. Accordingly, the Board must remand this claim for the issuance of an SOC. Increased rating: interstitial lung disease/pleural plaques The appellant is service connected for the Veteran's cause of death, pleural plaques secondary to in-service asbestos exposure. She is now requesting a compensable rating for this disability. She advances the contention in the Veteran's September 2013 NOD that the assigned disability rating under 38 C.F.R. § 4.97 should reflect the Veteran's pulmonary function test (PFT) results. The October 2014 VA examiner noted that asbestosis is listed as the cause of the Veteran's death on his death certificate, but she opined that asbestosis did not actually contribute to his death. In support of this conclusion, she stated that the Veteran's pleural plaques are often incidental findings and that fibrotic changes on his imaging were not necessarily from asbestos. She also stated that the Veteran's smoking, and not asbestos exposure, worsened his COPD. Based on this opinion and the remaining evidence of record, the RO did not consider the Veteran's PFT results because the examiners considered these to be due to the Veteran's COPD. Instead, the RO rated the pleural plaques by analogy as closely related to an interstitial lung disease, a category which includes fibrosis and asbestosis. The RO assigned a noncompensable rating because the VA examiners did not attribute any of the Veteran's symptoms to his interstitial lung disease/pleural plaques. Overall, the Board finds that the evidence is insufficient to decide the claim because the examiner did not provide a sufficient rationale for the Board to conclude that Veteran's interstitial lung disease/pleural plaques had no impact on his pulmonary function testing and caused no symptoms. See Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007) (explaining that an adequate medical opinion must provide "such sufficient information that it does not require the Board to exercise independent medical judgment"). In addition, this issue is intertwined with the secondary service connection claim discussed above. On remand, the RO should obtain a supplemental medical opinion regarding the increased rating claim, as directed below. The appellant should also be invited to submit documentation supporting her claim, such as medical records showing symptoms or abnormal test results attributed to the Veteran's pleural plaques. Accordingly, the case is REMANDED for the following action: 1. Issue an SOC regarding the claim to reopen service connection for COPD as secondary to service-connected interstitial lung disease/pleural plaques. This issue should not be certified to the Board unless the appellant submits a timely substantive appeal. 2. Invite the appellant to submit additional medical documentation supporting her increased rating claim. For example, letters from the Veteran's treatment team or treatment records regarding the role of his pleural plaques in causing respiratory symptoms and/or abnormal pulmonary function testing. 3. Arrange for a VA pulmonologist to review the claims file, including any newly obtained evidence, and provide an opinion on the following questions. It is specifically requested that a different pulmonologist than the October 2014 VA examiner provide these opinions. a) Are any of the Veteran's PFT results due in any part to his service-connected pulmonary disability? b) Are any respiratory symptoms reported in the lay and medical evidence of record due to his service-connected disability? A detailed explanation (rationale) is requested for all opinions provided. (By law, the Board is not permitted to rely on any conclusion that is not supported by a thorough explanation. Providing an opinion or conclusion without a thorough explanation will delay processing of the claim and may also result in a clarification being requested). 4. After the development requested above has been completed to the extent possible, the RO should again review the record. If any benefit sought on appeal remains denied, the appellant and her representative should be furnished a supplemental statement of the case and given the opportunity to respond. The appellant has the right to submit additional evidence and argument on the remanded matter. Kutscherousky v. West, 12 Vet. App. 369 (1999). As a remand, this matter must be handled expeditiously. 38 U.S.C. §§ 5109B, 7112 (2012). _________________________________________________ VICTORIA MOSHIASHWILI Veterans Law Judge, Board of Veterans' Appeals Only a decision of the Board of Veterans' Appeals can be appealed to the United States Court of Appeals for Veterans Claims. 38 U.S.C. § 7252. This remand is a preliminary order and not an appealable decision. 38 C.F.R. § 20.1100(b) (2017).