Citation Nr: 1817596 Decision Date: 03/23/18 Archive Date: 04/03/18 DOCKET NO. 14-17 840 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUE Entitlement to an initial rating in excess of 10 percent for asbestosis. REPRESENTATION Veteran represented by: Veterans of the Vietnam War, Inc. WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Alexander Panio, Counsel INTRODUCTION The Veteran served on active duty from September 1962 to June 1966. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2013 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In April 2017, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. At such time, the undersigned held the record open 30 days for the receipt of additional evidence; however, none has been received to date. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. See 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159 (2017). The Veteran seeks a higher initial rating for asbestosis and has stated that his respiratory symptomatology has worsened since his last VA examination in August 2012. See April 2015 statement; April 2017 Board hearing transcript. A remand is therefore necessary to afford the Veteran a contemporaneous VA examination so as to determine the current severity of his asbestosis. See Snuffer v. Gober, 10 Vet. App. 400 (1997). The Veteran has also been diagnosed with pneumonia, chronic obstructive pulmonary disease (COPD), and a solitary pulmonary nodule, which are not service-connected, during the course of the appeal. See August 2012 VA examination; January 2013 VA opinion; July 2014 Disability Benefits Questionnaire (DBQ); VA treatment records. In this regard, the August 2012 VA examiner indicated that pulmonary function testing (PFT) revealed evidence of both obstructive and restrictive lung disease, and the Veteran's COPD, which was the result of a long history of smoking, was predominantly responsible for the Veteran's limitation in pulmonary function with the asbestosis contributing a minor amount. The examiner estimated that approximately 50 percent of the Veteran's reduced respiratory function was due to his COPD and 50 percent was due to his asbestosis. Therefore, in assessing the Veteran's asbestosis upon examination on remand, the examiner should opine, to the extent possible, as to the percentage of the Veteran's respiratory impairment that is attributable to asbestosis versus any other nonservice-connected respiratory disorders. If no differentiation is possible, such should be noted in the examination report. Finally, while on remand, updated VA treatment records from the Portland, Oregon, facility dated from April 2015 to the present should be obtained for consideration in the Veteran's appeal. Accordingly, the case is REMANDED for the following action: 1. Obtain updated VA treatment records from the Portland facility dated from April 2015 to the present. All reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. Schedule the Veteran for an appropriate VA examination to determine the current nature and severity of his service-connected asbestosis. The entire claims file, including a copy of this Remand and any newly obtained treatment records must be reviewed by the examiner and any necessary tests, to include PFT, should be conducted. Based on the examiner's review of the Veteran's file, and the results of the PFT, the examiner should opine, to the extent possible, as to the percentage of the Veteran's respiratory impairment that is attributable to his service-connected asbestosis, and the percentage attributable to any nonservice-connected respiratory disorder, to include pneumonia, COPD, and a solitary pulmonary nodule. If no differentiation is possible, such should be noted in the examination report. The examiner should provide an explanation for all elements of the opinion, and if any requested opinion cannot be provided without resort to speculation, the examiner should explain why not and whether any additional information would permit an opinion, (which facts should be identified) or whether a non-speculative opinion is beyond the limits of medical knowledge. 3. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraph, the Veteran's claim should be readjudicated based on the entirety of the evidence. If the claim remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. The Board intimates no opinion as to the outcome of this case. The Veteran need take no action until so informed. The purpose of this REMAND is to ensure compliance with due process considerations. The Veteran 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 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). _________________________________________________ A. JAEGER 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).