Citation Nr: 20028814 Decision Date: 04/24/20 Archive Date: 04/24/20 DOCKET NO. 18-13 550 DATE: April 24, 2020 REMANDED Entitlement to an initial compensable rating for asbestosis prior to June 26, 2019, and entitlement to an increased rating in excess of 30 percent thereafter is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Navy from September 1951 to September 1955. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania. This matter was previously before the Board in February 2019 but was remanded for additional development. In a December 2019 supplemental statement of the case (SSOC), the RO denied an initial compensable rating prior to June 26, 2019, and granted a 30 percent rating from June 26, 2019. The Board further notes the date of the examination which supported an increased in compensation for his asbestosis disability was conducted in July 12, 2019. As such, the effective date of the 30 percent rating should have been July 12, 2019. However, as the assignment of June 26, 2019 is favorable to the Veteran, the Board will not disturb the assigned effective date. Additionally, as this is not a full grant of benefits sought on appeal the claim remains on appeal for the full appeal periods. AB v. Brown, 6 Vet. App. 35, 38 (1993). This appeal has been advanced on the Board’s docket pursuant to 38 U.S.C. § 7107 (a)(2); 38 C.F.R. § 20.900 (c). 1. Entitlement to an initial compensable rating for asbestosis prior to June 26, 2019, and entitlement to an increased rating in excess of 30 percent thereafter is remanded. The Board finds that additional development is necessary before a decision may be rendered on the issues on appeal. Pursuant to the Boards remand, the Veteran was provided with a VA examination in July 2019. Subsequently, the RO found that the VA examination contained conflicting information and did not comply with the Board’s remand directives. The RO requested another VA examination and he was provided with another VA examination in October 2019. However, the Board finds both VA examinations to be inadequate. Upon review of the VA examinations, the Board notes the July 2019 VA examiners interpretation of the PFTs are conflicting. The VA examiner reported the Veteran’s FEV-1 result most accurately reflected his level of disability and that his non-service COPD is the predominant disability responsible for limitation in pulmonary function. However, the VA examiner later states that his FVC and DLCO tests are accurate measurement of the claimant’s disability. As FVC and DLCO scores are the relevant studies in evaluating asbestosis, it is not clear whether the FVC or DLCO results are accurate measurement of his nonservice-connected COPD or his service-connected asbestosis. Additionally, as stated in the Board’s remand directives, post-bronchodilator scores are to be conducted and reported except in instances where the results of pre-bronchodilator PFTs are normal or when the examiner determines that post-bronchodilator studies should not be done. 38 C.F.R. § 4.96 (4). Nevertheless, no post-bronchodilator studies or results were reported. Although the examiner stated a note in the PFT indicated “DLCO only ordered,” there is no evidence to show that his PFTs were normal or an explanation as to why post-bronchodilator studies should not be performed. With regards to the October 2019 VA examination, PFT results were obtained but post-bronchodilator testing was again not conducted, and no explanation was provided. The Board notes the VA examiner contacted the hospital where the Veteran’s PFTs were conducted and was notified that post-bronchodilator and DLCO testing were completed. However, no post-bronchodilator studies were reported in the PFT conducted at Mercy Hospital or on the VA examination. Additionally, while the VA examiner noted there was no change in the Veteran’s service-connected asbestosis disability, it is not clear what the VA examiner relied on as basis for that conclusion. The Board further observes that the Veteran’s asbestosis is rated under 38 C.F.R. § 4.97, Diagnostic Code 6833, which considers the results of PFTs and maximum exercise capacity testing, the presence of cor pulmonale or pulmonary hypertension, and whether outpatient oxygen therapy is required. In this case, while the September 2019 and October 2019 VA examiner noted the Veteran experienced shortness of breath and fatigue while doing normal activities like walking to his mailbox, getting out of the bathtub, or walking up, his maximum exercise capacity was not assessed. Therefore, such should be completed in connection with the examination conducted on remand unless the examiner finds such to be unnecessary or contraindicated. Accordingly, the Board finds that a remand is warranted to provide the Veteran with another VA examination to determine the severity of the Veteran’s asbestosis disability. The matters are REMANDED for the following action: 1. Obtain any updated and current relevant VA and/or private treatment records, including any pulmonary or primary care records, and supplement the claims file. 2. Schedule the Veteran for a VA examination to assess the current nature and severity of his service-connected asbestosis disability alone. The record, including a complete copy of this remand, must be made available for review in connection with the examination. All indicated tests and studies should be completed, to include PFTs and maximum exercise capacity testing, unless the examiner finds such to be unnecessary or contraindicated. If such testing is not completed, to include post-bronchodilator testing, the examiner should explain why. The examiner should provide a full description of the Veteran’s service-connected asbestosis disability alone and report all signs and symptoms necessary for evaluating the Veteran’s asbestosis under the rating criteria of DC 6833, to include completing and reporting FVC predicted, DLCO (SB) testing, pre- and post-bronchodilator results, and maximum exercise capacity testing. It is specifically noted that post-bronchodilator studies are required when PFT’s are done for disability evaluation purposes except when the results of pre-bronchodilator pulmonary function tests are normal or when the examiner determines that post-bronchodilator studies should not be done and states why. 38 C.F.R. § 4.96(d)(4) (2018). If FVC predicted and DLCO SB testing are not accurate measurements of the Veteran’s service-connected asbestosis disability, state the reason why. An explanation for all opinions expressed must be provided. If the clinician cannot provide a requested opinion without resorting to speculation, it must be so stated, and the clinician must provide the reasons why an opinion would require speculation. 3. After, readjudicate the claim. If the benefit sought on appeal remains denied, furnish the Veteran with a supplemental statement of the case (SSOC) and provide him with an appropriate opportunity to respond. 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. 38 U.S.C. §§ 5109B, 7112. M. Tenner Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Xiong, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.