Citation Nr: 21005161 Decision Date: 01/29/21 Archive Date: 01/29/21 DOCKET NO. 18-11 150A DATE: January 29, 2021 REMANDED Service connection for a low back condition is remanded. Entitlement to a compensable rating for asbestosis with pleural plaques is remanded. REASONS FOR REMAND The Veteran served on active duty from February 1956 to December 1957, with additional service in the Reserves. These claims are on appeal from April 2017 and June 2018 rating decisions. The Veteran’s appeal has been advanced on the Board’s docket. See 38 U.S.C. § 7107(a); 38 C.F.R. § 20.900(c). The Board acknowledges that the Veteran had previously requested a videoconference hearing in this case, and one was scheduled for January 2020. Prior to then, the Veteran called to request to reschedule his hearing to the end of February due to an upcoming pulmonary function test scheduled for January 2020, which he indicated was “crucial” to his hearing. The Veteran indicated that after the test, it would take a few weeks to obtain the results to present them to a Judge at a Board hearing. In June 2020, VA phoned the Veteran to inquire about that status of submitting private medical records or a return of a release of information so VA could request the evidence. The Veteran informed the VA employee there had been no recent hospitalizations and that he was recently scheduled to attend pulmonary function tests (PFTs) in early 2020, but did not do so due to the COVID-19 pandemic; since he did not know if or when the appointment would be scheduled, he requested that his claims be forwarded to VA for a decision. Confusingly, in a September 2020 letter, the Veteran indicated he was scheduled for a hearing with a Judge via teleconference and that he drove all the way to Denver for the hearing and the Judge cancelled it. He also requested that VA decide his claims and noted they had been pending for several years; he did not request that this hearing be rescheduled. The Veteran’s representative submitted a January 2021 Informal Hearing Presentation (IHP) and did not request that the previously requested hearing be scheduled; rather, the representative provided argument regarding the merits of the Veteran’s claims. Thus, the Board finds the Veteran has withdrawn his hearing request and that his intent is clear he would like to receive a Board decision as soon as possible. The Board recognizes that the Veteran did not file a timely Substantive Appeal with regard to his claim for service connection for a low back disability; however, as this claim has been treated “as if” it has been on appeal, the Board will exercise jurisdiction over it. See Percy v. Shinseki, 23 Vet. App. 37, 45-47 (2009). Although the Board regrets the additional delay, a remand is required in order to properly and fairly adjudicate the Veteran’s claims. 1. Service connection for a low back condition The Veteran is claiming service connection for a low back disability. He states he believes this disability is due to an incident during service where a large sailor tripped and fell on him, taking them both out, and causing him to fall down approximately eight stairs on a metal deck, injuring his back. He has indicated he self-treated with aspirin during service and sought private treatment after service. The Board finds the Veteran is competent to report how he injured his back and the symptoms he has experienced since then. He has not yet been afforded an examination to determine the etiology of any back condition, and therefore, this must be done on remand. See McLendon v. Nicholson, 20 Vet. App. 79, 84 (2006). 2. Entitlement to a compensable rating for asbestosis with pleural plaques The Veteran is claiming he is entitled to a compensable rating for asbestosis with pleural plaques. His condition is rated under Diagnostic Code 6833, which specifically contemplates asbestosis. See 38 C.F.R. § 4.97. Under this diagnostic code, a compensable rating may be afforded to a claimant based on, among other things, the results of exercise capacity testing, which was not performed at the June 2018 VA examination. See id. Accordingly, a new examination which includes all required testing, including exercise capacity testing (with oxygen consumption measured in ml/kg/min), must be obtained on remand. With respect to this claim, the Board acknowledges that the Veteran submitted medical authorizations for, among other private providers, Dr. C.S. from Penrose Hospital (also known as Penrose St. Francis Hospital), whom he has indicated has treated him for his respiratory condition. In this regard, the AOJ attempted to obtain these private records pursuant to VA regulation, but was unable to do so. The Veteran has been informed that even though the AOJ had asked for this information, it is ultimately his responsibility to see that VA receives it. See June 2019 Letter to the Veteran. In this regard, the Board reminds the Veteran and his representative that they have the right to submit additional evidence and argument while these claims are in remand status. See Kutscherousky v. West, 12 Vet. App.  369 (1999). The matters are REMANDED for the following action: 1. Afford the Veteran an examination to determine the severity of his asbestosis with pleural plaques. The examiner must obtain from the Veteran and record in the examination report the symptoms he experiences and any resulting functional impairment. The examiner must respond to all questions in the disability benefits questionnaire and is specifically required to perform the following: (a) Pulmonary function tests, which include pre- and post-bronchodilator FCV and DLCO predicted values; and (b) Exercise capacity testing, with oxygen consumption measured in ml/kg/min. If any of this testing is unable to be performed, a complete explanation for why this is so must be provided. 2. Afford the Veteran an examination to determine the etiology of any thoracolumbar spine disability found. The examiner must obtain from the Veteran and record in the examination report a complete history regarding the onset and continuity of symptoms. Any appropriate diagnostic testing should be performed. Following a review of the evidence of record, the examiner is requested to provide the following opinion: Determine whether it is at least as likely as not (50 percent probability or higher) that any thoracolumbar spine disability began during or is etiologically related to the Veteran’s active duty service. Why or why not? The examiner must consider and discuss the Veteran’s reported in-service back injury and the symptoms he experienced since then. A complete rationale for this opinion is required. Citation to accepted medical literature and/or medical principles would be of great assistance to the Board. If the examiner is unable to provide any opinion without resorting to speculation, he or she must explain why this is so. The Veteran is to be considered credible only for the circumstances of the medical opinion requested herein. Jennifer White Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board O'Connell, Jessica L. 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.