Citation Nr: 21062423 Decision Date: 10/07/21 Archive Date: 10/07/21 DOCKET NO. 11-25 675 DATE: October 7, 2021 REMANDED Entitlement to a rating in excess of 30 percent for asbestosis is remanded. Entitlement to a total disability rating based upon individual unemployability due to service-connected disabilities (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty with the United States Navy from November 1973 to October 1974. This matter comes before the Board of Veterans Appeals (Board) on appeal from a May 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). This case was previously remanded by the Board in May 2016, December 2018 and November 2020 decisions for additional development. The Veteran was granted service connection for asbestos with a 30 percent rating, effective February 29, 2008. See May 2015 Rating Decision. In the December 2018 Board decision, the Board noted that VA treatment records indicated the Veteran's symptoms of asbestosis have increased in severity since the Veteran was last examined by the VA in April 2015. An April 2018 VA treatment record indicated the Veteran reported an increase in shortness of breath for the last 3 weeks and noted that he had been dizzy for several months. A May 2018 VA treatment record noted that the Veteran was now taking nebulizer treatment following a recent increase in shortness of breath associated with asbestosis. The Board remanded the increased rating claim to afford the Veteran another VA examination to ascertain the current severity and manifestations of the service-connected asbestosis and to obtain any outstanding VA treatment records. See December 2018 BVA Decision. The Veteran was provided a VA examination in September 2019 for his asbestosis. The examination noted Veteran requires two inhalers daily and uses a rescue inhaler about once a day and suffers from significant dementia, requiring supervision as he walks with a rollator walker. Imaging studies or procedures were not performed, and pulmonary function testing (PFT) was also not performed, as examiner stated the Veteran was not able to follow directions. No further rationale or reasoning was provided in the examination report as to PFT results or as to why the FVC or DLCO predictions were not made. A medical opinion was also not rendered as the examiner remarked the Veteran is also service connected for asbestosis. See September 2019 VA Respiratory Conditions Examination. The Board found that the September 2019 examination report was insufficient to adjudicate the increased rating claim. The claim was again remanded to provide the Veteran another VA examination to determine the current nature and severity of his asbestosis. See November 2020 BVA Decision. 1. Entitlement to a rating in excess of 30 percent for asbestosis is remanded. Regrettably, a remand is necessary for further evidentiary development of the Veteran's increased rating claim on appeal. The June 2021 VA examination did not comply with the remand directives; therefore, it must be remanded again to ensure compliance. Stegall v. West, 11 Vet. App. 268 (1998). In a May 2021 VA Form 27-0820, it was documented that the Veteran has dementia and his spouse stated he may not be able to complete the VA examination unless she is present in the room with him, and she would contact the scheduling team to inquire about the scheduling of the VA examination. See May 2021 Report of General Information. Post-remand, the Veteran was afforded a VA examination in June 2021 for his asbestosis disability. The Veteran's spouse did not accompany him to the VA in-person examination. The Veteran's asbestosis was found to require chronic low dose corticosteroids, daily inhalational bronchodilatory therapy and daily anti-inflammatory medication. The Veteran did not require outpatient oxygen therapy for his respiratory condition, and he did not have any other pulmonary condition. A chest X-ray was done indicating bilateral interstitial fibrosis. However, pulmonary function testing (PFT) was not performed, as the examiner indicate Veteran has severe frontal lobe dementia and he is unable to complete the test due to an inability to follow directions. Diffusion capacity of the lung for carbon monoxide by the single breath method (DLCO) testing was also not completed for the same reason. Additionally, exercise capacity testing was also not performed. The Board finds that the June 2021 VA examiner did not substantially comply with the remand directives of the November 2020 Board decision. The Veteran was known to have severe frontal lobe dementia which affected his ability to follow directions during the September 2019 VA examination. The Veteran's spouse also indicated he would be unable to complete the examination without her assistance during the examination. Nevertheless, the June 2021 VA examination was conducted without the assistance of Veteran's spouse and the examiner indicated PFT and DLCO testing were not completed, which are required to adjudicate an appeal under the General Rating Formula for Interstitial Lung Disease (diagnostic codes 6825 through 6833). Thus, a remand is necessary to obtain a new VA examination for the Veteran's asbestosis that incorporates PFT and DLCO testing to ascertain the current nature and severity of the disability. If Veteran is unable to complete the VA examination by himself, he should be provided assistance which allows him to adequately and sufficiently complete the examination. Stegall, 11 Vet. App. at 268. 2. Entitlement to a total disability rating based upon individual unemployability due to service-connected disabilities (TDIU) is remanded. As to the issue of entitlement to a TDIU, all the VA examinations of record show the Veteran's service-connected disabilities adversely impact his ability to work. See December 2014 VA Seizure Disorders Examination, April 2015 VA Medical Opinion, April 2018 VA Mental Disorders Examination, September 2019 VA Respiratory Conditions Examination, June 2021 VA Respiratory Conditions Examination. The TDIU claim, however, must be remanded because his service-connected asbestosis is inextricably intertwined with his claim for a TDIU. See Rice v. Shinseki, 22 Vet. App. 447 (2009). In reaching this determination, the Board observes that in a January 2021 letter, the RO requested that the Veteran complete and submit VA Form 21-8940 (Application for Increased Compensation Based on Unemployability). The RO also enclosed a copy of the VA Form 21-8940. As the RO pointed out in a July 2021 rating decision and the Veteran's representative, Disabled American Veterans acknowledged in August 2021 written argument, to date the Veteran has not done so. The matters are REMANDED for the following action: 1. Obtain any outstanding VA and non-VA medical treatment records. 2. Notify the Veteran that he may submit lay statements from himself and from other individuals who have first-hand knowledge about the nature, extent and severity of his service-connected asbestosis and hand tremors and the impact of these conditions on his ability to work. The Veteran should be provided an appropriate amount of time to submit this lay evidence. 3. Give the Veteran another opportunity to clarify his work history and submit a VA Form 21-8940 (Application for Increased Compensation Based on Unemployability) in addition to any additional evidence that is relevant with regard to his claim for a TDIU. The Veteran should be notified that the failure to submit a completed form may result in the denial of this benefit. 4. Schedule the Veteran for an examination (or telehealth interview, review of the record, etc. if an in-person examination is not feasible) by an appropriate clinician to determine the current severity of his service-connected asbestosis. Pulmonary function tests with post-bronchodilator FVC and DLCO findings should be performed. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. To the extent possible, the examiner should identify any symptoms and functional impairments due to asbestosis alone and discuss the effect of the Veteran's asbestosis on any occupational functioning and activities of daily living. (Continued on the next page) If it is not possible to provide a specific measurement, or an opinion regarding symptoms or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). STEVEN D. REISS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Zarar Ahmed, Attorney Advisor 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.