Citation Nr: 21070318 Decision Date: 11/23/21 Archive Date: 11/23/21 DOCKET NO. 11-04 547 DATE: November 23, 2021 REMANDED Entitlement to increased disability ratings for calcified pleural plaques indicative of pleural-based asbestos lung disease, in excess of 10 percent from January 29, 2010 to October 26, 2016, and in excess of 30 percent from October 26, 2016 to April 2, 2018, is remanded. REASONS FOR REMAND The Veteran served on active duty in the Navy from January 1969 to January 1973. These matters come before the Board of Veterans' Appeals (Board) on appeal of a May 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Sioux Falls, South Dakota. By way of background, the May 2010 rating decision denied the Veteran's claim for a compensable rating for asbestosis. The Veteran's initial noncompensable rating for this is effective October 26, 2000, but the Veteran filed this claim for increase, as is currently on appeal, on January 29, 2010. In March 2014, the Veteran's claim was remanded by the Board. In September 2016, the Board denied a higher rating for the service-connected calcified pleural plaques, which determination the Veteran appealed to the United States Court of Appeals for Veterans Claims (Court). In December 2017, the Veteran and the Secretary of VA (parties) filed a Joint Motion for Remand (JMR) to have the September 2016 Board decision vacated and remanded back to the Board for additional development. In June 2018, in light of the JMR, the Board remanded the claim, in part, to obtain a VA examination opinion, which opinion was obtained in March 2020. On March 13, 2020, the agency of original jurisdiction (AOJ) issued a rating decision that granted the following staged ratings for his calcified pleural plaques: a 30 percent rating effective October 26, 2016 and a 100 percent rating effective May 21, 2018. The AOJ sought an addendum VA examination opinion, pursuant to the March 2020 VA examination, in order to comply with the June 2018 remand directives. The addendum opinion was provided in July 2020. In December 2020, the Board, in relevant part, granted a 10 percent disability rating prior to October 26, 2016, and denied a rating in excess of 30 percent from October 26, 2016 to April 2, 2018. The Board also granted entitlement to a 60 percent disability rating for calcified pleural plaques from April 2, 2018 to May 21, 2018, as well as a total disability rating for compensation based upon individual unemployability due to service-connected disabilities (TDIU) effective April 2, 2018; however, these issues are not currently before the Board. The Veteran appealed the decision to the Court. In August 2021, the parties entered into a Joint Motion for Partial Remand (Joint Motion) relating only to the portions of the December 2020 Board decision addressing the Veteran's increased-rating claim from January 29, 2010 to April 2, 2018, which JMR vacated the decision based on the agreement that the Board erred in finding VA's duty to assist was satisfied by the March 2020 and July 2020 medical opinions. The Joint Motion was granted by the Court later in the same month. Within the Joint Motion, the parties found that the March 2020 and July 2020 VA examiner opinions did not sufficiently comply with the Board's June 2018 remand instructions. The parties noted the June 2018 Board remand directives requested that the AOJ afford the Veteran a medical examination wherein "a medical professional can review the prior medical evidence, assess the current state of the Veteran's lung problems, and comment as to whether the Veteran's service-connected disability has manifested in additional reactive airway" disease. In the March 2020 VA examination report, the examiner summarized the instructions from the AOJ, which specifically included a request that the examiner comment and discuss (1) a "March 2010 report that [the Veteran's] inhaler helped shortness of breath but not cough" symptoms; (2) an "April 20, [2012] VA Primary Care Attending Note indicating that [the Veteran] had a chronic cough thought to be related to reactive airway disease that is 'possibly related to his underlying asbestosis,' and that his medications for his symptoms should be 'service-connected;'" and (3) a "May 2005 VA treatment record which notes complaints of chronic cough and shortness of breath with exposure to dust, a prescription for albuterol, and assessed asbestosis." The parties concluded that despite these specific instructions, the March 2020 examiner limited her review of the evidence to records dated on or after 2018. Within the Joint Motion, the parties noted that following the second remand in June 2020, the AOJ obtained an addendum medical opinion from the March 2020 examiner. For this addendum medical opinion, the AOJ had instructed the examiner to specifically comment on and discuss a May 2015 pulmonary function test result. However, the examiner, instead, responded that more recent testing was available and chose to comment only on that more recent testing. The parties agreed that neither the March 2020 nor the July 2020 medical opinions were adequate to fully inform the Board as to the severity of the Veteran's current lung disability. The relevant period herein requires retrospective analysis of the Veteran's service-connected disability, as opposed to the current state of the Veteran's disability. Accordingly, remand is required for the Board to obtain an adequate medical opinion that complies with the Board's June 2018 remand instructions. The matter is REMANDED for the following action: Refer the claims file to an appropriate clinician to provide a retrospective opinion relating to the Veteran's calcified pleural plaques prior to April 2, 2018. The clinician should review the file and be provided with a copy of the facts below. If the examiner believes that an in-person examination is needed to provide an informed opinion, then schedule an examination. To assist in a review of the claims file, the examiner is informed of the following facts with citations in the record, when applicable: The Veteran is service-connected for calcified pleural plaques indicative of pleural-based asbestosis. A May 2005 VA treatment record states that the Veteran "continues to have a lot of trouble with cough and shortness of breath whenever he is exposed to dust, but not at other times." See VBMS entry with document type, "Medical Treatment Record - Government Facility," receipt date 05/07/2010, p. 1. The Veteran underwent a respiratory VA examination in March 2010. Pulmonary function testing was performed. The Veteran reported that he takes albuterol, which "helps his shortness of breath but not really his cough." See VBMS entry with document type, "VA Examination," receipt date 03/31/2010. An April 20, 2012 VA treatment record showed the Veteran to have a chronic cough, thought to be reactive airway disease and "possibly related to his underlying asbestosis." See VBMS entry with document type, "CAPRI" receipt date 04/11/2014, p. 28. The Veteran underwent additional pulmonary function testing in May 2015. The Veteran was found to have moderate obstructive lung defect. See VBMS entry with document type, "CAPRI," receipt date 07/10/2020. The clinician's review of the record is NOT restricted to the evidence listed above. This list is provided to assist the examiner in locating potentially relevant evidence The examiner is asked to identify all symptoms attributable to the Veteran's service-connected calcified pleural plaques indicative of pleural-based asbestos lung disease prior to April 2, 2018. The examiner is asked to consider prior and current VA examination findings showing the presence of chronic cough and dyspnea, as well as the Veteran's prior medical history. The examiner should address the severity of the Veteran's lung disability and specifically address whether the service-connected pleural plaques manifested in obstructive lung symptomatology, to include reactive airway disease, prior to April 2, 2018. In reaching any conclusion, the examiner is asked to consider and comment upon the following: (1) the March 2010 report to the VA examiner that the inhaler helped shortness of breath but not cough; (2) the April 20, 2012 VA Primary Care Attending Note indicating that the Veteran had a chronic cough thought to be related to reactive airway disease that is "possibly related to his underlying asbestosis;" (3) the May 2005 VA treatment record, which documented complaints of chronic cough and shortness of breath with exposure to dust, a prescription for albuterol, and assessed asbestosis; and (4) the Veteran's May 2015 pulmonary function testing results. A full rationale, including reference to supporting clinical data and/or medical literature as deemed appropriate, must be provided for all medical opinions given. If the clinician is unable to provide an opinion without resorting to mere speculation, he or she should explain why this is so. The clinician shall then explain whether the inability to provide a more definitive opinion is the result of a need for more information and indicate what additional evidence is necessary, or whether he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). If the clinician is unable to provide a retrospective opinion, the examiner must explain why the evidence of record is not sufficient to allow the clinician to provide such an opinion. A. P. SIMPSON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G. Wonderling, 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.