Citation Nr: 21005627 Decision Date: 02/02/21 Archive Date: 02/02/21 DOCKET NO. 19-06 013A DATE: February 2, 2021 REMANDED Entitlement to service connection for a pulmonary disability is remanded. Entitlement to a disability rating exceeding 20 percent for radiculopathy of the right lower extremity is remanded. Entitlement to an earlier effective date than October 11, 2016 for a grant of service connection for radiculopathy of the right lower extremity is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from December 1969 to May 1974. This appeal comes to the Board of Veterans’ Appeals (Board) from March 1999 and January 2017 rating decisions by a Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded the Veteran’s claim for entitlement to TDIU to the Agency of Original Jurisdiction (AOJ) in February 2001, November 2002, February 2004, and February 2007 for additional evidentiary development and readjudication in the context of pending claims for service connection and increased disability ratings. The Board denied the Veteran’s TDIU claim in a September 2007 decision, and the Veteran appealed to the United States Court of Appeals for Veterans Claims (CAVC). In a March 2010 memorandum decision, CAVC vacated the Board’s decision and remanded the TDIU claim for additional evidentiary development. CAVC found VA examinations that the Board relied upon were inadequate because they did not consider limitations of all service-connected disabilities in combination, which the Board had indicated was necessary in its prior remand orders. The Board remanded the Veteran’s claim for entitlement to TDIU in September 2010 and February 2012 for additional evidentiary development in compliance with the remand directives from CAVC and the Board. The Board denied the Veteran’s claim in a January 2013 decision, and the Veteran appealed again to CAVC. In December 2013, CAVC granted a Joint Motion for Remand (JMR) vacating the Board’s decision and remanding the claim for additional evidentiary development. The JMR indicates the Board erred by relying on an inadequate opinion from a VA examiner, who did not adequately discuss the Veteran’s employment history and explain the examiner’s conclusion that the Veteran’s service-connected disabilities did not prevent gainful physical or sedentary employment to include during flare-ups. The JMR also noted that the Board did not provide adequate discussion of VA’s attempts to obtain identified outstanding relevant records. The Board remanded the Veteran’s claim for entitlement to TDIU in July 2014, March 2015, February 2017, October 2017, and August 2020 for additional evidentiary development in compliance with the JMR as well as to obtain outstanding relevant records and current VA examinations of the Veteran’s service-connected disabilities. The additional development over the years also included multiple referrals of the Veteran’s claim to the Director of Compensation Service for extra-schedular consideration as the Veteran’s disability ratings are not currently high enough to meet the schedular requirements for TDIU. See 38 C.F.R. § 4.16 (2019). In a January 2020 decision, the Board denied the Veteran’s claims for (1) entitlement to service connection for a pulmonary disability, (2) entitlement to a disability rating exceeding 20 percent for radiculopathy of the right lower extremity, and (3) entitlement to an effective date prior to October 11, 2016 for a grant of service connection for radiculopathy of the right lower extremity. The Veteran appealed the decision to CAVC, and CAVC granted a JMR in September 2020 vacating the decision and remanding the matters to the Board for additional rationale in support of its decision and additional evidentiary development as necessary. The JMR found the Board did not discuss pertinent evidence including statements about the Veteran’s radiculopathy. It also found that the Board did not adequately address the Veteran’s contention that the VA examiner that conducted his pulmonary disability claim lacked the education, training, and experience necessary to evaluate the claim. It notes that the Veteran objected that the examiner was not a “B-reader” (i.e. someone who has been certified by the National Institute for Occupational Safety and Health as a qualified reader of chest radiography for pneumoconioses, or interstitial lung diseases caused by the inhalation of certain dusts). On remand, the AOJ should obtain an additional medical opinion regarding the Veteran’s claimed pulmonary disability that addresses the concerns in the September 2020 JMR and demonstrates that the examiner has the education, training, and experience to determine whether the Veteran has suffered from asbestosis and whether the Veteran has a pulmonary disability that is at least as likely as not related to his military service. A review of the record also shows that since the AOJ last adjudicated the Veteran’s claims for earlier effectives dates and higher disability ratings for right lower extremity radiculopathy, the AOJ obtained additional pertinent evidence that it should consider in the first instance including September 2020 VA examinations of the Veteran’s lumbar spine disability and associated radiculopathies. While the AOJ did consider this evidence in the context of the Veteran’s TDIU claim, it did not readjudicate the other claims in the first instance considering the additional relevant evidence. See October 2020 Supplemental Statement of the Case. On remand, the AOJ should readjudicate the radiculopathy claims as well as the intertwined claims of entitlement to TDIU and entitlement to service connection for a pulmonary disability considering the totality of the evidence after obtaining outstanding relevant records and adequate medical opinion evidence. The matters are REMANDED for the following action: 1. The AOJ should contact the Veteran and all current representatives and request their assistance in identifying any outstanding relevant records to include Vista scanned records referenced in the Veteran’s VA treatment records. See August 2020 Board remand order. The AOJ should make reasonable attempts to obtain all identified outstanding records and associate them with the Veteran’s claims file. 2. After associating all identified outstanding relevant records with the Veteran’s claims file, the AOJ should obtain another opinion from an appropriate medical professional addressing the etiology of the Veteran’s claimed pulmonary disability. The AOJ should ensure the examiner has the education, training, and experience in diagnosing pulmonary conditions including asbestosis based on a review of the pertinent evidence of record. (e.g. an opinion from a “B-reader” if possible). The AOJ should provide the VA examiner with a complete copy of the claims file to include this remand order. (a.) The VA pulmonary conditions examiner should review the Veteran’s claims file including his contentions about exposure to environmental contaminants including asbestos during his military service and pertinent symptoms from the time of his military service through the present. The examiner should identify and discuss all pertinent evidence of pulmonary disabilities that may be associated with such symptoms (e.g. any diagnosis or evidence supporting a diagnosis of asbestosis in the record). (b.) The VA pulmonary conditions examiner should specifically opine whether it is at least as likely as not (50 percent or greater probability) that the Veteran has suffered from asbestosis at any time. The VA examiner should address all pertinent evidence including a December 2001 opinion from R.A.H., M.D., who indicated that a B-reading of the Veteran’s chest X-ray supported a diagnosis of asbestosis within a reasonable degree of medical certainty. The VA examiner should clarify whether the Veteran currently has asbestosis and should explain when and how the condition resolved if the examiner finds it resolved. (c.) The VA pulmonary conditions examiner should opine whether it is at least as likely as not that the Veteran’s claimed pulmonary disabilities first manifested during or were otherwise caused by events during the Veteran’s military service. The examiner’s opinion should include a discussion of the Veteran’s statements about his claimed exposure to harmful substances including asbestos in the context of the pertinent evidence including objective imaging evidence. See, e.g., Veteran’s October 2016 Statement in Support of Claim. (d.) The VA examiner should provide a statement of the examiner’s qualifications for diagnosing asbestosis and determining whether it is at least as likely as not related to the Veteran’s military service (e.g. a statement of the education, training, and experience of the examiner as well as any medical literature that the examiner relied upon in support of the opinion). (e.) If the examiner is unable to provide an opinion on these matters, the examiner must state whether the inability to render an opinion 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). 3. After completing the above action and any other necessary development (e.g. obtaining additional examinations to assess the Veteran’s functional limitations caused by his service-connected disabilities), the claims must be readjudicated. If the Veteran does not meet the criteria for the consideration of entitlement to TDIU pursuant to 38 C.F.R. § 4.16(a) and it is deemed necessary, the AOJ should refer the case to the Director of Compensation Service for consideration of whether TDIU is warranted pursuant to 38 C.F.R. § 4.16(b). If a claim remains denied, a Supplemental Statement of the Case must be provided to the Veteran and current representatives. After the Veteran has had adequate opportunity to respond, the appeal must be returned to the Board for appellate review. C. TRUEBA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Michael Duffy, 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.