Citation Nr: 21008136 Decision Date: 02/11/21 Archive Date: 02/11/21 DOCKET NO. 14-13 366 DATE: February 11, 2021 REMANDED Entitlement to an initial compensable rating for calcified pleural plaques/asbestosis (asbestosis) prior to December 5, 2019, and entitlement to an initial rating in excess of 10 percent on and after December 5, 2019, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Navy from December 1967 to December 1970. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2012 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The August 2012 rating decision assigned an initial noncompensable rating for asbestosis effective April 5, 2010. In an August 2020 rating decision, the RO assigned an initial 10 percent rating effective December 5, 2019, the date of the Veteran’s VA examination. Staged ratings have been assigned and the issue on appeal has been recharacterized to reflect the assigned staged ratings. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the U.S. Court of Appeals for Veterans’ Claims (Court) held that entitlement to a total disability rating based on individual unemployability (TDIU) claim may be considered part and parcel of an increased rating claim. The Court found that when entitlement to a TDIU is raised during the adjudicatory process of the underlying disability, it is part of the claim for benefits for the underlying disability. There is no indication in the record that unemployability has been raised. Accordingly, the Board finds that Rice is not applicable and a need for consideration of TDIU is not inferred as part of the claim for increased initial rating. Unfortunately, the Board finds that another remand is required. Following the most December 2019 VA examination report, private medical treatment records from Dr. D.M. were associated with the electronic claims file. These private records include a September 2016 spirometry report. The findings appear to indicate that the Veteran’s Forced Vital Capacity (FVC) ranged from 51 percent predicted to 74 percent predicted to 71 percent predicted. There is no indication as to whether a Diffusion Capacity of the Lung for Carbon Monoxide by the Single Breath Method (DLCO) was completed. The report also did not indicate whether post-bronchodilator results were completed. The Board simply lacks the medical expertise to accurately interpret this spirometry report. In Savage v. Shinseki, 24 Vet. App. 259, 260 (2011), the U.S. Court of Appeals for Veterans Claims determined that in some circumstances, VA has a duty to return for clarification insufficient private examination reports. The Court “explicitly limited VA’s duty to seek clarification of private medical reports to situations where ‘the missing information is relevant, factual, and objective—that is, not a matter of opinion.’” See Carter v. Shinseki, 26 Vet. App. 534, 545 (2014) (citing Savage, 24 Vet.App. at 270). Here, the Board finds that interpretation of the September 2016 spirometry report falls under Savage, id. Accordingly, remand is required to contact Dr. D.M. to provide clarification regarding the September 2016 spirometry report. The matter is REMANDED for the following action: 1. Make efforts to contact Dr. D.M. concerning the September 2016 spirometry report. All efforts to contact Dr. D.M. must be documented. Dr. D.M. must address the following: (a) What were the pre-bronchodilator predicted percentage results for FVC, FEV-1, FEV01/FVC, and DLCO? (b) What were the post-bronchodilator predicted percentage results for FVC, FEV-1, FEV01/FVC, and DLCO? (c) If DLCO was not performed, please explain why. (d) If post-bronchodilator results were not completed, please explain why. (e) Please address which result most accurately represents the Veteran’s disability. 2. If Dr. D.M. is unavailable, please forward the electronic claims file to the VA examiner who completed the December 2019 VA examination; or another suitably qualified VA examiner, to address the private September 2016 spirometry results. The examiner should interpret the September 2016 spirometry report, to the extent possible, and address the discrepancy between that record and the December 2019 PFT results. 3. Upon completion of the above, and any additional development deemed appropriate, readjudicate the remanded issue. If the issue remains denied, return the matter to the Board for appellate review if otherwise in order. JESSICA SEAY Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board P. Abels, 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.