Citation Nr: 21013156 Decision Date: 03/08/21 Archive Date: 03/08/21 DOCKET NO. 18-20 765 DATE: March 8, 2021 REMANDED Entitlement to an increased rating in excess of 30 percent for pleural plaque (claimed as a lung condition), since April 17, 2017, is remanded. Entitlement to total disability based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Navy from July 1951 to July 1955. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from January 2018 and November 2020 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO). As a matter of brief procedural posture of the case, after the Board issued a September 2018 decision granting an increased rating of 30 percent for the Veteran’s pleural plaque disability and denying a compensable rating for the Veteran’s hearing loss disability, this case now returns to the Board after having been appealed to the United States Court of Appeals for Veterans Claims (Court) and remanded to the Board by a Joint Motion for Partial Remand (JMPR) in May 2019. The Board’s decision granting the increased rating of 30 percent for the pleural plaque disability and denying a compensable evaluation for hearing loss was not disturbed. In December 2019, the Board remanded to the matter to the RO and directed additional development in compliance with the JMPR to occur regarding the claim for a rating higher than 30 percent for the lung disability. At this time, for the reasons stated below, the Board finds that remand is again warranted as the assessment of the Veteran’s pleural plaque disability is not an adequate examination for evaluation in compliance with the requirements of 38 C.F.R. § 4.96, the May 2019 JMPR, and the December 2019 Board remand. As a matter of clarification, the Board notes, in August 2016, the RO denied entitlement to a compensable rating for the condition. The Veteran did not submit a Notice of Disagreement (NOD), nor was new and material evidence received, and the August 2016 rating decision became final. 38 C.F.R. § 3.156. The Veteran filed an intent to file a claim in April 2017, and then filed a claim for an increased rating in September 2017. Thus, the Board notes that the claim is a non-initial increased rating claim and the time period on appeal is from April 17, 2017, to present, with consideration of evidence one year prior to the receipt of the claim. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). 1. Entitlement to an increased rating in excess of 30 percent for a pleural plaque (claimed as a lung condition), since April 17, 2017 is remanded. The May 2019 JMPR remanded the issue based on two primary errors. First, the JMPR noted that evaluations under the applicable rating criteria, 38 C.F.R. § 4.97 Diagnostic Code (DC) 6833, are based on forced vital capacity (FVC) or diffusing capacity of the lungs for carbon monoxide (DLCO) scores. However, the December 2017 VA examiner failed to administer DLCO testing and indicated that DLCO testing was not required without providing an adequate rationale why it could not be performed. Second, the JMPR found that although the Board noted that a June 2018 private record revealed that the Veteran’s echocardiogram suggested pulmonary artery (PA) hypertension which would warrant a 100 percent rating, the Board failed to discuss whether the private treatment record could warrant the higher rating, in light of evaluation of 38 C.F.R. § 4.97 DC 6833 warranting a 100 percent rating if there is a current diagnosis of pulmonary hypertension at any time during the period on appeal. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Thus, the December 2019 Board remand directed that a pulmonary function test (PFT) examination be conducted that provides the full range of results necessary to rate the disability under the diagnostic criteria (FEV-1, FVC, FEV-1/FVC, DLCO (SB), maximum exercise capacity, maximum oxygen consumption with cardio-respiratory limitation), pursuant to 38 C.F.R. § 4.96. The Board also directed that if pre-and post-bronchodilator DLCO SB tests cannot be completed, the examiner must state the reason why. Additionally, the Board directed that the examiner state whether the Veteran has pulmonary hypertension due to his service-connected lung disability. In so opining, the examiner was directed to review and comment on private treatment records from June 2018 reflecting mild pulmonary hypertension. Turning to the post-remand evidence of record, on an October 2020 PFT, post-bronchodilator results were FVC at 81 percent predicted, FEV-1 at 78 percent predicted, and FEV-1/FVC at 96 percent predicted. Pre-bronchodilator showed FVC of 78 percent predicted, FEV-1 of 69 percent predicted, FEV-1/FVC of 88 percent predicted and DLCO of 72 percent predicted. The examiner also noted that the Veteran reported that since the June 2020 examination, he felt more short of breath with physical activity and utilized his inhaler more for relief of his symptoms. A response as to whether the Veteran has had a diagnosis of pulmonary hypertension anytime during the period on appeal was not provided. Further, as asserted by the Veteran’s representative in a written brief, the examiner did not consider or comment on the Veteran’s reported flare-ups. As reflected in the October 2020 examination report, the post-bronchodilator DLCO, which is required, or requires explanation as to why the result is not reported, was not included in the examination findings. Further, the examiner completely failed to address whether the Veteran has pulmonary hypertension. Both the post-bronchodilator DLCO and hypertension results were required to be reported by the JMPR and prior Board remand. The Board notes that post-bronchodilator DLCO and determination of the existence of pulmonary hypertension are essential rating requirements in the evaluation of this type of disability. Hence, the question of whether a higher evaluation is warranted in this case hinges on the existence of these factors. Thus, the JMPR and prior Board remand requires the Board to remand the issue to the Agency of Original Jurisdiction (AOJ) for additional development. Consistent with the JMPR and prior Board remand, an adequate examination must be obtained which considers all possible evidence that may warrant a higher rating in compliance with 38 C.F.R. §§ 4.96, 4.97, including the Veteran’s lay statements and any further development necessary, including obtaining relevant outstanding private or VA medical center (VAMC) treatment records. 2. Entitlement to TDIU is remanded. Finally, the JMPR also found that the Board erred in failing to determine whether entitlement to TDIU was reasonably raised by the record in light of the December 2017 VA examiner noting that the Veteran’s respiratory condition impacted his ability to work. The prior Board remand directed the issue to be developed. A November 2020 rating decision issued denied the claim. Here, the Board finds that the issue of entitlement to an increased rating for the pleural plaque disability is intertwined with the issue of entitlement to a TDIU. Therefore, the appropriate remedy where a pending claim is inextricably intertwined with a claim currently on appeal is to remand the claim on appeal pending the adjudication of the inextricably intertwined claim. Harris v. Derwinski, 1 Vet. App. 180 (1991). The matters are REMANDED for the following action: 1. Obtain any relevant and outstanding private and VA treatment records and associate the records with the claims file. If any identified records are not obtainable (or none exist), the Veteran should be notified, and the record clearly documented in accordance with 38 C.F.R. § 3.159. After the above development is complete, schedule the Veteran for an examination with an appropriate clinician to assess the current severity level of the Veteran’s pleural plaque disability. The claims file, to include a copy of this Remand, must be reviewed and noted in conjunction with the examination. Any appropriate evaluations, studies, and testing deemed necessary by the examiner should be conducted, and the results included in the examination report. The examiner should consider and address the prior medical evidence, notably the June 2018 private treatment record reflecting a suggestion of a mild pulmonary artery PA hypertension, testimony and any lay statements of record. If there is a medical basis to support or doubt the history provided, the examiner should provide a fully reasoned explanation. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s pleural plaque under the rating criteria. All clinical manifestations of the service-connected pleural plaques should be reported in detail, to specifically include pulmonary function test studies and post-bronchodilator results. The examiner must provide the full range of results necessary to rate the disability under the diagnostic criteria (FEV-1, FVC, FEV-1/FVC, DLCO (SB), maximum exercise capacity, maximum oxygen consumption with cardio-respiratory limitation). It is specifically noted that post-bronchodilator studies are required when PFTs are done for disability evaluation purposes except when the results of pre-bronchodilator pulmonary function tests are normal or when the examiner determines that post-bronchodilator studies should not be done and states why. 38 C.F.R. § 4.96(d)(4). If pre-and post-bronchodilator DLCO SB tests cannot be completed, the examiner must state the reason why. If the FVC or DLCO SB tests are not accurate measurements of the Veteran’s disability, the examiner must state the reasons why. Additionally, the examiner must state whether the Veteran has pulmonary hypertension due to his service-connected lung disability. In so opining, the examiner must review and comment on private treatment records from June 2018 reflecting mild pulmonary hypertension. If necessary, and to the extent possible, the examiner should rectify the opinion with these records. 2. The examiner must also provide an assessment of the Veteran’s functional limitations due to his service-connected pleural plaque disability as it may relate to his ability to function in a work setting and to perform work tasks. However, the examiner should refrain from commenting on the Veteran’s employability. A complete rationale must be given for all opinions and conclusions expressed. DELYVONNE M. WHITEHEAD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Q. Alli, 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.