Citation Nr: 21021634 Decision Date: 04/13/21 Archive Date: 04/13/21 DOCKET NO. 18-00 168A DATE: April 13, 2021 REMANDED Entitlement to an initial compensable rating for asbestosis is remanded. REASONS FOR REMAND The Veteran served on active duty from April 1948 to September 1959. This case comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2017 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) that granted service connection for asbestosis and assigned an initial noncompensable rating, all effective May 11, 2017. By letter of April 8, 2019 the Veteran was notified that his requested videoconference was scheduled for May 6, 2019. However, the Veteran failed to appear at the hearing and has not provide good cause for such failure. As such, the Board finds that the Veteran’s hearing request has been withdrawn. The Veteran has had multiple appeals before the Board. The procedural history of these appeals was set forth in a February 2018 Board decision. Therein it was noted that the Veteran had perfected an appeal for a compensable rating for service-connected asbestosis, but that matter had not yet been certified for appellate review. It was also noted that the Veteran had appealed a September 2017 Board denial of service connection for bilateral eye disorders to the United States Court of Appeals for Veterans Claims (Court). However, a review of the Court’s docket indicates that this appeal was dismissed in February 2018. The February 2018 Board decision remanded a claim for a disability manifested by dizziness/vertigo. However, an October 1, 2019 rating granted service connection for orthostatic hypotension (claimed as vertigo/dizziness) with an evaluation of 30 percent, effective April 1, 2011. The Veteran did not appeal the rating assigned or the effective date. The Board finds that the appellant’s claimed symptoms of that disability are encompassed by the RO’s grant. Thus, as the RO granted in full the benefits sought by the appellant in that matter, there is no remaining allegation of error of fact or law for appellate consideration. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997) (noting that a grant of service connection extinguishes appeals before the Board). A separate Board decision in October 2020 granted a 100% schedular rating for posttraumatic stress disorder (PTSD) and granted entitlement to special monthly compensation (SMC) under 38 U.S.C. § 1114(s)(1) but denied a compensable rating for bilateral hearing loss, and (in light of the grant of a 100% schedular rating for PTSD) dismissed a claim for a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities as moot. These grants were effectuated by an October 2020 rating decision, which also granted basic eligibility to Dependents' Educational Assistance (DEA). Following the September 2017 Board remand of claims for a rating in excess of 20% for status post fracture of right clavicle with residuals of right shoulder strain; previously, fracture, right clavicle, and a rating in excess of 10% for status post fracture, 3rd right proximal interphalangeal joint with arthritis, these matters were addressed in a February 28, 2020, supplemental statement of the case (SSOC). However, these matters have not been recertified to the Board for appellate review and will be the subject of a separate Board decision. Importantly, the Veteran was afforded a VA examination to address the severity of his asbestosis in September 2018. However, this examination was not considered by the Agency of Original Jurisdiction (AOJ). Moreover, the Veteran has not waived AOJ consideration of this evidence. Regardless, there is no prejudice to the Veteran as the AOJ will have the opportunity to consider this evidence on remand. This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.902(c). 38 U.S.C. § 7107(b). Entitlement to an initial compensable rating for asbestosis is remanded. The Veteran is seeking a higher initial rating for his asbestosis. On VA respiratory examination of May 11, 2017 by a Nurse Practitioner, the Veteran records were reviewed and summarized. It was noted that the Veteran had smoked tobacco in the past. The diagnoses were chronic obstructive pulmonary disease (COPD) and asbestosis. He reported having shortness of breath (SOB) with heavy lifting but indicated that he perceived medication as being beneficial. The examiner reported that the Veteran did require the daily use of inhaled anti-inflammatory medications. He did not require the use of oral bronchodilators, the use of antibiotics, or outpatient oxygen therapy. His breath sounds were slightly diminished. It was noted that a September 2016 CT scan had found that the Veteran’s heart was not enlarged and there was no evidence of congestive heart failure but there were findings compatible with an underlying pulmonary obstructive disease. The CT impressions were that there was evidence of old granulomatous disease and evidence of asbestos-related pleural disease. Pulmonary function testing (PFT) was done and the examiner reported that the results accurately reflected that Veteran’s pulmonary function. Pre-bronchodilatory the Veteran’s FVC was 95% of predicted, FEV-1 was 104% of predicted. DLCO was 60% of predicted. Post-bronchodilatory, his FVC was 104% of predicted, his FEV-1 was 106% of predicted, and the ratio of FEV-1/FVC was 101% of predicted. The examiner stated that the result of the DLCO most accurately reflected the Veteran’s level of disability and stated that the Veteran had both COPD and asbestosis, but that asbestosis was primarily responsible for the Veteran’s limitations. The impact on his ability to work was that he would have SOB with prolonged moderate to severe exertion. It was commented that chest X-rays were compatible with hyperinflation related to COPD, but was mild and not significantly reflected in the PFT results. In June 2017, the examiner that conducted the May 2017 respiratory examination reported that it was at least as likely as not that asbestosis was incurred in or cause by inservice asbestos exposure because there was no way to determine if inservice versus postservice exposure was mostly responsible for the development of asbestosis, with both appearing to be contributing risk factors. In response to a request to delineate the symptoms due either to COPD or to asbestosis, in July 2017, a VA physician, who did not examine the Veteran, reported that: Symptoms and findings related to Asbestosis: CT and CXR shows pleural plaquing, low DLCO may be cardiac or due to asbestosis. Because there is overlap in the findings, it cannot be stated the DLCO of 60% is due to asbestosis as it is more likely cardiac-Pulmonary evaluation states likely the pattern of nighttime dyspnea and cough is cardiac and therefore not likely due to asbestosis. Improvement in symptoms due to [D]ulera and prednisone is NOT related to asbestosis as it would not be expected to respond to this type of treatment. Instead it is likely related to COPD. Therefore at this time, the only finding that can be attributed to asbestosis is pleural plaquing. All other PFT findings as well as symptoms are currently attributed to COPD and cardiac disease. On official respiratory examination of September 10, 2018, by a Nurse Practitioner the Veteran records were reviewed. The diagnosis was asbestosis. It was reported that he had dyspnea with minimal exertion, and a cough productive of gray sputum. He no longer used an inhaler because he had not found it to be useful. His respiratory condition did not require the use of oral or parenteral corticosteroid medications, the use of inhaled medications, the use of oral bronchodilators, the use of antibiotics, or outpatient oxygen therapy. The examiner reported that current PFTs reflected the Veteran’s current pulmonary function. Pre-bronchodilatory the Veteran’s FVC was 97% of predicted, FEV-1 was 97% of predicted, the ratio of FEV-1/FVC was 99%. Post-bronchodilatory, his FVC was 101% of predicted, his FEV-1 was 94% of predicted, and the ratio of FEV-1/FVC was 92% of predicted. DLCO was 33.68% of predicted. The examiner stated that the result of the FVC percentage most accurately reflected the Veteran’s level of disability. However, despite the above findings, the examiner found that there was a worsening of the Veteran’s symptoms. The examiner also found that the impact on his ability to work was that he would have dyspnea with minimal exertion. His ability to function in occupational environment requiring any physical labor would be difficult due to dyspnea with minimal exertion, but it might be possible to perform sedentary work. Unfortunately, the VA examinations and opinions appears to be contradictory with respect to the severity of the Veteran’s asbestosis. In this regard, the initial examiner found that asbestosis was primarily responsible for the Veteran’s limitations. However, the July 2017 VA examiner, who did not examine the Veteran, found that COPD and cardiac disease were the primary causes of the Veteran’s symptoms. Most recently, the VA examiner found that the Veteran’s symptoms had worsened and that his asbestosis impacted his ability to work. However, the examiner also indicated that the FVC percentage of 101 percent most accurately reflected his disability, which would be indicative of minimal symptoms. Under the circumstances, the Board finds that the Veteran should be afforded another VA examination to address the severity of his asbestosis. The matters are REMANDED for the following action: 1. Obtain additional VA clinical records. 2. Schedule the Veteran for VA respiratory examination by an appropriate clinician. With regard to asbestosis, 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. The examiner should clearly delineate all symptoms associated with his asbestosis alone. To the extent possible, the examiner should identify any symptoms and functional impairments due to the service-connected asbestosis alone and discuss the effect of the Veteran’s asbestosis on any occupational functioning and activities of daily living. J.N. MOATS Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Fussell, 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.