Citation Nr: 21027858 Decision Date: 05/07/21 Archive Date: 05/07/21 DOCKET NO. 14-32 608 DATE: May 7, 2021 REMANDED Entitlement to service connection for a respiratory disorder manifested by lung nodules, to include lung cancer, is remanded. Entitlement to an evaluation in excess of 30 percent for asbestosis and Chronic Obstructive Pulmonary Disease (COPD) is remanded. Entitlement to an evaluation in excess of 10 percent for headaches is remanded. REASONS FOR REMAND The Veteran served on active duty from January 1969 to November 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from May 2013 rating decision, September 2014, and August 2015 rating decisions. In November 2018, the Board, in relevant part, denied entitlement to an evaluation in excess of 10 percent for the service-connected intermittent headaches. The Board restored a 30 percent evaluation for the service-connected asbestosis and COPD effective from December 4, 2015. In addition, the Board remanded the issues of entitlement to service connection for lung cancer and entitlement to an increased rating for asbestosis and COPD for further development. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In a June 2020 memorandum decision, the Court vacated and remanded the portion of the November 2018 Board decision that denied entitlement to an increased evaluation for intermittent headaches. 1. Entitlement to an increased evaluation for asbestosis and COPD In a January 2020 VA examination report, the examiner did not provide Diffusion Capacity of the Lung for Carbon Monoxide (DLCO) test findings because a pulmonologist indicated that the Veteran was unable to complete the diffusion test. However, the examiner did not explain why the DLCO test would not be useful or valid in the Veteran's particular case or explain why he was unable to complete the testing. Notably, the Veteran was initially assigned a 30 percent evaluation for his service-connected asbestosis based on DLCO test findings. In addition, a June 2019 VA imaging report noted an impression of a borderline dilated main pulmonary artery that was suggestive of pulmonary arterial hypertension. However, the January 2020 examiner did not address whether the Veteran's asbestosis results in cardiopulmonary complications such as pulmonary hypertension. Based on the foregoing, a remand is necessary to obtain a fully adequate VA examination. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (once VA undertakes to provide a medical examination or opinion, it must ensure that the examination or opinion is adequate) 2. Entitlement to service connection for a disorder manifested by lung nodules, to include lung cancer In a January 2020 VA examination report, the examiner concluded that the Veteran does not have a current diagnosis of lung cancer. The examiner stated that the Veteran was being monitored for a right lung nodule that was suspicious for cancer. He also indicated that the Veteran's right lung nodule did not cause functional impairment. In a February 2020 VA medical opinion, the examiner stated that the Veteran's right lung nodule could not be attributed to Agent Orange exposure in the absence of a specific diagnosis. He further opined that the Veteran did not have a condition that was "likely due to service other than a benign pleural plaque confirmed in the past likely secondary to asbestos exposure and not affecting his breathing." However, the examiner provided no supporting rationale for his conclusion. In particular, he did not address the December 2015 VA examination report that identified the Veteran's idiopathic multiple isolated nodules as the respiratory condition predominately responsible for his limitation in pulmonary function. Therefore, a remand is necessary to obtain an additional VA medical opinion. See Barr, 21 Vet. App. at 311. On remand, the examiner should also address the Veteran's contention that his lung nodules are related to his service-connected asbestosis. See April 2015 VA substantive appeal. In addition, the Board notes that the January 2020 examiner referenced an October 2019 imaging report from the Banner Hospital. The Veteran's VA medical records document that he received emergency treatment at a Community Care Facility (Banner Hospital) in October 2019 and that his records were scanned into the Vista Imaging System. A February 2020 VA pulmonary diagnostic study record also indicated that a Pulmonary Function Test (PFT) was available in the Vista Imaging System. However, the underlying records have not been associated with the claims file. Therefore, on remand, the Agency of Original Jurisdiction (AOJ) should obtain any outstanding medical records. See 38 C.F.R. § 3.159(c). 3. Entitlement to an increased evaluation for headaches The Board notes that additional evidence has been associated with the claims file since the January 2016 supplemental statement of the case (SSOC) that addressed the issue of entitlement to an increased evaluation for headaches, including relevant records obtained by VA. In March 2021, the Veteran and his representative were notified and provided an opportunity to submit a waiver of consideration of the evidence by the Agency of Original Jurisdiction (AOJ). See March 2021 correspondence. The Veteran was also notified that, if no response was received within 45 days, it would be assumed that he did not wish to have the Board decide his appeal and that the case would be remanded to the AOJ for review. To date, the Veteran and his representative have not responded or submitted a waiver. Therefore, the Board finds that it must remand the issue of entitlement to an increased evaluation for headaches for AOJ review. See 38 C.F.R. §§ 19.31, 19.37. The matters are REMANDED for the following action: 1. Obtain and associate with the claims file any outstanding VA medical records that pertain to the disorders on appeal, to include any records from the Banner Hospital and PFT reports located in the Vista Imaging System. See, e.g., October 2019 and February 2020 VA medical records. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected asbestosis and COPD, and the nature and etiology of any respiratory disorder manifested by lung nodules. With respect to the service-connected asbestosis and COPD: (a) The examiner should report all signs and symptoms necessary for evaluating the Veteran's service-connected asbestosis and COPD under the rating criteria. All indicated testing should be completed, to include pulmonary function testing (including DLCO test) and exercise capacity testing; if a test is not performed, the examiner must explain why such test would not be useful or valid (or cannot be conducted). (b) The examiner should indicate whether the Veteran's asbestosis and COPD results in cardiopulmonary complications such as cor pulmonale, pulmonary hypertension; or, requires outpatient oxygen therapy. (c) To the extent possible, the examiner should distinguish between the symptoms associated with the service-connected asbestosis with COPD and any symptoms associated with a nonservice-connected disorder. If the examiner cannot separate the symptoms, he or she should so state in the report. With respect to the claimed disorder manifested by lung nodules: (a) The examiner should identify all current respiratory disorders manifested by lung nodules, to include any lung cancer. In so doing, the examiner should state whether the lung nodules result in any functional impairment. If the Veteran does not have a current diagnosis, the examiner should state this with a fully reasoned explanation. The examiner must also address a December 2015 VA examination report that identified the Veteran's idiopathic multiple isolated nodules as the respiratory condition predominately responsible for his limitation in pulmonary function. (b) For each disorder identified, the examiner should also state whether it is at least as likely as not (50 percent probability or greater) that the lung nodule disorder was either caused by or aggravated by the service-connected asbestosis and COPD. (c) The examiner should state whether it is at least as likely as not (50 percent probability or greater) that the lung nodule disorder manifested in or is otherwise causally or etiologically related to the Veteran's military service. A complete rationale for any opinion offered should be provided. 3. Review all relevant evidence that has been associated with the claims file since the issuance of the January 2016 SSOC for the issue of entitlement to an increased evaluation for headaches and readjudicate the Veteran's claim. If the claim is not granted in full, issue an SSOC. A. S. CARACCIOLO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Wulff, 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.