Citation Nr: 21029158 Decision Date: 05/12/21 Archive Date: 05/12/21 DOCKET NO. 17-47 753 DATE: May 12, 2021 REMANDED Entitlement to an initial compensable rating for asbestos-related pleural plaques with rounded atelectasis (hereafter asbestosis) is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Navy from November 1965 to September 1969, to include service in the Republic of Vietnam for which he was awarded the Combat Action Ribbon. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2016 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In March 2020, the Board denied entitlement to an initial compensable rating for the Veteran's service-connected asbestosis. The Veteran appealed this decision to the United States Court of Appeals for Veterans Claims (Court). By Order dated in December 2020, the Court granted the parties' joint motion for remand (JMR) vacating and remanding the Board's decision for readjudication. Pursuant to the JMR, the parties agreed that the February 2016 and August 2017 VA examinations were both inadequate in that the examiner failed to provide a medical rationale regarding the level of respiratory impairment caused by the Veteran's service-connected asbestosis as opposed to the identified nonservice connected chronic obstructive pulmonary disease (COPD) and obesity, improperly relied on speculation, and arbitrarily relied on disputed facts (length or pack years of the Veteran's tobacco history). See December 2020 JMR at 2-6. Additionally, both parties agreed that the evidence of record demonstrated a possible worsening of the Veteran's respiratory symptoms and agreed that combined with the lengthy passage of time since the last examination in August 2017, that a new examination is warranted on remand. The Parties also agreed that pulmonary function tests (PTFs) that were completed in 2019 must also be obtained on remand. Id. at 6-7. In his December 2020 Appellate Brief, the Veteran asserted that his nonservice connected COPD is intertwined with his service-connected asbestosis and that service connection is warranted. The Veteran was denied service connection for COPD in the March 2016 rating decision, the same rating decision now on appeal regarding the initial rating for asbestosis, and he did not appeal the denial of service-connection for COPD in his June 2016 Notice of Disagreement (NOD) or raise within one year of the rating decision. The Board notes that the Court has stated that advancing different arguments at successive stages of the appellate process does not serve the interests of the parties or the Court, and that such a practice hinders the decision-making process and raises the undesirable specter of piecemeal litigation. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (Court will [not] review BVA decisions in a piecemeal fashion); see also Fugere v. Derwinski, 1 Vet. App. 103, 105 (1990), aff'd, 972 F.2d 331 (Fed. Cir. 1992) ([a]dvancing different arguments at successive stages of the appellate process does not serve the interests of the parties or the Court). The Parties did not note any other deficiencies in the Board's prior analysis other than the inadequacy of the February 2016 and August 2017 VA examinations and the failure to obtain outstanding VA treatment records that include PFTs; accordingly, the Board will not consider this argument. See id; Cf. Chisem v. Gober, 10 Vet. App. 526, 527-8 (1997) (under the "law of the case" doctrine, appellate courts generally will not review or reconsider issues that have already been decided in a previous appeal of the same case, and therefore, Board is not free to do anything contrary to the Court's prior action with respect to the same claim). Accordingly, entitlement to an initial compensable rating for asbestosis is remanded for a new VA examination. Any outstanding VA treatment and private treatment records should also be obtained. The matters are REMANDED for the following action: 1. Obtain all outstanding VA treatment records, to include PFTs referenced in August 6, 2019, October 31, 2019, January 15, 2020, July 7, 2020, and July 16, 2020 VA treatment records. 2. With any necessary assistance from the Veteran, obtain any outstanding relevant private treatment records, including but not limited to records from Drs. T.B. and R.K. 3. Then schedule the Veteran for a VA examination with an examiner other than the February 2016/August 2017 VA examiner to determine the current severity of his asbestosis. The entire claims file, including a copy of the December 2020 JMR, must be made available to and reviewed by the examiner. All findings should be reported in detail. The examiner must address the following in completing the examination report: (a.) When the examiner is asked to make a medical determination as to which PFT result most accurately reflects the Veteran's level of disability, the examiner must provide a reasoned medical explanation connecting the supporting data to said conclusions and address the following: 1. the July 1991 diagnosis of asbestosis confirmed on x-ray by Dr. R.K.; 2. the September 2015 diagnosis of post-inflammatory pulmonary fibrosis and asbestosis rendered by Dr. T.B.; 3. VA treatment records documenting that the Veteran quit smoking in 1995 and had a 30-year pack history (See November 2015, December 2015, May 2016, September 2016, January 2017, May 2017, August 2017, November 2017, February 2018, May 2018, August 2018, March 2019, June 2019, October 2019 VA treatment records); 4. the Veteran's initial diagnosis of COPD in November 2015 over two decades after being diagnosed with asbestosis; 5. the February 2016 VA diagnosis of restrictive lung disease due to an extrathoracic restrictive disorder, like obesity. (b.) When answering which respiratory condition (asbestosis, COPD, or extrathoracic restrictive disorder due to obesity) is predominantly responsible for the limitation in pulmonary function, the examiner must provide a reasoned medical explanation for his/her opinion, connecting the supporting data regarding any conclusions provided and must address the fact that the Veteran's initial diagnosis of COPD in November 2015 was made over two decades after first being diagnosed with asbestosis. (c.) The examiner must consider the Veteran's repeated and consistent statements that he quit using tobacco in 1995, and VA treatment providers' conclusions that the Veteran engaged in a 30-pack year history of smoking. By contrast, the February 2016/August 2017 VA examiner concluded the Veteran had an 82.5 pack-year history but failed to offer any explanation as to the calculation of the same. A complete rationale must be provided for all opinions expressed. If unable to provide a medical opinion, provide a statement as to whether there is any additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. If a requested opinion cannot be provided without resorting to speculation, the examiner must be clear on the record that the inability to opine on a medical matter was arrived at after all due diligence in seeking relevant information that may have bearing on the requested opinion. S. BUSH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G. Rouse, 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.