Citation Nr: 22012115
Decision Date: 03/02/22	Archive Date: 03/02/22

DOCKET NO. 17-33 707
DATE: March 2, 2022

REMANDED

Entitlement to an initial compensable rating for asbestosis is remanded.

REASONS FOR REMAND

The Veteran had active service from September 1973 to June 1978.

Entitlement to an initial compensable rating for asbestosis is remanded.

In its September 2021 Remand instructions, the Board of Veterans' Appeals (Board) requested that the Veteran be scheduled for a Department of Veterans Affairs (VA) pulmonary examination, including pulmonary function testing, be conducted.  

An October 2021 letter to the Veteran states that: the "Veterans Evaluation Services (VES) is currently working with the VA to assist in addressing the backlog of veterans requiring compensation and/or pension evaluations;" "a request was sent to us by the VA to handle your compensation/pension exams, for a record review only;" "please note this is a record review only;" and "you will not need to report for an examination."  

An October 2021 pulmonary evaluation was subsequently conducted for VA based upon a review of the claims record.  The Veteran has not been afforded the requested pulmonary examination including pulmonary function testing.  The Agency of Original Jurisdiction's compliance with the Board's remand instructions is neither optional nor discretionary.  Stegall v. West, 11 Vet. App. 268 (1998).    

Clinical documentation dated after July 2021 is not of record.  VA should obtain all relevant VA and private treatment records which could potentially be helpful in resolving the Veteran's claim.  Murphy v. Derwinski, 1 Vet. App. 78 (1990); Bell v. Derwinski, 2 Vet. App. 611 (1992).

The matters are REMANDED for the following action:

1. Ask the Veteran to complete a VA Form 21-4142 for each private healthcare provider who has treated the service-connected asbestosis. Make two requests for the authorized records from all identified healthcare providers unless it is clear after the first request that a second request would be futile.

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2. Obtain any VA treatment records not of record, to include those pertaining to treatment after July 2021.

3. Schedule the Veteran for a VA pulmonary examination conducted by a physician to assist in determining the nature and severity of the service-connected asbestosis.  The examiner must review the record and should note that review in the report.  A rationale for all opinions should be provided.  All indicated studies or tests should be conducted.  Pre- and post-bronchodilator pulmonary function testing must be conducted unless medically contraindicated, and values should be provided for Forced Vital Capacity and Diffusion Capacity of the Lung for Carbon Monoxide by the Single Breath Method (DLCO (SB)).  If pulmonary function testing or any other indicated study or test is not conducted, a complete explanation must be provided.  A copy of the examination notice provided to the Veteran should be incorporated into the record.

 

 

J. T. HUTCHESON

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	D. Casula

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.