Citation Nr: 22016160 Decision Date: 03/21/22 Archive Date: 03/21/22 DOCKET NO. 16-40 650 DATE: March 21, 2022 REMANDED Entitlement to a rating in excess of 60 percent for asbestosis is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Navy from February 1969 to June 1972, to include service in Vietnam. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a December 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office in Des Moines, Iowa. Unfortunately, the Veteran died in June 2018, while the current appeal was pending. His surviving spouse has been substituted as the appellant pursuant to 38 U.S.C. § 5121A. In September 2021, the appellant was notified of the time and place of a Board hearing that was scheduled in connection with the present appeal. See 38 C.F.R. § 20.704(b). She failed to report, however, and no motion for rescheduling has been received. Accordingly, the Board will process her appeal as though the request for hearing has been withdrawn. 38 C.F.R. § 20.704(d). 1. Entitlement to a rating in excess of 60 percent for asbestosis is remanded. Under the General Rating Formula for Interstitial Lung Disease, a 100 percent rating is warranted for asbestosis if Forced Vital Capacity (FVC) is less than 50 percent of predicted; or Diffusion Capacity of the Lung for Carbon Monoxide by the Single Breath Method (DLCO (SB)) is less than 40 percent of predicted; or maximum exercise capacity is less than 15 milliliters/kilogram/minute oxygen consumption with cardiorespiratory limitation; or there is cor pulmonale or pulmonary hypertension; or outpatient oxygen therapy is required. 38 C.F.R. § 4.97. Post-bronchodilator studies are required 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 post-bronchodilator studies are conducted, the results of those studies are used in assigning the rating unless the post-bronchodilator results were poorer than the pre-bronchodilator results; in which case, the pre-bronchodilator results are used. 38 C.F.R. § 4.96(d)(5). When there is a disparity between the results of different pulmonary function tests, VA must use the results that the examiner states most accurately reflect the level of disability. 38 C.F.R. § 4.96(d)(6). Coexisting respiratory conditions may not be assigned separate ratings. 38 C.F.R. § 4.96(a). The Veteran underwent a VA examination for his service-connected asbestosis in November 2015. FVC was 42 percent predicted and DLCO was 53 percent predicted on pre-bronchodilator testing. There was no post-bronchodilator testing, which the examiner stated was not indicated for the Veteran's condition. It was also noted that the Veteran required outpatient oxygen therapy. The November 2015 VA examiner stated that the DLCO results most accurately reflected the Veteran's level of disability. At the same time, the examiner indicated that non-service-connected chronic obstructive pulmonary disease (COPD) was predominantly responsible for the limitation of pulmonary function, including the need for outpatient oxygen therapy, and that "the condition of asbestos related pleural plaques imparts no limitation in pulmonary function." The Board finds that the November 2015 examiner has not articulated a sufficient rationale to allow the Board to weigh the probative value of the examiner's opinion against other evidence. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion . . . must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."). Significantly, a prior VA examiner in May 2014 and December 2014 offered no similar opinion that the Veteran's asbestosis was essentially asymptomatic. In addition, although a March 2013 examiner made findings to the effect that the Veteran's pulmonary impairment was primarily due to COPD and myasthenia gravis, the examiner also noted that the Veteran might have some difficulty with physically strenuous jobs due to his asbestosis. Furthermore, the May 2014 examiner found that FVC (rather than DLCO) most accurately reflected the Veteran's level of disability. In light of the foregoing, the Board finds that an addendum opinion is required for clarification as to the basis of the most recent examiner's findings. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). 2. Entitlement to a TDIU is remanded. Resolution of the remanded issue may impact the analysis of whether the Veteran was entitled to a TDIU, particularly as the TDIU claim is based primarily upon the extent of his service-connected pulmonary impairment. Accordingly, the issues are inextricably intertwined. See, e.g., Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 2 Vet. App. 180, 183 (1991) (issues are "inextricably intertwined" when a decision on one issue would have a "significant impact" on another issue). As such, the Board will remand the TDIU issue as well. These matters are REMANDED for the following action: 1. Ask the appellant to identify, and provide appropriate releases for, any care providers who may possess new or additional evidence pertinent to the issues on appeal. If she provides the necessary release(s), assist her in obtaining the records identified, following the procedures set forth in 38 C.F.R. § 3.159. Any new or additional (i.e., non-duplicative) evidence received should be associated with the record. If any of the records sought are not available, the record should be annotated to reflect that fact, and the appellant should be notified. 2. After the foregoing development has been completed to the extent possible, make arrangements to have the VA examiner who previously evaluated the Veteran in November 2015 review the expanded record and provide a supplemental report. The examiner should clarify the basis of his prior findings in the November 2015 report to the effect that (a) the Veteran's condition of asbestos-related pleural plaques imparted no limitation in pulmonary function, and (b) the Veteran's use of oxygen was due to COPD. In so doing, the examiner should consider and discuss the prior VA examination reports dated in March 2013, May 2014, and December 2014, each of which appear to indicate that the Veteran's asbestosis resulted in some degree of pulmonary impairment, with comorbidities of COPD and/or myasthenia gravis. If it is the examiner's conclusion that the Veteran's service-connected asbestosis was, in fact, causative of some degree of pulmonary impairment, the examiner should offer an opinion as to which symptoms were at least as likely as not (i.e., were 50 percent or more likely) due to asbestosis and which were more likely due to some other condition. If it is not possible to make such a distinction, that fact should be noted. In so doing, the examiner should specifically indicate whether the Veteran's need for outpatient oxygen therapy was due in any measure to his service-connected asbestosis and, if it was not, the examiner should provide a substantive explanation for that conclusion. The examiner should also specifically indicate whether he agrees with the May 2014 examiner's assessment that FVC most accurately reflected the Veteran's level of disability and, if not, the examiner should provide a substantive explanation for that conclusion. If the November 2015 VA examiner is no longer employed by VA, or is otherwise unable to provide the opinion(s) requested, arrange to obtain the requested information from another qualified examiner. A complete rationale for all opinions expressed must be provided. 3. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the issues on appeal should be readjudicated based on the entirety of the evidence. If any benefit sought remains denied, the appellant should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. DAVID A. BRENNINGMEYER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board John Kitlas, 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.