Citation Nr: 0007861 Decision Date: 03/23/00 Archive Date: 03/28/00 DOCKET NO. 98-12 226 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts THE ISSUE Entitlement to an increased rating for service-connected residuals of right lobectomy with bronchiectasis and right diaphragmatic paralysis, currently evaluated 60 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD C. L. Wasser, Associate Counsel INTRODUCTION The veteran served on active duty from August 1965 to January 1966. This case comes to the Board of Veterans' Appeals (Board) from a March 1997 RO decision which denied an increase in a 60 percent rating for service-connected residuals of right lobectomy with bronchiectasis and right diaphragmatic paralysis; the veteran appealed for an increased rating. The veteran requested a personal hearing before a member of the Board, but by a written statement dated in November 1999, he withdrew his hearing request. REMAND The veteran contends that his service-connected residuals of right lobectomy with bronchiectasis and right diaphragmatic paralysis are more disabling than currently evaluated. His claim for an increased rating is well grounded, meaning plausible, and the file shows there is a further VA duty to assist in developing the facts pertinent to his claim. 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. § 3.159 (1998); Murphy v. Derwinski, 1 Vet. App. 78 (1990). The Board notes that the regulations pertaining to evaluating respiratory disabilities were revised, effective in October 1996. As the veteran's claim for an increased rating was thereafter received by the RO, his claim is properly evaluated under the revised criteria. The RO has evaluated the veteran's lung condition under the revised criteria of 38 C.F.R. § 4.97, Codes 6601 (pertaining to bronchiectasis) and 6602 (pertaining to bronchial asthma). Code 6601 provides that bronchiectasis may also be rated under Code 6600 (pertaining to chronic bronchitis). Codes 6600 and 6602 primarily rate the pulmonary condition based on pulmonary function study test results including Forced Expiratory Volume in one second (FEV-1), or the ratio of Forced Expiratory Volume in one second to Forced Vital Capacity (FEV-1/FVC), or Diffusion Capacity of the Lung for Carbon Monoxide by the Single Breath method (DLCO (SB)), or maximum exercise capacity. 38 C.F.R. § 4.97, Codes 6600, 6602 (1999). The veteran last underwent pulmonary function testing in September 1998, at which time his FEV-1 and his FEV- 1/FVC were measured. However, there is no recent evidence on file indicating his DLCO (SB) or his maximum exercise capacity; and such measurements are required in order to fully apply the new rating criteria. Id. The Board notes that the RO returned the September 1998 examination report to the VA examiner for completion of all required pulmonary function testing, and the examiner responded with a note indicating that he did not believe that a DLCO would "add a thing." Nonetheless, as the rating criteria require such tests to be considered when rating the veteran's service-connected pulmonary disorder, it is the judgment of the Board that the veteran should undergo another more comprehensive VA respiratory examination. On remand, any recent treatment records regarding the veteran's respiratory disability should be obtained. Murincsak v. Derwinski, 2 Vet. App. 363 (1992). Thus the case is remanded to the RO for the following actions: 1. The RO should instruct the veteran to prepare a detailed list (names, addresses, dates) of all VA and non-VA medical providers who have examined or treated him for a lung condition since 1998. The RO should directly contact all identified medical providers and obtain copies of all relevant medical records that are not already on file. 38 C.F.R. § 3.159. 2. The RO should have the veteran undergo a VA pulmonary examination to determine the severity of his residuals of right lobectomy with bronchiectasis and right diaphragmatic paralysis. The claims folder should be made available to and reviewed by the examiner in conjunction with the examination. All appropriate tests and studies should be performed, including pulmonary function tests, which yield all necessary results for rating the disorder under the new version of Codes 6600 and 6602, such as FEV-1, FEV-1/FVC, DLCO (SB), and maximum exercise capacity. After the above development has been completed, the RO should review the claim for an increased rating for residuals of right lobectomy with bronchiectasis and right diaphragmatic paralysis. If the claim is denied, the veteran should be issued a supplemental statement of the case, and given an opportunity to respond, before the case is returned to the Board. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded to the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). L. W. TOBIN Member, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 1999), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (1999).