BVA9501489 DOCKET NO. 89-48 328 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUES 1. Entitlement to service connection for lung disease, other than asbestosis. 2. Entitlement to an increased (compensable) evaluation for asbestosis. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K. Hudson, Associate Counsel INTRODUCTION This matter came before the Board of Veterans' Appeals (Board) on appeal from a regional office (RO) rating decision of December 1988, which denied entitlement to service connection for asbestos-related lung disease. In a decision dated in July 1990, the Board denied the veteran's claim. By a subsequent memorandum decision, [citation redacted], the United States Court of Veterans Appeals (Court) vacated the July 1990 decision and remanded the case to the Board for further action in accordance with the Court's decision, retaining jurisdiction of the case. The case was remanded by the Board to the RO for further development in July 1992. By rating action of October 1992, service connection for asbestosis was granted, and assigned a noncompensable evaluation. In September 1993, the case was again remanded to the RO for further development, and has now been returned to the Board for appellate consideration of the issues as set forth on the title page of this decision. REMAND This case has been remanded twice since its remand by the United States Court of Veterans Appeals (Court). The necessity for a third remand is galling. Nevertheless, the appellant has presented a well-grounded claim; perforce, the Department of Veterans Affairs has a statutory obligation to assist him in the development of it. 38 U.S.C.A. § 5107(a) (West 1991). The Court has held that this duty encompasses an examination where appropriate. Schroeder v. Brown, 6 Vet.App. 220 (1994). The veteran contends that his service-connected asbestosis is worse than contemplated by the current noncompensable evaluation. However, an evaluation of any disability resulting from asbestosis is complicated by the co-existence of at least one other pulmonary disorder. In attempting to identify the degree of disability specifically due to asbestosis, several pulmonary function tests have been conducted, of which most have not shown restrictive lung disease. However, the most recent pulmonary function test, conducted in January 1994, which showed moderate airway obstruction, also noted that obstruction may be underestimated and that chest restriction may also be present. Further tests, including lung volumes and "DLCO" were recommended. The record does not show that such tests were conducted. "Where the record does not adequately reveal the current state of the claimant's disability, a VA examination must be conducted." Schafrath v. Derwinski, 1 Vet.App. 589, 595 (1991). Moreover, the examination must be thorough and comprehensive, and, in a case such as this, with more than one diagnosis, the examination must determine the degree of disability imposed by each disorder, particularly the extent to which each affects functional abilities. Waddell v. Brown, 5 Vet.App. 454, 456 (1993). Consequently, despite the delay (rapidly approaching unconscionable) that will result from an additional examination, there is no avoiding it. The statutory duty to assist, coupled with the interdiction that the Board shall not rely on its own medical judgment (see Talley v. Brown, 6 Vet.App. 72 (1993); Colvin v. Derwinski, 1 Vet.App. 190 (1991)), compels clarification of the incomplete results noted on the pulmonary function tests of January 1994. Therefore, a medical opinion is required regarding whether obstructive and/or restrictive lung disease is symptomatic of asbestosis. Accordingly, this case is REMANDED for the following: The veteran should be afforded a complete pulmonary examination to determine the functional impairment resulting from asbestosis. All indicated studies, including all pulmonary function tests required to differentiate obstructive and restrictive components should be undertaken. Such tests should include lung volumes and "DLCO" recommended in January 1994. The examiner should, to the extent reasonably possible, identify the manifestations and findings which are symptomatic of asbestosis. In particular, the examiner should state whether pulmonary function test findings of obstructive and/or restrictive lung disease are reflective of asbestosis and/or other lung disease. The claims folder must be available for review prior to the examination. After completion of the requested development, the case should be reviewed by the originating agency. If the decision remains adverse to the veteran, he and his representative should be furnished a supplemental statement of the case and afforded an opportunity to respond. Thereafter, the case should be returned to the Board for appellate consideration, if otherwise in order. By this remand, the Board intimates no opinion as to the final outcome warranted for either issue. JACK W. BLASINGAME Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. (CONTINUED ON NEXT PAGE) Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Veterans Appeals. 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) (1993).