BVA9500765 DOCKET NO. 93-04 176 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUES 1. Entitlement to an increased evaluation for asbestosis associated with restrictive lung disease, currently evaluated as 30 percent disabling. 2. Entitlement to an increased (compensable) evaluation for post operative residuals of dermoid cysts of the right sinus. REPRESENTATION Appellant represented by: Colorado Department of Social Services WITNESS AT HEARING ON APPEAL Appellant and Spouse ATTORNEY FOR THE BOARD Carolyn Wiggins, Associate Counsel INTRODUCTION The veteran served on active duty from September 1941 until September 1960. This appeal arises from December 1991 and August 1992 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado which assigned evaluations for asbestosis with restrictive lung disease and for the post operative residuals of dermoid cysts of the right sinus reflected on the title page of this decision. In an April 1992 statement on appeal the veteran dropped issues covered by the February 1992 statement of the case other than the one involving an increased rating for the respiratory disorder. He then appeared with his representative at a May 1992 hearing and at that point it was clarified that he did not intend to drop the issue of entitlement to a compensable rating for a dermoid cyst of the right sinus. He also raised additional issues of entitlement to service connection for a post traumatic stress disorder and entitlement to secondary service connection for sleep apnea. In the August 1992 rating action the R.O. granted service connection for post traumatic stress disorder and denied secondary service connection for sleep apnea. The October 1992 supplemental statement of the case covered the denial of service connection for sleep apnea. There has been no substantive appeal filed as to this issue following the October 1992 supplemental statement of the case. As such, the issues noted on the title page of this decision are the only issues currently in appellate status. REMAND The service connected asbestosis with restrictive lung disease has been rated by the R.O. under Diagnostic Code 6802. The ratings under this Code range from 10 percent to 100 percent and the criteria for each rating are cast in terms of overall respiratory impairment confirmed by pulmonary function tests. Private pulmonary function tests in 1989 and 1990 have been interpreted as showing mild ventilatory impairment. A private pulmonary function test conducted on March 12, 1992, has not been interpreted in terms of the degree of respiratory impairment. A pulmonary function test in June 1992 done at the time of a VA examination has not been interpreted in terms of the degree of respiratory impairment. There is a notation indicating the existence of a restrictive process. There is also a reference in medical shorthand indicating that diffusing capacity is normal when corrected for lung volumes. This is probably reflective of the fact that lung volumes are reduced rather than meaning that there is no respiratory impairment. In any event, the Board is not permitted to utilize its own unsupported medical opinion to resolve these questions. This means we can not use our medical knowledge to interpret values on pulmonary function tests. Colvin v. Derwinski, 1 Vet.App. 171 (1991). Moreover, a recent decision by the United States Court of Veteran's Appeals (Court) has called into question the legal authority of the Board to utilize medical opinions obtained from its own staff medical advisors. Austin v. Brown, 6 Vet.App. 547 (1994). Therefore, the primary source for this essential evidence remains the medical staff of the VA Medical Centers. Further medical development will have to take place as to the current degree of respiratory impairment due to asbestosis with restrictive lung disease. When the veteran was examined by the VA in June 1991 it was noted that dermoid cysts in the right sinus were excised in 1959 and 1962, that the veteran has not had a problem since the surgery, and that he was asymtomatic. On the June 1992 VA examination he complained of bilateral nasal stuffiness, and difficulty breathing through his nose, and of the need to use ointment and nose drops twice a day and three times a day, respectively, to deal with this. It was noted that he had not had recurrent sinus infections since 1962. Clinical findings revealed no sinus tenderness to palpation. The mucosa of the nose was said to be unremarkable. In denying a compensable rating for postoperative residuals of removal of dermoid cysts of the right sinus the hearing examiner stated in September 1992 that the VA examination in June 1992 failed to reveal moderate impairment, crusting or scabbing. The rating criteria in Code 6514 also is cast in terms of the frequency and severity of headaches. The June 1992 examination was silent as to headaches, discharge, crusting, or scabbing, and sinus X-rays were not taken. In recent decisions which post date the transfer of this claims folder to the Board, the Court has stated that the Board's task is to make findings based on evidence of record- not to supply missing facts. Beaty v. Brown, 6 Vet.App. 532 (1994); Friscia v. Brown, No. 93-766 (U.S. Vet.App. December 21, 1994). The case is Remanded for the following actions: 1. The RO should obtain the names and addresses of all private and VA medical care providers who treated the veteran for asbestosis with restrictive lung disease or the residuals of dermoid cysts of the right sinus since June 1992. After securing the necessary releases, the RO should obtain these records for association with the claims folder. 2. The veteran should be afforded a VA examination by a respiratory disease specialist to determine the current severity of the veteran's asbestosis with restrictive lung disease. All clinical findings should be reported in detail. The examination should include pulmonary function tests and X-rays and the results should be interpreted. The examiner should review the pulmonary function tests of March 1992 and June 1992 and interpret the degree of any respiratory impairment revealed by those tests. The examiner should specifically comment on the presence or absence of fibrosis, dyspnea on exertion, dyspnea at rest and any resulting impairment of health because the evaluation is predicated on such findings under Diagnostic Code 6802. The claims folder should be made available to the examiner for review before the examination. 3. The veteran should be afforded a VA Ear, Nose and Throat examination to determine the current severity of the veteran's residuals of dermoid cysts of the right sinus. The results of the examination should be reported in detail. The examination should include sinus X- rays. The examiner should specifically comment on any discharge, crusting, headaches, scabbing or purulence. If any of these symptoms are found or reported their severity and frequency should be described. All of this is required for rating purposes under Diagnostic Code 6514. The claims folder should be made available to the examiner for review before the examination. Following completion of the above actions, the case should be reviewed by the RO. If the benefits sought remain denied, the veteran and his representative should be provided with an appropriate supplemental statement of the case and given the (CONTINUED ON NEXT PAGE) opportunity to respond. The case should then be returned to the Board for further appellate review. BRUCE E. HYMAN 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. 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).