Citation Nr: 0001259 Decision Date: 01/14/00 Archive Date: 01/27/00 DOCKET NO. 97-34 137 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for asbestosis. 2. Entitlement to an increased evaluation for chronic low back pain, currently evaluated as 40 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD L. M. Barnard, Counsel INTRODUCTION The veteran served on active duty from June 1951 to April 1955. This appeal arose from a June 1997 rating decision of the Montgomery, Alabama, Department of Veterans Affairs (VA), Regional Office (RO), which denied entitlement to service connection for asbestosis. In April 1998, the RO issued a rating decision which denied entitlement to an evaluation in excess of 40 percent for the service-connected chronic low back pain. The record does not show that the RO expressly considered referral of this case to the Chief Benefits Director or the Director, Compensation and Pension Service, for the assignment of an extraschedular rating under 38 C.F.R. § 3.321(b)(1) (1995). The United States Court of Appeals for Veterans Claims (known as the United States Court of Veterans Appeals prior to March 1, 1999)(hereinafter "the Court"), has recently held that the Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R. § 3.321(b)(1) in the first instance; however, the Board is not precluded from considering whether referral to the appropriate first-line official is required. The Board is still obligated to seek out all issues that are reasonably raised from a liberal reading of documents or testimony of record and to identify all potential theories of entitlement to a benefit under the law and regulations. Floyd v. Brown, 9 Vet. App. 88 (1996). Moreover, the Court has also held that the Board must address referral under 38 C.F.R. § 3.321(b)(1) only when circumstances are presented which the Director of VA's Compensation and Pension Service might consider exceptional or unusual. Shipwash v. Brown, 8 Vet. App. 218,227 (1995). Having reviewed the record with these holdings in mind, the Board finds no basis for action on the question of the assignment of an extraschedular rating for the service-connected chronic low back pain. FINDINGS OF FACT 1. The veteran has been shown by credible evidence to suffer from asbestosis related to exposure to asbestos in service. 2. The veteran's service-connected low back disorder is manifested by limitation of motion, with pain upon all motions, positive straight leg raises and complaints of pain radiation and numbness in the right lower extremity. CONCLUSIONS OF LAW 1. The veteran has presented evidence of a well grounded claim for service connection for asbestosis. 38 U.S.C.A. § 5107(a) (West 1991). 2. The criteria for an increased evaluation for the service- connected chronic low back pain have not been met. 38 U.S.C.A. §§ 1155, 5107(a) (West 1991); 38 C.F.R. Part 4, including §§ 4.1, 4.2, 4.7, 4.10, 4.40, 4.45, 4.59, Code 5293 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Entitlement to service connection for asbestosis The threshold question to be answered in this case is whether the appellant has presented evidence of a well grounded claim; that is, one which is plausible. If he has not presented a well grounded claim, his appeal must fail and there is no duty to assist him further in the development of his claim because such additional development would be futile. 38 U.S.C.A. § 5107(a) (West 1991); Murphy v. Derwinski, 1 Vet. App. 78 (1990). As will be explained below, it is found that his claim is well grounded. The veteran's DD Form 214 indicated that he had served with the Navy for four years. His service medical records do not contain any mention of any complaints of or treatment for any lung disorders. His entrance examination performed in May 1951 and his April 1955 separation examination noted that his lungs were normal; chest x-rays were negative. VA examinations conducted in August 1955, October 1955, July 1963, October 1964 and June 1968 all indicated that his lungs were within normal limits. Chest x-rays performed as part of these examinations were negative. VA outpatient treatment records developed between November 1988 and October 1994 indicated that he was diagnosed with bronchitis in November 1988. Chest x-rays obtained in November 1988, November 1993 and February and October 1994, were all negative, showing no evidence of asbestosis. In November 1993, he had reported that he had bloody sputum. In January 1997, the veteran provided a statement concerning his alleged exposure to asbestos. He indicated that he had engaged in the maintenance of aircraft in the Navy and had thus been exposed. He also admitted to post-service exposure, while working in air conditioning maintenance. The veteran was examined by a private physician in April 1996. He reported that he had been exposed to asbestos in the Navy when he worked on planes on an aircraft carrier. He indicated that the catapults used to launch the planes were coated in asbestos. He also reported that after service, he had been exposed to asbestos while installing air conditioning duct-work and as an aircraft mechanic. He stated that he had a chronic cough for several years, which was accompanied by yellowish sputum, wheezing and shortness of breath. The objective examination found that his chest was without rales, rhonchi or wheezes. A chest x-ray revealed no definite pulmonary parenchymal abnormalities; there was at least one face on pleural plaque seen along the right lateral hemithorax in the mid to lower portion as well as at least one pleural plaque seen in profile along the left lower lateral hemithorax. Pulmonary function tests showed mild obstructive ventilatory impairment. The impression was that he clearly appeared to have evidence of pleural disease related to previous asbestos exposure. VA outpatient treatment records developed between March 1996 and March 1998 included a July 11, 1996 chest x-ray which showed occasional calcified granulomas in both lungs without any active infiltrate; this was noted to be an essentially negative chest. In November 1997 and January 1998, he was diagnosed with an upper respiratory infection after complaining of a productive cough with yellow sputum, fever, chills and nasal congestion. The veteran was afforded another private examination in February 1998. His significant history of asbestos exposure was again noted. His lungs were resonant to percussion with rales in the bases, greater on the right than the left. The chest x-ray showed hilar and root structures which appeared to be normal, though there was a streaky density radiating from the right hilum inferiorly and the diaphragms were smooth; the lung fields revealed irregular opacities in the mid and lower lung zones bilaterally; there were calcified nodules in the hilar area indicative of old granulomatous disease; and the pleural surfaces were free of plaque formation and pleural thickening. The spirometry revealed mild restrictive ventilatory impairment; the lung volumes showed mild air trapping. The diagnosis was asbestosis with significant history of asbestos exposure. VA examined the veteran in July 1998. He again described his inservice and post-service exposure to asbestos. The physical examination noted that he had a productive cough with mostly yellow sputum. There was no evidence of hemoptysis or anorexia. He indicated that he experienced shortness of breath on walking two or more blocks or on climbing one flight of stairs. His respirations were 15 per minute. His chest was symmetrical and his lungs were clear to auscultation. There was no evidence of cor pulmonale. Pulmonary function tests revealed mild restrictive disease with normal DSB. A chest x-ray was negative. The diagnoses were history of asbestos exposure; no asbestosis detected clinically or by chest x-ray. In order to establish service connection, the following three elements must be satisfied: 1) the existence of a current disability; 2) the existence of a disease or injury in service, and 3) a relationship or nexus between the current disability and a disease contracted or an injury sustained in service. Caluza v. Brown, 7 Vet. App. 498 (1995); Grivois v. Brown, 6 Vet. App. 136 (1994); Grottveit v. Brown, 5 Vet. App. 91 (1993); Rabideau v. Derwinski, 2 Vet. App. 141 (1992). In the instant case, it is found that the evidence suggests that the veteran was exposed to asbestos during service (assuming the truthfulness of the veteran's statements for purposes of well groundedness). Therefore, it is determined that there is evidence of an "injury" during service. There is also credible evidence that he currently suffers from asbestosis; thus, there is evidence of the existence of a current disability. Finally, there is evidence that his diagnosed asbestosis is related to his history of exposure to asbestos, which included exposure during service. Therefore, it is concluded that he has presented evidence of a well grounded claim for service connection for asbestosis. II. An increased evaluation for chronic low back pain Under the applicable criteria, disability evaluations are determined by the application of a schedule of ratings which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. Part 4 (1999). When a question arises as to which of two evaluations shall be assigned, the higher evaluation will be assigned of the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (1999). VA has a duty to acknowledge and consider all regulations which are potentially applicable based upon the assertions and issues raised in the record and to explain the reasons used to support the conclusion. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). These regulations include, but are not limited to, 38 C.F.R. § 4.1, that requires that each disability be viewed in relation to its history and that there be an emphasis placed upon the limitation of activity imposed by the disabling condition, and 38 C.F.R. § 4.2 which requires that medical reports be interpreted in light of the whole recorded history, and that each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.10 states that, in cases of functional impairment, evaluations are to based upon lack of usefulness, and medical examiners must furnish, in addition to etiological, anatomical, pathological, laboratory and prognostic data required for ordinary medical classification, full description of the effects of the disability upon a person's ordinary activity. This evaluation includes functional disability due to pain under the provisions of 38 C.F.R. § 4.40. These requirements for the evaluation of the complete medical history of the claimant's condition operate to protect claimants against adverse decision based upon a single, incomplete or inaccurate report and to enable VA to make a more precise evaluation of the disability level and any changes in the condition. In evaluating a service-connected disability involving a joint rated on limitation of motion, the Board must also consider functional loss due to weakness, fatigability, incoordination or pain on movement of joint under the provisions of 38 C.F.R. § 4.45 (1999). With any form of arthritis, painful motion is an important factor of disability, the facial expression, wincing, etc., on pressure or manipulation, should be carefully noted and definitely related to affected joints. Muscle spasm will greatly assist the identification. Sciatic neuritis is not uncommonly caused by arthritis of the spine. The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. Crepitation either in the soft tissues such as the tendons or ligaments, or crepitation within the joint structures should be noted carefully as points of contact which are diseased. Flexion elicits such manifestations. The joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint. 38 C.F.R. § 4.59 (1999). The Board notes that while the regulations require review of the recorded history of a disability by the adjudicator to ensure an accurate evaluation, the regulations do not give past medical reports precedence over the current medical findings. Where an increase in the disability rating is at issue, the present level of the veteran's disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). In the instant case, the veteran was awarded service connection for a low back disability by the Board of Veterans' Appeals (Board) in August 1964. In October 1997, the Board granted an evaluation of 40 percent for chronic low back pain; this decision was promulgated by the RO that same month. The 40 percent disability evaluation was made effective June 17, 1990. The pertinent evidence included VA outpatient treatment records developed between January 1997 and March 1998. On January 15, 1997, he complained of back pain that radiated into the right leg. On May 12, 1997, he reported increasing back pain, accompanied by radiation into the right leg. Degenerative joint disease (DJD) was diagnosed. The veteran was examined by VA in October 1998. He complained of chronic low back pain; difficulty with bending, lifting or carrying; and problems with weight bearing. He also noted that he still experienced radiation of the pain into the lower extremity. The objective examination noted that he used two crutches to enter the examining room; he moved slowly, in a stiff and crouched position. He also displayed a right-sided limp. There was tenderness to palpation in the midline to the low back region. Forward flexion was to 75 degrees; extension was to 20 degrees; lateral bending was to 25 degrees bilaterally; right rotation was to 15 degrees; and left rotation was to 30 degrees. He reported pain on all ranges of motion. Sitting straight leg raises were positive and he displayed 5/5 strength in the lower extremities with encouragement. His reflexes were intact and there was decreased pinprick on the lateral aspect of the right foot. An x-ray showed osteoarthritis and degenerative disc disease (DDD) at the L2-3 level. A May 1995 MRI had shown mild degenerative changes of the lumbar spine without significant spinal canal or neuroforaminal abnormality. The examiner then stated that the veteran did have rather significant pain on motion. He was unable to demonstrate any significant weakness on strength testing of the lower extremities. There was no measurable atrophy. It was possible that pain could further limit functional abilities during flare-ups or on increased use, but it was not feasible to attempt to express this in terms of additional limitation of motion as this could not be determined with any degree of medical certainty. According to the applicable criteria, a 40 percent evaluation is warranted for severe intervertebral disc syndrome, manifested by recurring attacks with intermittent relief. A 60 percent evaluation requires pronounced intervertebral disc syndrome, with persistent symptoms compatible with sciatic neuropathy with characteristic pain and demonstrable muscle spasm, absent ankle jerk, or other neurological findings appropriate to the site of the diseased disc, with little intermittent relief. 38 C.F.R. Part 4, Code 5293 (1999). After a careful review of the evidence of record, it is found that an evaluation in excess of the 40 percent evaluation currently assigned is not warranted. While the veteran does experience pain on motion and some decrease to pinprick over the lateral aspect of the right foot, there is no indication that he suffers from muscle spasms; nor is there evidence of an absent ankle jerk. While he suffers from DDD, a recent MRI showed no evidence of significant spinal canal or neuroforaminal abnormalities. He also demonstrated no weakness or atrophy of the lower extremities related to his low back condition. It was noted to be possible that he could have greater functional impairment during flare-ups or after repeated use; however, the examiner stated that this was not quantifiable in terms of additional limitation of motion. Should the veteran experience such increased disability during these periods, he should seek treatment so that any additional impairment may be objectively documented. In conclusion, it is found that the preponderance of the evidence is against the veteran's claim for an increased evaluation for the service-connected chronic low back pain. ORDER To the extent that a well grounded claim for service connection for asbestosis has been presented, the appeal is granted. An increased evaluation for the service-connected chronic low back pain is denied. REMAND The veteran has contended that service connection for asbestosis is warranted because he was exposed to asbestos in service which caused this disorder. VA has a duty to assist the veteran in the development of all facts pertinent to his claim. 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. § 3.103(a) (1994). This includes the duty to obtain a VA examination which provides an adequate basis upon which to determine entitlement to the benefit sought. Littke v. Derwinski, 1 Vet. App. 90 (1991). Examinations by specialists are recommended in those cases which present a complicated disability picture. Hyder v. Derwinski, 1 Vet. App. 221 (1991). A review of the record indicated that a private physician diagnosed asbestosis in April 1996 and February 1998, which was related to the veteran's previous exposure to asbestos. However, a VA examination conducted in July 1998, despite noting a history of exposure to asbestos, found no evidence of asbestosis, either clinically or by x-ray. Clearly, this diagnostic conflict must be resolved prior to a final determination of the veteran's claim. See Ussery v. Brown, 8 Vet. App. 64 (1995). Under the circumstances of this case, it is found that additional assistance would be helpful, and this case will be REMANDED to the RO for the following: 1. The RO should afford the veteran a complete VA pulmonary examination by a qualified physician. This examiner, after reviewing the entire evidence of record, should render a definitive diagnosis; that is, it should be determined whether or not the veteran currently suffers from asbestosis. If asbestosis is diagnosed, the examiner must render an opinion as to whether it is at least as likely as not that this disorder was caused by toxic exposure to asbestos in service as opposed to toxic exposure to this substance after service. All indicated special studies, to include, but not limited to, a chest x- ray and pulmonary function tests, must be accomplished. The claims folder must be made available to the examiner prior to the examination so that the veteran's entire medical history can be taken into consideration, and the examiner must indicate in the examination report that the entire file has been reviewed. 2. Once the above-requested development has been completed, the RO should readjudicate the claim for service connection for asbestosis. If the decision remains adverse to the appellant, he and his representative should be provided an appropriate supplemental statement of the case, and an opportunity to respond. 3. Following completion of the foregoing, the RO must review the claims folder and ensure that the foregoing development action has been conducted and completed in full. If any development is incomplete, including if the requested examination does not include all test reports, special studies or opinions requested, appropriate corrective action is to be implemented. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 1999) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44- 8.45 and 38.02-38.03. C. P. RUSSELL Member, Board of Veterans' Appeals