Citation Nr: 1647846 Decision Date: 12/22/16 Archive Date: 01/06/17 DOCKET NO. 09-16 745 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUES 1. Entitlement to service connection for gastroesophageal disease (GERD) as secondary to service-connected pleural plaques with mild reactive airway disease. 2. Entitlement to service connection for obstructive sleep apnea as secondary to service-connected pleural plaques with mild reactive airway disease. 3. Entitlement to increased disability ratings for pleural plaques with mild reactive airway disease, currently rated as 30 percent disabling prior to February 29, 2016, and 60 percent since then. 4. Entitlement to a total disability rating based on individual unemployability due to a service-connected disability (TDIU) prior to February 29, 2016. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and spouse ATTORNEY FOR THE BOARD Shauna M. Watkins, Counsel INTRODUCTION The Veteran served on active duty from July 1948 to July 1952. This appeal comes to the Board of Veterans' Appeals (Board) from a November 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts. The RO issued another rating decision in September 2013, which assigned a 100 percent convalescence rating for the Veteran's pleural plaques with mild reactive airway disease surgery, effective July 6, 2011, and then assigned a 30 percent disability rating, effective September 1, 2011. The period of 100 percent convalescence will not be discussed in this Board decision for an increased rating. In November 2015, the Veteran, sitting at the RO, testified at a hearing conducted via video conference with the undersigned Veterans Law Judge (VLJ). A transcript of the hearing is of record. In January 2016, the Board remanded this appeal to the RO via the Appeals Management Center (AMC), in Washington, DC, for further development. The appeal has now been returned to the Board for appellate disposition. The RO issued another rating decision in March 2016, which increased the disability rating for the pleural plaques with mild reactive airway disease to 60 percent. The 60 percent rating was made retroactively effective from February 29, 2016, the date of a VA examination that reflected findings sufficient to establish entitlement to a higher evaluation. This decision created staged ratings, and the title page has been adjusted accordingly. The Veteran continued to appeal, requesting an even higher rating. See AB v. Brown, 6 Vet. App. 35, 38-39 (1993) (indicating that a veteran is presumed to be seeking the highest possible rating unless he or she expressly indicates otherwise). VA medical opinions dated in March 2014, February 2016, May 2016, and June 2016 determined that the Veteran's service-connected pleural plaques with mild reactive airway disease prevented him from working. The Board notes that the Veteran is currently in receipt of a TDIU, effective February 29, 2016. However, the increased rating claim has been on appeal since July 2007. Thus, the Board finds that this evidence reasonably raises a claim for a TDIU due to the service-connected pleural plaques with mild reactive airway disease prior to February 29, 2016, and the TDIU issue is included in the Veteran's appeal consistent with Rice v. Shinseki, 22 Vet. App. 447 (2009). Following the most recent readjudication of this appeal in the March 2016 Supplemental Statement of the Case (SSOC), additional pertinent evidence was added to the claims file. However, the Veteran's representative waived the Veteran's right to have the Agency of Original Jurisdiction (AOJ) initially consider this evidence in a statement dated in March 2016. 38 C.F.R. §§ 20.800, 20.1304 (2016). This appeal was processed using the VBMS paperless claims processing system. Accordingly, any future consideration of this Veteran's case should take into consideration the existence of this electronic record, in addition to the Veteran's Virtual VA paperless claims file. The issues of entitlement to service connection for coronary artery disease and entitlement to an increased disability rating for tinnitus, currently rated as 10 percent, have been raised by the record in November 2012 and April 2016 statements, respectively, but have not been adjudicated by the AOJ. Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2016); see 79 Fed. Reg. 57,660 (Sept. 24, 2014) (codified in 38 C.F.R. Parts 3, 19, and 20 (2016)). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2016). 38 U.S.C.A. § 7107(a)(2) (West 2014). The issues of: (1) entitlement to service connection for GERD as secondary to service-connected pleural plaques with mild reactive airway disease; (2) entitlement to service connection for obstructive sleep apnea as secondary to service-connected pleural plaques with mild reactive airway disease; and, (3) entitlement to a TDIU on an extraschedular basis prior to September 17, 2012, are addressed in the REMAND portion of the decision below and are REMANDED to the AOJ. FINDINGS OF FACT 1. Since September 17, 2012, the Veteran's pleural plaques with mild reactive airway disease has been manifested by pulmonary hypertension. 2. Prior to September 17, 2012, the Veteran's pleural plaques with mild reactive airway disease was not manifested by Forced Vital Capacity (FVC) of 50- to 64-percent predicted, Diffusion Capacity of the Lung for Carbon Monoxide by the Single Breath Method (DLCO (SB)) of 40- to 55-percent predicted, maximum exercise capacity of 15 to 20 ml/kg/min oxygen consumption with cardiorespiratory limitation, cor pulmonale, pulmonary hypertension, or requiring outpatient oxygen therapy. (CONTINUED ON NEXT PAGE) CONCLUSIONS OF LAW 1. Since September 17, 2012, the criteria for a 100 percent disability rating for the Veteran's pleural plaques with mild reactive airway disease are met. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.20, 4.97, Diagnostic Codes (DCs) 6899-6833 (2016). 2. Prior to September 17, 2012, the criteria for a disability rating in excess of 30 percent for pleural plaques with mild reactive airway disease are not met. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.20, 4.97, DCs 6899-6833 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claims. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the veteran). I. VA's Duties to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2016). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record: (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and, (3) that the claimant is expected to provide. This notice must be provided prior to an initial unfavorable decision on a claim by the AOJ. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Prior to the initial adjudication of the Veteran's increased rating claim, a letter dated in August 2007 fully satisfied the duty to notify provisions. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio, at 187. The United States Court of Appeals for Veterans Claims (Court) held that to satisfy the first Quartuccio element for an increased-compensation claim, section 5103(a) compliant notice must meet a four part test laid out in Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008). The United States Court of Appeals for the Federal Circuit (Federal Circuit) overruled the Vazquez-Flores in part, striking claimant-tailored and "daily life" notice elements. See Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). Thus modified, VA must notify the claimant that: 1) to substantiate a claim, the claimant must provide, or ask VA to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability; 2) a disability rating will be determined by applying relevant Diagnostic Codes, which typically provide for a range in severity of a particular disability from noncompensable to as much as 100 percent (depending on the disability involved), based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration, and their impact upon employment; and, 3) provide examples of the types of medical and lay evidence that the claimant may submit (or ask VA to obtain) that are relevant to establishing entitlement to increased compensation. See Vazquez-Flores, 22 Vet. App. at 43, overruled in part sub. nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). This action was accomplished by a June 2008 notice letter to the Veteran regarding his increased rating claim, which was sent prior to the initial adjudication of his claim. All the law requires is that the duty to notify is satisfied and that claimants are given the opportunity to submit information and evidence in support of their claims. Once this has been accomplished, all due process concerns have been satisfied. See Bernard v. Brown, 4 Vet. App. 384 (1993); Sutton v. Brown, 9 Vet. App. 553 (1996); see also 38 C.F.R. § 20.1102 (2016) (harmless error). In view of the foregoing, the Board finds that the Veteran was notified and aware of the evidence needed to substantiate his claim, as well as the avenues through which he might obtain such evidence, and of the allocation of responsibilities between himself and VA in obtaining such evidence. Accordingly, there is no further duty to notify. VA also has a duty to assist a veteran in the development of the claim. This duty includes assisting the veteran in the procurement of service treatment records (STRs) and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Here, the Board finds that all relevant facts have been properly developed, and that all evidence necessary for equitable resolution of the issue has been obtained. His STRs, personnel records, and post-service VA and private treatment records have been obtained. The claims file does not present evidence that the Veteran is currently receiving disability benefits from the Social Security Administration (SSA) for the disability currently on appeal. Therefore, the Board does not need to make an attempt to obtain these records. The Board does not have notice of any additional relevant evidence that is available but has not been obtained. Additionally, the Veteran has been afforded VA examinations, and the reports of those evaluations contain all findings needed to properly evaluate his disability. 38 C.F.R. § 4.2 (2016). The evidence of record does not suggest that the Veteran's pleural plaques with mild reactive airway disease has worsened since the last VA examination in June 2016. Consequently, another examination to evaluate the severity of this disability is not warranted because there is sufficient evidence already of record to fairly decide this claim insofar as assessing the severity of the disability. See Caffrey v. Brown, 6 Vet. App. 377 (1994); Olsen v. Principi, 3 Vet. App. 480, 482 (1992); Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992); Allday v. Brown, 7 Vet. App. 517, 526 (1995). In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) (2016) requires that the VLJ who conducts a hearing fulfill two duties to comply with the above regulation. These duties consist of: (1) the duty to fully explain the issues; and, (2) the duty to suggest the submission of evidence that may have been overlooked. In March 2016, the United States Court of Appeals for the Federal Circuit (Federal Circuit) ruled in Dickens v. McDonald, 814 F.3d 1359 (Fed. Cir. 2016) that a Bryant hearing deficiency was subject to the doctrine of issue exhaustion as laid out in Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). Because the Veteran has not raised a potential Bryant problem in this appeal, no further discussion of Bryant is necessary. The Board is also satisfied as to substantial compliance with its January 2016 remand directives. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999); Stegall v. West, 11 Vet. App. 268 (1998). This included obtaining the Veteran's recent VA treatment records, which have been associated with the claims file. The remand also directed the AOJ to schedule the Veteran for a VA examination, which was provided in February 2016 and June 2016. Finally, the remand included readjudicating the claim, which was accomplished in the March 2016 SSOC. For the foregoing reasons, the Board concludes that all reasonable efforts were made by the VA to obtain evidence necessary to substantiate the Veteran's increased rating claim. Therefore, no further assistance to the Veteran with the development of evidence is required. II. Increased Rating Claim Disability evaluations are determined by the application of a schedule of ratings which is based on the average impairment of earning capacity in civil occupations. See 38 U.S.C.A. § 1155. Separate DCs identify the various disabilities. The assignment of a particular DC is dependent on the facts of a particular case. See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One DC may be more appropriate than another based on such factors as an individual's relevant medical history, the current diagnosis, and demonstrated symptomatology. In reviewing the claim for a higher rating, the Board must consider which DC or codes are most appropriate for application in the veteran's case and provide an explanation for the conclusion. See Tedeschi v. Brown, 7 Vet. App. 411, 414 (1995). The Board observes that an unappealed rating decision of March 2000 granted service connection for asbestos pleural plaques with mild reactive airway disease. In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41 (2016). Consideration of the whole recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). While the regulations require review of the recorded history of a disability by the adjudicator to ensure a more 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). However, where VA's adjudication of an increased rating claim is lengthy, a claimant may experience multiple distinct degrees of disability that would result in different levels of compensation from the time the increased rating claim was filed until a final decision on that claim is made. Thus, VA's determination of the "present level" of a disability may result in a conclusion that the disability has undergone varying and distinct levels of severity throughout the entire time period the increased rating claim has been pending. Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran is currently rated, by analogy, under 38 C.F.R. § 4.97, DC 6833. He is in receipt of a 30 percent disability rating prior to February 29, 2016, and a 60 percent disability rating since then. In this regard, if a veteran has an unlisted disability, as in this case, it will be rated under a disease or injury closely related by functions affected, symptomatology, and anatomical location. 38 C.F.R. § 4.20; see 38 C.F.R. § 4.27 (2016) (providing specific means of listing DC for unlisted disease or injury). He seeks increased disability ratings. The General Rating Formula for Interstitial Lung Disease (DCs 6825 through 6833) provides that FVC of 75- to 80-percent predicted value, or; DLCO (SB) is 66- to 80-percent predicted, is rated 10 percent disabling. FVC of 65- to 74-percent predicted, or; DLCO (SB) of 56- to 65-percent predicted, is rated 30 percent disabling. FVC of 50- to 64-percent predicted, or; DLCO (SB) of 40- to 55-percent predicted, or; maximum exercise capacity of 15 to 20 ml/kg/min oxygen consumption with cardiorespiratory limitation, is rated 60 percent disabling. FVC less than 50 percent of predicted value, or; DLCO (SB) less than 40-percent predicted, or; maximum exercise capacity less than 15 ml/kg/min oxygen consumption with cardiorespiratory limitation, or; cor pulmonale (right heart failure) or pulmonary hypertension, or; requires outpatient oxygen therapy, is rated 100 percent disabling. 38 C.F.R. § 4.97. In applying the above law to the facts of the case, the Board finds that the Veteran is entitled to a higher disability rating of 100 percent for his service-connected pleural plaques with mild reactive airway disease, retroactively effective from September 17, 2012. 38 C.F.R. § 4.97, DC 6833. Here, there is evidence of pulmonary hypertension since September 17, 2012, to warrant a higher disability rating of 100 percent since that time. Id. Specifically, in an undated medical opinion, the Veteran's treating private physician opined that the presence of considerable secondary pulmonary hypertension, due to the Veteran's lung pathology, had recently been documented. The undated medical opinion was accompanied by a September 17, 2012, echocardiogram (ECHO). In a September 2015 private treatment record, the Veteran was diagnosed with borderline pulmonary hypertension. At the February 2016 VA examination, the VA examiner, following a physical examination of the Veteran and a review of the Veteran's claims file, determined that the Veteran had borderline pulmonary hypertension that could be considered secondary to his pulmonary disease. In a May 2016 medical opinion, the Veteran's VA treating physician noted that the Veteran had a private cardiac ECHO performed (as described above) that showed moderate pulmonary hypertension. The VA physician appeared to include the hypertension in the Veteran's chronic respiratory disease. The treatment records do not provide contrary evidence. Thus, in giving the Veteran the benefit of the doubt, the Board finds that the Veteran is entitled to a higher disability rating of 100 percent for his service-connected pleural plaques with mild reactive airway disease, retroactively effective from September 17, 2012. 38 C.F.R. § 4.97, DC 6833. Here, there is evidence of pulmonary hypertension since September 17, 2012, to warrant a higher disability rating of 100 percent since that time. Id. However, the Veteran is not entitled to a disability rating in excess of 30 percent prior to September 17, 2012, for his service-connected pleural plaques with mild reactive airway disease. 38 C.F.R. § 4.97, DC 6833. Here, there is no evidence of FVC of 50- to 64-percent predicted, DLCO (SB) of 40- to 55-percent predicted, maximum exercise capacity of 15 to 20 ml/kg/min oxygen consumption with cardiorespiratory limitation, cor pulmonale, pulmonary hypertension, or requiring outpatient oxygen therapy, prior to September 17, 2012, to warrant a higher disability rating. Id. Specifically, at the September 2007 VA examination, the VA examiner, following a physical examination of the Veteran and a review of the claims file, found that the Veteran did not have cor pulmonale or pulmonary hypertension. The examiner found the Veteran's DLCO to be normal. The Veteran's FVC was 76 percent predicted. At the October 2008 VA examination, the VA examiner, following a physical examination of the Veteran and a review of the claims file, determined that the Veteran did not have pulmonary hypertension or cor pulmonale. The Veteran stated that he did not use oxygen for the treatment of his lung disorder. The Veteran's PFT results showed FVC of 73 percent predicted pre-bronchodilator and FVC of 78 percent predicted post-bronchodilator. DLCO (SB) and maximum exercise capacity were not performed at the examination. The treatment records dated prior to September 17, 2012, do not provide any contrary results to those obtained at the VA examinations. The treatment records document a past medical history of hypertension, but do not document a past medical history of or a current diagnosis of pulmonary hypertension prior to September 17, 2012. For instance, a July 2007 private pulmonary exercise test revealed that the Veteran was able to exercise to good capacity, a September 2007 VA treatment record documented a FVC of 76 percent predicted and a normal DLCO predicted, an August 2007 private treatment record showed a FVC of 80 percent predicted, and a February 2009 VA treatment record documented a FVC of 73 percent predicted. A May 2010 VA treatment record specifically found that the Veteran did not have pulmonary hypertension. Accordingly, the Board finds that the Veteran is not entitled to a disability rating in excess of 30 percent prior to September 17, 2012, for his service-connected pleural plaques with mild reactive airway disease. 38 C.F.R. § 4.97, DC 6833. Here, there is no evidence of FVC of 50- to 64-percent predicted, DLCO (SB) of 40- to 55-percent predicted, maximum exercise capacity of 15 to 20 ml/kg/min oxygen consumption with cardiorespiratory limitation, cor pulmonale, pulmonary hypertension, or requiring outpatient oxygen therapy, prior to September 17, 2012, to warrant a higher disability rating. Id. The Board has also considered whether staged ratings are appropriate in this case. See Hart, 21 Vet. App. at 505; Francisco, 7 Vet. App. 55 (1994). However, at no time during the relevant appeal period has the service-connected pleural plaques with mild reactive airway disease more nearly met or nearly approximated the criteria for higher disability ratings. Accordingly, additional staged ratings are not for application in the instant case. Finally, the Board finds that a separate disability rating for scars from the residuals of the Veteran's right posterolateral thorax, associated with his service-connected pleural plaques with mild reactive airway disease, is not necessary. The Veteran is already in receipt of a separate disability rating for these scars, and this issue is not currently on appeal. The Board notes that in adjudicating a claim, the competence and credibility of the Veteran must be considered. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005). The Board acknowledges that the Veteran and his spouse are competent to give evidence about what they observe or experience. For example, they are competent to report certain symptoms experienced or observed, such as breathing trouble, and they are credible in this regard. See, e.g., Layno v. Brown, 6 Vet. App. 465 (1994). The Veteran's and his spouse's competent and credible beliefs that the Veteran's disability is worse than the assigned ratings, however, is outweighed by the competent and credible medical examinations that evaluated the true extent of impairment based on objective data coupled with the lay complaints. The VA examiners have the training and expertise necessary to administer the appropriate tests for a determination on the type and degree of the impairment associated with the Veteran's complaints. For these reasons, greater evidentiary weight is placed on the physical examination findings than the lay statements. In sum, the schedular criteria for a disability rating of 100 percent, but no higher, for the service-connected pleural plaques with mild reactive airway disease, have been met since September 17, 2012. Prior to September 17, 2012, the criteria for a disability rating in excess of 30 percent for the service-connected pleural plaques with mild reactive airway disease have not been met. Thus, the claim is granted in part and denied in part. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Regarding the 30 percent rating in effect prior to September 17, 2012, the Court has considered whether the Board has the authority to review a decision by the Director of Compensation Service (Director) that awards an extraschedular disability rating under 38 C.F.R. § 3.321(b)(1) (2016). The Court held that the Director's extraschedular decision is one of fact, not one of opinion, discretion, or policy, and is reviewable by the Board on a de novo basis. The Board may assign an extraschedular rating when appropriate, and is only precluded from assigning an extraschedular rating "in the first instance." Floyd v. Brown, 9 Vet. App. 88, 94-95 (1996). With respect to the term "in the first instance," the Court clarified that the Board may assign extraschedular ratings when reviewing either a grant or a denial of an extraschedular rating by the Director. Considering the question of whether the Board has the requisite experience to assign an extraschedular rating, the Court noted that the Board considers the average impairment in earning capacity in every decision involving the rating schedule. Although "average impairment in earning capacity is not a clearly defined standard," the fact that "average impairment in earning capacity" forms the basis for the entire rating schedule, and simultaneously serves as a limiting principle on the Secretary's discretion in 38 C.F.R. § 3.321(b), is sufficient to establish a "judicially manageable standard." The Court did not, at this time, provide the Board with further guidance as to how such ratings should be determined, other than noting that frequently, such as when rating a disability by analogy, the Board goes beyond mere mechanical application of the rating schedule. The Court also addressed what must be included in a decision by the Director, holding that "to allow for a proper review, the Board must have before it an actual decision complete with a statement of reasons or bases." It is insufficient for the Director to issue a decision assigning an extraschedular rating that merely states that "an extraschedular rating of 10% is warranted." Rather, as with a decision by the RO, a decision by the Director must "provide a statement of reasons for the decision and a summary of the evidence considered." Here, because the schedular rating of 30 percent for the Veteran's service-connected pleural plaques with mild reactive airway disease fully addresses his symptoms during that appeal period, which included mainly difficulty breathing, referral to the VA Under Secretary for Benefits or the Director of Compensation Service for consideration of an extraschedular evaluation is not warranted. A comparison between the level of severity and symptomatology of the pleural plaques with mild reactive airway disease with the established criteria shows that the rating criteria reasonably describes the Veteran's disability level and symptomatology. Specifically, the Veteran reported difficulty breathing that affected his ability to stand and walk for prolonged periods. The regulations address difficulty breathing, and the Veteran's complaints were considered in assigning him his current disability rating of 30 percent. However, even with consideration of his difficulty breathing, his symptoms were not severe enough to warrant a higher disability rating. Thus, the Veteran's symptoms were considered in the regulations. There is no credible evidence that the Veteran's service-connected disability causes impairment that is not contemplated by the scheduler rating criteria or that renders impractical the application of the regular scheduler standards. See Thun, 22 Vet. App. at 111. Accordingly, referral of this case for consideration of an extraschedular rating is not warranted. Id.; see also Bagwell v. Brown, 9 Vet. App. 337 (1996); Floyd v. Brown, 9 Vet. App. 88 (1996). Further, the Board notes that under Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014), a veteran may be awarded an extraschedular rating based upon the combined effect of multiple conditions in an exceptional circumstance where the evaluation of the individual conditions fails to capture all the service-connected disabilities experienced. However, in this case, after applying the benefit of the doubt under of Mittleider v. West, 11 Vet. App. 181 (1998), there are no additional service-connected disabilities that have not been attributed to a specific service-connected condition. Accordingly, this is not an exceptional circumstance in which extraschedular consideration may be required to compensate the Veteran for a disability that can be attributed only to the combined effect of multiple conditions. Finally, the Board notes that the Veteran seeks a TDIU. Beginning on September 17, 2012, the Veteran has now been awarded a 100 percent schedular disability rating for his service-connected acquired pleural plaques with mild reactive airway disease as a result of this Board decision. The governing regulation, 38 C.F.R. § 4.16 (2016), specifically provides that a total disability rating for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to follow a substantially gainful occupation as a result of service-connected disabilities. Here, the Veteran has been awarded a 100 percent schedular disability rating since September 17, 2012. Generally, to grant a TDIU, the Veteran cannot be in receipt of a total disability evaluation either for a single disorder or based on a combined evaluation. 38 C.F.R. § 4.16. Thus, the Veteran is not eligible under the terms of the regulation for a TDIU rating at any time since September 17, 2012. See Vettese v. Brown, 7 Vet. App. 31, 34-35 (1994) ("claim for TDIU presupposes that the rating for the condition is less than 100%"); see also Holland v. Brown, 6 Vet. App. 443, 446 (1994) (100 percent schedular rating "means that a veteran is totally disabled"). The issue of entitlement to a TDIU prior to September 17, 2012, will be addressed in the remand below. The Board, however, is cognizant of VA's duty to maximize benefits. See Bradley v. Peake, 22 Vet. App. 280 (2008). Relevant to this appeal, a claim for a TDIU may include the "inferred issue" of entitlement to special monthly compensation (SMC) even where the veteran has not expressly placed entitlement to SMC at issue. Akles v. Derwinski, 1 Vet. App. 118, 121 (1991); see Buie v. Shinseki, 24 Vet. App. 242 (2010) (requiring VA to assess all of the claimant's disabilities to determine whether entitlement to SMC under 38 U.S.C.A. § 1114(s) (West 2014) is established whenever a veteran with a total disability rating is subsequently awarded service connection for any additional disability or disabilities even in the absence of an express claim for SMC). SMC at the housebound rate is payable where a veteran has a single service-connected disability rated as 100 percent and: (1) has additional service-connected disability or disabilities independently ratable at 60 percent, separate and distinct from the 100 percent service-connected disability and involving different anatomical segments or bodily systems; or, (2) is permanently housebound by reason of service-connected disability or disabilities. 38 U.S.C.A. § 1114(s); 38 C.F.R. § 3.350(i) (2016). Here, the SMC requirements have not been met since September 17, 2012, as the Veteran does not have an additional service-connected disability or disabilities independently ratable at 60 percent, separate and distinct from the service-connected pleural plaques with mild reactive airway disease that is the basis of the TDIU grant. The evidence also does not establish that the Veteran is permanently housebound by reason of his service-connected disabilities. At the recent VA examinations, the Veteran reported being able to do simple activities around the house and attending his medical appointments. The Veteran has not alleged that he is housebound, and the evidence does not establish such. Thus, the Veteran does not satisfy the requirement for SMC under 1114(s). SMC at the housebound rate is not warranted, effective September 17, 2012. ORDER Entitlement to an increased disability rating of 100 percent for pleural plaques with mild reactive airway disease is granted, retroactively effective from September 17, 2012, subject to the law and regulations governing the payment of monetary benefits. Entitlement to a disability rating in excess of 30 percent prior to September 17, 2012, for pleural plaques with mild reactive airway disease is denied. REMAND Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Sleep Apnea and GERD The Board previously remanded these claims in January 2016 for VA examinations and medical opinions. VA examinations and medical opinions were obtained in February 2016. The examiner provided a medical opinion concerning secondary service connection, but only addressed the causation element of secondary service connection for the GERD claim, and not the aggravation element. 38 C.F.R. § 3.310 (2016). The examiner provided medical opinions regarding both the causation and aggravation elements of secondary service connection for the sleep apnea claim; however, the examiner did not provide any rationale for the aggravation opinion. See Barr v. Nicholson, 21 Vet. App. 303 (2007). The Board specifically asked for these opinions in its January 2016 remand directives. Thus, VA addendum medical opinions are required. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (explaining that a remand by the Court or Board "confers on the veteran ... as a matter of law, the right to compliance with the remand orders"). TDIU Total disability ratings for compensation may be assigned where the schedular rating is less than total when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, the disability shall be ratable at 60 percent or more, and if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). Prior to September 17, 2012, the Veteran has not met the percentage requirements for a schedular TDIU. Id. However, his claim can still be granted on an extraschedular basis. 38 C.F.R. § 4.16(b). In this regard, the Veteran has never been provided with a proper duty-to-assist notice letter for this claim. The Veteran must be provided with this requisite notice upon remand. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159. Also, in the April 2016 VA 21-8940 Form, the Veteran contends that he has been unemployable due to his pleural plaques with mild reactive airway disease (i.e., asbestosis) since March 1996. In a May 2007 medical opinion, the Veteran's private physician found that the Veteran was "disabled with advanced lung disease." At the March 2014 VA examination, the VA examiner, following a physical examination of the Veteran and a review of the claims file, determined that the Veteran was unable to work at a job requiring any physical activities. Given the evidence in this case, the Board finds that a remand is required for the issue of entitlement to a TDIU prior to September 17, 2012, to be referred to the Director of Compensation Service for extraschedular consideration. (CONTINUED ON NEXT PAGE) Accordingly, the case is REMANDED for the following actions: (This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Send the Veteran an appropriate VCAA notice on the claim of entitlement to a TDIU on an extraschedular basis, prior to September 17, 2012. Additionally, this letter should comply with the case of Dingess v. Nicholson, 19 Vet. App. 473 (2006). 2. Forward the claims folder to the examiner who provided the February 2016 VA medical opinion regarding the current sleep apnea, and request an addendum opinion based on records review, or if deemed necessary by the examiner, an additional VA examination. If the examiner is unavailable, forward the records to a similarly situated examiner. If an additional examination is needed to respond, the examination should be scheduled. The claims folder, including this remand, must be sent to the examiner for review; consideration of such should be reflected in the completed examination report or in an addendum. The examiner should opine as to whether it is at least as likely as not (50 percent probability or more) that the Veteran's current sleep apnea was aggravated (made worse as shown by comparing the current disability to medical evidence created prior to any aggravation) by his service-connected pleural plaques with mild reactive airway disease. The examiner must provide reasons for the opinion. If the examiner is unable to provide an opinion without resort to speculation, he or she should explain why this is so and what, if any, additional evidence would be necessary before an opinion could be rendered. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. If the examiner rejects the Veteran's reports, the examiner must provide a reason for doing so. 3. Forward the claims folder to the examiner who provided the February 2016 VA medical opinion regarding the current GERD, and request an addendum opinion based on records review, or if deemed necessary by the examiner, an additional VA examination. If the examiner is unavailable, forward the records to a similarly situated examiner. If an additional examination is needed to respond, the examination should be scheduled. The claims folder, including this remand, must be sent to the examiner for review; consideration of such should be reflected in the completed examination report or in an addendum. The examiner should opine as to whether it is at least as likely as not (50 percent probability or more) that the Veteran's current GERD was aggravated (made worse as shown by comparing the current disability to medical evidence created prior to any aggravation) by his service-connected pleural plaques with mild reactive airway disease. The examiner must provide reasons for each opinion. If the examiner is unable to provide an opinion without resort to speculation, he or she should explain why this is so and what, if any, additional evidence would be necessary before an opinion could be rendered. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. If the examiner rejects the Veteran's reports, the examiner must provide a reason for doing so. 4. Refer the question of whether the Veteran is entitled to a TDIU on an extraschedular basis prior to September 17, 2012, to the VA Director of Compensation Service. 5. If any benefit sought on appeal remains denied, issue a SSOC. Then return the case to the Board, if otherwise in order. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). (CONTINUED ON NEXT PAGE) These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ WAYNE M. BRAEUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs