Citation Nr: 1804661 Decision Date: 01/24/18 Archive Date: 02/05/18 DOCKET NO. 11-20 515 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to service connection for chronic obstructive pulmonary disease (COPD), to include as secondary to service-connected asthma and/or as due to environmental toxins. 2. Entitlement to a total disability rating based upon unemployability (TDIU). REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD H. Daus, Associate Counsel INTRODUCTION The Veteran had qualifying service from December 1975 to April 1976 and July 2003 to May 2004. These matters come before the Board of Veterans' Appeals (Board) on appeal from a December 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Newnan, Georgia, and a July 2015 rating decision issued by the VARO in Detroit, Michigan. In September 2014, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. In December 2014, the Board remanded TDIU for further development. Substantial compliance was achieved, as the Veteran was provided a VA Form 21-8940 and an opinion assessing functional impairment due to service-connected disabilities. See Stegall v. West, 11 Vet. App. 268, 271 (1998); December 2014 VA opinion; March 2015 VA 21-8940. The TDIU issue is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT 1. Service connection is in effect for asthma. 2. The evidence is in equipoise as to whether the Veteran's COPD is proximately due to or the result of the service-connected asthma. CONCLUSIONS OF LAW The criteria for entitlement to service connection for COPD have been met. See 38 U.S.C. §§ 1110, 1131 (West 2012); 38 C.F.R. §§ 3.102, 3.310(b) (2017). REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran generally contends that her COPD is etiologically related to her service, including as secondary to her service-connected asthma and/or as due to environmental toxins from her burn details in Iraq. See September 2014 testimony; December 2014 Notice of Disagreement. For the reasons discussed below, the Board finds that the COPD is secondary to the service-connected asthma; as such, discussion of environmental toxins is moot. Generally, secondary service connection is warranted when a current disability was proximately due to, the result of, or aggravated beyond natural progression by a service-connected disability. See 38 C.F.R. § 3.310. The Veteran is already service-connected for the respiratory condition of asthma; however, the Veteran also has a coexisting, respiratory condition of COPD. An August 2011 letter by Dr. AA indicated that, based on the improvement in pulmonary function test results after bronchodilator use, the Veteran had "some degree of combination of both asthma and COPD." This opinion contained adequate rationale, as it was based on the physician's interpretation of the objective test results; as such, it holds high probative value. Similarly, an October 2014 letter by Dr. GK stated the following, in pertinent part: (1) the COPD was caused by previous smoking along with exposure to smoke and fumes from burning waste as part of her job; and (2) the asthmatic component is also contributing to the underlying airway disease. This opinion also contained adequate rationale, as it was based on the physician's interpretation of the negative effects of running out of the pulmonary prescriptions for the "combination of asthma and emphysema [(COPD)];" as such, it similarly holds high probative value. On the contrary, however, the December 2014 VA examiner opined that the COPD was not "due to or [the] result of" the service-connected asthma. The examiner stated that the conditions are separate and that the COPD was "most likely caused by her history of tobacco abuse as indicated by her pulmonologist." Crucially, this examiner failed to discuss the aforementioned evidence that is favorable to the Veteran's claim. See Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). The opinion is further inadequate for the examiner's failure to discuss whether the COPD was aggravated beyond natural progression by the asthma, which renders his secondary service connection opinion incomplete. Id. As such, this opinion holds little, if any, probative value. In light of the above, the Board finds that the evidence is in equipoise as to whether the Veteran's COPD is due to her service-connected disability. Therefore, the benefit of the doubt is afforded to the Veteran. The Board finds that the COPD is secondary to the service-connected asthma. ORDER Entitlement to service connection for COPD is granted. REMAND The Veteran generally contends that her service-connected disabilities preclude her from obtaining and/or maintaining a substantially gainful occupation. See June 2007 Correspondence; July 2007 VA examination report; November 2008 VA examination report; May 2009 VA examination report; May 2010 VA examination report; January 2015 Notice of Disagreement; March 2015 VA Form 21-8940. For the reasons discussed below, the Board finds that further development is required; specifically, the AOJ must : (1) implement the grant of entitlement to service connection for COPD; (2) determine whether the asthma or the COPD is the predominate disability; (3) readjudicate entitlement to TDIU, to include on an extraschedular basis. Coexisting respiratory conditions under diagnostic codes (DCs) 6600 to 6817 and 6822 to 6847 cannot be assigned separate ratings, as they are prohibited from being assigned a single disability rating and being combined to obtain an overall disability rating. See 38 C.F.R. § 4.96(a). In these instances, a single rating is assigned under the diagnostic code which reflects the predominant disability, with elevation to the next higher evaluation where the severity of the overall disability warrants such elevation. Id. Therefore, in implementing this decision, the AOJ must determine whether asthma or COPD is currently the predominant disability; of note, if the symptoms of the predominate disability ever subsided and/or the symptoms of the subordinate disability ever worsened, the predominant/subordinate statuses can change. After determining the predominate disability and assigning its rating accordingly, the AOJ must then adjust the codesheet (specifically updating the "combined evaluation for compensation" information) and readjudicate entitlement to TDIU, to include on an extraschedular basis. Accordingly, the case is REMANDED for the following action: After implementing the grant of secondary service connection for COPD, and establishing the appropriate rating, to include consideration of 38 C.F.R. § 4.96(a), readjudicate the claim of entitlement to a TDIU in a supplemental statement of the case, and return the claim to the Board if there is not a complete grant of the benefit sought. The Veteran has the right to submit additional evidence and argument on the remanded matter. See Kutscherousky v. West, 12 Vet. App. 369 (1999). All remanded claims must be handled expeditiously. See 38 U.S.C. §§ 5109B, 7112 (West 2012). ______________________________________________ BETHANY L. BUCK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs