Citation Nr: 20042789 Decision Date: 06/24/20 Archive Date: 06/24/20 DOCKET NO. 17-43 569 DATE: June 24, 2020 REMANDED Entitlement to a total disability rating due to unemployability (TDIU) for the period from July 9, 2012 to July 25, 2016 is remanded. Entitlement to service connection for respiratory failure is remanded. Entitlement to service connection for a lumbar spine disability is remanded. Entitlement to service connection for discoid lupus is remanded. Entitlement to service connection for tinnitus is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1977 to October 1979. This matter came before the Board of Veterans Appeals (Board) on appeal from October 2013 and August 2014 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). A May 2019 Board decision granted service connection for adjustment disorder, hypertension, congestive heart failure and chronic renal failure, reopened the issues of service connection for discoid lupus and a lumbar spine disability and remanded the issues of service connection for discoid lupus, the lumbar spine, respiratory failure and entitlement to TDIU. An April 2020 Board decision denied service connection for bilateral hearing loss, granted service connection for sleep apnea and migraine headaches and remanded the issue of service connection for tinnitus for further development. The decision also granted the February 2020 motion to withdraw filed by the Veteran’s attorney, and the Veteran is therefore unrepresented at this time. 1. Entitlement to service connection for respiratory failure is remanded. The May 2019 Board decision requested a VA examination to determine whether the Veteran’s respiratory disability was caused or aggravated by his service-connected congestive heart failure (CHF). The remand directives asked the examiner to address May 2012 private treatment records diagnosing acute respiratory failure likely secondary to congestive heart failure. While VA examinations were obtained upon remand, the Board finds that they did not provide sufficient clarification of the relationship between the Veteran’s respiratory disability and his CHF and that remand for a new examination is required. A July 2019 VA examination diagnosed COPD. The examiner found that COPD was not likely caused or aggravated by CHF, stating as a rationale that the Veteran had smoked since 1977 and was later diagnosed with COPD. The examiner then stated that around 2011 the Veteran’s CHF “worsened his breathing”, causing acute respiratory failure “hence the need to start using home oxygen since 2016.” The examiner concluded that “with all these interplaying factors,” she could not “confirm” that the Veteran’s respiratory disability was caused or aggravated by CHF. The Board finds that the opinion is inadequate as it applied the incorrect legal standard. The statement that the examiner could not “confirm” the role of CHF due to the interplaying factors appears to require something akin to medical certainty to show a nexus between the Veteran’s COPD and his CHF, particularly since the examiner stated that the Veteran’s CHF had worsened his breathing. The Federal Circuit has held that there is a different between the “as likely as not” adjudication standard and a determination that something is medical or scientifically certain. See Hodges v. Sec’y of Dep’t of Health and Human Servs., 9 F. 3d 958, 965 (Fed. Cir. 1993) (Newman, J. dissenting); Jones v. Shinseki, 23 Vet. App. 382, 388 n.1 (2016). As the opinion appears to apply an evidentiary standard akin to medical certainty rather than the “as likely as not” standard applicable under VA law and regulation, it is inadequate. Another VA examination was obtained in February 2020. The examiner diagnosed COPD. Regarding respiratory failure, the February 2020 examiner found that the Veteran had respiratory failure in 2012 secondary to his chronic heart failure, but that this was temporary and resolved during his hospital stay. The examiner explained that the Veteran did not currently have respiratory failure as he was breathing on his own and that respiratory failure involved an inability to breathe independently. Regarding COPD, the examiner noted that the Veteran was a long term smoker, and that COPD was diagnosed in 2011 and had gotten progressively worse. The examiner opined that COPD was not aggravated by CHF, stating that its progression through time was a natural occurrence, especially as the Veteran continued to smoke tobacco. The examiner also found that CHF did not cause the Veteran to be on regular oxygen, stating as a rationale that the “two factors” caused the need for oxygen. First the Board notes that the February 2020 opinion solely pertains to aggravation and does not address whether CHF caused COPD. As the July 2019 VA examination has been found inadequate and the February 2020 examination did not address the question of causation, remand for a new examination is required. The Board also finds that the February 2020 opinion is unclear regarding whether CHF aggravated COPD, particularly as it relates to the Veteran’s need for oxygen. The statement that “two factors” both caused the Veteran’s need for oxygen is unclear. First, the phrasing of the opinion is ambiguous, and the Board cannot be certain what “two factors” the examiner was discussing. Second, if CHF was one of the “two factors” that caused a need for oxygen it is unclear to the Board why this means it did not worsen the Veteran’s respiratory disability. The Board notes that the question of aggravation is not whether the service-connected disability was the sole cause, but whether it worsened the secondary disability. Remand for a new opinion regarding aggravation is therefore required. 2. Entitlement to service connection for a lumbar spine disability is remanded. The May 2019 Board decision requested a new VA lumbar spine examination, asking for an opinion on whether the Veteran’s lumbar spine disability was caused or aggravated by his service connected heart and renal disabilities. The remand directives specifically asked the examiner to address the October 2012 letter from the Veteran’s private provider, which stated that his chronic pain treatment options were limited due to his renal and heart disease and he had to take narcotics. A July 2019 VA examination found that the Veteran’s degenerative arthritis and scoliosis were not caused or aggravated by his renal and heart disabilities. As a rationale, the examiner stated that the conditions were not medically related and that he had scoliosis of unknown cause that was diagnosed in 2007, 28 years after service. However, the Board finds that the opinion is silent for discussion of the October 2012 private letter or his chronic pain medications. Remand for a new opinion is therefore required to ensure compliance with the May 2019 directives. Stegall v. West, 11 Vet. App. 268 (1998). The Board also finds that the rationale pertains essentially to causation, and not to the question of whether the Veteran’s lumbar spine disability was aggravated by his renal and heart disabilities and their effects on his medication options. As the examiner did not fully address the issue of aggravation, the opinion is inadequate. See El-Amin v. Shinseki, 26 Vet. App. 136, 140–41 (2013); Allen v. Brown, 7 Vet. App. 439 (1995). 3. Entitlement to service connection for discoid lupus is remanded. The May 2019 Board decision requested a new VA examination regarding whether the Veteran’s lupus was caused or aggravated by his service connected heart and renal disabilities. The decision specifically asked the examiner to address July 2012 VA treatment records regarding changes in lupus treatment due to renal function and the October 2012 letter from the Veteran’s private provider regarding his chronic pain treatment. A July 2019 VA examination found that lupus was not caused or aggravated by the service-connected renal and heart disabilities. As a rationale, the examiner stated that the Veteran had lupus prior to 1999 and therefore it was not caused or aggravated by the renal or heart disabilities. The Board finds that this rationale pertains to solely to causation and does not address the question of aggravation. As the examiner did not properly address the issue of aggravation, the opinion is inadequate and remand for a new opinion is required. See El-Amin v. Shinseki, 26 Vet. App. 136, 140–41 (2013); Allen v. Brown, 7 Vet. App. 439 (1995). The Board also notes that the opinion did not discuss either the July 2012 VA treatment records or the October 2012 letter as requested in the remand directives. Remand is therefore also required to ensure compliance with the remand directives. Stegall v. West, 11 Vet. App. 268 (1998). 4. Entitlement to service connection for tinnitus is remanded. The April 2020 Board decision remanded the issue of service connection for tinnitus to obtain a new VA opinion. The Board’s review indicates that this development has not yet been completed and the Board will therefore defer the issue until the completion of the requested development. 5. Entitlement to a total disability rating due to unemployability (TDIU) for the period from July 9, 2012 to July 25, 2016 is remanded. If VA has found a Veteran to be totally disabled as a result of a particular service-connected disability or combination of disabilities pursuant to the rating schedule, there is no need, and no authority, to otherwise rate that Veteran totally disabled on any other basis. See Herlehy v. Principi, 15 Vet. App. 33, 35 (2001) (finding a request for TDIU moot where 100 percent schedular rating was awarded for the same period). However, a grant of a 100 percent disability rating does not always render the issue of TDIU moot. VA’s duty to maximize a claimant’s benefits includes consideration of whether his or her disabilities establish entitlement to special monthly compensation (SMC) under 38 U.S.C. § 1114. See Buie v. Shinseki, 24 Vet. App. 242, 250 (2011); Bradley v. Peake, 22 Vet. App. 280, 294 (2008). Specifically, SMC may be warranted if a Veteran has a 100 percent disability rating for a single disability and VA finds that TDIU is warranted based solely on additional disability. See Bradley, 22 Vet. App. at 292 (analyzing 38 U.S.C. § 1114 (s)). In this case, the Veteran’s claim for TDIU was received on July 9, 2012. A January 2020 rating decision granted a 100 percent evaluation for congestive heart failure, effective July 9, 2012. The Board notes that service connection is not in effect for any disability prior to July 9, 2012 and thus TDIU is not applicable prior to that date. The January 2020 rating decision also granted SMC at the housebound rate effective July 25, 2016. Entitlement to TDIU is therefore moot for the period after July 25, 2016 as entitlement to SMC under 38 U.S.C. § 1114 (s) has already been granted. The question before the Board is whether it may be advantageous to grant TDIU for the period from July 9, 2012 (the date of claim for TDIU) to July 25, 2016, so that SMC under 38 U.S.C. § 1114 (s) may be awarded for that period. Prior to July 25, 2016, the Veteran is service connected for chronic renal failure (rated at 100 percent) and adjustment disorder (rated at 50 percent). For this analysis, TDIU cannot be granted based on chronic renal failure, because to do so would allow the same disability to be counted twice in determining the applicable rate and would conflict with the requirement in 38 U.S.C. § 1114 (s) for “additional” disability. Thus, prior to July 25, 2016, TDIU can only be granted based on adjustment disorder. TDIU 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 due to service-connected disabilities. If there is only one such disability, as here, that disability shall be ratable at 60 percent or more. 38 U.S.C. § 1155; 38 C.F.R. § 4.16(a). The Veteran’s adjustment disorder is rated at 50 percent and he therefore does not meet the schedular threshold for TDIU based on that disability alone. However, the Veteran’s claim regarding the issues of service connection for discoid lupus and the lumbar spine and respiratory disabilities was filed along with his TDIU claim on July 9, 2012. The issue of entitlement to TDIU must therefore also be remanded as it is inextricably intertwined with the remanded issues of service connection. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are “inextricably intertwined” when the adjudication of one issue could have “significant impact” on the other issue). The matters are REMANDED for the following action: 1. Schedule the Veteran for an appropriate VA examination, to determine the etiology of any current respiratory disability. The examiner should review the file and provide a complete rationale for all opinions expressed. For any current respiratory disability found to be diagnosed, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any such disability was caused or aggravated by the Veteran’s service-connected congestive heart failure (CHF). The opinion should address May 2012 private records noting acute respiratory failure likely secondary to CHF and the July 2019 examiner’s statement that CHF worsened the Veteran’s breathing. In providing the opinion, the examiner should consider and discuss any lay statements of record, to include the Veteran’s statements regarding the onset and persistence of his symptoms. 2. Obtain a VA opinion from an appropriate provider, to determine the etiology of the Veteran’s lumbar spine disability. The examiner should review the file and provide a complete rationale for all opinions expressed. The opinion should state whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s lumbar spine disability was caused or aggravated by his service-connected renal and heart disabilities. The opinion should specifically address the October 2012 letter regarding limitations on his chronic pain treatment. In providing the opinion, the examiner should consider and discuss any lay statements of record, to include the Veteran’s statements regarding the onset and persistence of his symptoms. 3. Obtain a VA opinion from an appropriate provider, to determine the etiology of the Veteran’s lupus. The examiner should review the file and provide a complete rationale for all opinions expressed. The opinion should state whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s lupus was caused or aggravated by his service-connected renal and heart disabilities. The opinion should specifically address the July 2012 VA treatment records noting adjustment in lupus treatment due to the renal condition and the October 2012 letter regarding limitations on his chronic pain treatment. In providing the opinion, the examiner should consider and discuss any lay statements of record, to include the Veteran’s statements regarding the onset and persistence of his symptoms. 4. If upon completion of the above action the appeal remains denied, the case should be returned to the Board after compliance with appellate procedures. E. I. VELEZ Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Arnold, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.