Citation Nr: 21063941 Decision Date: 10/18/21 Archive Date: 10/18/21 DOCKET NO. 17-43 920 DATE: October 18, 2021 REMANDED Entitlement to service connection for chronic obstructive pulmonary disease (COPD) is remanded. Entitlement to an initial rating in excess of 10 percent for coronary artery disease (CAD) is remanded Entitlement to a rating in excess of 10 percent for pleural plaquing is remanded. Entitlement to a total disability rating due to individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Navy from October 1965 to March 1969. This matter comes before the Board of Veterans Appeals (Board) on appeal from April 2016 and May 2017 rating decisions by a Department of Veterans Affairs (VA) Regional Office (RO). Entitlement to service connection for COPD In May 2017, the Veteran underwent a VA medical examination for COPD. The examiner found that it was less likely than not that the Veteran's COPD was caused by in-service asbestos exposure, offering this opinion: It is less likely as not that the COPD was due to the asbestos exposure. He has a very significant tobacco abuse history which adequately explains his subsequent development of COPD. Most of the earlier studies on COPD and asbestos did not control for smoking as a confounder. Therefore, they cannot be used to prove that asbestos exposure causes COPD. He was in the Navy for only 2 years. He smoked since age 8. The preponderance of evidence indicates that the tobacco abuse is the reason why he developed COPD. Tobacco abuse is a well known and established risk factor for the development of many conditions including CAD, PVD, lung cancer as well as COPD. The examination report noted earlier that the Veteran's smoking history consisted of 1 pack per day from the age of 8, based on his medical record. In October 2017, the Veteran submitted a Statement in Support of Claim saying that the May 2017 examiner misinterpreted his smoking history, and that he had not smoked a pack per day since age 8rather, age 8 was when he began sneaking cigarettes from his parents "once in a while" and "majority of the time did not even inhale the smoke." The Veteran stated that he did not develop a regular smoking habit until later, and that he no longer smokes more than 12 pack per day. VA has a duty to ensure that any medical examination or opinion it provides is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). A medical opinion is adequate where it is based upon consideration of the full medical history and describes a disability in sufficient detail so that the Board's evaluation will be fully informed. Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). The May 2017 VA examination is not adequate, as it is based on an inaccurate description of the Veteran's reported medical history. There are additional problems with the May 2017 VA examination. The examiner addressed only asbestos, and not other in-service injuries, diseases, or events which may have contributed to the Veteran's COPD such as his conceded in-service exposure to herbicide agents. The examiner did not address whether the Veteran's service-connected conditions aggravated his COPD beyond its natural progression. The examiner's description of the medical literature surrounding COPD and asbestos is difficult to parse; is the examiner saying that all claimed association between COPD and asbestos is actually caused by smoking, and that more recent studies have not found that asbestos exposure causes COPD? Due to the above, the Board finds that a new medical examination regarding the etiology of the Veteran's COPD is necessary. Entitlement to an initial evaluation in excess of 10 percent for CAD On June 4, 2021, while the current appeal was still pending review by the Board, the Veteran submitted a new VA Form 21-526EZ, Fully Developed Claim, requesting an increased evaluation for his service-connected CAD, stating that his CAD had worsened in May 2020. The RO obtained a new VA examination for the Veteran's CAD in June 2021. Based on the results of this examination, the RO increased the evaluation for the Veteran's CAD to 100 percent in a July 2021 decision. The effective date of this increase was June 4, 2021, "established from the date we received your claim for increase." Under VA regulations, a claim for increased benefits may be awarded at the earliest date in which it is factually ascertainable that an increase in disability occurred, if the claim or intent to file a claim is received within one year of that date; otherwise, the increased rating is effective on the date VA received the claim. 38 C.F.R. § 3.400(o)(2). However, June 4, 2021, is not the date VA received the Veteran's claim for an increased evaluation for CAD. While the Veteran did submit a new form on that date, his prior claim for a higher initial evaluation for CAD never closed; the period on appeal extends back to February 18, 2015. The medical evidence of record is insufficient for the Board to determine the severity of the Veteran's CAD prior to the June 2021 examination, largely due to the confounding effects of the other issues on appeal. A June 2015 disability questionnaire completed by a VA physician describes the Veteran as experiencing dyspnea, fatigue, angina, and dizziness at 1-3 metabolic equivalents (METs), but does not say how much of this is attributable to CAD alone versus other cardiac and respiratory conditions. A November 2015 VA examination found that the Veteran did not begin experiencing symptoms of dyspnea and angina until 7-10 METs, a result which supports the initial 10 percent evaluation. See 38 C.F.R. § 4.104, DC 7005. The May 2017 VA examination, which the Board has deemed inadequate, found that the Veteran began to experience dyspnea at 3-5 METs, but that it was "not possible" to determine how much of this impairment was due to CAD, and how much was attributable to COPD. The Veteran's medical treatment records are similarly ambiguous, noting symptoms such as shortness of breath, but acknowledging numerous potential contributors. The Board finds it appropriate for the RO to obtain an additional VA examination, specifically asking the examiner to attempt to describe the symptoms of the Veteran's CAD throughout the period on appeal, in order to determine whether an evaluation in excess of 10 percent is warranted prior to June 4, 2021. Additionally, if the symptoms of the Veteran's CAD truly cannot be separated from the symptoms of his COPD, the eventual outcome of his claim for COPD will affect how the RO evaluates his various conditions. Entitlement to an evaluation in excess of 10 percent for CAD prior to June 4, 2021 is remanded. Entitlement to a rating in excess of 10 percent for pleural plaquing The Veteran's pleural plaquing is rated under DC 6845, which provides disability ratings based on the results of pulmonary function testing (PFT). DC 6845 states that a 10 percent evaluation is warranted for Forced Expiratory Volume in one second (FEV-1) of 71 to 80 percent predicted, or; FEV-1 to Forced Vital Capacity (FEV-1/FVC) of 71 to 80 percent, or; Diffusion Capacity of the Lung for Carbon Monoxide (DLCO) 66 to 80 percent predicted. A 30 percent evaluation is warranted for FEV-1 of 56 to 70 percent predicted, or; FEV-1/FVC of 56 to 70 percent, or; DLCO 56 to 65 percent predicted. A 60 percent evaluation is warranted for FEV-1 of 40 to 55 percent predicted, or; FEV-1/FVC of 40 to 55 percent, or; DLCO of 40 to 55 percent predicted, or; maximum oxygen consumption of 15 to 20 ml/kg/min (with cardiorespiratory limit). A 100 percent evaluation is warranted for FEV-1 less than 40 percent predicted value, or; FEV-1/FVC less than 40 percent, or; DLCO less than 40 percent predicted; or, maximum exercise capacity less than 15 mg/kg/min oxygen consumption (with cardiac or respiratory limitation), or; cor pulmonale (right heart failure), or; right ventricular hypertrophy, or; pulmonary hypertension, or; episode(s) of acute respiratory failure, or; requires outpatient oxygen therapy. The Veteran was last given PFT for his pleural plaquing at the May 2017 examination, which found a FEV-1 of 68 percent predicted, a FEV-1/FVC of 86 percent, and a DLCO of 119 percent predicted. The examiner stated that DLCO was the most accurate reflector of the Veteran's level of disability based on pleural plaquing. Prior to that, the Veteran had PFT which found a FEV-1 of 67 percent predicted, a FEV-1/FVC of 92 percent, and a DLCO of 91 percent predicted. As it has been four and a half years since the Veteran's last VA examination including PFT, and statements submitted following his most recent examination suggest his condition may have worsened (such as statements in August and November 2017 that the Veteran lost a job and has struggled to find new employment due to shortness of breath), the Board finds that a new examination is required to evaluate the present severity of his pleural plaquing. See Olsen v. Principi, 3 Vet. App. 480, 482 (1992). Entitlement to a TDIU The Board finds that, based on the Veteran's November 2017 statement that he was "unable to find gainful work without having to catch my breath or stop and sit down," and his August 2017 statement that he had to leave his last employer due to his inability to climb stairs without experiencing shortness of breath, an implicit claim for a TDIU has been raised and must be adjudicated on remand. Rice v. Shinseki, 22 Vet. App. 447 (2009). A TDIU may be assigned where the schedular rating is less than total if a Veteran is unable to secure or follow a substantially gainful occupation due to service-connected disabilities. 38 C.F.R. § 4.16(a). This regulation provides that consideration of a TDIU is warranted if a veteran has one service-connected disability rated 60 percent or more or, if there are two or more disabilities, there must be at least one that is rated 40 percent or more, with the remaining disabilities combining to 70 percent or more. Id. As the TDIU claim is based on the increased rating claims on appeal, and his 100 percent rating only dates to June 4, 2021, the Board finds that entitlement to a TDIU is still pending. See Harper v. Wilkie, 30 Vet. App. 356 (2018); Rice v. Shinseki, 22 Vet. App. 447 (2009). The Board also notes entitlement to a TDIU from June 4, 2021, onward is not moot because he has not been awarded special monthly compensation under 38 U.S.C. § 1114(s). See Buie v. Shinseki, 24 Vet. App. 242, 250-51 (2010); Bradley v. Peake, 22 Vet. App. 280, 294 (2008). Thus, the claim must be remanded for the RO to address whether a TDIU is warranted for an earlier period, and to determine whether special monthly compensation should be considered from June 4, 2021. The matters are REMANDED for the following action: 1. Obtain an opinion from an appropriate clinician, who has not already provided an opinion in this matter, regarding the nature and etiology of the Veteran's COPD. If the clinician believes an in-person or telehealth examination is necessary, one should be scheduled. After reviewing the entire claims file, the examiner should answer the following: (a) Is it at least as likely as not (50 percent probability or greater) that the Veteran's COPD is related to an in-service event, injury, or disease? The examiner should specifically address the Veteran's conceded exposure to herbicide agents, and his exposure to asbestos. (b) Is it at least as likely as not that the Veteran's COPD was caused or aggravated by any service-connected condition, to include coronary artery disease and pleural plaquing? (c) If the Veteran's COPD is unrelated to his military service, or to any service-connected condition, what is its likely etiology? The examiner must provide a complete rationale for all opinions, supported by evidence and citing any records or medical literature relied upon. The examiner must consider relevant evidence of record, including lay testimony. If any of the above requested opinions cannot be made without resorting to speculation, the examiner must explain why. 2. Obtain an opinion from an appropriate clinician, who has not already provided an opinion in this matter, regarding the severity of the Veteran's service-connected CAD. The entire claims file, including a copy of this remand, must be made available for review, and the examiner must certify that they have reviewed the complete file. All necessary diagnostic testing and evaluations should be performed, and all findings set forth in detail. The examiner should provide a full description of the Veteran's disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. The examiner must attempt to elicit information regarding the severity, frequency, and duration of symptoms. To the extent possible, the examiner should identify any symptoms attributable to CAD alone. If possible, the examiner should also discuss the severity of the Veteran's CAD since February 2015, and offer an opinion on whether the Veteran's symptoms have changed in severity since that time. The examiner must provide a comprehensive report that includes a complete rationale for all opinions and conclusions reached. If the examiner is unable to reach a conclusion without resorting to speculation, the examiner must explain why. 3. Obtain an opinion from an appropriate clinician regarding the severity of the Veteran's service-connected pleural plaquing. The entire claims file, including a copy of this remand, must be made available for review, and the examiner must certify that they have reviewed the complete file. All necessary diagnostic testing and evaluations should be performed, and all findings set forth in detail. The examiner should provide a full description of the Veteran's disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. The examiner must attempt to elicit information regarding the severity, frequency, and duration of symptoms. To the extent possible, the examiner should identify any symptoms attributable to pleural plaquing alone. If possible, the examiner should also discuss the severity of the Veteran's pleural plaquing since May 2017, and offer an opinion on whether the Veteran's symptoms have changed in severity since that time. The examiner must provide a comprehensive report that includes a complete rationale for all opinions and conclusions reached. If the examiner is unable to reach a conclusion without resorting to speculation, the examiner must explain why. 4. Send the Veteran a notice letter advising him of the information and evidence needed to award a TDIU, and ask him to complete a VA Form 21-8940 (Veteran's Application for Increased Compensation Based on Unemployability), providing a detailed explanation of his employers, the nature of the work performed, the dates of employment, and his reasons for leaving employment during or proximate to the appeal period. 5. Subsequently, forward a VA Form 21-4192, Request for Employment Information in Connection with Claim for Benefits, to all employers identified by the Veteran. 6. Undertake any additional development for the TDIU claim deemed warranted. DELYVONNE M. WHITEHEAD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Shermila Sundquist 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.