Citation Nr: 21073703 Decision Date: 12/10/21 Archive Date: 12/10/21 DOCKET NO. 18-01 794 DATE: December 10, 2021 ORDER Entitlement to service connection for chronic obstructive pulmonary disease (COPD) is granted. REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDING OF FACT 1. The Veteran was exposed to herbicide agents during his period of active service. 2. The evidence is at least in equipoise as to whether the Veteran's chronic obstructive pulmonary disease (COPD) is the result of his exposure to herbicide agents during his period of active service. CONCLUSION OF LAW The criteria for entitlement to service connection for chronic obstructive pulmonary disease (COPD) have been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service in the Army from September 1968 to February 1972. These matters return to the Board of Veterans' Appeals (Board) following an April 2021 remand for additional development. These matters originate from two separate Department of Veterans Affairs (VA) Regional Office (RO) rating decisions: a November 2015 decision denying entitlement to a total disability rating based on individual unemployability (TDIU), and a July 2018 rating decision denying entitlement to service connection for chronic obstructive pulmonary disease (COPD). The Board has previously determined that this Veteran is presumed to have been exposed to herbicide agents during his period of active service. 03/12/2020, BVA Decision, p. 9. The Board will not now disturb this finding or application of a presumption of herbicide agent exposure. Accordingly, in the instant case, the Veteran is presumed to have been exposed to herbicide agents during his active service. The Board notes that it has reviewed all of the evidence in the record, with an emphasis on the evidence relevant to this appeal. Although there is an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Hence, the Board will summarize the relevant evidence as deemed appropriate and the analysis will focus specifically on what the evidence shows, or fails to show, as to the claim. In adjudicating claims for VA benefits, the burden of proof only requires an "approximate balance" of the evidence for and against a claim. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1991). This low standard of proof is "unique" to the VA adjudicatory process, and "the nation, 'in recognition of our debt to our veterans,' has 'taken upon itself the risk of error' in awarding such benefits." Wise v. Shinseki, 26 Vet. App. 517, 531 (2014). In evaluating a claim for disability benefits, when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107. 1. Entitlement to service connection for chronic obstructive pulmonary disease (COPD) Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); 38 C.F.R. § 3.303. A June 2017 VA medical treatment note reflects a diagnosis of COPD. As noted above, the Board has conceded exposure to herbicide agents during the Veteran's active service. Accordingly, the remaining question is whether there is a medical nexus between the Veteran's COPD and an in-service event, injury, or occurrence, to include herbicide agent exposure. VA examiners in September 2020 and May 2021 opined that the Veteran's COPD is less likely than not the result of his exposure to herbicide agents during his period of active service. Neither examination reflects any consideration of whether the Veteran's COPD is the result of his herbicide agent exposure. In September 2021 VA received a medical evaluation from a private medical provider. The September 2021 private medical provider opined that the Veteran's exposure to herbicide agents at was at least as likely as not to have contributed to his COPD. The examiner noted a post-service history of tobacco smoking, but stated as follows: "Both smoking and environmental pollutants represent significant risk of developing lung disease. One cannot say that because of his smoking history [the Veteran] would have developed COPD anyway without environmental exposures. More importantly one cannot say that [the Veteran] would not have developed COPD if he had not smoked. Therefore, it is my medical opinion that the Veteran's environmental exposures during service contributed to the development of his COPD." When there are potentially multiple causes of a harm, an action is considered to be a proximate cause of the harm if it is a substantial factor in bringing about the harm and the harm would not have occurred but for the action. A determination of proximate cause is basically one of fact, for determination by adjudication personnel. VAOPGCPREC 6-2003 and 19-1997. The Board interprets the September 2021 examiner's opinion to state that, due to his herbicide agent exposure alone, the Veteran was at least as likely as not to have developed COPD, regardless of post-exposure smoking. VA must consider all medical and lay evidence of record and make appropriate determinations of competence, credibility, and weight. 38 U.S.C. § 5107; Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). Here, the Board finds the September 2021 private provider's opinion to be highly probative. The September 2021 private provider's opinion reflects a detailed discussion of the Veteran's entire medical and behavioral history, to include during and after his period of active service; a detailed discussion of pertinent medical literature; and a thorough discussion of the application of general medical principles and medical literature to the Veteran's specific case. The Board finds the September 2020 and May 2021 VA medical examiners' opinions to be of limited probative value as they do not address the Veteran's herbicide agent exposure in relation to his COPD. The Board finds that the evidence is at least in equipoise as to whether the Veteran's COPD is the result of his exposure to herbicide agents during his period of active service. In evaluating a claim for disability benefits, when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107. Accordingly, the Board finds that the criteria for entitlement to service connection for chronic obstructive pulmonary disorder (COPD) are met, and the same is hereby granted. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303. REASONS FOR REMAND 1. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. VA will grant a TDIU where the evidence shows that a Veteran is precluded, by reason of service-connected disabilities, from obtaining and maintaining any form of gainful employment. 38 U.S.C. §§ 1155; 38 C.F.R. §§ 3.340. 3.341, 4.16. If there is only one such disability, this disability shall be ratable at 60 percent or more; if there are two or more such 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. The United States Court of Appeals for Veterans Claims (CAVC) has recognized that a 100 percent rating under the Schedule for Rating Disabilities means that a Veteran is totally disabled. Holland v. Brown, 6 Vet. App. 443, 446 (1994), citing Swan v. Derwinski, 1 Vet. App. 20, 22 (1990). Thus, 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. Herlehy v. Principi, 15 Vet. App. 33, 35 (2001). However, a grant of a 100 percent disability does not always render the issue of TDIU moot. VA has a "well-established" duty to maximize a Veteran's benefits. See Buie v. Shinseki, 24 Vet. App. 242, 250 (2011); AB v. Brown, 6 Vet. App. 35, 38 (1993); see also Bradley v. Peake, 22 Vet. App. 280 (2008). The Board is required to consider all issues raised by the evidence of record. Robinson v. Peake, 21 Vet. App. 545, 552 (2008). VA's duty to maximize a claimant's benefits includes consideration of whether their 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 the disabilities other than the disability that is rated at 100 percent. Bradley, 22 Vet. App. 280); 75 Fed. Reg. 11,229 -04 (March 10, 2010) (withdrawing VAOPGCPREC 6-1999). Here, the Veteran filed his claim for TDIU in August 2015. Currently, the earliest grant of service connection in effect is a 10 percent rating for tinnitus, effective July 2017. The Veteran's combined disability rating increased to 20 percent, effective January 2018, with the addition of a 10 percent rating for glaucoma, effective January 2018. Additional disability ratings, including several non-compensable ratings, that took effect in February 2018 increased the Veteran's combined disability rating to 30 percent. In October 2020 the Veteran's combined disability rating increased to 60 percent with the addition of a 50 percent rating for an acquired psychiatric disability. In December 2020 the Veteran's combined disability rating increased to 90 percent with the addition of a 60 percent rating for chronic kidney disease. No effective date or disability rating has yet been assigned in relation to the Board's instant grant of service connection for COPD. The Veteran is entitled to one review on appeal of disability benefits questions subject to decision by VA. 38 U.S.C. § 7104(a). Accordingly, to preserve the Veteran's right to one review on appeal, the Board finds that a remand of his claim to TDIU is necessary for adjudication in light of the instant grant of service connection for COPD. The matters are REMANDED for the following action: Readjudicate the Veteran's claim for TDIU in light of the instant grant of service connection for COPD. If the only basis for denying TDIU is the combined rating percentage then refer the case to the Director, Compensation and Pension Service, for an extraschedular opinion. Eric S. Leboff Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Sametshaw, Eric C. 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.