Citation Nr: 21074067 Decision Date: 12/14/21 Archive Date: 12/14/21 DOCKET NO. 14-05 066 DATE: December 14, 2021 REMANDED Entitlement to increased rating for asbestosis, subsequently recognized as including chronic obstructive pulmonary disease (COPD), rated 10 percent disabling prior to August 13, 2018 and 60 percent disabling thereafter, is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) prior to August 13, 2018 is remanded. REASONS FOR REMAND The Veteran served on active duty from October 1959 to October 1963. The Department of Veterans Affairs (VA) is grateful for his service. The Veteran testified before the undersigned Veterans Law Judge of the Board of Veterans' Appeals (Board) in July 2017. A transcript is of record. The Board remanded the claim in June 2020 and again in June 2021 for additional development. The case returns to the Board for further review. The VA Regional Office (RO) by an October 2021 decision granted TDIU effective August 13, 2018. The TDIU issue on appeal thus becomes one of entitlement to TDIU prior to that date. The RO also granted an increased rating for asbestosis with COPD from 10 to 60 percent disabling for an interval from June 24, 2019, the effect of which action is the assignment of a 60 percent rating from August 13, 2018 to the present. The appealed issues are now listed in this decision to reflect these grants. 1. Entitlement to increased rating for asbestosis, subsequently recognized as including chronic obstructive pulmonary disease (COPD), rated 10 percent disabling prior to August 13, 2018 and 60 percent disabling thereafter, is remanded. By a June 2002 rating action, the RO denied service connection for asbestosis based on absence of evidence of asbestos exposure in service. However, by a February 2010 Decision Review Officer decision, the Veteran was granted service connection for asbestosis based on minimal asbestos exposure while a shopkeeper in the course of service in the Navy from October 1959 to October 1963, notwithstanding the RO recognizing that the Veteran had considerable exposure to asbestos while working for a chemical plant for 30 years following service. The Veteran was then assigned a 10 percent disability rating for his asbestosis, based on relevant pulmonary function test findings of FVC of 76 and 79 percent and DLCO of 77 percent. By an August 2019 rating action, the RO granted service connection for COPD as secondary to asbestosis, with an evaluation of zero percent effective June 28, 2019. This was substantially based on a VA examination opinion in July 2019 which provided as follows: "Current severity of service connection COPD warrants by proximity, association of the Asbestosis. (sic) The disorder began subsequent to the service[-]connected condition and is the direct result of the antecedent condition. The medical literature supports this. A nexus is established." The Board notes that no rationale was provided for the opinion other than that the COPD followed the asbestosis and that "the medical literature supports this." It is thus unclear from this examination how the Veteran's asbestosis would have resulted in COPD. (The relevance of these details is clarified by the Board's discussion, below.) By a January 2020 rating action, the RO granted a single 60 percent rating for asbestosis with COPD effective August 11, 2020. However, by a February 2021 decision, the RO granted an earlier date of August 13, 2018 for assignment of a 60 percent rating for asbestosis with COPD, with a 10 percent rating assigned from June 24, 2019, and a 60 percent rating assigned from August 11, 2020. This was based on examinations conducted June 24, 2019 and August 11, 2020, and a pulmonary function test dated December 1, 2020, with the former showing FVC of 75 to 80 percent of predicted value and the latter showing FVC of 50 to 64 percent of predicted value. However, prior to the August 13, 2018 effectively revised date of service connection for COPD, a higher rating based on COPD would not be supported for a respiratory condition, absent COPD being associated with asbestosis prior to that date. Subsequently, in September 2021, another VA examination was obtained addressing the Veteran's respiratory conditions including COPD and asbestosis. This examiner stated, "Silicosis and asbestosis were both diagnosed in 2002. COPD is not directly related to either condition and is a stand[-]alone diagnosis related to previous tobacco abuse." The September 2021 examiner then attributed the Veteran's persistent dyspnea interfering with daily activities to his COPD, atrial fibrillation, and obesity, and not to his asbestosis. The Board must rate the Veteran's service-connected asbestosis for the entire rating period from February 7, 2002 to the present. The VA examinations in July 2019 and September 2021 present diametrically conflicting opinions as to whether the Veteran's COPD is attributable to his asbestosis. While the Veteran's COPD is service connected effective August 13, 2018 including based on the July 2019 examination and that issue is not the subject of appeal, the question of whether the Veteran's COPD is causally related to or associated with his asbestosis prior to August 13, 2018 remains unresolved. The July 2019 examiner's opinion was dependent on a time-based correlation (COPD occurring after asbestosis), and hence the correlation may not hold for an earlier interval, particularly given the more recently obtained opinion in September 2021 throwing into question whether such correlation appropriately equates to causation in this case for the interval prior to August 13, 2018. The medical question must thus be resolved for the interval prior to August 13, 2018, as to whether the Veteran's COPD is associated with his asbestosis for that prior interval, before the Board can appropriately adjudicate the rating to be assigned and impact on function for the interval prior to August 13, 2018. If the Veteran's COPD is not associated with his asbestosis for this prior interval and is distinguishable from his asbestosis for this prior interval, then the Veteran's asbestosis should not be rated including based on symptoms and impacts on functioning attributable to COPD and not asbestosis, potentially to include due to dyspnea, as addressed by the September 2021 examiner. See Mittleider v. West, 11 Vet. App. 181, 182 (1998) (other disabilities which are distinguishable in their symptoms and impacts on functioning from those of the service-connected disability should not have their symptoms and impacts on functioning attributed to the service-connected disability for purposes of assigning a disability rating). The September 2021 examiner failed to address the contrary opinion by the July 2019 examiner, and the July 2019 examiner failed to address the Veteran's history of tobacco abuse which the September 2021 examiner attributed as the cause of the Veteran's COPD. Accordingly, the contradiction between the opinions of the July 2019 and September 2021 examiners should be addressed by a more qualified expert in diseases of the respiratory system, with adequate explanation why COPD should or should not be attributable to the Veteran's service-connected asbestosis for the interval from February 2002 to August 2018, based on causation or aggravation, in order for the Board to appropriately rate the Veteran's service-connected asbestosis for the rating interval from February 2002 and prior to August 13, 2018. The September 2021 examiner appears to have already addressed the distinguishability of impacts of COPD from those of his asbestosis. The nature and severity of the Veteran's asbestosis and any associated disability for the interval from February 2002 to August 12, 2018 should then be addressed by the examiner upon remand. The combined effect of the Veteran's asbestosis and COPD should be addressed for the interval from August 13, 2018 to August 11, 2020 regardless of whether the examiner finds that the COPD is causally associated with the asbestosis, because service connection for COPD is established for this interval. However, this combined effect should be distinguished, to the extent feasible, from impairment due to other causes, including those identified by the September 2021 examiner the Veteran's obesity and atrial fibrillation. Sleep impairment has also been identified as a disabling condition whose effects should be distinguished to the extent feasible. The appropriate pulmonary function test (PFT) readings for rating the Veteran's asbestosis and any associated respiratory disability should also be addressed. 2. Entitlement to a TDIU prior to Aug 13, 2018 is remanded. The TDIU claim is intertwined with the question of severity of service-connected respiratory disability, and the respiratory disability claim must be remand, as discussed above, to address the nature and severity of disability prior to August 13, 2018. Hence, the TDIU claim must also be remanded. Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). In its June 2020 remand, the Board had requested that the Veteran provide information about his work activities prior to retirement, and his day-to-day activities subsequent to retirement up to the present time, including in provided care for his disabled spouse. In a September 2021 telephonic contact with the VA, the Veteran informed that he had previously filled out forms to claim unemployability, and in a July 2021 statement in response to a development letter the Veteran informed that he is already receiving TDIU. However, the Veteran has not received a complete grant of the claimed TDIU benefit, since he submitted his pending claim for TDIU on July 26, 2010, and the TDIU benefit has been granted effective August 13, 2018. The appealed TDIU claim thus remains pending. AB v. Brown, 6 Vet. App. 35 (1993). Upon remand, the Veteran should be apprised that the complete benefit has not been granted and that relevant information from him is still sought for the pending claim as applicable for the interval prior to August 13, 2018. The matters are REMANDED for the following actions: 1. Obtain any outstanding VA and pertinent private treatment records, with appropriate assistance and authorization from the Veteran. The Veteran and his representative should be notified of any records that cannot be obtained. 2. Again ask the Veteran to provide information about his work activities prior to retirement, and his day-to-day activities subsequent to retirement up to the present time, including activities in provided care for his disabled spouse. Advise the Veteran that this is still relevant to his TDIU claim, which remains pending for purposes of adjudicating whether TDIU is warranted for any interval prior to August 13, 2018. 3. Thereafter, schedule the Veteran for an examination by a medical expert in diseases of the respiratory system (e.g., a pulmonologist), to address the nature and severity of the Veteran's service-connected respiratory disorder from February 2002 to the present, subject to particular issues present in this case. The claims file should be made available to and reviewed by the examiner in conjunction with the examination. Any necessary tests or studies should be obtained, and pertinent results should be reported in detail in the examination report. The examiner should be advised that prior VA examiners in July 2019 and September 2021 provided conflicting opinions as to whether the Veteran's COPD was caused by his service-connected asbestosis. The examiner should provide an opinion whether it is at least as likely as not (50 percent or greater probability) that for the interval from February 2002 to August 2018, the Veteran's COPD was caused by or associated with his asbestosis, or to the contrary, whether it is more likely than not (greater than 50 percent likelihood) that the Veteran's COPD and its effects on function during that interval from February 2002 and August 2018 were distinguishable from the Veteran's asbestosis and its effects on functioning. The examiner must provide a complete explanation, supported by evidence and medical knowledge, for any opinion expressed. The examiner must also document and consider the Veteran's own statements regarding his disability, since a layperson is competent to address symptoms as experienced and his recollections of past history and treatment. If the examiner has reason based on other evidence of record or medical knowledge to question the Veteran's self-reported history, the examiner should so state and provide a complete explanation why this is so. The examiner should then address the nature, severity, and effect on functioning of the Veteran's COPD and any associated respiratory conditions for the interval from February 2002 to August 2018, including pulmonary function test (PFT) findings that best reflect such effects on functioning. For this interval, the examiner should not include any distinguishable effects on functioning (such as may be due to COPD (if not secondary to asbestosis and if distinguishable from the asbestosis), or due to sleep impairment or body habitus). For the interval from August 2018 to the present, the examiner should address the combined effects of the Veteran's asbestosis and COPD on functioning, including pulmonary function test (PFT) findings that best reflect such effects on functioning. For this interval, the examiner should not include any distinguishable effects on functioning ((such as may be due to sleep impairment or body habitus). The examiner should provide complete explanations for opinions expressed. 4. Thereafter, readjudicate the appealed claims. L. CHU Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Schechter 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.