Citation Nr: 21074711 Decision Date: 12/16/21 Archive Date: 12/16/21 DOCKET NO. 12-11 997 DATE: December 16, 2021 REMANDED Entitlement to an increased disability rating for asthma, currently considered 30 percent disabling, is remanded. Entitlement to total disability based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from December 1971 to December 1991. The Veteran is a Veteran of the Persian Gulf War, with service in Southwest Asia. The issue of an increased rating for asthma is before the Board of Veteran's Appeals (Board) on appeal from a December 2009 rating decision by the Regional Office (RO) of the Department of Veteran's Affairs (VA). This issue was previously before the Board in December 2015 when it was remanded for an examination. The issue of a TDIU was denied by the RO in a February 2012 rating decision, but the Board finds it has since been raised by both the Veteran and the record. Rice v. Shinseki, 22 Vet. App. 447 (Vet. App. 2009). The Board also notes that in the Veteran's appellate brief, the Veteran's representative addressed two additional issues: entitlement to service connection for fibromyalgia, and entitlement to service connection for dementia. In regard to service connection for fibromyalgia, the Board notes that the Veteran was granted service connection for an undiagnosed condition, to include a disability of the knee, ankle, and hips, in a June 2020 rating decision. Because there is no specific listing in the rating schedule for an undiagnosed illness, the condition was rated by analogy to the most similar diagnostic code (DC) of 5025 the DC for fibromyalgia and rated at 20 percent. The symptoms associated with the Veteran's undiagnosed condition include widespread musculoskeletal pain and tender points that have exacerbations often precipitated by environmental or emotional stress or overexertion, which require continuous medication for control. See June 2020 Rating Decision. Widespread pain means pain in both the left and right sides of the body, that is both above and below the waist, and that affects both the axial skeleton and the extremities. Id. The Board also notes that the most recent VA fibromyalgia examination of the Veteran, in March 2017, revealed no diagnosis of fibromyalgia. The examiner opined instead that the Veteran's fatigue, joint pain, muscle pain and respiratory symptoms could be the result of an undiagnosed illness. See March 2017 VA Medical Opinion. Because the June 2020 rating decision granted service connection for an undiagnosed condition which was rated under the fibromyalgia DC, and because that condition contemplated the signs and symptoms of fibromyalgia, the Board finds that the benefit of service connection for fibromyalgia has been bestowed upon the Veteran and the issue is resolved. With regard to service connection for dementia, the Board notes that the claims file does not contain a claim for dementia, a rating decision contemplating dementia, or a notice of disagreement listing dementia as one of the issues. An August 2016 rating decision did grant service connection for fatigue/memory problems, which is the closest analogue the Board can find in the claims file to dementia. As there is no claim in the file for dementia, and the closest analogous condition in the file was granted and not appealed, the Board finds there is nothing on appeal with regard to dementia and the issue is resolved. 1. Entitlement to an increased rating for asthma is remanded. The Veteran asserts he is entitled to a rating in excess of 30 percent for his service-connected asthma. See, e.g. October 2010 notice of disagreement. Additionally, the Veteran reports that his asthma condition continues to worsen. See Id.; March 2016 Primary Care Physician Outpatient Note. Unfortunately, a remand is necessary because the most recent asthma examination in the file is from May 2016, five and a half years ago. A current VA medical examination is required to assess the current level of symptomatology of the Veteran's service-connected and progressive asthma. Snuffer v. Gober, 10 Vet. App. 400 (1997). Additionally, the most recent treatment records in the claims file were received in February 2017. There is no indication in the file that the Veteran intended to cease receiving treatment for his conditions, or that he would pursue private treatment. The Board also notes that under Bell v. Derwinski, 2 Vet. App. 611, 613 (1992), any VA treatment records are considered to be constructively before the Board and must be obtained. As a result, the Decision Review Operations Center (DROC) should contact the Veteran and his representative to determine if the file is missing outstanding treatment records, and if so, associate those records with the claims file. Updated records would aide in the assessment of the current level of symptomatology of the Veteran's service-connected and progressive asthma. 2. Entitlement to total disability based on individual unemployability is remanded. Although the issue of TDIU was denied by the RO in February 2012, the Board finds that the issue is raised again by both the Veteran and the record. In the case of Rice v. Shinseki, 22 Vet. App. 447 (Vet. App. 2009), the United States Court of Appeals for Veterans Claims held, in substance, that every claim for a higher evaluation includes a claim for TDIU where the Veteran claims that his service-connected disability prevents him from working. Accordingly, the Board has characterized the issues on appeal so as to include a claim for entitlement to TDIU. Additionally, the Board notes that the Veteran's entitlement to service connection has changed significantly since the last adjudication of TDIU in 2012 and should be addressed by the RO in the first instance. See August 2021 Rating Decision Codesheet; February 2012 Rating Decision Codesheet. Finally, because a decision on entitlement to an increased disability rating for asthma could significantly impact a decision on the issue of TDIU, the issues are inextricably intertwined. See Harris v. Derwinski, 1 Vet. App. 180 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final Board decision on one issue cannot be rendered until the other issue has been considered). Therefore, a remand of the claim for TDIU is required. The matters are REMANDED for the following action: 1. Contact the Veteran and all current representatives and request their assistance in identifying any outstanding relevant records. The DROC should make reasonable attempts to obtain all identified outstanding records and associate them with the Veteran's claims file. 2. After any outstanding records have been associated with the claims fie, schedule the Veteran for a VA examination to determine the current severity of his service-connected bronchial asthma. 3. The examiner must evaluate the Veteran's service-connected bronchial asthma using the criteria provided in 38 C.F.R. § 4.97, DC 6602. The examiner should provide the Veteran's FEV-1/FVC levels, how often the Veteran visits his physician for required care of exacerbation, how many attacks per week the Veteran experiences with episodes of respiratory failure, and how many courses per year of systemic (oral or parenteral) corticosteroids or immuno-suppressive medication. (Continued on the next page) 4. The DROC should develop the Veteran's claim for TDIU. K.A. KENNERLY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Maisel, S. Alexander 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.