Citation Nr: 21005713 Decision Date: 02/02/21 Archive Date: 02/02/21 DOCKET NO. 16-10 663 DATE: February 2, 2021 REMANDED Service connection for a sinus disability is remanded. Service connection for a pulmonary disability is remanded. Service connection for sleep apnea is remanded. An initial disability rating in excess of 10 percent for patellofemoral pain syndrome of the right knee is remanded. An initial disability rating in excess of 10 percent for patellofemoral pain syndrome of the left knee is remanded. A total disability rating based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1987 to April 1991 in the United States Army. These matters come before the Board of Veterans' Appeals (Board) on appeal from November 2013 and March 2015 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). In October 2015, the Veteran testified during a hearing before a Decision Review Officer (DRO) at the RO; a transcript of that hearing is of record. In November 2019, the Veteran and Dr. B. testified before the undersigned during a hearing in Washington, D.C. A transcript of that hearing is also of record. In March 2020, the Board remanded the above claims for further development. Included in the remand was a claim for service connection for an acquired psychiatric disability. Subsequently, in an August 2020 rating decision, the RO granted service connection for posttraumatic stress disorder (PTSD). As such, the claim for an acquired psychiatric disability is no longer in appellate status and will not be addressed below. 1. Service connection for a sinus disability is remanded. 2. Service connection for a pulmonary disability is remanded. The Veteran has current chronic sinusitis and allergic rhinitis, as well as chronic bronchitis, documented in November 2019 Disability Benefits Questionnaires (DBQs) of Dr. B. Service treatment records document sinusitis in August 1990 and bronchitis in November 1987. He was provided a VA examination for his sinus disability in August 2013, but the examiner did not address the etiology of the current disability. He has not been provided with a VA examination for his pulmonary disability. Dr. B., in hearing testimony and reports from July 2014 and November 2019, attributed the sinus and pulmonary disabilities to foreign proteins, dust, and smoke. However, as discussed by the Board in March 2020, his rationale for these opinions was not clearly explained. It is unclear, for example, how Dr. B. was able to narrow the etiology to foreign protein, dust, and smoke exposure from the 1980s/early 1990s, and what information he had on the quantity or composition of these substances. The Board remanded the claims in order to afford the Veteran VA examinations addressing the etiology of the disabilities. The RO failed to undertake the development ordered by the Board in March 2020. Stegall v. West, 11 Vet. App. 268 (1998). A review of the claims file since the Board’s remand shows VA examinations that were conducted for other claims, but not the Veteran’s sinus or pulmonary disability. In the September 2020 Supplemental Statement of the Case (SSOC), the RO made no mention of any attempt to provide the directed examinations, or of any explanation for its noncompliance. A further remand is thus required. 3. Service connection for sleep apnea is remanded. The Veteran has current sleep apnea, documented in a November 2019 DBQ of Dr. B. He has reported experiencing symptoms of sleep apnea during service. Dr. B., in hearing testimony and reports from July 2014 and November 2019, attributed the sleep apnea to the Veteran’s sinusitis, as well as his service-connected cervical spine disability. In March 2020, the Board remanded the claim in order to provide the Veteran with a VA examination. The Board noted that further explanation was needed regarding how the “muscles and respiration for the cervical spine can affect [the] sleep respiration system.” Hearing Transcript p. 25. A VA examination was conducted in July 2020, but the examiner did not address the etiology of the disability due to his finding that the Veteran does not have sleep apnea. A separate report noted that attempts had been made to provide the Veteran with a Home Sleep Apnea Test (HSAT), but as he had not complied, the examination would be completed without the “required diagnostics of a HSAT.” Subsequently, records from September 2020 indicate that a telehealth screening was conducted to identify any counterindications for the completion of a HSAT, and based on the results, a HSAT was ordered for the Veteran. An December 2020 Addendum report was created, but the document is blank. The Board finds that any updated findings or addenda must be associated with the record. Moreover, as noted by the Board in the March 2020 remand, because a decision on the sinusitis claim could significantly impact a decision on the sleep apnea claim given the report of Dr. B., the issues are inextricably intertwined and a remand of the sleep apnea claim is required. 4. An initial disability rating in excess of 10 percent for patellofemoral pain syndrome of the right knee is remanded. 5. An initial disability rating in excess of 10 percent for patellofemoral pain syndrome of the left knee is remanded. In March 2020, the Board remanded the claims for higher ratings for bilateral patellofemoral syndrome in order to afford the Veteran with an updated VA examination. While an examination compliant with the Board’s remand directives was conducted in July 2020, the RO failed to readjudicate the claims for higher ratings in the September 2020 SSOC. Under 38 C.F.R. § 19.31, the VA Regional Office will provide a SSOC to the appellant and his/her representative when there are any material changes in, or additions to, the information included in the statement of the case (SOC) or any prior SSOC, to include the receipt of additional pertinent evidence. If, as here, the pertinent evidence is received prior to transfer of the case to the Board, a waiver of VA Regional Office review request is not appropriate and the case must be remanded for a new SSOC. 38 C.F.R. §§ 19.31; 19.37(a). 6. A TDIU is remanded. As reflected in the most recent Rating Decision Codesheet of August 2020, the Veteran is already in receipt of a maximum, 100 percent combined schedular disability rating, effective November 7, 2012. Based on this, in an August 2020 rating decision, the RO found that the matter of entitlement to a TDIU was moot. The claim for a TDIU was not included in the September 2020 SSOC. Initially, the Board notes that the Veteran has not been in receipt of a total schedular rating for the entire appeal period. For this reason, the claim for a TDIU is not moot. Further, with respect to the portion of the appeal period during which a total schedular rating has been assigned, VA's duty to maximize a claimant's benefits requires consideration of whether his disabilities establish entitlement to special monthly compensation (SMC) under 38 U.S.C. § 1114. The Veteran is not currently receiving SMC(s). SMC(s) may be awarded where a veteran has a total schedular rating based on multiple disabilities, but one of his disabilities might support a TDIU rating on its own, and the remaining disabilities could combine to form an additional 60 percent rating. A TDIU rating can qualify for compensation at the 38 U.S.C. § 1114(s) rate, so long as the TDIU is based on a single disability. Bradley v. Shinseki, 22 Vet. App. 280, 293 (2008). The single disability requirement of SMC(s) means one disability. The rater cannot use 38 C.F.R. § 4.16(a) to “build” a single disability. Id. Since May 11, 2012, the Veteran has had one disability, PTSD, rated at or above 60 percent, thus meeting the rating threshold for TDIU based on a single disability. The disabilities that combine to 60 percent must be “separate and distinct” and involve “different anatomical segments or bodily systems” than the single disability independently ratable at 100 percent. 38 C.F.R. § 3.350(i)(1). Here, the Veteran’s has other service-connected disabilities separate and distinct from PTSD that result in separate symptomatology. These disabilities combine meet the requirement for a 60 percent rating. As such, if the Veteran’s PTSD alone can support the award of a TDIU, he would additionally be entitled to SMC(s), which would provide a greater benefit than what he is receiving currently. This matter thus remains on appeal. The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination to obtain an opinion addressing the nature and etiology of his sinus disability, sleep apnea, and pulmonary disability. A complete explanation must be provided for all opinions rendered. The Veteran is hereby advised that the failure to cooperate in the development of his claims, such as by not completing or providing the results of any required home sleep apnea test (HSAT) without good cause, may have adverse consequences on his claims. 38 C.F.R. § 3.655. (a.) The examiner must opine on whether it is at least as likely as not that the sinus disability, sleep apnea, and/or pulmonary disability began during active service or are related to an in-service injury, event, or disease, to include exposure to foreign protein, dust, and smoke. In doing so, the examiner must consider the following: • Service treatment record of August 1990 documenting sinusitis • Service treatment record of November 1987 documenting bronchitis. • July 2014 and November 2019 reports of Dr. B., as well as his hearing testimony. (b.) For sleep apnea only, the examiner must further opine on whether sleep apnea (i.) has been caused by any service-connected disability, including the cervical spine disability or (ii.) has been aggravated (i.e., worsened) by any service-connected disability, including the cervical spine disability. 2. After the above development has been completed, readjudicate all of the claims on appeal, including the claims for higher ratings for bilateral patellofemoral syndrome. The RO must additionally address the matters of entitlement to a TDIU for the entire portion of the appeal period, as well as any entitlement to special monthly compensation under 38 U.S.C. § 1114 (SMC(s)). If the benefits sought are not granted to the Veteran’s satisfaction, send him and his representative a Supplemental Statement of the Case and provide an opportunity to respond. If necessary, return the case to the Board for further appellate review. M. Tenner Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Smith, 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.