Citation Nr: 21008097 Decision Date: 02/11/21 Archive Date: 02/11/21 DOCKET NO. 17-26 160 DATE: February 11, 2021 REMANDED Entitlement to service connection for residuals of coronary artery bypass graft (CABG) surgery, as secondary to asthmatic bronchitis, is remanded. From May 24, 2007 to August 1, 2016, entitlement to an initial rating in excess of 30 percent for asthmatic bronchitis is remanded. Prior to August 1, 2016, entitlement to a total disability rating due to individual unemployability (TDIU) to include on an extraschedular basis, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from April 1966 to December 1966. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2016 rating decision by an Agency of Original Jurisdiction (AOJ) of the Department of Veterans Affairs (VA). Procedural History In May 2015, the Board denied entitlement to service connection for chronic obstructive pulmonary disease (COPD) and remanded the issue of entitlement to asthmatic bronchitis. The Veteran appealed this decision to the United States Court of Appeals for Veterans Claims (Court). In March 2016, the Board denied entitlement to service connection for asthmatic bronchitis. In June 2016, the Board vacated the March 2016 Board decision and granted entitlement to service connection for asthmatic bronchitis. The August 2016 rating decision on appeal effectuated this award of service connection and granted an initial noncompensable rating for asthmatic bronchitis effective May 24, 2007. In a September 2016 Memorandum Decision, the Court affirmed the May 2015 Board denial of entitlement to service connection to COPD. In January 2020, the Veteran testified at a videoconference hearing before the undersigned. In March 2020, the Board granted an initial 30 percent rating for asthmatic bronchitis from May 24, 2007 to August 1, 2016, and thereafter granted a total 100 percent schedular rating. The Board remanded the issue of entitlement to an initial rating in excess of 30 percent for asthmatic bronchitis prior to August 1, 2016, as well as entitlement to a TDIU, to include on an extraschedular basis. The March 2020 Board decision also granted secondary service connection for congestive heart failure (CHF). In April 2020, the AOJ issued a rating decision that implemented this award and granted service connection for CHF with an initial 30 percent rating effective December 30, 2019. The Veteran has not disagreed with this decision or the effective date assigned by the AOJ. 1. Entitlement to service connection for residuals of CABG surgery, as secondary to asthmatic bronchitis, is remanded. The Board regrets the delay, but additional development is necessary. In this regard, the issue of entitlement to compensation for residuals of the Veteran’s CABG surgery is raised by the record and is an aspect of the increased rating claim on appeal. See Morgan v. Wilkie, 31 Vet. App. 162, 164 (2019) (schedular rating concepts, including entitlement to secondary service connection, are critical components of VA’s duty to maximize benefits). Specifically, the Veteran’s attorney raised this issue in the appellate brief. The attorney argues that a TDIU is warranted based on medical evidence that the Veteran was unemployable following his December 2005 CABG surgery, and that the Veteran’s COPD would have played a significant role in the progression of heart disease. See November 2020 Attorney Brief at 4; see also December 2019 Dr. W.R.G. Opinion at 17 (same). The Board acknowledges that the Veteran was not in receipt of service connection for asthmatic bronchitis at the time of December 2005 surgery. However, a veteran is not precluded from receiving an award of secondary service connection for a secondary disability, here CABG residuals, that was incurred prior to the grant of service connection for the primary disability, here asthmatic bronchitis. See Frost v. Shulkin, 29 Vet. App. 131 (2017). However, Dr. W.B.G.’s opinion is inadequate, as it states that the Veteran’s chronic bronchitis, COPD, and smoking played a significant role in the progression of his heart disease. As discussed in the March 2020 Board decision, there is significant overlap between the Veteran’s service-connected asthmatic bronchitis and nonservice-connected COPD. See March 2020 Board Decision and Remand at 6. While the Board has determined that the effects of these disabilities cannot be separated from rating purposes, there is no evidence as to whether the effects of service-connected asthmatic bronchitis, standing alone, sufficiently caused or aggravated the Veteran’s heart disease prior to his December 2005 heart surgery. On remand, a medical opinion should be secured addressing whether the Veteran’s CABG was proximately due to or the result of his asthmatic bronchitis, as well as whether CABG residuals other than CHF were aggravated by asthmatic bronchitis. 2. From May 24, 2007 to August 1, 2016, entitlement to an initial rating in excess of 30 percent for asthmatic bronchitis is remanded. 3. Prior to August 1, 2016, entitlement to a TDIU, to include on an extraschedular basis, is remanded. The issue of entitlement to a TDIU is intertwined with the development regarding CABG residuals. Moreover, the issue of entitlement to an increased initial rating for asthmatic bronchitis is intertwined with the issue of entitlement to a TDIU. See Brambley v. Principi, 17 Vet. App. 20 (2003). Action on these issues is deferred pending the development ordered on remand. Separately, the Veteran’s attorney is advised that VA regulations prohibit the award of a TDIU based on the effects of a service-connected disability prior to the effective date of that disability. See Delrio v. Wilkie, 32 Vet. App. 232 (2019). Thus, at present the Board cannot consider the effect of CHF when evaluating entitlement to a TDIU prior to August 1, 2016, as the effective date of service connection for CHF assigned by the April 2020 rating decision is December 30, 2019. The matters are REMANDED for the following action: Refer the claims file to an examiner for preparation of a medical opinion regarding the nature and etiology of the Veteran’s heart disease and December 2005 coronary artery bypass surgery. No examination of the Veteran is necessary unless the examiner deems otherwise. Following a review of the claims file, the examiner should address the following: (a) Please opine whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s heart disease (other than congestive heart failure) and December 2005 coronary artery bypass surgery are proximately due to service-connected asthmatic bronchitis, to include as a result of diminished oxygen available for use. (b) Please opine whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s heart disease (other than congestive heart failure) and December 2005 coronary artery bypass surgery residuals have been aggravated (worsened beyond natural progression) by service-connected asthmatic bronchitis, to include as a result of diminished oxygen available for use. In addressing these questions, the examiner’s attention is invited to the December 2019 Report of Dr. W.R.G. (January 2, 2020 Medical Treatment Record). The examiner is advised that under the law and regulations governing VA compensation, secondary service connection is not precluded solely because the Veteran was not in receipt of service connection for the primary disability (asthmatic bronchitis) at the time that the secondary disability (heart disease resulting in coronary artery bypass surgery) was incurred. Thus, service connection for residuals of a December 2005 coronary artery bypass surgery is not precluded because the Veteran was not in receipt of service connection for the asthmatic bronchitis at that time, and any opinion that relies solely upon the effective date of service connection for a respiratory disability will be returned as inadequate. A complete rationale must be provided for all opinions expressed. If a requested opinion cannot be provided without resorting to speculation, the examiner should so state and offer a robust rationale explaining why no opinion can be furnished. S. BUSH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D.M. Badaczewski, Associate 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.