Citation Nr: 21008988 Decision Date: 02/18/21 Archive Date: 02/18/21 DOCKET NO. 18-46 350 DATE: February 18, 2021 REMANDED Entitlement to service connection for the Veteran’s peripheral artery disease is remanded. Entitlement to a rating in excess of 30 percent for the Veteran’s bronchial asthma is remanded. Entitlement to a rating in excess of 60 percent for the Veteran’s heart condition is remanded. Entitlement to an effective date prior to July 14, 2015 for the grant of a total disability rating based on individual unemployability due to the Veteran’s service-connected disabilities (“TDIU”) is remanded. REASONS FOR REMAND The appellant is a Veteran who served in active duty from September 1965 to November 1968. These matters come before the Board of Veterans’ Appeals (“Board”) from rating decisions by the Department of Veterans Affairs (“VA”) Regional Office (“RO”). The Veteran appeared at a December 2020 hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. 1. Entitlement to service connection for the Veteran’s peripheral artery disease is remanded. The Veteran contends that entitlement to service connection for his peripheral artery disease should be granted as secondary to his service-connected coronary artery disease and bronchial asthma. The Veteran also stated in his VA Form 9, substantive appeal to the Board, that he has eight stents in his left leg because of his peripheral artery disease, and he feels this condition is related to his exposure to herbicide agents during his service in Vietnam. The Board notes that the Veteran was afforded a VA examination for his peripheral artery disease in September 2015 and medical opinion was obtained in October 2015. The examiner noted the diagnosis of peripheral artery disease and eight stents in the left lower extremity. The examiner opined that the Veteran peripheral artery disease is less likely than not due to or the result of the Veteran’s service-connected asthma or coronary artery disease. The examiner stated that asthma is a chronic lung disease that inflames and narrows the airways, whereas peripheral artery disease is a circulatory condition in which narrowed blood vessels reduce blood flow to the limbs. The two conditions do not share an anatomic or physiologic relationship and a review of the medical literature does not reference a “cause and effect” association between asthma and peripheral artery disease. Regarding the Veteran’s peripheral artery disease as secondary to his heart condition, the examiner opined that the Veteran’s service-connected cardiac condition and diagnosed peripheral artery condition both represent atherosclerotic vascular diseases. Both diseases have similar etiologies and the presence of peripheral vascular disease often indicates the presence of coronary artery disease. Also, they represent underlying systemic vascular disease of different anatomic parts of the body and share common risk factors and etiologies. However, coronary artery disease does not cause the development of peripheral vascular disease, instead both diseases develop independently from each other due to the same causes and risk factors for vascular disease. The Board finds the October 2015 medical opinion inadequate for deciding the issue on appeal because the examiner only rendered opinion regarding the causation of the Veteran’s peripheral artery disease as secondary to service-connected asthma and heart condition, but did not opine whether the Veteran’s peripheral artery disease is aggravated by his service-connected asthma or heart condition. In addition, the examiner did not address the Veteran’s lay statements and opine whether the Veteran’s peripheral artery disease is directly related to his service including the exposure to herbicide agents. Therefore, on remand, an adequate opinion regarding direct and secondary service connection must be obtained. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). 2. Entitlement to a rating in excess of 30 percent for the Veteran’s bronchial asthma is remanded. At December 2020 Board hearing, the Veteran asserted that his bronchial asthma has increased in severity since his last VA examination, because he cannot leave the house without covering his face, which he was able to do before. He also stated that he had a stroke in Spring 2020. The Board notes that the last time the Veteran was afforded a VA examination for evaluating his bronchial asthma in October 2018. Hence, a new VA examination is warranted for evaluating the current severity of the Veteran service-connected bronchial asthma. 3. Entitlement to a rating in excess of 60 percent for the Veteran’s heart condition is remanded. At the Veteran’s December 2020 Board hearing, the Veteran asserted that his heart condition has become worse and he feels pressure in his chest after walking for fifteen minutes. He also stated that he is getting treatment from private physicians for his heart condition. The Board notes that the last time the Veteran was afforded a VA examination for evaluating his heart condition in October 2018. Hence, a remand is warranted for affording the Veteran a new VA examination for evaluating the current severity of his service-connected heart condition and to take all necessary actions for obtaining all outstanding VA and private medical treatment records. 4. Entitlement to an effective date prior to July 14, 2015 for the grant of a total disability rating based on individual unemployability due to the Veteran’s service-connected disabilities (“TDIU”) is remanded. It is the established policy of VA that all Veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16. Entitlement to a TDIU should be considered based on the appealed increased rating claim. See Rice v. Shinseki, 22 Vet. App. 447, 453 (2009) (noting that a claim for a TDIU rating is part of an increased rating claim when such a claim is raised by the record). Here, the issue of TDIU is raised by the Board as part of the Veteran’s claims for increased ratings. The Veteran filed a claim for TDIU and has indicated that his bronchial asthma and heart condition contribute to his unemployability. The Board notes that the RO has already granted the Veteran TDIU claim with effective date of July 14, 2015. The claims remanded herein are inextricably intertwined with entitlement to a TDIU and might impact the effective date of the granted TDIU. Therefore, the Board concludes the issue of TDIU should be readjudicated on remand after adjudicating the other remanded matters herein. The matters are REMANDED for the following actions: 1. Obtain any outstanding VA or private treatment records. Request that the Veteran assist with locating these records, if possible. Associate these records with the claims file. 2. Then schedule the Veteran for a VA examination to evaluate the nature and etiology his peripheral artery disease. Then, forward the claims file including a copy of this remand to the examiner for an opinion. All appropriate tests and studies should be undertaken. All pertinent symptomatology and findings must be reported in detail. The examiner must attempt to elicit information regarding the severity, frequency, and duration of symptoms. The examiner is advised to provide opinion regarding the causation of peripheral artery disease as secondary to service-connected bronchial asthma or heart condition and whether the Veteran’s peripheral artery disease is aggravated by his service-connected disabilities. The opinion should also be provided whether the Veteran’s peripheral artery disease is caused directly by his military service including his exposure to herbicide agents. The Board is asking whether it is “at least as likely as not” that the disability was caused or aggravated by the Veteran’s military service or by other service-connected disabilities, instead of certainty from the examiner. Furthermore, the examiner is advised that the term “at least as likely as not” does not mean “within the realm of possibility.” Rather, it means that the weight of the medical evidence both for and against the claim is so evenly divided that it is as medically sound to find in favor of the claim as it is to find against it. If the examiner is unable to provide an opinion without resorting to mere speculation, then the examiner must state this and provide any information needed to make an opinion, if possible. 3. Schedule the Veteran for VA examinations for evaluating the current severity of his service-connected disabilities of bronchial asthma and heart condition. All appropriate tests and studies should be undertaken. All pertinent symptomatology and findings must be reported in detail. The examiner must consider and discuss the Veteran’s lay statements. The examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran’s statements. If the examiner is unable to provide an opinion without resorting to mere speculation, then the examiner must state this and provide any information needed to make an opinion, if possible. (Continued on the next page)   4. The Veteran is informed that it is his responsibility to report for any scheduled examination and to cooperate in the development of the claim and that the consequences for failure to report for any VA examination without good cause may include denial of the claim. See 38 C.F.R. §§ 3.158, 3.655. If the Veteran does not report for any scheduled examination, documentation showing that he was properly notified of the examination must be associated with the record. 5. Thereafter, readjudicate the claims on appeal as well as the issue of TDIU claim. If the benefits sought remain denied, issue the Veteran and his representative a supplemental statement of the case and provide a reasonable opportunity to respond before returning the matter to the Board for further appellate review. MICHAEL MARTIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Tariq, Nadeem, Associate Attorney 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.