Citation Nr: 21011957 Decision Date: 03/03/21 Archive Date: 03/03/21 DOCKET NO. 17-63 078 DATE: March 3, 2021 ORDER Entitlement to a total disability rating for individual unemployability (TDIU) is dismissed as moot. REMANDED Entitlement to service connection for sleep apnea, to include as secondary to service-connected restrictive lung disease, is remanded. Entitlement to service connection for chronic obstructive pulmonary disease (COPD) is remanded. FINDING OF FACT The Veteran is now service connected for restrictive lung disease, rated as 100 percent disabling effective November 9, 2015, and was awarded special monthly compensation (SMC) effective July 13, 2017. CONCLUSION OF LAW The appeal for entitlement to TDIU is moot and the claim is dismissed. 38 U.S.C. § 7105(d)(5); 38 C.F.R. § 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from December 1962 to December 1966. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2016 and December 2017 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO). These matters were previously before the Board in July 2019. At that time, the Board granted reopening of entitlement to service connection for COPD and entitlement to service connection for asbestosis. Thereafter, the Board remanded the issues of service connection for COPD, asbestosis, sleep apnea, and entitlement to TDIU for further development. On remand, service connection for restrictive lung disease, claimed as asbestosis, was granted in a November 2020 rating decision and assigned a 100 percent disability rating effective November 9, 2015. 1. TDIU As will be explained below, the grant of service connection for restrictive lung disease with an evaluation of 100 percent disabling renders the claim for TDIU moot. The Veteran submitted his claim for TDIU in September 2017. Effective November 2020, the Veteran was in receipt of a 100 percent rating for his restrictive lung disease starting in November 2015. In addition, the Veteran was also assigned SMC under 38 U.S.C. § 1114(s) and 38 C.F.R. § 3.350(i) on account of his restrictive lung disease being rated 100 percent with additional service-connected disabilities independently ratable at 60 percent or more from July 13, 2017. However, a grant of a 100 percent disability rating does not always render the issue of TDIU moot. As is potentially relevant here, VA’s duty to maximize a claimant’s benefits includes consideration of whether his disabilities establish entitlement to special monthly compensation (SMC) under 38 U.S.C. § 1114. See Bradley v. Peake, 22 Vet. App. 280, 294 (2008). Specifically, SMC may be warranted if the Veteran has a 100 percent disability rating for a single disability, and VA finds that TDIU is warranted based solely on the disabilities other than the disability that is rated at 100 percent. See Bradley, supra. As the Veteran had already been assigned SMC on account of his restrictive lung disease being rated 100 percent with additional service-connected disabilities independently ratable at 60 percent or more, the claim for entitlement to TDIU is moot. REASONS FOR REMAND The Veteran asserts that he has COPD and sleep apnea both as a result from his active service. In addition, he asserts that his sleep apnea was also secondary to his service-connected restrictive lung disease. During the Veteran’s March 2020 VA examinations, the VA examiner opined that his COPD was less likely than not due to his active service. The examiner further stated that COPD and asbestosis can be related as causation and/or aggravation, but the Veteran’s diagnosis of asbestosis was uncertain. Furthermore, the examiner stated that the Veteran’s medical records show asbestos exposure and restrictive disease in the lungs. See March 2020 VA Medical Opinion Disability Benefits Questionnaire (DBQ). The Board notes in the prior July 2019 Board decision, it was conceded that the Veteran had a diagnosis of asbestosis. Therefore, the Board finds the examiner’s medical opinion to be inadequate as it did not consider all of the evidence, including a conceded diagnosis of asbestosis. As for the March 2020 VA medical opinion for sleep apnea, the Board notes that the examiner failed to adequately support his opinions. First, the examiner opined that it was less likely than not that the Veteran’s sleep apnea was incurred in or caused by his active service. The examiner supported his opinion stating that “[s]leep apnea symptoms [are] related to obstruction in [his] nose and obesity [and] not asbestosis.” See March 2020 VA Medical Opinion DBQ. The Board finds this is inadequate and unsupported. The rationale provided does not support a negative opinion for direct service connection. Specifically, the Veteran contends that his sleep apnea is a result of asbestos exposure, not is diagnosis of asbestosis as that would be secondary service connection. Therefore, the Board finds that a remand is warranted for these claims to obtain new VA medical opinions. The matters are REMANDED for the following action: Obtain new VA medical opinions for COPD and sleep apnea. The examiner must review the claims file and address the following as to COPD: (a.) Whether it is at least as likely as not (50 percent probability or more) that the Veteran’s COPD was incurred in or caused by active service. (b.) Whether it is at least as likely as not (50 percent probability or more) that the Veteran’s COPD was caused by asbestosis and/or service-connected restrictive lung disease. (c.) Whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s COPD was aggravated by asbestosis and/or service-connected restrictive lung disease. As to sleep apnea, the examiner must address the following: (d.) Whether it is at least as likely as not (50 percent probability or more) that the Veteran’s sleep apnea was incurred in or caused by active service, to include exposure to asbestos. (e.) Whether it is at least as likely as not (50 percent probability or more) that the Veteran’s sleep apnea was caused by asbestosis and/or service-connected restrictive lung disease. (f.) Whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s sleep apnea was aggravated by asbestosis and/or service-connected restrictive lung disease. All opinions must be supported by a rationale. A. C. MACKENZIE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Glaeser, 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.