Citation Nr: 21012200 Decision Date: 03/03/21 Archive Date: 03/03/21 DOCKET NO. 17-41 871 DATE: March 3, 2021 REMANDED Entitlement to service connection for a respiratory disorder, to include chronic obstructive pulmonary disease (COPD) and chronic hypercapnic and hypoxic respiratory failure (Type II Chronic Respiratory Failure), is remanded. Entitlement to a total disability rating based on individual unemployment is remanded. REASONS FOR REMAND The Veteran served on active duty with the United States Army from February 1966 to February 1969. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2015 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded this matter in January 2020 for additional development. The matter is now returned to the Board for further appellate review. The Veteran’s representative submitted duplicate informal hearing presentations (IHPs) in January 2021 and November 2020, which included service connection for bilateral hearing loss; however, the RO granted the Veteran's claim for service connection for bilateral hearing loss in a September 2020 rating decision. As this represents a full grant of the benefits sought, there no longer exists any case or controversy as to the issue of entitlement to service connection for bilateral hearing loss. Accordingly, the Board will not address service connection for bilateral hearing loss in this decision. The Board remanded this matter in September 2020, in part, to develop the Veteran’s claim for TDIU and to obtain additional private treatment records. In February 2020 the RO sent the Veteran a letter requesting he complete VA Form 21-8940, Veterans Application for Increased Compensation Based on Unemployability and VA Form 21-4192, Request for Employment Information in Connection with a Claim for Disability Benefit. The Veteran responded in a February 2020 correspondence that he did not believe providing information regarding his employment would be relevant to his TDIU claim and indicated he did not have additional medical records to submit. To this limited extent only, the Board finds VA adequately attempted to accomplish these remand directives and has substantially complied with the Board's prior remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). The Veteran filed a claim for service connection for COPD; however, a November 2019 correspondence from the Martinsburg, WV Veteran’s Affairs Medical Center notes the Veteran also has chronic hypercapnic and hypoxic respiratory failure (Type II Chronic Respiratory Failure). As the Veteran is not expected to possess the medical knowledge to describe the universe of his claim and the record indicates the possibility that other respiratory disorders are present, the Board has recharacterized his claim as one of service connection for a respiratory disorder, to include COPD and Type II Chronic Respiratory Failure. See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). This appeal is advanced on the Board's docket pursuant to 38 C.F.R. § 20.902(c) (2019); 38 U.S.C. § 7107 (a)(2) (2012). 1. Entitlement to service connection a respiratory disorder, to COPD and Type II Chronic Respiratory Failure is remanded The Veteran contends his respiratory disorder is related to his active duty service, to include service in the Republic of Vietnam and exposure to hazardous substances, chemical fumes, diesel fumes from burning human waste, and asbestos while changing brake pads on heavy equipment. VA provided the Veteran an examination in April 2020 to determine the nature and etiology of his COPD. The April 2020 examiner opined the Veteran’s COPD was less likely than not incurred in or caused by the Veteran’s active duty service because the Veteran’s service treatment records (STRs) do not contain complaints related to COPD during service; the Veteran’s COPD symptoms did not begin until approximately 35 years after service; and the Veteran was not exposed to any hazardous fumes or other substances that would likely cause COPD. However, the Board finds that the examiner failed to explain the significance of the passage of time between the Veteran’s active duty service and his diagnosis, or otherwise explain why the chemicals the Veteran was exposed to would not cause or aggravate COPD. Specifically, the examiner did not address why diesel fumes from burning human waste, asbestos from changing brake pads, or exposure to other chemicals in the Republic of Vietnam would not result in COPD. Therefore, this opinion is inadequate, and a remand is necessary to obtain a new opinion that provides a reasoned rationale in support of its conclusion. See Barr v. Nicholson, 21 Vet. App. 303, 311; see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (probative value of a medical opinion is derived from it being factually accurate, fully articulated, and soundly reasoned). Moreover, as noted above, the Board expanded the Veterans claim to include any respiratory disorder. A remand is therefore necessary to provide the veteran an examination to address whether his Type II Chronic Respiratory Failure is related to his active duty service, to include service in the Republic of Vietnam and exposure to hazardous substances, chemical fumes, diesel fumes from burning human waste, and asbestos while changing brake pads on heavy equipment. See McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006) (VA is obliged to provide an examination where there is insufficient information to decide the claim and there is an indication the current disability may be associated with service). 2. Entitlement to a total disability rating based on individual unemployment is remanded. As entitlement to a TDIU is dependent in large part on the Veteran’s service-connected disabilities, the Board finds that the Veteran’s TDIU claim is inextricably intertwined with the claim for service-connection for a respiratory disorder that is being remanded and must be remanded as well. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that where a decision on one issue would have a "significant impact" upon another, and that impact in turn could render any appellate review on the other claim meaningless and a waste of judicial resources, the two claims are inextricably intertwined). The matters are REMANDED for the following action: 1. Conduct appropriate development to determine if the Veteran was exposed to asbestos during service, to include while changing brake pads on heavy equipment. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any respiratory condition, to include COPD and Type II Chronic Respiratory Failure. If the examiner determines that an additional in-person examination is required, one should be scheduled. Please note, if the examiner deems it reasonable, an alternate format such as a telehealth interview is acceptable. Following review of the claims file and, if indicated, examination of the Veteran, the clinician should opine whether it is at least as likely as not (50 percent or greater probability) that any respiratory condition began in or is otherwise caused by the Veteran's active service. The clinician should address the Veteran’s lay statements regarding exposure to diesel fumes while burning human waste and, if after the necessary development, asbestos while changing brake pads on heavy equipment. All findings must be reported in detail and all opinions must be accompanied by a clear rationale. If any of the above issues cannot be resolved without resorting to speculation, then a detailed medical explanation as to why this is so must be provided. Kalisse Anderson Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Zachery S.C. Luce, 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.