Citation Nr: 21021751 Decision Date: 04/13/21 Archive Date: 04/13/21 DOCKET NO. 13-26 431 DATE: April 13, 2021 ORDER Service connection for a respiratory disability is granted. REMANDED A compensable initial rating for service-connected hearing loss is remanded. A total disability rating based on individual unemployability due to service-connected disabilities prior to April 9, 2018 is remanded. FINDING OF FACT 1. Post-service treatment records document several respiratory diagnoses, including chronic obstructive pulmonary disease (COPD) and emphysema. 2. The only pertinent medical opinions of record are a negative April 2018 VA opinion (which the Board previously found inadequate for failure to properly consider competent sworn lay testimony indicating he was given a Proventil inhaler during active service and had persistent breathing problems ever since), a negative June 2020 clarifying VA opinion obtained on remand (that noted those lay reports but dismissed them based on the absence of corroborating medical evidence), a negative August 2020 clarifying VA opinion (that did not more substantively consider the Veteran’s competent lay reports), and a final, positive December 2020 clarifying VA opinion obtained after the Agency of Original Jurisdiction (AOJ) determined that none of the post-remand opinions complied with the prior remand directives (finding the Veteran’s documented COPD, emphysematous COPD, bilateral pical “blebs/bullous lung disease,” and multiple sub-centimeter pulmonary nodules are at least as likely as not related to chronic tobacco dependency during active service given COPD is “usually caused by cigarette smoke”). 3. Considering the negative opinions of record all fail to adequately afford the Veteran’s competent, sworn testimony regarding inhaler use in service and persistence of breathing problems afterwards the proper consideration required by law and their cumulative failure to consider other competent reports and allegations (e.g., that his respiratory problems are alternatively related to environmental exposures like dust, pollen, pesticides, etc. during service—which is particularly notable given the August 2020 opinion expressly acknowledges that the Veteran has asthma and describes it as a condition often related to allergen exposure), the Board finds the evidence is at least in relative equipoise as to whether the Veteran has a respiratory disability related to active service. CONCLUSION OF LAW The criteria for service connection for a respiratory disability are met. 38 U.S.C. §§ 1110, 1113, 5107(b) (2018); 38 C.F.R. §§ 3.102, 3.303(b) (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The appellant is a Veteran who served on active duty from May 1979 to August 1979. These matters are before the Board of Veterans’ Appeals (Board) on appeal from a October 2011 and November 2012 rating decisions appealed in timely December 2011 and December 2012 notices of disagreement (NODs), and perfected by a timely September 2013 substantive appeal in response to an August 2013 statement of the case (SOC). In October 2016, a hearing was held before the undersigned; a transcript is of record. The Board remanded these claims in September 2017 and January 2019. The record now shows the Veteran has a combined 100 percent schedular rating and special monthly compensation (SMC) under 38 U.S.C. § 1114(s) from April 9, 2018, rendering the question of TDIU from that date moot. See Buie v. Shinseki, 24 Vet. App. 242, 250 (2011); Bradley v. Peake, 22 Vet. App. 280, 294 (2008) (together indicating that TDIU is not mooted by the award of a 100 percent schedular rating per se because TDIU based on a single disability may satisfy the “single disability” requirement for SMC under § 1114(s)). Consequently, the current issue on appeal is limited to considering whether TDIU is warranted prior to April 9, 2018 and it has been recharacterized accordingly. For the detailed reasons outlined above, the Board grants service connection for a respiratory disability, obviating any need for further detailed discussion thereof at this time. REASONS FOR REMAND 1. A compensable rating for service-connected hearing loss is remanded. The Board’s prior remands both directed that the AOJ obtain all outstanding treatment records and the most recent remand explicitly identified records of VA audiometric evaluations containing specific pure-tone thresholds and speech discrimination scores, noting evidence of 2012 and 2018 audiometric studies being completed but no copies of the relevant audiograms for the Board’s evaluation. Nothing in the record since the Board’s prior remand indicates that those records are unavailable (the closest such record found on review are documents indicating that there are no outstanding treatment records from the Memphis VA Medical Center prior to August 2011), and it appears those audiograms are still outstanding. As such records are constructively before the Board, directly relevant, and potentially critical to accurately rating the disability on appeal, the Board finds additional development to obtain them or confirm their unavailability is needed.   2. A total disability rating based on individual unemployability due to service-connected disabilities prior to April 9, 2018 is remanded. This matter is inextricably intertwined with the initial rating appeal being remanded and the implementation of the Board’s service connection award above. Therefore, the Board must again defer adjudicating the matter. The matters are REMANDED for the following action: 1. Obtain all updated records (i.e., those not already of record) of VA and adequately identified private treatment the Veteran has received for the disabilities remaining on appeal, TO SPECIFICALLY INCLUDE ALL OUTSTANDING VA AUDIOGRAMS OR PURE-TONE AND SPEECH DISCRIMINATION TEST RESULTS (SUCH AS BUT NOT LIMITED TO ANY ASSOCIATED WITH OCTOBER 10, 2012 AND AUGUST 8, 2018 AUDIOLOGICAL EVALUATIONS). 2. If the AOJ cannot locate or otherwise obtain ANY RECORDS SOUGHT, INCLUDING BUT NOT LIMITED TO THE SPECIFICALLY IDENTIFIED AUDIOGRAMS ABOVE, the AOJ MUST DOCUMENT SUCH FACT FOR THE RECORD, to include noting all steps taken to locate any such evidence and the reason for their unavailability.   3. Conduct any additional development indicated by the results of that ordered above before readjudicating all remaining matters on appeal (including but not limited to TDIU prior to April 9, 2018). VICTORIA MOSHIASHWILI Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Yuan, 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.