Citation Nr: 21022103 Decision Date: 04/14/21 Archive Date: 04/14/21 DOCKET NO. 15-15 753 DATE: April 14, 2021 REMANDED Entitlement to service connection for Guillain-Barre Syndrome, to include as secondary to Agent Orange exposure or as secondary to lung cancer, is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is remanded. REASONS FOR REMAND Entitlement to service connection for psychiatric disorder was originally on appeal as well. However, in an April 2020 rating decision, the RO granted service connection for this claim, representing a full grant of benefits. Accordingly, this issue is no longer before the Board. The only remaining issues on appeal are listed on the title page. The Veteran testified before the undersigned Veterans Law Judge in an October 2017 Travel Board hearing. A transcript of the hearing has been associated with the file. In June 2018, the Board granted service connection for lung cancer. In November 2018 the AOJ effectuated the Board’s award of service connection for lung cancer, and granted a 100 percent evaluation, assigning an effective date of November 1, 2011. Also, in June 2018 the Board remanded the issues on appeal. A review of the record shows that there has not been substantial compliance with the remand directives, and therefore another remand is required. See Stegall v. West, 11 Vet. App. 268 (1998). Guillain-Barre Syndrome The June 2018 remand directives required a VA examination to be performed and for medical opinions to be provided. Medical opinions were provided in November 2020. Unfortunately, they are insufficient. The examiner opined that the Veteran’s Guillain-Barre Syndrome (GBS) is not related to service. The rationale is based on the fact that GBS is not one of the presumed illness from Agent Orange exposure. Despite GBS not being an enumerated disease under 38 C.F.R. § 3.309(e), consideration on a direct theory of entitlement is required. See Combee v. Brown, 34 F.3d 1039, 1042 (Fed Cir. 1994). As such a remand is needed in order to obtain an adequate medical opinion on a direct theory of entitlement. The VA examiner also opined that the Veteran’s GBS is not due to or has been aggravated beyond its natural progression by his service-connected lung cancer. The rationale provided is conclusory, stating a nexus has not been established. The examiner did note that the GBS was diagnosed prior to the lung cancer but did not provide any detailed rationale. Additionally, the examiner failed to provide rationale in support of the opinions with respect to causation and aggravation. A VA opinion for secondary theory of entitlement must address aggravation and causation separately with rationale specific to those findings. See El-Amin v. Shinseki, 26 Vet. App. 136, 140-41 (2013). TDIU The original service connection claims were filed in November 1, 2011. Therefore, the appeal period commences November 2011. The Board recognizes that the Veteran was in receipt of a 100 percent rating for his lung cancer from November 1, 2011 to September 30, 2020 and is in receipt of a 100 percent rating for his psychiatric disorder, as of December 29, 2020. A grant of a 100 percent schedular rating does not always render the issue of a TDIU moot. VA’s duty to maximize a claimant’s benefits includes consideration of whether his or her disabilities establish entitlement to special monthly compensation under 38 U.S.C. § 1114. Special monthly compensation may be warranted if the Veteran has a 100 percent disability rating for a single disability and VA finds that a TDIU is warranted based solely on the disabilities other than the disability that is rated at 100 percent. Bradley v. Peake, 22 Vet. App. 280 (2008) (analyzing 38 U.S.C. § 1114 (s)); see also 75 Fed. Reg. 11,229-04 (March 10, 2010) (withdrawing VAOPGCPREC 6-1999). Of note, for all the times that the Veteran was in receipt for 100 percent rating for one of his service-connected disabilities he has been in receipt of and currently receives SMC under 38 U.S.C. § 1114(s). Thus, the TDIU claim is rendered moot from November 1, 2011 to September 30, 2020 and as of December 29, 2020, because there is no residual benefit that is available from concurrent assignment of both a 100 percent schedular rating and a TDIU given that the Veteran is receiving special monthly compensation under 38 U.S.C. § 1114 (s). However, the from October 1, 2020 to December 28, 2020, the Veteran was not in receipt of 100 percent schedular rating for any of his disabilities. As such, entitlement to TDIU is not rendered moot for the entire period on appeal. The Veteran contends that his GBS is the disability that has caused him to be unemployed. As the service connection claim for GBS is being remanded for further development, the issue of entitlement to a TDIU is inextricably intertwined and must be remanded. Tyrues v. Shinseki, 23 Vet. App. 166, 177 (2009) (en banc) (explaining that claims are inextricably intertwined where the adjudication of one claim could have a significant impact on the adjudication of another claim The matters are REMANDED for the following action: 1. The AOJ should forward the Veteran’s claims file to an appropriate examiner to determine the nature and etiology of his Guillain-Barre Syndrome, preferably with an examiner other than the one who performed the November 2020 examination. The need for another examination is left to the discretion of the medical professional offering the addendum opinion. Following review of the claims file and examination of the Veteran (if an examination is performed), the examiner should provide opinions that respond to the following: (a.) Whether it is at least as likely as not (i.e., probability of 50 percent) that the Veteran’s Guillain-Barre Syndrome, manifested during active service; or is otherwise related to an event, injury, or disease incurred during active service, to include his exposure to herbicide agents. The examiner is advised that the Veteran was exposed to herbicide agents during service. The examiner is further advised that the fact that Guillain-Barre Syndrome is not a disease that is presumptively associated with herbicide exposure under 38 C.F.R. § 3.309(e) may not be the only basis for a negative nexus opinion. In other words, there should be a more complete medical explanation of why medical evidence does not show Agent Orange is a risk factor for this Veteran’s Guillain-Barre Syndrome. The examiner should also opine: (b.) Whether it is at least as likely as not (i.e. 50 percent or greater probability) that the Veteran’s Guillain-Barre Syndrome, is proximately due to or caused by the Veteran’s service-connected disabilities, to include his service-connected lung cancer. (c.) Whether it is at least as likely as not (i.e., 50 percent probability or greater) that the Veteran’s Guillain-Barre Syndrome, was aggravated (worsened in severity beyond a natural progression) by his service-connected disabilities, to include his service-connected lung cancer. The examiner is asked to provide a complete a rationale for all opinions offered. 2. The AOJ should ensure that the addendum opinion conforms with the remand directives. 3. Re-adjudicate the TDIU claim, to include consideration of whether TDIU is warranted at any time between October 1, 2020 to December 28, 2020. H.M. WALKER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Talamantes, 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.