Citation Nr: 21028674
Decision Date: 05/11/21	Archive Date: 05/11/21

DOCKET NO. 16-38 118
DATE: May 11, 2021

REMANDED

Entitlement to service connection for a pulmonary disability, to include chronic obstructive pulmonary disease (COPD), claimed as the result of asbestos exposure, is remanded.

Entitlement to a rating in excess of 30 percent for migraines associated with residuals of a traumatic brain injury residuals is remanded.

Entitlement to a rating is excess of 10 percent for TBI, as of January 14, 2021, is remanded.

Entitlement to a rating is excess of 0 percent for TBI, prior to January 14, 2021, is remanded.

Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU), prior to March 1, 2016, is remanded.

REASONS FOR REMAND

In a May 2017 rating decision, the Agency of Original Jurisdiction (AOJ) granted entitlement to TDIU, effective March 1, 2016.  However, prior to that effective date, the Veteran claimed that he was unable to work, in large part, due to the service-connected TBI that remains on appeal.  Because the claim for an increased rating currently on appeal predates the effective date assigned for TDIU, a claim for entitlement to TDIU, prior to March 1, 2016, remains on appeal.  Rice v. Shinseki, 22 Vet. App. 447 (2009).

1. Entitlement to service connection for a pulmonary disability, to include COPD, claimed as the result of asbestos exposure, is remanded.

2. Entitlement to a rating in excess of 30 percent for migraines associated with TBIU is remanded.

3. Entitlement to a rating is excess of 10 percent for TBI, as of January 14, 2021, is remanded.

4. Entitlement to a rating is excess of 0 percent for TBI, prior to January 14, 2021, is remanded.

5. Entitlement to TDIU, prior to March 1, 2016, is remanded.

The VA treatment records currently in evidence contain notations indicating that a VA employee scanned medical records into a VA hospital's imaging system, but do not contain any copies of the scanned records.  Any treatment records scanned into a VA hospital's imaging system are within VA's constructive possession and are considered potentially relevant to the issues on appeal.  Remand is required to allow VA to obtain those records.

The matters are REMANDED for the following action:

Obtain all outstanding VA treatment records.  Specifically, obtain the most recent VA treatment records not included in the record of evidence and the records noted as having been scanned into the Vista imaging system by VA Medical Center personnel, as noted in the VA treatment records in evidence, dated September 5, 2019; August 19, 2019; August 17, 2019; July 31, 2019; July 5, 2018; July 15, 2013; June 26, 2013; May 21, 2013; May 1, 2013; April 25, 2013; November 13, 2012; November 8, 2012; February 7, 2012; and January 30, 2012.

 

 

Harvey P. Roberts

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	T.M. Gillett

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.