Citation Nr: 21032373 Decision Date: 05/26/21 Archive Date: 05/26/21 DOCKET NO. 13-09 156 DATE: May 26, 2021 REMANDED Entitlement to service connection for chronic obstructive pulmonary disease (COPD) to include as secondary to service-connected recurrent pneumonia with lung scarring is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from December 1970 to June 1972. These issues come before the Board of Veterans' Appeals (Board) on appeal from an August 2012 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In May 2020, the Board of Veterans' Appeals (Board) denied the Veteran's claim of entitlement to service connection for COPD and entitlement to TDIU. Thereafter, the Veteran appealed to the United States Court of Appeals for Veterans Claims (CAVC), which vacated the Board decision in a January 2021 Order, based upon a Joint Motion for Remand (JMR). 1. Entitlement to service connection for COPD to include as secondary to service-connected recurrent pneumonia with lung scarring is remanded. As per the January 2021 JMR, a remand is necessary because the Board erred in its determination that VA satisfied its duty to assist when it relied on the January 2018 medical examination as adequate to adjudicate the claim. Specifically, the parties agreed that the 2018 opinion was inadequate because the examiner failed to provide an explanation as to whether the Veteran's COPD is aggravated by the service-connected recurrent pneumonia per 38 C.F.R. § 3.310(b). The parties also determined that the examiner did not provided an adequate rationale for determining that COPD and pneumonia were separate diseases that were unrelated. VA has a duty to ensure that any medical examination or opinion it provides is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Therefore, on remand, an examination should be schedule to the Veteran to determine the etiology of the Veteran's reported COPD and whether the condition was caused or aggravated by service connected pneumonia, and the VA examiner must provide an adequate rationale and finding. 2. Entitlement to a TDIU is remanded. As previously found by the Board in its December 2017 remand, adjudication of TDIU is inextricably intertwined with the resolution of the service connection claim above. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that issues are inextricably intertwined and must be considered together when a decision concerning one could have a significant impact on the other). Therefore, this matter is also remanded. These matters are REMANDED for the following action: Schedule the Veteran for a VA examination from an appropriate clinician to determine the nature and etiology of his COPD. All appropriate tests or studies should be accomplished, and all clinical findings should be reported in detail. The examiner is requested to provide a medical opinion on the following: (a) Is it at least as likely as not (50 percent or greater probability) that the Veteran's COPD is etiologically related to the Veteran's active service? (b) Is it at least as likely as not (50 percent or greater probability) that the COPD was caused by his service-connected pneumonia? (c) Is it at least as likely as not (50 percent or greater probability) that the Veteran's COPD has been aggravated by the service connected pneumonia? (Continued on the next page) The VA examiner must fully explain the rationale for all opinions, such as with citation to supporting clinical data/lay statements, as deemed appropriate. All pertinent evidence, including both lay and medical, should be considered. If an opinion cannot be given without resorting to speculation, the examiner should explain why and state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), the record (additional facts are required), or the examiner (does not have the knowledge or training). Paul Sorisio Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Dworkin, 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.