Citation Nr: 22010541 Decision Date: 02/23/22 Archive Date: 02/23/22 DOCKET NO. 15-26 827 DATE: February 23, 2022 ORDER Service connection for bronchiolitis is granted. REMANDED Entitlement to service connection for traumatic brain injury (TBI) is remanded. Entitlement to service connection for posttraumatic stress disorder (PTSD) is remanded. Entitlement to service connection for asbestosis is remanded. Entitlement to a rating in excess of 30 percent for acquired respiratory conditions, to include chronic obstructive pulmonary disease (COPD) and emphysema with pleural plaques, is remanded. Entitlement to a separate compensable rating for pleural plaques is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU rating) is remanded. FINDING OF FACT The Veteran's bronchiolitis is proximately due to his service-connected acquired respiratory condition of COPD. CONCLUSION OF LAW The criteria for service connection for bronchiolitis have been met. 38 U.S.C. §§ 1110, 1131, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.310(a) (2021). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 1984 to April 2004. In December 2017, a videoconference hearing was held before the undersigned Veterans Law Judge, and a transcript of the hearing is associated with the record. In June 2018, the case was remanded for additional development. The Veteran's prior representative, a private attorney, withdrew representation through written statements sent to the Veteran and to VA in January 2020, prior to recertification of the case to the Board in July 2020. See 38 C.F.R. § 20.6. The Veteran affirmed in a written statement in April 2020 that he wanted his prior attorney to be removed from his case. As the record does not contain any current executed form (either a VA Form 21-22 or a VA Form 21-22a) appointing a valid representative in these matters, the Board proceeds with the understanding that the Veteran is appearing pro se. The Veteran is hereby advised that he is permitted to appoint a valid representative at any time. While the Veteran attempted to opt-in his appeal to the modernized review system created by the Appeals Modernization Act (AMA) by way of an August 2020 VA Form 10182, such form is invalid because it was not signed by the Veteran, and such form was also untimely due to being filed more than 60 days after the issuance of the May 2020 supplemental statement of the case (SSOC). Therefore, his appeal remains in the legacy system. In September 2020, the case was once again remanded for additional development. The Board indicated in the Introduction of its June 2018 and September 2020 decisions that the Agency of Original Jurisdiction (AOJ) must determine whether a March 2018 medical opinion constitutes new and material evidence pursuant to 38 C.F.R. § 3.156(b) (2018) which would require reconsideration of an August 2017 rating decision with regard to the issue of whether new and material evidence had been received to reopen a claim of entitlement to service connection for sleep apnea. The AOJ is once again directed to make this determination, followed by reconsideration of that issue if warranted. Service connection for bronchiolitis. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Service connection may be established on a secondary basis for a disability that is proximately due to, or the result of, or aggravated by a service-connected disease or injury. Establishing secondary service connection requires evidence of: (1) a current disability (for which secondary service connection is sought); (2) an already service-connected disability; and (3) that the current disability was either caused or aggravated by the already service-connected disability. 38 C.F.R. § 3.310; see also Allen v. Brown, 7 Vet. App. 439 (1995). The Veteran contends that his current bronchiolitis is related to his military service and/or is secondary to his service-connected acquired respiratory conditions (to include COPD and emphysema with pleural plaques). During the appeal period, a June 2017 VA treatment record included the findings from a March 2017 private treatment record which had noted an impression of likely improved respiratory bronchiolitis post smoking cessation. An April 2018 private treatment record also noted that bronchiolitis not otherwise specified (NOS) was confirmed to be on the Veteran's problem list. In December 2020, a VA physician conducted a records review of the Veteran's claims file and confirmed his diagnosis of bronchiolitis. In an accompanying December 2020 addendum opinion, the same VA physician opined that the Veteran's currently diagnosed bronchiolitis is at least as likely as not proximately due to or the result of the Veteran's service-connected acquired respiratory condition of COPD, with the following supportive rationale provided: "His bronchiolitis is at least as likely as not associated with his COPD. Obstructive bronchiolitis is an inflammatory condition that narrows airways. This would likely contribute to his obstructive nature of his copd." The VA physician went on to note that the Veteran's bronchiolitis "is likely a worsening of his copd" but also opined that his bronchiolitis was not at least as likely as not aggravated beyond its natural progression by his service-connected acquired respiratory condition of COPD, with the following supportive rationale provided: "I cannot determine the natural progression of his disease as everyone reacts differently." The Board finds that the favorable medical opinion provided by the VA physician in December 2020, indicating that the Veteran's currently diagnosed bronchiolitis is proximately due to his service-connected acquired respiratory condition of COPD, is supported by an adequate rationale for the conclusion reached, as this rationale took into account the pertinent medical evidence of record. Therefore, the Board affords the opinion substantial weight of probative value. In light of the foregoing, and after resolving all doubt in the Veteran's favor, the Board concludes that service connection is warranted on a secondary basis for bronchiolitis. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. § 3.310(a). REASONS FOR REMAND 1. Entitlement to service connection for TBI. 2. Entitlement to service connection for PTSD. 3. Entitlement to service connection for asbestosis. 4. Entitlement to a rating in excess of 30 percent for acquired respiratory conditions, to include COPD and emphysema with pleural plaques. 5. Entitlement to a separate compensable rating for pleural plaques. The Veteran is currently seeking service connection for TBI, service connection for PTSD (with the Board finding in its June 2018 decision that new and material evidence had been received to reopen such a claim), service connection for asbestosis, a higher rating for his service-connected acquired respiratory conditions (to include COPD and emphysema with pleural plaques), and a separate compensable rating for pleural plaques (which is currently rated together with his acquired respiratory conditions). The Board cannot make a fully-informed decision on these issues at this time because the record reflects that there are outstanding treatment records not currently associated with the claims file that may be pertinent to the claims remaining on appeal. Specifically, following the Board's September 2020 remand, VA treatment records dated in January 2019 were newly associated with the claims file which documented that the Veteran had been treated from January 15, 2019 to January 16, 2019 in the emergency room at a private facility (Santa Rosa Medical Center) for chest pain and suicidal ideation, and that he had thereafter been admitted as a psychiatry inpatient from January 17, 2019 to January 24, 2019 at another private facility (Capital Regional Medical Center) with an admission diagnosis of recurrent severe major depressive disorder. While the Veteran's records from Santa Rosa Medical Center and from Capital Regional Medical Center were noted to have been scanned into VistA Imaging, there are no viewable copies of these records currently in the claims file. On remand, all outstanding treatment records must be associated with the claims file. In addition, with regard to the interrelated issues of a higher rating for acquired respiratory conditions and a separate compensable rating for pleural plaques, the Board notes a March 2018 medical opinion from a private physician assistant which alleged that the Veteran "should be rated 100% for his respiratory condition due to right ventricle heart involvement" and noted a November 2017 echography "showing cardiac changes including moderate right ventricle enlargement, right atrium being mildly enlarged, and tricuspid regurgitation." Thereafter, the Veteran underwent a VA respiratory examination in February 2020 for the purposes of evaluating his service-connected acquired respiratory conditions; however, that examination report did not include any comment with regard to cardiac findings which may be related to the Veteran's service-connected acquired respiratory conditions, and the VA examiner noted that the Veteran focused during the examination on "congenital heart anomaly conditions" with no rationale for such notation. Because the Veteran is currently rated under Diagnostic Code (DC) 6604 which provides a 100 percent schedular rating for COPD with cor pulmonale (right heart failure) or for COPD with right ventricular hypertrophy or for COPD with pulmonary hypertension, the Board remanded the increased rating issues in December 2020 for a new examination with appropriate testing and a medical opinion in order to address all pertinent respiratory and cardiac findings during the appeal period. However, in a December 2020 letter, the Veteran was notified that he did not need to report for a respiratory examination and that a "record review only" would be taking place. Thereafter, in December 2020, a VA physician conducted a records review of the Veteran's claims file and did not fill out the Cardiopulmonary Complications section of the Respiratory Conditions Disability Benefits Questionnaire (DBQ). In an accompanying December 2020 addendum opinion, the same VA physician noted the following with regard to cardiac findings during the appeal period: "I cannot complete without speculation as I was unable to reach this [V]eteran, so my records would not be accurate for 2020[.]" On remand, an examination with appropriate testing and a medical opinion is required in order to address all pertinent respiratory and cardiac findings during the appeal period. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that where the remand orders of the Board are not substantially complied with, the Board errs as a matter of law when it fails to ensure substantial compliance). 6. Entitlement to a TDIU rating. Throughout the appeal period, to include in July 2012 and August 2018 submissions of a VA Form 21-8940 (Veteran's Application for Increased Compensation based on Unemployability), the Veteran has indicated that his service-connected acquired respiratory condition of COPD has prevented him from being able to obtain or maintain substantially gainful employment. Because a decision on the remanded COPD increased rating issue could significantly impact a decision on the TDIU rating issue, the issues are inextricably intertwined. A remand of the TDIU claim is required. See Harris v. Derwinski, 1 Vet. App. 181 (1991). The matters are REMANDED for the following actions: 1. Ask the Veteran to complete a VA Form 21-4142 for all private providers who have treated him for his claimed disabilities remaining on appeal at any time during the appeal period, including Santa Rosa Medical Center and Capital Regional Medical Center. Make two requests for the authorized records from each identified provider, unless it is clear after the first request that a second request would be futile. 2. Obtain the Veteran's VA treatment records for the period from March 2021 to the present, as well as viewable copies of the records of his emergency room treatment from January 15, 2019 to January 16, 2019 at Santa Rosa Medical Center and the records of his inpatient treatment from January 17, 2019 to January 24, 2019 at Capital Regional Medical Center which were scanned into VistA Imaging (as outlined above). Any negative search result should be noted in the record and communicated to the Veteran. 3. After all requested records have been associated with the claims file, schedule the Veteran for an examination by an appropriate clinician (or a telehealth interview if an in-person examination is not feasible) to determine the current severity of his service-connected acquired respiratory conditions (to include COPD and emphysema with pleural plaques). The electronic claims file must be made available to the examiner for review in conjunction with the examination. All necessary tests should be performed, and the results reported, to specifically include all appropriate respiratory and cardiac testing. All pertinent symptomatology and findings must be reported in detail. Any appropriate DBQ should be filled out for this purpose, if possible. The examiner must also specifically address all cardiac findings during the appeal period and opine as to whether any such findings are related to the Veteran's service-connected acquired respiratory conditions. A complete rationale for all opinions must be provided. If the clinician cannot provide a requested opinion without resorting to speculation, it must be so stated, and the clinician must provide the reasons why an opinion would require speculation. The clinician must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the clinician must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular clinician. 4. Thereafter, review the record, ensure that all development is completed (and arrange for any further development suggested by additional evidence received), and readjudicate the claims on appeal for entitlement to service connection for TBI, entitlement to service connection for PTSD, entitlement to service connection for asbestosis, entitlement to a higher rating for acquired respiratory conditions (to include COPD and emphysema with pleural plaques), and entitlement to a separate compensable rating for pleural plaques followed by readjudication of the issue of entitlement to a TDIU rating (in light of the outcome of the other claims on appeal, and with consideration of whether referral of an extraschedular TDIU rating under § 4.16(b) is warranted for any period that the schedular TDIU criteria under § 4.16(a) are not met). (Continued on the next page) If any benefit sought on appeal remains denied, in whole or in part, an SSOC must be provided to the Veteran. After the Veteran has had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. M. SORISIO Veterans Law Judge Board of Veterans' Appeals 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.