Citation Nr: 1136837 Decision Date: 09/29/11 Archive Date: 10/11/11 DOCKET NO. 06-10 265 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUES 1. Entitlement to a compensable disability rating for service-connected calcified granuloma of the right lung base. 2. Entitlement to service connection for lung disease to include chronic obstructive pulmonary disease (COPD). 3. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Veteran represented by: Wisconsin Department of Veterans Affairs ATTORNEY FOR THE BOARD K. K. Buckley, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Air Force from August 1973 to May 1980. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions dated August 2005 and April 2010 of the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin. Procedural history The matter on appeal has had a somewhat atypical development. Specifically, the Veteran originally appealed the issue of entitlement to service connection for lung disease to include COPD. The Board issued a July 2008 decision that denied the issue on appeal. The appellant appealed the Board's decision to the United States Court of Appeals for Veterans Claims (the Court). Contemporaneously, at the Regional Office, the Veteran reopened the service connection claim. He also initiated a claim of entitlement to an increased rating for the service-connected calcified granuloma of the right lung base and entitlement to TDIU. Accordingly, in a September 2010 Memorandum Decision, the Court vacated and remanded the case to the Board for "joinder" with the claim for "lung disease now under administrative adjudication below." A Board remand decision was issued in May 2011. In a July 2011 supplemental statement of the case (SSOC), the RO denied the Veteran's claims of entitlement to service connection for lung disease to include COPD, entitlement to a compensable rating for service-connected calcified granuloma, and entitlement to TDIU. The Veteran's VA claims folder has been returned to the Board for further appellate proceedings. In a July 2011 statement, the Veteran requested a personal hearing. On August 9, 2011, the Veteran, through his representative, withdrew his request for a hearing pursuant to 38 C.F.R. § 20.704(e). The Board additionally notes that in a statement dated October 2008, the Veteran indicated that he disagreed with the effective date assigned to the grant of service-connection for calcified granuloma of the right lung base. The issue of entitlement to an effective date earlier than April 14, 2005 for the grant of service connection for calcified granuloma of the right lung base has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. The issues of entitlement to service connection for lung disease to include COPD and entitlement to TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the AMC, in Washington, DC. The Veteran will be notified if further action on his part is required. FINDINGS OF FACT 1. The competent medical evidence of record does not show that the Veteran's service-connected calcified granuloma of the right lung base is manifested by compensable impairment of pulmonary function. 2. The evidence does not show that the Veteran's calcified granuloma of the right lung base is so exceptional or unusual that referral for extraschedular consideration by the designated authority is required. CONCLUSIONS OF LAW 1. The criteria for a compensable rating for calcified granuloma of the right lung base have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.3, 4.7, 4.97, Diagnostic Codes 6600, 6820, 6825, 6845, 6846 (2010). 2. The criteria for referral for an increased disability rating for the Veteran's service-connected calcified granuloma of the right lung base on an extraschedular basis are not met. 38 C.F.R. § 3.321(b)(1) (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran seeks entitlement to an increased (compensable) disability rating for his service-connected calcified granuloma of the right lung base. In the interest of clarity, the Board will discuss certain preliminary matters. The Board will then address the pertinent law and regulations and their application to the facts and evidence. The Veterans Claims Assistance Act of 2000 The Board has given consideration to the Veterans Claims Assistance Act of 2000 (VCAA). The VCAA includes an enhanced duty on the part of VA to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits. The VCAA also redefines the obligations of VA with respect to its statutory duty to assist a claimant in the development of his claim. See 38 U.S.C.A. §§ 5103, 5103A (West 2002). The VCAA alters the legal landscape in three distinct ways: standard of review, notice, and duty to assist. The Board will now address these concepts within the context of the circumstances presented in this case. Standard of review After the evidence is assembled, it is the Board's responsibility to evaluate the entire record. See 38 U.S.C.A. § 7104(a) (West 2002). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each issue shall be given to the claimant. See 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. §§ 3.102, 4.3 (2010). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims (Court) stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Notice The VCAA requires VA to notify the claimant and the claimant's representative, if any, of any information and any medical or lay evidence not previously provided to VA that is necessary to substantiate the claim. As part of this notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. See 38 U.S.C.A. § 5103 (West 2002); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002) (a letter from VA to an appellant describing evidence potentially helpful to the appellant, but not mentioning who is responsible for obtaining such evidence, did not meet the standard erected by the VCAA). After having carefully reviewed the record, the Board has concluded that the notice requirements of the VCAA have been satisfied as to the issue on appeal. The Veteran was informed of the evidentiary requirements for an increased rating in a letter dated December 2009. Specifically, the letter informed the Veteran that "[t]o support your claim for an increased evaluation of your service-connected disability, medical or lay evidence must show a worsening or increase in severity and the effect that worsening or increase has on your employment and daily life." Crucially, the RO informed the Veteran of VA's duty to assist him in the development of his claim in the December 2009 VCAA letter. Specifically, the letter stated that VA would assist the Veteran in obtaining relevant records such as all records held by Federal agencies to include service treatment records or other military records, and medical records from VA hospitals. With respect to private treatment records, the letter informed the Veteran that VA would request such records, if the Veteran completed and returned the attached VA Form 21-4142, Authorization and Consent to Release Information. The letter also notified the Veteran that he would be afforded a VA examination if necessary to make a decision on his claim. In Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), the Court observed that a claim of entitlement to service connection consists of five elements: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date. Because a service connection claim is comprised of five elements, the Court further held that the notice requirements of section 5103(a) apply generally to all five elements of that claim. Therefore, upon receipt of an application for a service connection claim, section 5103(a) and section 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. This includes notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. The Veteran was provided specific Dingess notice in the December 2009 VCAA letter. Accordingly, the Veteran received proper notice as to disability rating and effective date pursuant to the Court's Dingess determination. The Board notes that the notice requirements under 38 U.S.C.A. § 5103 have undergone significant changes during the pendency of the Veteran's appeal. The U.S. Court of Appeals for the Federal Circuit (Federal Circuit) recently held that, for increased rating claims, notice provided to the Veteran under 38 U.S.C.A. § 5103 need not be "veteran specific," and that VA is not required to notify the Veteran that he may submit evidence of the effect of his worsening disability on his daily life, nor is VA required to notify the Veteran of diagnostic codes that his disability may be rated under. See Vazquez-Flores/Wilson v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). Therefore, the Board will proceed. The Veteran has not alleged that he received inadequate VCAA notice. See Goodwin v. Peake, 22 Vet. App. 128 (2008) (holding as to the notice requirements for downstream earlier effective date claims following the grant of service connection: "that where a claim has been substantiated after the enactment of the VCAA, the appellant bears the burden of demonstrating any prejudice from defective VCAA notice with respect to the downstream elements"). Given that there is no indication that there exists any evidence which could be obtained to affect the outcome of this case, no further VCAA notice is necessary. See Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001) (VCAA notice not required where there is no reasonable possibility that additional development will aid the veteran). Duty to assist In general, the VCAA provides that VA shall make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate a claim for VA benefits, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. The law affords that the assistance provided by VA shall include providing a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on the claim. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2010). The Board finds that all relevant evidence necessary for an equitable resolution of the issue being decided has been identified and obtained, to the extent possible. The evidence of record includes service treatment records, the Veteran's statements, SSA records, as well as VA and private treatment records. Further, as the Board will discuss in detail below, the Veteran was afforded VA examinations in March 2010 and February 2005 and a VA medical opinion in June 2011. The VA examination reports and medical opinion reflect that the examiners interviewed and examined the Veteran, reviewed his past medical history, documented his current medical conditions, and rendered appropriate opinions consistent with the remainder of the evidence of record. See Nieves- Rodriguez v. Peake, 22 Vet. App. 295 (2008) (the probative value of a medical opinion comes from when it is the factually accurate, fully articulated, and sound reasoning for the conclusion). The Board therefore concludes that the VA examination reports and medical opinion are adequate for evaluation purposes. See 38 C.F.R. § 4.2 (2010); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). The Board additionally observes that all appropriate due process concerns have been satisfied. See 38 C.F.R. § 3.103 (2010). The Veteran has been accorded the opportunity to present evidence and argument in support of his claim. He has retained the services of a representative and declined the option to testify at a personal hearing before a Veterans Law Judge. In short, the Board has carefully considered the provisions of the VCAA in light of the record on appeal and, for the reasons expressed above, finds that the development of this claim has been consistent with the provisions of the VCAA. Accordingly, the Board will proceed to a decision. Relevant law and regulations Disability ratings - in general Disability ratings are assigned in accordance with the VA's Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. See 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.321(a), 4.1 (2010). Separate diagnostic codes identify the various disabilities. See 38 C.F.R. Part 4 (2010). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7 (2010). A request for an increased rating must be viewed in light of the entire relevant medical history. See 38 C.F.R. § 4.1 (2010); see also Peyton v. Derwinski, 1 Vet. App. 282, 287 (1991). However, where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). In Hart v. Mansfield, 21 Vet. App. 505 (2007), the Court held that "staged ratings are appropriate for an increased-rating claim when the factual findings show distinct periods where the service-connected disability exhibits symptoms that would warrant different ratings." Analysis The Veteran's calcified granuloma of the right lung base is currently assigned a noncompensable evaluation pursuant to 38 C.F.R. § 4.97, Diagnostic Code 6899-6820. See 38 C.F.R. § 4.27 (2010) (hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen). The Veteran's service-connected calcified granuloma is rated by analogy to Diagnostic Code 6820 [neoplasms, benign, any specified part of respiratory system]. See 38 C.F.R. § 4.20 (2010) (when an unlisted condition is encountered it will be permissible to rate it under a closely related disease or injury, in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous.) The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case." Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, diagnosis, and demonstrated symptomatology. Any change in diagnostic code by a VA adjudicator must be specifically explained. See Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). Diagnostic Code 6820 is deemed by the Board to be the most appropriate primarily because it is most analogous to the specifically to the diagnosed disability in the Veteran's case. The Board can identify nothing in the evidence to suggest that another diagnostic code would be more appropriate, and the Veteran has not requested that another diagnostic code be used. Moreover, under this code, a disability is to be evaluated using an appropriate respiratory analogy. In this case, the Board notes that the RO has rated the disability by analogy under Diagnostic Codes 6846 (sarcoidosis), 6845 (chronic pleural effusion or fibrosis), 6825 (diffuse interstitial fibrosis), and 6600 (bronchitis, chronic). See the statement of the case dated June 2010. Diagnostic Codes 6845, 6825, and 6600 are evaluated using the results from pulmonary function tests (PFTs). See 38 C.F.R. § 4.97 (2010). In that regard, under Diagnostic Codes 6845 and 6600, a 10 percent rating requires a forced expiratory volume in one second (FEV-1) of 71 to 80 percent predicted, or ratio of FEV-1 to forced vital capacity (FEV-1/FVC) of 71 to 80 percent, or Diffusion Capacity of the Lung for Carbon Monoxide by the Single Breath Method (DLCO (SB)) of 66 to 80 percent predicted. Under Diagnostic Code 6825, a 10 percent rating requires FVC of 75 to 80 percent predicted, or; DLCO (SB) of 66 to 80 percent. Under 6846, a 30 percent rating requires pulmonary involvement with persistent symptoms requiring chronic low dose (maintenance) or intermittent corticosteroids. The Board does not dispute that the Veteran's pulmonary function testing demonstrates results that may be demonstrative of a higher disability rating under Diagnostic Codes 6845, 6825, and 6600. The Board also observes that the Veteran's current respiratory symptomatology requires the regular administration of medications and oxygen. Crucially, however, the medical evidence of record demonstrates that the Veteran's calcified granuloma of the right lung base is entirely asymptomatic and that his significant respiratory symptomatology is attributable to his nonservice-connected COPD. The Board is precluded from differentiating between symptomatology attributed to a service-connected disability and another disability in the absence of medical evidence which does so. See Mittleider v. West, 11 Vet. App. 181, 182 (1998), citing Mitchem v. Brown, 9 Vet. App. 136, 140 (1996). As will be discussed below, the medical evidence clearly indicates that the Veteran's respiratory symptomatology is due to his nonservice-connected COPD rather than his service-connected calcified granuloma. Specifically, in a June 2011 medical opinion, the reviewing VA physician opined that "[c]alcified granulomas in the lungs are small scars in the lung thought to be related to prior fungal infection such as histoplasmosis of coccidiomycosis. They are considered benign and do not cause any problems in the lungs . . . Once a calcified nodule has been stable for two years the diagnosis of a benign calcified granuloma is confirmed and no further follow[-up] is indicated." She continued, "I did not locate any current studies on calcified pulmonary granulomas. This is likely because granulomas have long been recognized as benign asymptomatic scars ever since x-rays were first done. There are hundreds of web pages dedicated to the lay population that note the benign asymptomatic nature of calcified granulomas. This is not an area of medical controversy." She went on to diagnose the Veteran with "stable asymptomatic pulmonary granuloma." The June 2011 VA medical opinion appears to have been based upon thorough review of the record and thoughtful analysis of the Veteran's entire history. The Board recognizes that the VA examiner is, by her own admission, not a pulmonologist; however, the Board finds her opinion to be probative as the VA examiner noted the Veteran's medical history including treatment records and relied upon medical research and her clinical experience in rendering her opinion. See Nieves- Rodriguez, supra; see also Bloom v. West, 12 Vet. App. 185, 187 (1999) (the probative value of a physician's statement is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support his opinion"). Moreover, the June 2011 VA opinion is consistent with the other medical evidence of record. In a June 2010 pulmonary treatment note, the Veteran's treating physician indicated that the Veteran's pulmonary function tests "demonstrate a pattern most consistent with COPD. I also explained that a single granuloma on a CT scan is quite non-specific and not an uncommon incidental finding." In a March 2010 VA examination report, the VA examiner diagnosed the Veteran with "[s]table right lung granuloma. This is an asymptomatic condition and is not known to cause symptoms or changes in pulmonary function tests." A February 2006 chest x-ray showed "there is a calcified granuloma at the right base. There is no change compared to the previous exam of February 12, 2006 and July 12, 2004 . . . No active pulmonary disease." Additionally, in a July 2005 VA examination report, the examiner reported that "[t]he granuloma noted in military has not changed in the last thirty years and is not related to his current complaints." As indicated, the Board does not dispute that the Veteran suffers from significant respiratory symptomatology and he is competent to testify to such symptoms. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); Washington v. Nicholson, 21 Vet. App. 191, 195 (2007) (holding that, "[a]s a layperson, an appellant is competent to provide information regarding visible, or otherwise observable symptoms of disability). See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (holding that the Board's categorical statement that "a valid medical opinion" was required to establish nexus, and that a layperson was "not competent" to provide testimony as to nexus because she was a layperson, conflicts with Jandreau). This does not mean, however, that he is necessarily competent to distinguish between problems, if any, caused by the calcified granuloma and those caused by the COPD. See 38 C.F.R. § 3.159(a)(1) (2010) (competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions). Rather, such a determination is a medical conclusion that requires medical expertise, for which the Veteran is not qualified. Accordingly, the competent medical evidence of record demonstrates that the Veteran's service-connected calcified granuloma is entirely asymptomatic and that his respiratory symptomatology is attributable to the service-connected COPD. In sum, there is no support for a higher rating here. Overall, the preponderance of the evidence is against the Veteran's claim for a compensable disability rating for the service-connected calcified granuloma of the right lung base. Hart considerations In Hart, supra, the Court held that staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibited symptoms that would warrant different ratings. In reaching its conclusion, the Court observed that when a claim for an increased rating is granted, the effective date assigned may be up to one year prior to the date that the application for increase was received if it is factually ascertainable that an increase in disability had occurred within that time frame. See 38 U.S.C.A. § 5110 (West 2002); 38 C.F.R. § 3.400(o) (2010). The Veteran's claim for an increased disability rating was received on December 16, 2009. Therefore, the relevant time period under consideration is from December 16, 2008 to the present. The question to be answered by the Board, then, is whether any different rating should be assigned for the relevant time period under consideration. As indicated above, the Veteran was originally service-connected for calcified granuloma effective April 2005; the noncompensable disability rating has been in effect since that time. After a careful review of the record, the Board can find no evidence to support a finding that the Veteran's service-connected calcified granuloma of the right lung base was more or less severe during the appeal period. Accordingly, the noncompensable evaluation has been properly assigned for the time period of December 16, 2008 to the present. Extraschedular considerations Ordinarily, the VA Rating Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). According to the regulation, an extraschedular disability rating is warranted upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent period of hospitalization that would render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321(b)(1) (2010). Under Thun v. Peake, 22 Vet. App. 111 (2008), there is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. First, the Board must first determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the level of disability and symptomatology and is found to be inadequate, the Board must then determine whether the claimant's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the veteran's disability picture requires the assignment of an extraschedular rating. The Board recognizes that the Veteran has repeatedly sought medical treatment for respiratory symptoms. As discussed above, the competent medical evidence of record demonstrates that these respiratory symptoms are complications of the nonservice-connected COPD. There is no medical evidence to show that the Veteran's service-connected calcified granuloma of the right lung base is symptomatic or has resulted in hospitalization or occupational impairment during the appeal period. Accordingly, because there is no factor which takes the disability outside the usual rating criteria, the Board therefore has determined that referral of the case for extraschedular consideration pursuant to 38 C.F.R. 3.321(b)(1) is not warranted. In short, the evidence does not support the proposition that the Veteran's service-connected calcified granuloma of the right lung base presents such an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards and warrant the assignment of an extraschedular rating under 38 C.F.R. § 3.321(b)(1). ORDER Entitlement to a compensable disability rating for service-connected calcified granuloma of the right lung base is denied. REMAND After having carefully considered the matter, and for reasons expressed immediately below, the Board finds that the Veteran's remaining claims on appeal must be remanded for further development. The Board is cognizant of the fact that the Veteran's case has been in adjudicative status for several years and it has already been remanded in the past. Consequently, the Board wishes to assure the Veteran that it would not be remanding this case again unless it was essential for a full and fair adjudication of his lung disability and TDIU claims. 2. Entitlement to service connection for lung disease to include COPD. It is undisputed that the Veteran is currently diagnosed with COPD. See the VA examination report dated March 2010. The Veteran has asserted that he incurred his COPD as a result of his military service. He has alternatively asserted that his COPD is due to his service-connected calcified granuloma of the right lung base. See, e.g., the VA treatment record dated November 2009. After a review of the available medical records including the April 2010 letter from Dr. B.H.B., the June 2011 VA examiner concluded that the Veteran's COPD was not related to his service-connected granuloma. He also indicated that the COPD was not incurred during the Veteran's military service. Notably, the VA examiner did opine that the presence of the calcified granuloma in the Veteran's lung was indicative of prior disease. The Veteran has recently offered another theory of entitlement. Specifically, he now appears to assert that the granuloma is a residual of pneumonia, which pre-existed his military service. He therefore implies that his lung disease pre-existed his military service and was aggravated thereby. See the Veteran's statement dated July 2011. A veteran may be entitled to service connection if a preexisting condition was aggravated during his service. A pre-existing injury or disease will be considered to have been aggravated by active service where there is an increase in disability during such service, unless clear and unmistakable evidence shows that the increase in disability is due to the natural progress of the disease. See 38 U.S.C.A. § 1153 (West 2002); 38 C.F.R. § 3.306 (2010). "Clear and unmistakable evidence" is a more formidable evidentiary burden than the preponderance of the evidence standard. See Vanerson v. West, 12 Vet. App. 254, 258 (1999) (noting that the "clear and convincing" burden of proof, while a higher standard than a preponderance of the evidence, is a lower burden to satisfy than that of "clear and unmistakable evidence"). It is an "onerous" evidentiary standard, requiring that the preexistence of a condition and the no-aggravation result be "undebatable." See Cotant v. West, 17 Vet. App. 116, 131 (2003) citing Laposky v. Brown, 4 Vet. App. 331, 334 (1993). Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. See 38 U.S.C.A. § 1153 (West 2002); 38 C.F.R. § 3.306(b) (2010); Falzone v. Brown, 8 Vet. App. 398, 402 (1995). In Charles v. Principi, 16 Vet. App. 370 (2002), the Court held that where there is evidence of record satisfying the first two requirements for service connection but no competent medical evidence addressing the third requirement (medical nexus), VA must obtain a VA examination and medical nexus opinion. See also 38 C.F.R. § 3.159(c)(4) (2010) (a medical examination or opinion is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim). The June 2011 VA examiner's opinion did not specifically address whether the Veteran's currently diagnosed lung disease to include COPD pre-existed his military service and, if so, whether there was an increase in the disability during such service, unless clear and unmistakable evidence shows that the increase in disability is due to the natural progress of the disease. Accordingly, the Board finds that a new VA opinion is warranted as to the lung disease to include COPD claim. 3. Entitlement to TDIU. The Veteran's claim of entitlement to TDIU is inextricably intertwined with the service connection for lung disease claim that is currently on appeal. In other words, if service connection for the claimed lung disability is granted, this will impact VA's analysis of the TDIU claim. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two or more issues are inextricably intertwined if one claim could have significant impact on the other). Therefore, the Board will defer consideration of the TDIU claim. Accordingly, the case is REMANDED for the following action: 1. VBA should provide the Veteran with a corrective VCAA letter containing proper notice which specifically informs him of the evidentiary requirements for establishing secondary service connection and aggravation of a pre-existing condition. 2. VBA should then arrange for a physician, with appropriate expertise, to review the Veteran's VA claims folder including a copy of this Remand and to provide an opinion, with supporting rationale, as to whether the evidence of record clearly and unmistakably shows that the Veteran's lung disease to include COPD pre-existed his active duty military service. If the answer to this question is affirmative, the examiner should then provide an opinion as to whether the pre-existing lung disease to include COPD was not aggravated by service, beyond the natural progression of the disorder(s). If the examiner finds that the Veteran's lung disease did not pre-exist his military service, he/she should render an opinion as to whether the Veteran's currently diagnosed lung disease to include COPD was incurred in his military service. The examiner should also provide an opinion as to whether the Veteran's lung disease to include COPD was proximately caused or aggravated by his service-connected calcified granuloma of the right lung base. If it is determined that aggravation beyond the natural progression of the disorder exists, the examiner should be asked to identify the baseline level of severity of the symptoms prior to aggravation and the level of severity of symptoms due to service-connected aggravation. If an interview with the Veteran and/or diagnostic testing is deemed to be appropriate by the reviewer, such should be scheduled. The report of the examination should be associated with the Veteran's VA claims folder. Rationale for all opinions should be provided. If the examiner cannot provide an opinion without resorting to mere speculation, such should be stated with supporting rationale. 3. After undertaking any additional development deemed necessary, and if warranted by the evidentiary posture of the case, VBA should then readjudicate the Veteran's claims. (Should the adjudication include the award of service connection for any disability, consideration should be given to whether an examination is necessary to obtain the medical information required to address the TDIU claim.) If any benefit sought on appeal remains denied, the Veteran and his representative should be provided a supplemental statement of the case and given an appropriate opportunity to respond. Thereafter, the case should be returned to the Board for further consideration, if otherwise in order. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. See Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2010). ______________________________________________ John E. Ormond, Jr. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs