Citation Nr: 1343508 Decision Date: 12/31/13 Archive Date: 01/07/14 DOCKET NO. 07-36 023 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to an evaluation in excess of 20 percent for service-connected diabetes mellitus, type II, with bilateral cataracts. 2. Entitlement to an evaluation in excess of 20 percent for service-connected peripheral neuropathy of the right lower extremity. 3. Entitlement to an evaluation in excess of 20 percent for service-connected peripheral neuropathy of the left lower extremity. 4. Entitlement to service connection for a lung disability, to include as due to asbestos exposure. 5. Entitlement to service connection for a left foot disability, to include calluses and plantar fasciitis. 6. Entitlement to service connection for an upper respiratory disability. 7. Entitlement to service connection for sleep apnea, to include as secondary to service-connected diabetes mellitus, type II. 8. Entitlement to service connection for pes planus. 9. Entitlement to service connection for benign prostatic hypertrophy, to include as due to herbicide exposure. 10. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD Arif Syed, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1967 to April 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. The Veteran was scheduled to appear at the RO to have a personal hearing before a Veterans Law Judge. However, in January 2012 the Veteran withdrew his request for a hearing. See 38 C.F.R. § 20.704(e) (2012). In June 2013, the Board remanded the Veteran's claims. The Appeals Management Center (AMC) continued the previous denial of the claims in a September 2013 supplemental statement of the case (SSOC). Accordingly, the Veteran's VA claims folder has been returned to the Board for further appellate proceedings. The Board has reviewed the Veteran's claims folder and the record maintained in the Virtual VA paperless claims processing system. In his October 2013 Informal Hearing Presentation (IHP), the Veteran appeared to raise the issue of entitlement to service connection for hypertension, claimed as secondary to service-connected posttraumatic stress disorder (PTSD). He also raised the issue of entitlement to service connection for arthritis of multiple joints as secondary to service-connected PTSD and diabetes mellitus. He also raised the issue of entitlement to service connection for erectile dysfunction as secondary to service-connected diabetes mellitus and entitlement to special monthly compensation (SMC) for loss of use of a creative organ. These issues have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. The issues of entitlement to increased disability ratings for diabetes and peripheral neuropathy of the right and left lower extremities; service connection for a lung disability, a left foot disability, upper respiratory disability, sleep apnea, and pes planus; and entitlement to TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT The Veteran's currently diagnosed benign prostate hypertrophy is not related to his military service and may not be presumed as having been incurred therein. CONCLUSION OF LAW Benign prostatic hypertrophy was not incurred in service and may not be presumed to have been incurred therein. 38 U.S.C.A. §§ 1101, 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran seeks entitlement to service connection for benign prostatic hypertrophy, to include as due to herbicide exposure. In the interest of clarity, the Board will discuss certain preliminary matters. The issue on appeal will then be analyzed and a decision rendered. Stegall concerns As alluded to above, in June 2013, the Board remanded this claim and ordered the AOJ or AMC to provide the Veteran with VA examination regarding his benign prostatic hypertrophy and associate a report of the examination with his claims folder. The Veteran's claim was then to be readjudicated. Pursuant to the Board's remand instructions, the Veteran was provided a VA examination in August 2013 for his benign prostatic hypertrophy, and a report of the examination was associated with his claims folder. The Veteran's claim was readjudicated via the September 2013 SSOC. Accordingly, the Board's remand instructions have been complied with regarding the Veteran's claim of entitlement to service connection for benign prostatic hypertrophy. See Stegall v. West, 11 Vet. App. 268, 271 (1998) [where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance]. 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 defines 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). Notice The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2013), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2013), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require 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 the Secretary that is necessary to substantiate the claim. As part of the 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. The Board also notes that the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) requires that notice to a claimant pursuant to the VCAA be provided "at the time" that, or "immediately after," VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). In the case at hand, the record reflects that the originating agency provided the Veteran with the required notice by letters mailed in December 2005 and March 2006. The Veteran was notified as to what was required to substantiate his claim for service connection as well as the allocation of responsibilities between himself and VA. The March 2006 letter also provided notice with respect to the effective-date and rating elements of the claim. 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 (2013). In the instant case, the Board finds reasonable efforts have been made to assist the Veteran in obtaining evidence necessary to substantiate his claim. The evidence of record includes the Veteran's statements, his service treatment records, as well as VA and private treatment records. In general, VA's duty to assist includes obtaining records from the Social Security Administration (SSA). See Murincsak v. Derwinski, 2 Vet. App. 363 (1992). The record demonstrates that in March 2011, the RO attempted to obtain the Veteran's SSA records. In a subsequent April 2011 report, SSA informed VA that it did not have any of the requested records for the Veteran, that such records do not exist and that further efforts to obtain such records would be futile. The Veteran was informed of the negative response from the SSA in a statement of the case dated November 2011. Neither the Veteran nor his representative has since submitted or identified any outstanding evidence pertaining to his SSA records which could be obtained to substantiate the claims. The Veteran was afforded a VA examination in August 2013 for his benign prostatic hypertrophy. The examination report reflects that the examiner interviewed and examined the Veteran, reviewed his past medical history, reviewed his claims folder, documented his current medical condition, and rendered an opinion that was supported by a rationale. The Board therefore concludes that the VA examination report is adequate for evaluation purposes. See 38 C.F.R. § 4.2 (2013); 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]. Thus, the Board finds that under the circumstances of this case, VA has satisfied the notification and duty to assist provisions of the law and that no further action pursuant to the VCAA need be undertaken on the Veteran's behalf. The Board additionally observes that all appropriate due process concerns have been satisfied. See 38 C.F.R. § 3.103 (2013). The Veteran has been accorded the opportunity to present evidence and argument in support of his claim. He has retained the services of an accredited representative. He withdrew his request for a hearing before a Veterans Law Judge. Accordingly, the Board will proceed to a decision as to the issue of entitlement to service connection for benign prostatic hypertrophy. Service connection for benign prostatic hypertrophy The Veteran essentially contends that his benign prostatic hypertrophy is related to in-service herbicide exposure during his period of military service in Vietnam. Generally, service connection may be granted for disability or injury incurred in or aggravated by active military service. See 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2013). In order to establish service connection for the claimed disorder, there must be (1) evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). In certain cases, service connection can be presumed if a veteran was exposed to a herbicide agent during active service. Under the current Code of Federal Regulations (C.F.R.), presumptive service connection is warranted for the following disorders as related to exposure to herbicides: AL amyloidosis; chloracne or other acneform disease consistent with chloracne; Type II diabetes; Hodgkin's disease; chronic lymphocytic leukemia; multiple myeloma; non-Hodgkin's lymphoma; acute and subacute peripheral neuropathy; porphyria cutanea tarda; prostate cancer; respiratory cancers (cancer of the lung, bronchus, larynx, or trachea); ischemic heart disease; Parkinson's disease; hairy cell leukemia; and soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). 38 C.F.R. § 3.309(e) (2013). Benign prostatic hypertrophy is not among the listed conditions. Presumptive service connection for these disorders as a result of Agent Orange exposure is warranted if the requirements of 38 C.F.R. § 3.307(a)(6) are met, which include a presumption of exposure to herbicides for Veterans with service in Vietnam during specific time periods, or service in specific areas of Korea during specific time periods. 38 U.S.C.A. § 1116; 38 C.F.R. § 3.309(e). The Veteran's service personnel records confirm his service in the Republic of Vietnam. In-service exposure to herbicides is therefore conceded. However, as indicated above, benign prostatic hypertrophy is not among the conditions for which presumptive service connection is available based on herbicide exposure. See 38 C.F.R. §§ 3.307, 3.309(e). Accordingly, service connection for benign prostatic hypertrophy is not warranted on a presumptive basis as due to herbicide exposure. However, service connection may nevertheless be established by evidence demonstrating that disease was in fact incurred during service. See Combee v. Brown, 34 F.3d 1039, 1043-44 (Fed. Cir. 1994). Specifically, direct service connection can be established if the record contains competent medical evidence of a current disease process with a relationship to exposure to an herbicide agent while in military service. See 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303; Combee at 1043-44. As to current disability, the Veteran asserts that he has an enlarged prostate and the medical evidence of record documents a current diagnosis of benign prostatic hypertrophy. See, e.g., a private treatment record from G.G., D.O., dated October 2010. Element (1) is therefore satisfied. With respect to in-service disease, the Board notes that the Veteran's service treatment records, to include his April 1970 separation examination, are negative for complaints of, treatment for, or findings of benign prostatic hypertrophy. Indeed, the earliest document showing a history of symptoms related to benign prostatic hypertrophy is dated October 2001, more than 30 years after the Veteran's discharge from active duty. See a private treatment record from J.P., M.D., dated October 2001. Concerning in-service injury, the Board concedes the Veteran's in-service exposure to Agent Orange. Of particular importance in this regard is the fact that service personnel records confirm the Veteran's service in the Republic of Vietnam from January to August 1969. His exposure to herbicides is, therefore, presumed. See 38 U.S.C.A. § 1116(f). As discussed above, according to 38 C.F.R. § 3.309(e) (2013), certain diseases may be presumed to be related to exposure to herbicides; benign prostatic hypertrophy is not one of the listed diseases. Therefore, benign prostatic hypertrophy may not be presumed to be related to herbicide exposure. However, service connection based on direct causation may still be established pursuant to Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). Turning to crucial element (3), nexus, the Board has carefully evaluated the evidence and, for reasons stated immediately below, finds that a preponderance of the competent and probative evidence of record is against a finding that the Veteran's current benign prostatic hypertrophy is related to his military service. Specifically, the Veteran was afforded a VA examination in August 2013. In addition to the results of a current examination, the VA examiner noted that the opinion requested was whether it was at least as likely as not that the Veteran's disability is related to service, including presumed herbicide exposure therein. The VA examiner opined that it is less likely than not (less than 50 percent probability) that the Veteran's benign prostatic hypertrophy was incurred in or caused by his military service. The VA examiner's rationale for her conclusion was based on her review of the Veteran's medical history and his claims folder. She specifically noted that she could find no complaint of benign prostatic hypertrophy during the Veteran's military service. Moreover, she reported that benign prostatic hypertrophy is a common finding for the Veteran's age. The August 2013 VA examination report was based upon review of the record and an examination of the Veteran. See 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"]. Additionally, the August 2013 VA examiner's opinion is consistent with the Veteran's medical history, which is absent any symptomatology of benign prostatic hypertrophy for years after service. The Veteran has not submitted a medical opinion to contradict the VA examiner's opinion. As was explained in the VCAA section above, the Veteran has been accorded ample opportunity to present competent medical evidence in support of his claim. In relevant part, 38 U.S.C.A. 1154(a) (West 2002) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). "Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence"). The Board notes that the Veteran, while entirely competent to report his symptoms both current and past (including enlarged prostate), has presented no probative clinical evidence of a nexus between his benign prostatic hypertrophy and his military service. The Board finds that the Veteran as a lay person is not competent to associate any of his claimed symptoms to military service, to include exposure to herbicides. That is, the Veteran is not competent to opine on matters such as the etiology of his current benign prostatic hypertrophy. Such opinion requires specific medical training and is beyond the competency of the Veteran or any other lay person. In the absence of evidence indicating that the Veteran has the medical training to render medical opinions, the Board must find that his contention with regard to a nexus between his benign prostatic hypertrophy and his military service to be of no probative value. See also 38 C.F.R. § 3.159(a)(1) (2013) [competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions]. Accordingly, the statements offered by the Veteran in support of his own claim are not competent evidence of a nexus. The Board notes that it is aware of the provisions of 38 C.F.R. § 3.303(b), relating to chronicity and continuity of symptomatology in establishing service connection. However, the Federal Circuit has held that section 3.303(b) applies only to those chronic conditions specifically listed in 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The Veteran's benign prostatic hypertrophy is not such a listed disease entity. Therefore, establishment of service connection on the basis of continuity of symptomatology is not warranted as to this claim. Accordingly, element (3) is not met, and the Veteran's claim fails on this basis. In conclusion, for the reasons and bases expressed above the Board finds that the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for benign prostatic hypertrophy. The benefit sought on appeal is accordingly denied. ORDER Entitlement to service connection for benign prostatic hypertrophy, to include as due to herbicide exposure, is denied. REMAND Higher evaluation for diabetes mellitus and peripheral neuropathy of the right and left lower extremities With regard to the Veteran's claim of entitlement to an increased disability rating for diabetes, the Board remanded this claim for a VA examination in order to determine the current severity of his diabetes as well as his bilateral cataracts and other disabilities associated with the diabetes. Pursuant to the remand, the Veteran was provided a VA examination for his diabetes in August 2013. In addressing whether the Veteran has any disabilities associated with his diabetes, the VA examiner specifically noted diabetic nephropathy or renal dysfunction. However, she thereafter stated that he does not have a history or recurrent symptomatic urinary tract or kidney infections. As such, an examination of this disability was not provided. It is therefore unclear as to whether the Veteran suffers from diabetic nephropathy or a renal dysfunction as a complication of his diabetes. Pertinently, the regulations under Diagnostic Code 7913 (diabetes mellitus) stipulate that compensable complications of diabetes are to be evaluated separately, with noncompensable complications to be considered as part of the diabetic process. See 38 C.F.R. § 4.119, Diagnostic Code 7913, Note (1). The Board observes that the Veteran has not been afforded a VA examination for his diabetic nephropathy or renal dysfunction during the pendency of the appeal. Accordingly, the Board finds that such VA examination is warranted to ascertain whether the Veteran currently has diabetic nephropathy or a renal dysfunction as a complication of his diabetes, and if so, the current severity of the Veteran's diabetic nephropathy or renal dysfunction. See Charles v. Principi, 16 Vet. App. 370 (2002); McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also 38 C.F.R. § 3.159(c)(4) (2013) (holding a medical examination or opinion is necessary if the information and evidence of record does not contain sufficient medical evidence to decide the claim). The issues of entitlement to increased disability ratings for peripheral neuropathy of the right and left lower extremities are inextricably intertwined with the claim of entitlement to an increased rating for diabetes mellitus with bilateral cataracts as the Veteran's neuropathy has been found to be related to his service-connected diabetes. See 38 C.F.R. § 4.119, Diagnostic Code 7913 (criteria for a total rating consider complications that would be compensable if separately rated). Also, examination of disabilities associated with the Veteran's diabetes may impact the neuropathy claims. 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]. Service connection for a lung disability and upper respiratory disability With regard to the Veteran's claim of entitlement to service connection for a lung disability, the Board remanded this claim for a VA examination in order to determine whether the Veteran evidenced a lung disability that is related to his military service, to include his presumed exposure to asbestos from his military duties which involved repairing missile launchers and serving as a mechanic. If the Veteran did not evidence a current lung disability, the VA examiner was to opine as to whether the Veteran's previously diagnosed condition of silicosis in January 2004 resolved prior to filing his service connection claim in November 2005. Furthermore, with respect to the Veteran's claim of entitlement to service connection for an upper respiratory disability, the Board also remanded this claim for a VA examination in order to determine whether the Veteran's currently diagnosed allergic rhinitis or any other upper respiratory disability is related to his military service. Pursuant to the remand, the Veteran was provided a VA respiratory examination in August 2013. Notably, the VA examiner did not document the Veteran's in-service exposure to asbestos, his January 2004 diagnosis of silicosis, or his current diagnosis of allergic rhinitis. After examination of the Veteran, the examiner diagnosed the Veteran with asthma and asbestosis. She thereafter opined that the Veteran's diagnosed asthma is less likely than not (less than 50 percent probability) incurred in or caused by his military service. The examiner's rationale for her conclusion was based on the Veteran's report that he had asthma during childhood and that she could find no documentation of a "complaint of sinus condition" in the claims folder. Pertinently, the examiner did not render an opinion as to whether the Veteran's previously diagnosed silicosis in January 2004 resolved prior to November 2005 when he filed his claim for VA benefits, and if it did not, whether it or his diagnosed asbestosis is related to his military service, to include exposure to asbestos. Moreover, she did not render an opinion as to whether the Veteran's current allergic rhinitis is related to his military service. In light of the foregoing, the Board finds that another remand is warranted for compliance with the June 2013 Remand instructions. See Stegall v. West, 11 Vet. App. 268, 270 (1998) (holding that a remand by the Board imposes upon the Secretary of the VA a concomitant duty to ensure compliance with the terms of the remand). Additionally, in finding that the Veteran had asthma since childhood, the VA examiner appeared to indicate that the Veteran's asthma preexisted military service. A review of his February 1967 entrance examination is absent complaint of or treatment for asthma or any other respiratory disability. Thus, the Veteran is presumed to have been in sound condition upon entry. However, an opinion was not rendered as to whether it is clear and unmistakable that the Veteran's asthma preexisted military service and, if it did, whether it is clear and unmistakable that the asthma was not aggravated by service. See 38 U.S.C.A. §§ 1111, 1153 (West 2002), 1132; 38 C.F.R. §§ 3.304(b), 3.306 (2013); Wagner v. Principi, 370 F. 3d 1089 (Fed. Cir. 2004); VAOPGCPREC 3-2003. Service connection for pes planus and a left foot disability With regard to the Veteran's claim of entitlement to service connection for pes planus, the Board remanded this claim for a VA examination in order to determine whether this condition is a congenital or developmental defect or disease, and if so, whether there was a superimposed injury or disease in active duty that resulted in additional disability of the foot. Furthermore, if the condition is a disease, the examiner was to state whether there is clear and unmistakable evidence that pes planus pre-existed active service and if so, whether it is clear and unmistakable that it was not aggravated during service or whether it is clear and unmistakable that any increase was due to the natural progress. If the response to that question was negative, an opinion was to be rendered as to whether the Veteran's current pes planus is related to his military service. With respect to the Veteran's left foot disability, the Board also remanded this claim for a VA examination in order to determine whether his left foot disability, to include calluses of the left foot and plantar fasciitis, is related to his military service. Pursuant to the remand, the Veteran was provided a VA examination for his feet in August 2013. Although an examination of the Veteran's feet was provided, the VA examiner did not render an opinion as to whether the Veteran's left foot disability is related to his military service. Further, the VA examiner did opine that it is at least as likely as not that the Veteran's pes planus disability is related to his military service. However, the examiner's rationale for this conclusion was based on her review of the Veteran's service entrance and separation examinations records which she indicated were normal. She further reported that the Veteran's claims folder was silent for complaints of a foot disability. It is therefore unclear as to what the VA examiner based her conclusion on in finding that the Veteran's pes planus is related to his military service. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998) [the failure of the health care provider to provide a basis for his/her opinion goes to the weight or credibility of the evidence]. Moreover, the examiner did not render an opinion as to whether the Veteran's pes planus was a congenital defect or developmental defect or disease, and if so, whether there was a superimposed injury or disease in active duty that resulted in additional disability of the foot. Furthermore, the examiner did not address if the condition is a disease, whether there is clear and unmistakable evidence that pes planus pre-existed active service and if so, whether it is clear and unmistakable that it was not aggravated during service or whether it is clear and unmistakable that any increase was due to the natural progress. In light of the foregoing, the Board finds that another remand is warranted for compliance with the June 2013 Remand instructions. See Stegall, supra. Service connection for sleep apnea The Board remanded the Veteran's claim of entitlement to service connection for sleep apnea for a VA examination in order to determine whether the Veteran's sleep apnea is related to his military service. Pursuant to the remand, the Veteran was provided a VA examination for his sleep apnea in August 2013. After examination of the Veteran and review of his claims folder, the VA examiner concluded that it is less likely than not (less than 50 percent probability) that the Veteran's sleep apnea is related to his military service. The examiner's rationale for her conclusion was based on her finding of no evidence of sleep apnea in the claims folder, to include during service or one year thereafter. In his October 2013 Informal Hearing Presentation (IHP), the Veteran contended that his sleep apnea, in addition to being related to his military service, is alternatively secondary to his service-connected diabetes. In this connection, the Veteran submitted a medical article dated July 2002 which suggests a relationship between sleep apnea and diabetes. There is no medical opinion of record which suggests a relationship between the Veteran's sleep apnea and his service-connected diabetes. In light of the foregoing, the Board is of the opinion that a clarifying medical opinion would assist in ascertaining whether the Veteran's sleep apnea is related to his service-connected diabetes. See Charles and McLendon, both supra; see also 38 C.F.R. § 3.159(c)(4) (2013) (holding a medical examination or opinion is necessary if the information and evidence of record does not contain sufficient medical evidence to decide the claim). TDIU The claim of entitlement to TDIU is inextricably intertwined with the claims remanded herein. In other words, the resolution of the Veteran's claims for service connection and increased ratings may impact his claim for TDIU. 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]. Accordingly, action on the TDIU claim is deferred at this time. Accordingly, the case is REMANDED for the following action: 1. The Veteran should be provided the required notice as to how to establish service connection on a secondary basis pursuant to 38 C.F.R. § 3.159. 2. Thereafter, the Veteran should be afforded an examination to determine whether he has nephropathy or renal dysfunction associated with his diabetes. The claims folder and a copy of this Remand must be made available to the examiner who should indicate on the examination report that the folder was reviewed in conjunction with the examination. All tests and studies deemed necessary by the examiner should be performed. Based on a review of the claims folder and the clinical findings of the examination, the examiner must thereafter provide an opinion as to whether it is at least as likely as not (i.e. 50 percent or greater probability) that the Veteran evidences nephropathy or a renal dysfunction as a complication of his diabetes. A complete rationale should be given for all opinions and conclusions expressed in a typewritten report. 3. Obtain a supplemental opinion from the examiner who conducted the August 2013 VA examination with regard to the Veteran's lung disability, upper respiratory disability, pes planus, left foot disability, and sleep apnea. If the examiner is not available, obtain an opinion from another appropriate medical professional with sufficient expertise to discuss these disabilities. If the reviewer determines that additional examination of the Veteran is necessary to provide a reliable opinion, such examination should be scheduled. However, the Veteran should not be required to report for another examination as a matter of course, if it is not found to be necessary. The claims file must be made available to and reviewed by the reviewer/examiner. The reviewer must thereafter provide an opinion as to the following: a) Whether it is at least as likely as not (i.e. 50 percent or greater probability) that the Veteran's diagnosis of asbestosis at the August 2013 VA examination is related to his period of military service, to include his claimed exposure to asbestos. The examiner's attention is directed to the January 9, 2004 chest X-ray indicating an impression of silicosis. b) Whether it is clear and unmistakable (obvious, manifest, and undebatable) that the Veteran's diagnosed asthma pre-existed active service. Please provide a complete explanation for the opinion. c) If so, state whether it is clear and unmistakable (obvious, manifest, and undebatable) that pre-existing asthma WAS NOT aggravated (i.e., permanently worsened) during service or whether it is clear and unmistakable (obvious, manifest, and undebatable) that any increase was due to the natural progress. Please provide a complete explanation for the opinion. d) If the response above is negative, provide an opinion as to whether it is at least as likely as not (i.e. 50 percent or greater probability) that the Veteran's current asthma began in or is etiologically related to his period of his military service, to include as a result of claimed asbestos exposure therein. e) Is it at least as likely as not (i.e. 50 percent or greater probability) that the Veteran's current upper respiratory disability, including allergic rhinitis, began in or is etiologically related to his period of his military service. See private treatment records dated October 27, 2005 and January 17, 2011 reflecting a diagnosis of allergic rhinitis during the period of time that is covered by this claim for service connection. f) With respect to flat feet, address whether it is a congenital or developmental defect or disease. [Note: a disease generally refers to a condition that is considered capable of improving or deteriorating while a defect is generally not considered capable of improving or deteriorating. VAOPGCPREC 82-90 (1990) (citing Durham v. United States, 214 F.2d 862, 875 (D.C. Circuit 1954)]. Please provide a complete explanation for the opinion. g) If it is a congenital or developmental defect, explain whether it is at least as likely as not (a probability of 50 percent or greater) that there was a superimposed injury or disease in active duty that resulted in additional disability of the foot. Please provide a complete explanation for the opinion. h) If it is a disease, state whether it is clear and unmistakable (obvious, manifest, and undebatable) that pes planus pre-existed active service. Please provide a complete explanation for the opinion. i) If so, state whether it is clear and unmistakable (obvious, manifest, and undebatable) that pre-existing pes planus WAS NOT aggravated (i.e., permanently worsened) during service or whether it is clear and unmistakable (obvious, manifest, and undebatable) that any increase was due to the natural progress. Please provide a complete explanation for the opinion. j) If a response above is negative, provide an opinion as to whether it is at least as likely as not (i.e. 50 percent or greater probability) that the Veteran's current pes planus disability began in or is etiologically related to his period of his military service. k) Provide an opinion as to whether it is at least as likely as not (i.e. 50 percent or greater probability) that the Veteran's left foot disability (other than pes planus), to include calluses of the left foot and plantar fasciitis, began in or is etiologically related to his period of his military service. l) Provide an opinion as to whether it is at least as likely as not (i.e. 50 percent or greater probability) that the Veteran's sleep apnea began in or is etiologically related to his period of his military service. m) Is it at least as likely as not (i.e. 50 percent or greater probability) that the Veteran's sleep apnea is caused by his service-connected diabetes. n) Is it at least as likely as not that the Veteran's sleep apnea is aggravated by the service-connected diabetes. By aggravation, the Board means an increase in the severity of the disability that is beyond natural progression. Regarding sleep apnea, the examiner's attention is directed to the medical literature that the representative submitted with the October 2013 informal hearing presentation. It would be helpful if the reviewer would use the following language, as may be appropriate: "more likely than not" (meaning likelihood greater than 50%), "at least as likely as not" (meaning likelihood of at least 50%), or "less likely than not" or "unlikely" (meaning that there is a less than 50% likelihood). The term "at least as likely as not" does not mean "within the realm of medical possibility." Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. The reviewer should explain the reasons behind any opinions provided. 4. After completing the above action, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claims should be readjudicated. If the claims remain denied, a supplemental statement of the case should be provided to the Veteran and his representative. After the Veteran has had an adequate opportunity to respond, the appeal should be returned to the Board for appellate review. The Veteran 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. 2013). ______________________________________________ S.S. TOTH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs