Citation Nr: 1801578 Decision Date: 01/10/18 Archive Date: 01/23/18 DOCKET NO. 12-16 378 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Providence, Rhode Island THE ISSUES 1. Entitlement to service connection for obstructive sleep apnea. 2. Entitlement to service connection for a sinus disability. 3. Entitlement to service connection for a right knee disability. 4. Entitlement to service connection for a right foot disability. 5. Entitlement to service connection for a left foot disability. 6. Entitlement to service connection for a skin disability, to include as a qualifying chronic disability under 38 C.F.R. § 3.317. 7. Entitlement to an initial disability rating greater than 10 percent for service-connected essential arterial hypertension. 8. Entitlement to an initial disability rating greater than 10 percent for service- connected cardiac hypertrophy prior to February 24, 2017, and greater than 30 percent thereafter. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD D. Orfanoudis, Counsel INTRODUCTION The Veteran had active service from December 1988 to March 1998. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2011 decision by the Department of Veterans Affairs (VA), Regional Office (RO), in Roanoke, Virginia. Jurisdiction is currently with the RO located in Providence, Rhode Island. In July 2013, the Veteran submitted a claim for entitlement to a total disability rating based on individual unemployability (TDIU). However, in August 2013, he withdrew his claim for a TDIU. The issues of service connection for obstructive sleep apnea, a sinus disorder, a right knee disability, a right and left foot disability, and a skin disability are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. Hypertension has not been shown to be productive of diastolic pressure predominantly 110 or more, or systolic pressure predominantly 200 or more. 2. Prior to February 24, 2017, the Veteran's cardiac disability was not shown to be productive of a workload of greater than five METs, but not greater than seven METs, resulting in dyspnea, fatigue, angina, dizziness, or syncope; or of cardiac hypertrophy or dilatation. 3. From February 24, 2017, the Veteran's cardiac disability was not shown to be productive of more than one episode of acute congestive heart failure in the preceding year; of workload of greater than three METs but not greater than five METs resulting in dyspnea, fatigue, angina, dizziness, or syncope; or of left ventricular dysfunction with an ejection fraction of 30 to 50 percent. CONCLUSIONS OF LAW 1. The criteria for an initial disability rating greater than 10 percent for service-connected hypertension have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (West 2012); 38 C.F.R. § 4.104, Diagnostic Code 7101 (2017). 2. The criteria for an initial disability rating greater than 10 percent for service- connected cardiac hypertrophy prior to February 24, 2017, and greater than 30 percent thereafter, have not been met. 38 U.S.C. §§ 1155, 5107(b) (West 2012); 38 C.F.R. §§ 4.1, 4.104, Diagnostic Codes 7000, 7020 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2012), 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2017), requires VA to assist a claimant at the time that he or she files a claim for benefits. As part of this assistance, VA is required to notify claimants of what they must do to substantiate their claims. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that the claimant is to provide; and (3) that VA will attempt to obtain. See Beverly v. Nicholson, 19 Vet. App. 394, 403 (2005). In addition, the notice requirements of the VCAA apply to all five elements of a service-connection claim, including: (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 of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Specifically, the notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. By letters dated in February 2010, March 2011, and August 2013 the Veteran was notified of the evidence not of record that was necessary to substantiate his claim. He was told what information that he needed to provide, and what information and evidence that VA would attempt to obtain. He was also provided with the requisite notice with respect to the Dingess requirements. Under these circumstances, the Board finds that the notification requirements of the VCAA have been satisfied. The issues being adjudicated herein se are appeals arising from an initial grant of service connection; and as the notice that was provided before service connection was granted was legally sufficient, VA's duty to notify the Veteran in this case has been satisfied. See Hartman v. Nicholson, 483 F.3d 1311 (2006); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Nevertheless, in the above mentioned letters and other correspondence provided by the RO, the Veteran was notified of the type of evidence needed to substantiate the claims, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, as well as general notice regarding how disability ratings and effective dates are assigned. Next, the VCAA requires that VA make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate a claim. The Veteran's relevant service, VA, and private medical treatment records have been obtained. There is no indication of any additional, relevant records that the RO failed to obtain. The Veteran has been medically evaluated. In sum, the Board finds that the duty to assist and duty to notify provisions of the VCAA have been fulfilled and no further action is necessary under the mandates of the VCAA. Increased Disability Ratings Disability ratings are intended to compensate impairment in earning capacity due to a service-connected disorder. 38 U.S.C. § 1155. Separate diagnostic codes identify the various disabilities. Id. It is necessary to rate the disability from the point of view of the Veteran working or seeking work, 38 C.F.R. § 4.2, and to resolve any reasonable doubt regarding the extent of the disability in the Veteran's favor. 38 C.F.R. § 4.3. If there is a question as to which disability rating to apply to the Veteran's disability, the higher rating will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41 (2017). Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2 (2017); Peyton v. Derwinski, 1 Vet. App. 282 (1991). While the Veteran's entire history is reviewed when assigning a disability rating, 38 C.F.R. § 4.1, where service connection has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). Where the Veteran is appealing the initial assignment of a disability rating, the severity of the disability is to be considered during the entire period from the initial assignment of the disability rating to the present time. Fenderson v. West, 12 Vet. App. 119 (1999). Additionally, in determining the present level of a disability for any increased rating claim, the Board must consider the application of staged ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary. Essential Arterial Hypertension The Veteran asserts that his hypertension warrants an initial disability rating greater than 10 percent. His hypertension has been rated pursuant to 38 C.F.R. § 4.104, Diagnostic Code 7101, that provides that hypertensive vascular disease (hypertension and isolated systolic hypertension) with diastolic pressure predominantly 100 or more, or; systolic pressure predominantly 160 or more warrants a 10 percent disability rating. Additionally, 10 percent is the minimum disability rating for an individual with a history of diastolic pressure predominantly 100 or more who requires continuous medication for control. A 20 percent disability rating is warranted when diastolic pressure is predominantly 110 or more, or; systolic pressure is predominantly 200 or more. A 40 percent disability rating is assigned when diastolic pressure is predominantly 120 or more. A 60 percent disability rating is warranted when diastolic pressure is predominantly 130 or more. A VA examination conducted in June 2011 shows that the Veteran had been diagnosis with hypertension since 1992. The Veteran described symptoms of elevated blood pressure, dizziness, and dry mouth. He was being treated with daily blood pressure medication with good response with no side effects. The Veteran added that he did not experience any overall functional impairment as a result of this condition. Physical examination revealed blood pressure readings of 137/87, 127/93, and 145/90. The diagnosis was essential arterial hypertension. A VA outpatient treatment record dated from September 2013 to October 2016 show that multiple intermittent blood pressure readings were taken during this time period, with no diastolic pressure readings of 100 or more, and no systolic pressure readings of 200 or more. The hypertension was consistently said to be well controlled. A VA hypertension examination report dated in February 2017 shows that the Veteran was diagnosed with hypertension that was said to be well controlled with medication. Physical examination revealed blood pressure readings of 125/90, 128/85, and 139/84. The average blood pressure reading was 130/86. The examiner indicated that the Veteran did not have a history of diastolic blood pressure elevation to predominantly 100 or more. There were no other pertinent findings associated with the hypertension, which was found not to impact his ability to work. Applying the applicable Diagnostic Code rating criteria to the facts of this case, the Board finds no basis to assign a disability rating higher than 10 percent for the Veteran's service-connected essential arterial hypertension. As indicated above, in order to warrant the assignment of a disability rating greater than 10 percent, the medical evidence of record must show that the Veteran's hypertension is manifested by diastolic pressure that is predominantly 110 or more, or; systolic pressure that is predominantly 200 or more. The medical evidence of record over the entire course of this appeal has never shown systolic pressure of 200 or more. Similarly, there were no instances in which the diastolic pressure was 110 or more. The Board has considered the statements of the Veteran as to the extent of his current symptoms. He is certainly competent to report that his symptoms are worse. Layno v. Brown, 6 Vet. App. 465, 470 (1994). However, in evaluating a claim for an increased schedular rating, VA must consider the factors as enumerated in the rating criteria discussed above, which in part involves the examination of clinical data gathered by competent medical professionals. Cardiac Hypertrophy The Veteran asserts that his cardiac disability warrants an initial disability rating greater than 10 percent prior to February 24, 2017, and greater than 30 percent since then. His cardiac disability was initially rated 10 percent disabling pursuant to the criteria for Diagnostic Code 7000, which addresses valvular heart disease. Under Diagnostic Code 7000, a 10 percent disability rating is assigned when a workload of greater than seven METs (metabolic equivalent), but not greater than 10 METs, results in dyspnea, fatigue, angina, dizziness, or syncope; or, continuous medication is required. A 30 percent disability rating is warranted when a workload of greater than five METs, but not greater than seven METs, results in dyspnea, fatigue, angina, dizziness, or syncope; or, there is evidence of cardiac hypertrophy or dilatation on electrocardiogram, echocardiogram, or X-ray. A 60 percent disability rating is assigned when the symptoms manifest in the following ways: more than one episode of acute congestive heart failure in the past year, or; workload of greater than three METs but not greater than five METs results in dyspnea, fatigue, angina, dizziness, or syncope, or; left ventricular dysfunction with an ejection fraction of 30 to 50 percent. A 100 percent disability rating is assigned during active infection with valvular heart damage and for three months following cessation of therapy for the active infection, and thereafter, with valvular heart disease (documented by findings on physical examination and either echocardiogram, Doppler echocardiogram, or cardiac catheterization) resulting in: chronic congestive heart failure, or; workload of three METs or less results in dyspnea, fatigue, angina, dizziness, or syncope, or; left ventricular dysfunction with an ejection fraction of less than 30 percent. 38 C.F.R. § 4.104, Diagnostic Code 7000. When the level of METs at which dyspnea, fatigue, angina, dizziness, or syncope develops is required for evaluation, and a laboratory determination of METs by exercise testing cannot be done for medical reasons, an estimation by a medical examiner of the level of activity (expressed in METs and supported by specific examples, such as slow stair climbing or shoveling snow) that results in dyspnea, fatigue, angina, dizziness, or syncope may be used. 38 C.F.R. § 4.104, Note 2. From February 24, 2017, the Veteran's disability has been rated pursuant to the rating criteria for cardiomyopathy as listed in Diagnostic Code 7020. Under these criteria, cardiomyopathy warrants a 10 percent disability rating when the evidence shows workload of greater than seven METs but not greater than 10 METs resulting in dyspnea, fatigue, angina, dizziness, or syncope; or, continuous medication is required. A 30 percent disability rating is assigned for workload of greater than five METs but not greater than seven METs resulting in dyspnea, fatigue, angina, dizziness, or syncope; or, there is evidence of cardiac hypertrophy or dilatation on electrocardiogram, echocardiogram, or X-ray. A 60 percent disability rating is warranted if there is more than one episode of acute congestive heart failure in the past year; or, workload of greater than three METs but not greater than five METs resulting in dyspnea, fatigue, angina, dizziness, or syncope; or, there is left ventricular dysfunction with an ejection fraction of 30 to 50 percent. A 100 percent disability rating is appropriate for chronic congestive heart failure; or, workload of three METs or less resulting in dyspnea, fatigue, angina, dizziness, or syncope; or, there is left ventricular dysfunction with an ejection fraction of less than 30 percent. 38 C.F.R. § 4.104, Diagnostic Code 7020. A VA hypertension examination conducted in June 2011 revealed that the Veteran was found to have hypertrophic cardiomyopathy related to the hypertension. Physical examination revealed the size of the heart was normal which was determined by point of maximal impulse located at the fifth intercostal space mid-clavicular line. Heart sound and quality therein was reported as normal. Rhythm and palpation were normal. Auscultation was 2/6 systolic ejection murmur. There was no evidence of congestive heart failure, cardiomegaly, or cor pulmonale. The Veteran reported a history of a murmur since 2011. He would experience fatigue, but had no shortness of breath, dizziness, or syncope attacks. The symptoms described would occur constantly. He reported no history of congestive heart failure, rheumatic heart disease, heart valve replacement, coronary bypass, angioplasty, cardiac transplant, cardiac pacemaker implant, AICD (Automatic Implantable Cardioverter Defibrillator) implant, or myocardial infarction. He was not receiving any treatment for his condition. He added that he did not experience any overall functional impairment from his condition. Examination did not show any evidence of congestive heart failure, cardiomegaly, or cor pulmonale. A stress test was not performed due to no history of angina. Electrocardiogram (EKG) was within normal limits. Additional testing was needed to confirm the diagnosis. Echocardiogram (ECHO) results were normal for left ventricular size and function. Ejection fraction was 65 to 75 percent. There was mild mitral regurgitation, trace tricuspid regurgitation, and trace aortic insufficiency. There was mild pulmonic insufficiency, but no significant valvular stenosis or insufficiency. The estimated METs level was greater than 7 but not greater than 10 as this METs level would be consistent with a claimant who has cardiac functioning to perform the following types of activities: climbing stairs quickly, moderate bicycling, sawing wood, and jogging (six miles per hour). The diagnosis was cardiac mild valvulopathy. The subjective factors were fatigue. The objective factors were murmur noted on physical examination; normal ECHO results; normal left ventricular size and function; ejection fraction of 65 to 75 percent; mild mitral regurgitation; trace tricuspid regurgitation; trace aortic insufficiency; mild pulmonic insufficiency; and no significant valvular stenosis or insufficiency. A VA heart conditions examination report dated in February 2017 shows that the Veteran indicated that he did not know what type of cardiac valve problem he had. He was not currently followed for a heart valve problem that he was aware of. He reported working eight hour shifts in a warehouse, and walking a lot at work. He would walk on weekends one and a half to two miles, and would feel tired at the end of the walk. He would mow the lawn which would take approximately an hour and a half with a push mower with fatigue at the end of the task. Continuous medication was not required for the heart condition. There was no history of a myocardial infarction, congestive heart failure, arrhythmia, a heart valve condition, infectious cardiac conditions, pericardial adhesions, non-surgical or surgical procedures for the treatment of a heart condition, or any other hospitalizations for the treatment of a heart condition. ECHO testing revealed cardiac hypertrophy, and left ventricular ejection fraction of 55 to 60 percent, with normal wall motion and mild concentric left ventricular hypertrophy. Examination of the heart was otherwise within normal limits. Exercise stress testing was not performed as it was not required as part of the Veteran's current treatment plan and not without significant risk, and there was no estimated MET level based solely on the cardiac condition. The heart condition did not impact his ability to work, and exercise tolerance was limited by reactive airway disease and morbid obesity. Having carefully considered the evidence of record, the Board finds that an initial disability rating greater than 10 percent for the Veteran's heart disability prior to February 24, 2017, is not warranted. In this regard, the evidence of record in the specified time period did not demonstrate a workload between five and seven METs resulting in dyspnea, fatigue, angina, dizziness, or syncope. There was also no evidence of cardiac hypertrophy or dilatation such that the criteria for the next higher 30 percent under either Diagnostic Code 7000 or 7020 would be warranted. Following examination in February 2017, while the evidence of record showed that an estimated MET level based solely on the cardiac condition could not be provided, it did provide evidence of cardiac hypertrophy with left ventricular ejection fraction of 55 to 60 percent. As there was evidence of cardiac hypertrophy on ECHO, a 30 percent disability rating is warranted under either Diagnostic Code 7020 (given that cardiomyopathy better describes the disability, rather than valvular heart disease). There is no evidence of record to suggest that there has been more than one episode of acute congestive heart failure in the preceding year; or, workload of greater than three METs but not greater than five METs resulting in dyspnea, fatigue, angina, dizziness, or syncope; or, left ventricular dysfunction with an ejection fraction of 30 to 50 percent, such that the next higher 60 percent disability rating would be warranted. The Board has considered the statements of the Veteran as to the extent of his current symptoms. He is certainly competent to report that his symptoms are worse. See Layno, 6 Vet. App. at 470. However, in evaluating a claim for an increased schedular rating, VA must consider the factors as enumerated in the rating criteria discussed above, which in part involves the examination of clinical data gathered by competent medical professionals. ORDER An initial disability rating greater than 10 percent for service-connected essential arterial hypertension is denied. An initial disability rating greater than 10 percent for service-connected cardiac hypertrophy prior to February 24, 2017, and greater than 30 percent thereafter, is denied. REMAND Unfortunately, a remand is required in this case as to the issues of service connection for obstructive sleep apnea, a sinus disorder, a right knee disability, a right and left foot disability, and a skin disability. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration. VA has a duty to make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C. § 5103A(a) (West 2012); 38 C.F.R. § 3.159(c), (d) (2017). Obstructive Sleep Apnea and Sinus Disability In the June 2012 Appeal To Board Of Veterans' Appeals (VA Form 9), the Veteran asserts that he has a respiratory disorder manifested by hay fever and sinus symptoms that were the result of his period of active service. He specifically described being exposed to asbestos during service aboard USS SAVANNAH (AOR-4). He further asserted that his obstructive sleep apnea was related to his respiratory symptoms. A review of the Veteran's claims file reveals that it does not appear that the necessary development to determine whether the Veteran was exposed to asbestos has been undertaken, thus, it must be accomplished on remand. If evidence of in-service asbestos exposure is found, a VA examination is then warranted to determine whether the Veteran has a current asbestosis disability. Regardless, a VA medical opinion must be provided as to whether the Veteran has a current respiratory disability that is etiologically related to the multiple findings of hay fever, sinus disorder, and upper respiratory infections noted in the service treatment records. See McLendon v. Nicholson, 20 Vet. App. 79 (2006); 38 U.S.C. § 5103A (d)(2); and 38 C.F.R. § 3.159 (c)(4). Right Knee Disability In the June 2012 VA Form 9, the Veteran asserts that he sustained a right knee injury in service at the same time that he injured his service-connected left knee. He described an event in March 1997 that occurred while on police boat patrol around Naval Station Roosevelt Roads in Puerto Rico. He added that at the time of treatment, the left knee was deemed to be worse than the right, but that his right knee has become more symptomatic. A service treatment records dated in March 1997 shows that the Veteran was said to have longstanding left knee pain with crepitus during range of motion. He denied any recent or remote trauma. He had a history of bilateral shin splints, and had taken over-the-counter medication for knee pain with some relief. Physical examination revealed left knee patella was much more lax than the right but with pain with some relief. X-ray revealed small osteophyte on the patella, but otherwise ok. The assessment was left knee pain. A VA examination report dated in January 2012 shows that the Veteran, in pertinent part, was diagnosed with patellofemoral pain syndrome in both knees. While the VA examiner addressed the etiology of the left knee disorder, an opinion was not provided regarding the right knee. A lay statement from the Veteran's mother dated in March 2010 reiterates that the Veteran had reported knee symptoms to her both during and after his period of active service. She added that he had no such symptoms prior to his entrance into active service. In light of the evidence of a current right knee disability, the asserted linkage between the Veteran's disability and active service, and the service treatment records suggesting right some level of right knee symptoms along with a history of bilateral shin splints, the Board believes a medical nexus opinion is needed to fairly decide this appeal. VA's duty to assist includes the duty to conduct a thorough and contemporaneous medical evaluation which is accurate and fully descriptive. See McLendon, 20 Vet. App. at 79. When medical evidence is inadequate, VA must supplement the record by seeking an advisory opinion or ordering another medical examination. Colvin v. Derwinski, 1 Vet. App. 171 (1991); Hatlestad v. Derwinski, 3 Vet. App. 213 (1992); see also Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Right and Left Foot Disability In the June 2012 VA Form 9, the Veteran asserts that he sustained a right ankle injury during active service aboard the USS SAVANNAH in June 1991. Service treatment records confirm that the Veteran was treated for a possible right ankle fracture at that time, and that he has developed right foot arthritis as a result. The Veteran also described being treated in January 1989 for sore and yellowing feet, identified as trench foot, as well as in-grown toe nails in the feet. A service treatment record dated in March 1996 shows treatment for an in-grown toe nail of the right great foot. A service treatment record dated in October 1997 shows that the Veteran reported that the right foot great toe nail would get infected all the time. Following service, private outpatient treatment records show treatment for symptoms involving the right ankle, the feet, and the great toes. A lay statement from the Veteran's mother dated in March 2010 reiterates that the Veteran had reported right and left foot symptoms to her both during and after his period of active service. She added that he had no such foot symptoms prior to his entrance into active service. In light of the evidence of a current bilateral foot symptoms, the asserted linkage between the Veteran's disability and active service, and the service treatment records suggesting a right ankle fracture, along with ingrown toe nails, the Board believes a medical nexus opinion is needed to fairly decide this appeal. VA's duty to assist includes the duty to conduct a thorough and contemporaneous medical evaluation which is accurate and fully descriptive. See McLendon, 20 Vet. App. at 79. When medical evidence is inadequate, VA must supplement the record by seeking an advisory opinion or ordering another medical examination. Colvin, 1 Vet. App. at 175; Hatlestad, 3 Vet. App. at 216; see also Barr, 21 Vet. App. at 311. Skin Disability In the June 2012 VA Form 9, the Veteran asserts that he had experienced various skin ailments during his period of active service, which have intermittently continued ever since. Service treatment records show that the Veteran was treated during service for tinea cruris in January 1990, an arm rash in May 1989, lice in May 1991, an abscess in May 1992, and cellulitis in April and September 1992. As indicated above, he also reported being treated for trench foot in January 1989. While the Veteran underwent a VA skin examination in May 2017, the examiner only discussed the asserted cellulitis and an associated scar. There is no opinion provided as to the remaining asserted skin disorders. As such, a new VA examination is required to determine the nature and etiology of the asserted disorder. See Colvin, 1 Vet. App. at 175; Hatlestad, 3 Vet. App. at 216; see also Barr, 21 Vet. App. at 311. The Board notes that the asserted disability is of the nature that is subject to periodic flare-ups and periods of waxing and waning. Therefore, an effort should be made, to the extent possible, to schedule the Veteran for examination during an active period of his asserted disability so as to determine the nature and etiology of any skin disorder. See Ardison v. Brown, 6 Vet. App. 405, 407 (1994) (when a claimant's medical history indicates that a Veteran's condition undergoes periods of remission and recurrence, VA is required to provide a medical examination during the period of recurrence); Voerth v. West, 13 Vet. App. (1999) (feasibility of scheduling an examination during an exacerbation is a factor in determining whether VA has a duty to provide such an examination). Accordingly, the case is REMANDED for the following action: 1. The AOJ shall ask the Veteran to identify all locations of VA treatment or evaluation for his asserted disabilities and contact each VA medical facility identified by the Veteran to obtain ongoing medical treatment records pertaining thereto. All records obtained must be associated with the Veteran's claims file. 2. The AOJ shall determine whether the Veteran was exposed to asbestos during service. 3. The AOJ shall schedule the Veteran for a VA examination with an appropriate physician so as to determine the nature and etiology of his asserted sinus condition, to include any respiratory disorder, including as due to asbestos exposure. All studies and tests deemed necessary by the examiner are to be performed. A copy of this remand and all relevant medical records should be made available to the examiner, to include the Veteran's allegations of asbestos exposure. The examiner is requested to address the following: (a) Is it at least as likely as not that any diagnosed sinus or respiratory disorder is etiologically related to service, to include treatments for a sinus condition, hay fever, and upper respiratory infections? (b) If and only in asbestos exposure during active duty is conceded, please also opine as to whether it is at least as likely as not that any such diagnosed disorder is a result of such exposure. (c) If it is determined that a sinus or respiratory disability is etiologically related to service, please also opine as to the following: (i) Whether it is at least as likely as not that any diagnosed obstructive sleep apnea was caused (in whole or in part) by such service-connected disability; and (ii) Whether it is at least as likely as not that any diagnosed obstructive sleep apnea is aggravated (made worse as shown by comparing the current disability to medical evidence created prior to any aggravation) by such service-connected disability? If the Veteran's obstructive sleep apnea is aggravated by such service-connected disability, the examiner should also indicate the extent of such aggravation by identifying the baseline level of disability. (d) If it is determined that a sinus or respiratory disability is not etiologically related to service, please opine as to whether it is at least as likely as not that any diagnosed obstructive sleep apnea is directly etiologically related to active service. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. If the examiner rejects the Veteran's reports of symptomatology, he or she must provide a reason for doing so. The absence of evidence of treatment for a particular sinus disorder, respiratory disorder, to include asbestosis, or sleep apnea in the Veteran's service treatment records cannot, standing alone, serve as the basis for a negative opinion. If the examiner is unable to provide an opinion without resort to speculation, he or she should explain why this is so and what if any additional evidence would be necessary before an opinion could be rendered. The examiner must provide a rationale for each opinion given. 4. The AOJ shall schedule the Veteran for a VA examination by an appropriate physician so as to determine the nature and etiology of his asserted right knee disability. The claims file, to include a copy of this Remand, must be sent to the examiner for review; consideration of such should be reflected in the completed examination report. All tests and studies deemed necessary by the examiner must be conducted. The examiner is requested to opine as to whether it at least as likely as not that the Veteran has a right knee disability that had its onset in service, had its onset in the year immediately following any period of service, or is otherwise the result of a disease or injury in service, to include a March 1997 in-service incident? The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. If the examiner rejects the Veteran's reports of symptomatology, he or she must provide a reason for doing so. The absence of evidence of treatment for a particular right knee disability in the Veteran's service treatment records cannot, standing alone, serve as the basis for a negative opinion. If the examiner is unable to provide an opinion without resort to speculation, he or she should explain why this is so and what if any additional evidence would be necessary before an opinion could be rendered. The examiner must provide a rationale for each opinion given. 5. The AOJ shall schedule the Veteran for a VA examination by an appropriate physician so as to determine the nature and etiology of his asserted right and left foot disabilities. The claims file, to include a copy of this Remand, must be sent to the examiner for review; consideration of such should be reflected in the completed examination report. All tests and studies deemed necessary by the examiner must be conducted. The examiner is requested to opine as to whether it at least as likely as not that the Veteran has a right and/or left foot disability that had its onset in service, had its onset in the year immediately following any period of service, or is otherwise the result of a disease or injury in service, to include as a result of June 1991 treatment for a possible right ankle fracture and treatment for sore feet, trench foot, and in-grown toe nails. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. If the examiner rejects the Veteran's reports of symptomatology, he or she must provide a reason for doing so. The absence of evidence of treatment for a particular right or left foot disability in the Veteran's service treatment records cannot, standing alone, serve as the basis for a negative opinion. If the examiner is unable to provide an opinion without resort to speculation, he or she should explain why this is so and what if any additional evidence would be necessary before an opinion could be rendered. The examiner must provide a rationale for each opinion given. 6. The AOJ shall schedule the Veteran for a VA examination by an appropriate physician so as to determine the nature and etiology of his asserted skin disorder. The claims file, to include a copy of this Remand, must be sent to the examiner for review; consideration of such should be reflected in the completed examination report. All tests and studies deemed necessary by the examiner must be conducted. Based on the examination results and a review of the record, the examiner should provide a diagnosis regarding each of the Veteran's skin complaints. The examiner shall then provide an opinion, with respect to each diagnosed disability, as to whether it, at least as likely as not, had its onset during, or is etiologically related to, the Veteran's period of active service. In offering any opinion, the examiner must consider the full record, to include the Veteran's lay statements regarding onset and continuity of symptomatology, to include consideration that skin symptoms may wax and wane over time. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. If the examiner rejects the Veteran's reports of symptomatology, he or she must provide a reason for doing so. The absence of evidence of treatment for a particular skin disability in the Veteran's service treatment records cannot, standing alone, serve as the basis for a negative opinion. If the examiner is unable to provide an opinion without resort to speculation, he or she should explain why this is so and what if any additional evidence would be necessary before an opinion could be rendered. The examiner must provide a rationale for each opinion given. 7. The AOJ will then readjudicate the Veteran's claims. If the benefits sought on appeal remain denied, the Veteran and his representative should be provided with a Supplemental Statement of the Case. An appropriate period of time should be allowed for response. Thereafter, if appropriate, the case is to be returned to the Board, following applicable appellate procedure. The Veteran need take no action until he is so informed ; however, the Veteran is advised that failure to report for any scheduled examination may result in denial of the claim. 38 C.F.R. § 3.655 (2017). He has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). The purposes of this remand are to obtain additional information and comply with all due process considerations. No inference should be drawn regarding the final disposition of this claim as a result of this action. ______________________________________________ B. T. KNOPE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs