Citation Nr: 18147261 Decision Date: 11/02/18 Archive Date: 11/02/18 DOCKET NO. 16-25 815 DATE: November 2, 2018 ORDER Entitlement to a rating in excess of 30 percent for pulmonary disease, status post asbestos exposure with obstructive lung disease and asthma, is denied. REMANDED Entitlement to service connection for diabetes mellitus, type II, to include as secondary to herbicide exposure and/or contaminated water at Camp Lejeune, North Carolina and Camp Pendleton, California, is remanded. Entitlement to service connection for diabetic nephropathy, to include as secondary to diabetes mellitus, type II, and/or exposure to contaminated water at Camp Lejeune, is remanded. Entitlement to service connection for erectile dysfunction, to include as secondary to diabetes mellitus, type II, and/or asbestos exposure, is remanded. Entitlement to service connection for a bilateral eye disorder, to include bilateral cataracts, right eyelid ptosis and diabetic retinopathy, to include as secondary to diabetes mellitus, type II, is remanded. Entitlement to special monthly compensation for loss of use of a creative organ, secondary to erectile dysfunction, is remanded. Entitlement to service connection for left lower extremity peripheral neuropathy, secondary to diabetes mellitus, type II, is remanded. Entitlement to service connection for right lower extremity peripheral neuropathy, secondary to diabetes mellitus, type II, is remanded. Entitlement to service connection for neuritis, secondary to diabetes mellitus, type II, is remanded. Entitlement to service connection for sleep apnea is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) is remanded. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), depression, anxiety, and nervousness, is remanded. Entitlement to service connection for fatigue is remanded. Entitlement to service connection for blood clots is remanded.   FINDING OF FACT Throughout appeal period, the Veteran’s asthma has required inhalational anti-inflammatory medication; there is no indication of higher-level disability symptoms. CONCLUSION OF LAW The criteria for a rating in excess of 30 percent for pulmonary disease, status post asbestos exposure with obstructive lung disease and asthma, have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.326(a), 4.7, 4.14, 4.96, 4.97, Diagnostic Code 6833-6602. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1977 to March 1981, and from March 1981 to January 1989. This matter comes before the Board of Veterans’ Appeals (Board) from December 2009 and July 2012 rating decisions. Increased Ratings Disability ratings are determined by the application of a schedule of ratings, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2017). Where entitlement to compensation has already been established and an increase in the assigned rating is at issue, it is the present level of disability that is of primary concern. Although the recorded history of a particular disability should be reviewed in order to make an accurate assessment under the applicable criteria, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55 (1994). Staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2017). A rating in excess of 30 percent for pulmonary disease, status post asbestos exposure with obstructive lung disease and asthma The Veteran’s pulmonary disease was originally rated as zero percent disabling under Diagnostic Code 6833-6602 for pulmonary disease, status post asbestos exposure. In September 2010, the rating was increased to 30 percent disabling, effective August 17, 2009 under Diagnostic Code 6833-6602, the date of his claim for an increased rating. Rating Schedule Diagnostic code 6833, asbestosis, is rated under the general rating formula for interstitial lung disease. The general rating formula provides for a 10 percent disability rating is where the evidence shows Forced Vital Capacity (FVC) in 1 second of 75 to 80 percent predicted; or Diffusion Capacity of the Lung for Carbon Monoxide by the Single Breath Method (DLCO (SB)) of 66 to 80 percent predicted. A 30 percent rating is warranted with FVC of 65 to 74 percent; or a DLCO (SB) of 56 to 65 percent predicted. A 60 percent evaluation requires FVC of 50 to 64 percent predicted; or DLCO (SB) of 40 to 55 percent predicted; or maximum exercise capacity of 15 to 20 ml/kg/min oxygen consumption with cardiorespiratory limitation. A 100 percent evaluation requires demonstrated evidence of an FVC of less than 50 percent of predicted value; or DLCO (SB) of less than 40 percent of predicted; or maximum exercise capacity less than 15 ml/kg/min oxygen consumption with cardiac or respiratory limitation; or cor pulmonale (right heart failure) or pulmonary hypertension, or requires outpatient oxygen therapy. Under Diagnostic Code 6602, a 10 percent rating is warranted for FEV-1 of 71- to 80-percent predicted, or; FEV-1/FVC of 71 to 80 percent, or; intermittent inhalational or oral bronchodilator therapy. A 30 percent rating is warranted for FEV-1 of 56- to 70-percent predicted, or; FEV-1/FVC of 56 to 70 percent, or; daily inhalational or oral bronchodilator therapy, or; inhalational anti-inflammatory medication. A 60 percent rating is warranted for FEV-1 of 40 to 55-percent predicted, or; FEV-1/FVC of 40 to 55 percent, or; at least monthly visits to a physician for required care of exacerbations, or; intermittent (at least three per year) courses of systemic (oral or parenteral) corticosteroids. A 100 percent rating is warranted for FEV-1 less than 40-percent predicted, or; FEV 1/FVC that is less than 40 percent, or; more than one attack per week with episodes of respiratory failure, or; requires daily use of systemic (oral or parenteral) high dose corticosteroids or immuno-suppressive medications. A note to diagnostic code 6602 states that, “in the absence of clinical findings of asthma at time of examination, a verified history of asthmatic attacks must be of record.” 38 C.F.R. § 4.97, Diagnostic Code 6602 (2017). Ratings under Diagnostic Codes 6600 through 6817 and 6822 through 6847 will not be combined with each other. Where there is lung or pleural involvement, ratings under diagnostic codes 6819 and 6820 will not be combined with each other or with diagnostic codes 6600 through 6817 or 6822 through 6847. A single rating will be assigned under the diagnostic code which reflects the predominant disability with elevation to the next higher evaluation where the severity of the overall disability warrants such elevation. However, in cases protected by the provisions of Pub.L. 90-493, the graduated ratings of 50 and 30 percent for inactive tuberculosis will not be elevated. 38 C.F.R. § 4.96 (a). Under 38 C.F.R. § 4.96(d), pulmonary function tests (PFT’s) are required to evaluate the conditions listed in diagnostic codes 6600, 6603, 6604, 6825-6833, and 6840-6845 except: (i) when the results of a maximum exercise capacity test are of record and are 20 ml/kg/min or less. If a maximum exercise capacity test is not of record, evaluate based on alternative criteria; (ii) when pulmonary hypertension (documented by an echocardiogram or cardiac catheterization), cor pulmonale, or right ventricular hypertrophy has been diagnosed; (iii) when there have been one or more episodes of acute respiratory failure; or (iv) when outpatient oxygen therapy is required. If the DLCO (SB) (Diffusion Capacity of the Lung for Carbon Monoxide by the Single Breath Method) test is not of record, evaluate based on alternative criteria as long as the examiner states why the test would not be useful or valid in a particular case. When the PFT’s are not consistent with clinical findings, evaluate based on the PFT’s unless the examiner states why they are not a valid indication of respiratory functional impairment in a particular case. Post-bronchodilator studies are required when PFT’s are done for disability evaluation purposes except when the results of pre-bronchodilator pulmonary function tests are normal or when the examiner determines that post-bronchodilator studies should not be done and states why. When evaluating based on PFT’s, use post-bronchodilator results in applying the evaluation criteria in the rating schedule unless the post-bronchodilator results were poorer than the pre-bronchodilator results. In those cases, use the pre-bronchodilator values for rating purposes. When there is a disparity between the results of different PFT’s (FEV-1 (Forced Expiratory Volume in one second), FVC (Forced Vital Capacity), etc.), so that the level of evaluation would differ depending on which test result is used, use the test result that the examiner states most accurately reflects the level of disability. If the FEV-1 and the FVC are both greater than 100 percent, do not assign a compensable evaluation based on a decreased FEV-1/FVC ratio. 38 C.F.R. § 4.96 (2017). The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided. Separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other condition. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994). Discussion During a November 2009 private examination, PFT results were as follows: TEST Pre-bronchodilator percent predicted Post-bronchodilator percent predicted FVC 100% 100% FEV-1 97% 95% FEV-1/FVC 96% 95% DLCO (SB) -- -- Max. O2 cons. -- The physician noted normal spirometric values that indicated the absence of any significant degree of obstructive pulmonary impairment and/or restrictive ventilatory defect. The Veteran received a VA examination in February 2010. PFT results were as follows: TEST Pre-bronchodilator percent predicted Post-bronchodilator percent predicted FVC 101% 103% FEV-1 91% 102% FEV-1/FVC -- -- DLCO (SB) -- -- Max. O2 cons. -- The examiner did not predict an FEV-1/FVC value, and a DLCO was not done as the PFT results were sufficient to evaluate the pulmonary status of the Veteran. The examiner noted subjective factors of cough with sputum production, orthopnea, dyspnea on exertion and asthma episodes. The objective factors were a normal physical examination and PFT findings consistent with obstructive disease of asbestos exposure and asthma. The Veteran did not have any complications such as cor pulmonale, right ventricular hypertrophy, pulmonary hypertension, or chronic respiratory failure with carbon dioxide retention. The Veteran received another VA examination in March 2011. PFT results were as follows: TEST Pre-bronchodilator percent predicted Post-bronchodilator percent predicted FVC 102% -- FEV-1 98% -- FEV-1/FVC -- -- DLCO (SB) -- -- Max. O2 cons. -- The examiner did not predict an FEV-1/FVC value, and a DLCO was not done as the PFT results were sufficient to evaluate the pulmonary status of the Veteran. These results were from a pre-bronchodilator test, and the examiner indicated that a post-bronchodilator test was not performed because the pre-bronchodilator test was within normal limits. The examiner noted subjective factors of cough, shortness of breath, and the usage of a bronchodilator. The objective factors were a normal lung examination and the usage of a bronchodilator. The Veteran again did not have any complications such as cor pulmonale, right ventricular hypertrophy, pulmonary hypertension, or chronic respiratory failure with carbon dioxide retention. During a March 2014 VA examination, the examiner noted a diagnosis of mild intermittent asthma for which the Veteran required intermittent inhalational bronchodilator therapy. The Veteran did not, however, require the use of oral bronchodilators, antibiotics, or outpatient oxygen therapy. He also did not require the use of oral or parenteral corticosteroid medications. The Veteran had physician visits for required care of exacerbations, but they were less frequently than monthly. PFT results were as follows: TEST Pre-bronchodilator percent predicted Post-bronchodilator percent predicted FVC 3.40% 3.44% FEV-1 2.83% 2.96% FEV-1/FVC 83% 86% DLCO (SB) -- -- Max. O2 cons. -- Although listed in the PFT results, the VA examiner marked that post-bronchodilator testing had not been completed because the pre-bronchodilator results were normal. DLCO testing had also not been completed because it was not indicated for the Veteran’s condition. The Veteran received a VA examination in September 2014 and the examiner noted a diagnosis of asthma for which the Veteran required daily inhalational bronchodilator therapy and daily inhalational anti-inflammatory medication. The Veteran still did not, however, require the use of oral bronchodilators, antibiotics, or outpatient oxygen therapy. He also did not require the use of oral or parenteral corticosteroid medications. The Veteran had a history of asthma attacks, but had not had any attacks or exacerbations in the past 12 months. He also had not had any physician visits for required care of exacerbations. PFT results were as follows: TEST Pre-bronchodilator percent predicted Post-bronchodilator percent predicted FVC 90% 90% FEV-1 89% 93% FEV-1/FVC 98% 101% DLCO (SB) -- -- Max. O2 cons. -- DLCO testing had not been completed because it was not indicated for the Veteran’s condition. The above evidence reflects that the pulmonary disability does not meet the criteria for a rating higher than 30 percent under DCs 6833 or 6602. At no time during the appeal period has FVC been between 54 and 64 percent predicted or DLCO between 40 and 55 percent predicted, as required for a higher, 60 percent rating under DC 6833. Nor has FEV-1 been between 40 and 55 percent predicted or FEV-1/FVC been between 40 and 55 percent, as required for a higher, 60 percent rating under DC 6602. Although the March 2014 VA examiner gave PFT results in the higher range, it is clear that this was a typographical error by the VA examiner as the next results in September 2014 were again at the lower range. There is no indication that the March 2014 results were a temporary flare up of the condition. Moreover, there was no evidence of maximum exercise capacity less than 15 ml/kg/min with cardiorespiratory limitation, cor pulmonale, pulmonary hypertension, that the Veteran requires oxygen therapy or daily use of system high dose corticosteroids or immuno-suppressive medications, or episodes of respiratory failure, at least one of which is required for higher ratings under DCs 6833 and 6602. A rating higher than 30 percent is therefore not warranted for the Veteran’s pulmonary disease related to asbestos exposure, with asthma. REASONS FOR REMAND 1. Diabetes Mellitus, Type II The Veteran has alleged that, on several occasions, he was exposed to Agent Orange. He indicated that, while stationed at Camp Pendleton, he transported 55-gallon drums with orange bands around them and they were often leaking. He also indicated that he was stationed in Okinawa, Japan, and was told that Agent Orange was stored there before it was sent to Vietnam. During jungle warfare training, they lived, ate, and trained in the vegetation sprayed with Agent Orange. The Veteran has also alleged exposure to contaminated water while stationed at Camp Lejeune for 90 days for Motor Transport School, and also while stationed at Camp Pendleton. He indicated that he drank the water, bathed in it, swam in it, and used it to wash his car and clothes. Based on the Veteran’s claims, the RO issued an administrative decision in November 2014 and determined that the information required to verify or confirm Vietnam in-country service or other means of alleged exposure to herbicides was insufficient to research. The Board finds that the RO’s finding was inadequate, as it did not address all of the Veteran’s contentions. Specifically, the RO found that the evidence failed to provide evidence of Agent Orange exposure, as “he claimed exposure to AO from possible use in 1960 to 1961,” and he was in service in Okinawa from 1979 to 1983. The RO did not, however, request review of the Department of Defense (DOD) inventory of herbicide operations to determine whether herbicides were used as alleged. Therefore, a remand is necessary to determine whether the Veteran was exposed to herbicides and also to afford the Veteran a new VA examination to determine the nature and etiology of his diabetes mellitus, type II. 2. Diabetic Nephropathy The Veteran received a VA opinion in October 2014, and the examiner opined that the preponderance of the medical literature did not establish a causal relationship between drinking contaminated water at Camp Lejeune and the development of chronic kidney disease in the Veteran. However, the examiner indicated that the Veteran’s chronic kidney disease was probably secondary to his underlying diabetic nephropathy and/or hypertensive nephrosclerosis and/or analgesic nephropathy. As the Veteran’s medical records establish diagnoses or persistent symptoms of diabetic nephropathy, and there is an indication, through assertions of the Veteran, that the disabilities may be related to service, the Board finds that a medical examination with an opinion is necessary to decide the claims. 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 70 (2006). Specifically, a remand is required to afford the Veteran a VA examination so as to determine the nature and etiology of this disability. 3. Eye Disability The Veteran received a VA examination in March 2012, and the examiner noted diagnoses of right eyelid ptosis and bilateral cataracts. The examiner, however, did not provide an opinion with regard to the etiology of the Veteran’s disability. Once VA undertakes the effort to provide an examination, it must obtain a fully adequate one. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); see also Bowling v. Principi, 15 Vet. App. 1, 12 (2001) (emphasizing the Board’s duty to return an inadequate examination report “if further evidence or clarification of the evidence... is essential for a proper appellate decision.”). Therefore, this claim must be remanded for a new examination. The Board notes that, subsequent to this examination, the Veteran received a diagnosis of left eye diabetic retinopathy. 4. Neuritis The Veteran received a VA opinion in October 2014, and the examiner opined that the Veteran’s neuritis was not caused by or a result of exposure to contaminated water at Camp Lejeune. However, the examiner used the wrong standard, as the question is whether the disability is at least as likely as not related to service, not whether there is a “definitive” relationship. Furthermore, the Veteran has alleged that his neuritis may be related to his diabetes, and the examiner failed to opine on a relationship between the two disabilities. Once VA undertakes the effort to provide an examination, it must obtain a fully adequate one. Barr, 21 Vet. at 311 (2007); see also Bowling, 15 Vet. App. at 12 (2001) (emphasizing the Board’s duty to return an inadequate examination report “if further evidence or clarification of the evidence... is essential for a proper appellate decision.”). Therefore, this claim must be remanded for a new examination. 5. Erectile Dysfunction, Bilateral Lower Extremity Peripheral Neuropathy, Special Monthly Compensation for Loss of Use of a Creative Organ With respect to the Veteran’s claims for service connection for erectile dysfunction and service connection for bilateral lower extremity peripheral neuropathy, the Board concludes that adjudication of the Veteran’s claims for service connection for diabetes mellitus, type II, must be completed first. The Board has therefore concluded that it would be inappropriate at this juncture to enter a final determination on that issue. See Henderson v. West, 12 Vet. App. 11 (1998), citing Harris v. Derwinski, 1 Vet. App. 180 (1991) (where a decision on one issue would have a “significant impact” upon another, and that impact in turn could render any review of the decision on the other claim meaningless and a waste of appellate resources, the claims are inextricably intertwined). As the remand of the above claim for entitlement to service connection for erectile dysfunction could affect the claim for special monthly compensation (SMC), the Board finds that the claims are also inextricably intertwined and a Board decision on the SMC claim at this time would be premature. Id. 6. Sleep Apnea As the Veteran’s lay statements and private treatment records indicate that the disability may be related to service, the Board finds that a medical examination with an opinion is necessary to decide the claim. 38 C.F.R. § 3.159(c)(4); McLendon, 20 Vet. App. 70 (2006). Specifically, a remand is required to afford the Veteran a VA examination so as to determine the nature and etiology of his obstructive sleep apnea. 7. TDIU This issue was raised in connection with the claims on appeal. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). The development and decision on the remanded issues will significantly impact a decision on the TDIU issue. Therefore, the issues are inextricably intertwined, and a remand of the TDIU issue is required. 8. Acquired Psychiatric Disorder, Fatigue, Blood Clots The RO denied service connection for (1) PTSD, (2) fatigue, (3) depression, anxiety, nervousness, and (4) blood clots in an August 2015 rating decision. The Veteran submitted a notice of disagreement with respect to those claims in September 2015. As a timely notice of disagreement has been received, the Veteran has initiated an appeal respecting those claims, and VA has a duty to issue a statement of the case as to those issues. The claim, therefore, must be remanded for compliance with 38 C.F.R. § 19.9(c) and Manlincon v. West, 12 Vet. App. 238 (1999). The Board notes that the issue of service connection for a psychiatric condition was adjudicated as two separate issues by the RO: entitlement to service connection for PTSD and entitlement to service connection for depression, anxiety, and nervousness. However, in light of the evidence of record, the Board has combined the issues to ensure complete consideration of the scope of the claim. See Clemons v. Shinseki, 23 Vet. App. 1, 5-6, 8 (2009). The matters are REMANDED for the following action: 1. Send the Veteran and his representative a statement of the case that addresses the issue of service connection for a psychiatric disorder, to include PTSD, depression, anxiety, and nervousness, service connection for fatigue, and service connection for blood clots. If the Veteran perfects an appeal by submitting a timely VA Form 9, the issue should be returned to the Board for further appellate consideration. 2. Undertake whatever action is necessary to research the Veteran’s allegation of exposure to herbicides in Okinawa, Japan and at Camp Pendleton, California to Compensation Services. If necessary, send a request for verification of herbicide exposure to the JSRRC. 3. Schedule the Veteran for a VA examination to determine the nature and etiology of his diabetes mellitus, type II. The examiner is asked to answer whether it is at least as likely as not that the Veteran’s diabetes mellitus, type II, had its onset during or is otherwise related to his active military service, to include any established exposure to herbicides and exposure to environmental hazards at Camp Lejeune or Camp Pendleton. 4. Schedule the Veteran for a VA examination to determine the nature and etiology of his diabetic nephropathy. The examiner is asked to opine as to whether it is as least as likely as not that the Veteran’s diabetic nephropathy had its onset in service or is otherwise the result of an incident in service, to include any established exposure to herbicides and exposure to environmental hazards at Camp Lejeune. The examiner is also asked to opine as to whether it is at least as likely as not that the Veteran’s diabetic nephropathy was caused or aggravated by his diabetes mellitus, type II. 5. Schedule the Veteran for a VA examination to determine the nature and etiology of any diagnosed eye disability. The examiner is asked to opine as to whether it is as least as likely as not that the Veteran’s eye disability had its onset in service or is otherwise the result of an incident in service. The examiner is also asked to opine as to whether it is at least as likely as not that the Veteran’s eye disability was caused or aggravated by his diabetes mellitus, type II. 6. Schedule the Veteran for a VA examination to determine the nature and etiology of his neuritis. The examiner is asked to opine as to whether it is as least as likely as not that the Veteran’s neuritis had its onset in service or is otherwise the result of an incident in service, to include any established exposure to herbicides and exposure to environmental hazards at Camp Lejeune. The examiner is also asked to opine as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s neuritis was caused or aggravated by his diabetes mellitus, type II. 7. Schedule the Veteran for a VA examination to determine the nature and etiology of his erectile dysfunction. The examiner is asked to opine as to whether it is as least as likely as not (50 percent probability or more) that the Veteran’s erectile dysfunction had its onset in service or is otherwise the result of an incident in service. The examiner is also asked to opine as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s erectile dysfunction was caused or aggravated by his diabetes mellitus, type II, and/or asbestos exposure. 8. Schedule the Veteran for a VA examination to determine the nature and etiology of his bilateral lower extremity peripheral neuropathy. The examiner is asked to opine as to whether it is as least as likely as not that the Veteran’s bilateral lower extremity peripheral neuropathy had its onset in service or is otherwise the result of an incident in service. The examiner is also asked to opine as to whether it is at least as likely as not that the Veteran’s bilateral lower extremity peripheral neuropathy was caused or aggravated by his diabetes mellitus, type II. 9. Schedule the Veteran for a VA examination to determine the nature and etiology of his obstructive sleep apnea. The examiner is asked to opine as to whether it is as least as likely as not that the Veteran’s obstructive sleep apnea had its onset in service or is otherwise the result of an incident in service. C. BOSELY Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Daniels, Associate Counsel