Citation Nr: 18158180 Decision Date: 12/14/18 Archive Date: 12/14/18 DOCKET NO. 14-40 204 DATE: December 14, 2018 ORDER New and material evidence having been received to reopen a claim of entitlement to service connection for sinusitis, the claim is reopened. New and material evidence having been received to reopen a claim of entitlement to service connection for sarcoidosis, the claim is reopened. To this extent only the benefit sought on appeal is allowed. New and material evidence having been received to reopen a claim of entitlement to service connection for hypertension, the claim is reopened. To this extent only the benefit sought on appeal is allowed. New and material evidence having been received to reopen a claim of entitlement to service connection for diabetes mellitus, the claim is reopened. To this extent only the benefit sought on appeal is allowed. New and material evidence having been received to reopen a claim of entitlement to service connection for an acquired psychiatric disorder, the claim is reopened. To this extent only the benefit sought on appeal is allowed. New and material evidence having been received to reopen a claim of entitlement to service connection for sleep apnea, the claim is reopened. To this extent only the benefit sought on appeal is allowed. New and material evidence having been received to reopen a claim of entitlement to service connection for heart disease, the claim is reopened. To this extent only the benefit sought on appeal is allowed. Service connection for sinusitis is granted. A rating of 30 percent for bronchial asthma prior to June 1, 2015, is granted. A rating in excess of 30 percent for bronchial asthma is denied. A 10 percent for allergic rhinitis is granted. REMANDED Entitlement to service connection for hypertension is remanded. Entitlement to service connection for diabetes mellitus is remanded. Entitlement to service connection for erectile dysfunction is remanded. Entitlement to service connection for heart disease is remanded. Entitlement to service connection for sleep apnea is remanded. Entitlement to service connection for a softened/weakened palate is remanded. Entitlement to service connection for benign prostatic hypertrophy (BPH) is remanded. Entitlement to service connection for sarcoidosis is remanded. Entitlement to service connection for an acquired psychiatric disorder is remanded. Entitlement to service connection for hearing loss is remanded. Entitlement to a rating in excess of 10 percent for atopic dermatitis is remanded. Entitlement to special monthly compensation (SMC) based upon the need for regular aid and attendance or being housebound is remanded. FINDINGS OF FACT 1. Service connection was previously denied for hypertension and sinusitis by rating decisions promulgated in June 2000 and October 2006. The June 2000 rating decision also denied service connection for sleep apnea; while the October 2006 rating decision also denied service connection for diabetes mellitus, heart disease, sarcoidosis, and an acquired psychiatric disorder. 2. A June 2011 rating decision continued the denial of service connection for hypertension, diabetes mellitus, and sleep apnea. That decision also denied service connection for erectile dysfunction. 3. The Veteran was informed of the June 2000, October 2006, and June 2011 rating decisions, and did not appeal. 4. The evidence received since the last prior denial of service connection for hypertension, sinusitis, diabetes mellitus, erectile dysfunction, heart disease, sarcoidosis, and an acquired psychiatric disorder was not previously submitted to agency decisionmakers, relates to unestablished facts necessary to substantiate these claims, is not cumulative nor redundant of the evidence of record at the time of the last prior final denial, and raises a reasonable possibility of substantiating the claims. 5. The competent and credible evidence of record reflects it is at least as likely as not the Veteran developed recurrent sinusitis while on active duty. 6. Prior to June 1, 2015, the record reflects it is at least as likely as not the Veteran’s service-connected bronchial asthma required daily inhalational therapy. 7. The record does not reflect the Veteran’s service-connected bronchial asthma has been manifested by FEV-1 of 40 to 55 percent predicted, FEV-1/FVC of 40 to 55 percent, 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 during the pendency of this case. 8. The record reflects it is at least as likely as not the Veteran’s service-connected allergic rhinitis has been manifested by periods of greater than 50-percent obstruction of nasal passages on both sides or complete obstruction on both sides. 9. The record does not reflect the Veteran’s service-connected allergic rhinitis has been manifested by polyps during the pendency of this case. CONCLUSIONS OF LAW 1. New and material evidence having been received to reopen the claims of entitlement to service connection for hypertension, sinusitis, diabetes mellitus, erectile dysfunction, heart disease, sarcoidosis, and an acquired psychiatric disorder, the claims are reopened. 38 U.S.C. § 5107, 5108, 7105; 38 C.F.R. § 3.156. 2. The criteria for a grant of service connection for sinusitis have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for a 30 percent for service-connected bronchial asthma prior to June 1, 2015, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.97, Diagnostic 6602. 4. The criteria for a rating in excess of 30 percent for service-connected bronchial asthma have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.10, 4.97, Diagnostic 6602. 5. The criteria for a compensable rating of no more than 10 percent for service-connected allergic rhinitis have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.97, Diagnostic 6522. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The record reflects the Veteran served on active duty in the United States Navy from February 1961 to April 1969, from May 1969 to February 1973, and from February 1975 to January 1981. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a January 2014 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In April 2018, the Board requested a medical expert opinion from a member of the Veterans Health Administration (VHA) regarding the Veteran's hypertension and diabetes claims. The requested medical expert's opinion was subsequently promulgated and dated in June 2018. The record reflects the Veteran was provided with a copy of the VHA opinion in October 2018, and was notified he had 60 days from the date of the correspondence to review the opinion and send any additional evidence or argument he may wish to submit. The Veteran responded later in October 2018 that he had not further evidence or argument to submit. In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrence of symptoms. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the 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. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran’s particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d at 1377 (Fed. Cir. 2007) (holding that “[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board”). The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C. § 7104(a). Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran’s demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff’d per curiam, 78 F.3d 604 (Fed. Cir. 1996). Service Connection Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff’d per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table). Determinations as to service connection will be based on review of the entire evidence of record, to include all pertinent medical and lay evidence, with due consideration to VA’s policy to administer the law under a broad and liberal interpretation consistent with the facts in each individual case. 38 U.S.C. § 1154(a); 38 C.F.R. § 3.303(a). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C. § 5107(b). When a reasonable doubt arises regarding service origin, such doubt will be resolved in the favor of the claimant. Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102. The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied. Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). 1. New and material evidence having been received to reopen a claim of entitlement to service connection for sinusitis 2. New and material evidence having been received to reopen a claim of entitlement to service connection for sarcoidosis 3. New and material evidence having been received to reopen a claim of entitlement to service connection for hypertension 4. New and material evidence having been received to reopen a claim of entitlement to service connection for diabetes mellitus 5. New and material evidence having been received to reopen a claim of entitlement to service connection for an acquired psychiatric disorder Service connection was previously denied for hypertension and sinusitis by rating decisions promulgated in June 2000 and October 2006. The June 2000 rating decision also denied service connection for sleep apnea; while the October 2006 rating decision also denied service connection for diabetes mellitus, heart disease, sarcoidosis, and an acquired psychiatric disorder. In addition, a June 2011 rating decision continued the denial of service connection for hypertension, diabetes mellitus, and sleep apnea. That decision also denied service connection for erectile dysfunction. The Veteran was informed of the June 2000, October 2006, and June 2011 rating decisions, and did not appeal. Moreover, it does not appear new and material evidence was physically or constructively of record within the appeal period of these decisions. See Bond v. Shinseki, 659 F.3d 1362, 1367-8 (Fed. Cir. 2011); Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2010). Consequently, those decisions are final. See 38 U.S.C. §§ 7104, 7105; 38 C.F.R. §§ 20.1100, 20.1103. The Board notes that the Veteran has requested the determinations made by the October 2006 rating decision be “set aside.” Further, the Board acknowledges that a final decision a decision "is subject to revision on the ground of clear and unmistakable error [CUE]." 38 U.S.C. § 5109A. Under 38 C.F.R. § 3.105 (a), "[p]revious determinations which are final and binding ...will be accepted as correct in the absence of [CUE]." A decision which constitutes a reversal of a prior decision on the grounds of CUE has the same effect as if the corrected decision had been made on the date of the reversed decision. 38 U.S.C. § 7105; 38 C.F.R. § 3.105(a). However, the Court has held that for a valid claim of CUE, the claimant must assert more than a disagreement as to how the facts were weighed or evaluated; he or she must, with some degree of specificity, identify the alleged error and provide persuasive reasons why the result would have been different but for the alleged error. The mere assertion of CUE is not sufficient to reasonably raise the issue. See Russell v. Principi, 3 Vet. App. 310 (1992) (en banc); Fugo v. Brown, 6 Vet. App. 40 (1993), en banc review denied, Fugo v. Brown, 6 Vet. App. 162 (1994). Here, the record does not reflect the Veteran has raised the type of specific argument that would warrant consideration of whether the October 2006 rating decision was the product of CUE. Therefore, no further discussion of the matter is warranted at this time. Despite the finality of a prior decision, a claim will be reopened and the former disposition reviewed if new and material evidence is presented or secured with respect to the claim which has been disallowed. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). The Court has held that, when "new and material evidence" is presented or secured with respect to a previously and finally disallowed claim, VA must reopen the claim. Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). Further, the Court has also held that in order to reopen a previously and finally disallowed claim there must be new and material evidence presented since the time that the claim was finally disallowed on any basis, not only since the time that the claim was last disallowed on the merits. Evans v. Brown, 9 Vet. App. 273, 285 (1996) (overruled on other grounds). New evidence means existing evidence not previously submitted to agency decisionmakers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). In this case, the evidence added to the record since the prior denials include statements and other evidence from the Veteran contending that various disabilities, including the diabetes and heart disease, are due to exposure to herbicide agents while on active duty in the Republic of Vietnam, and provided details thereof. The Board also notes that type 2 diabetes mellitus and ischemic heart disease are among the conditions associated with exposure to herbicide agents pursuant to 38 C.F.R. § 3.309(e). The record indicates his erectile dysfunction is associated with his diabetes. In addition, the Board notes the National Academy of Sciences Institute of Medicine (NAS) recently upgraded hypertension to the “sufficient” category from “limited or suggestive,” indicating that “there is enough epidemiologic evidence to conclude that there is a positive association” between hypertension and herbicide exposure. See November 15, 2018, press release from NAS. The Veteran has also contended that his sarcoidosis was present within one year of service. Similarly, he has contended that he developed recurrent symptoms of sinusitis, sleep apnea, chest pain, depression and anxiety while on active duty; and indicated that his psychiatric symptoms were related, at least in part, to the death of his father that occurred during his active service. Further, he has provided evidence to the effect his hypertension, diabetes, heart disease, sarcoidosis, and sleep apnea are secondary to his service-connected asthma, allergic rhinitis, and/or dermatitis to include the medication used to treat these conditions during and since service. The evidence submitted to reopen a claim is presumed to be true for the purpose of determining whether new and material evidence has been submitted, without regard to other evidence of record. Duran v. Brown, 7 Vet. App. 216, 220 (1994); Justus v. Principi, 3 Vet. App. 510, 513 (1992). In view of the foregoing, the Board finds the evidence received since the last prior denial of service connection for hypertension, sinusitis, diabetes mellitus, erectile dysfunction, heart disease, sarcoidosis, and an acquired psychiatric disorder was not previously submitted to agency decisionmakers, relates to unestablished facts necessary to substantiate these claims, is not cumulative nor redundant of the evidence of record at the time of the last prior final denial, and raises a reasonable possibility of substantiating the claims. As such, new and material evidence has been received in accord with 38 C.F.R. § 3.156(a), and these claims are reopened. Adjudication of these appellate claims does not end with the determination new and material evidence has been received. The Board must now address the merits of the underlying service connection claims. In the adjudication that follows, the presumption that the evidence submitted to reopen is true without regard to the other evidence of record no longer applies. 6. Service connection for sinusitis As already noted, the Veteran has contended that he developed recurrent sinusitis while on active duty. The Board finds this contention to be credible, particularly as it appears consistent with other evidence of record. For example, while his sinuses were routinely evaluated as normal on various service examinations, to include his December 1980 retirement examination, his service treatment records do contain complaints of sinus trouble to include in April 1976 and October 1978. Further, there appears to be evidence of recurrent sinusitis in post-service medical records, to include VA examinations in November 1999 and December 1999. The Board acknowledges that there does not appear to be evidence of active sinusitis on VA examinations conducted in April 2013 and June 2017. However, the Veteran has indicated the condition is active at other times during the year. Moreover, the Court held in McClain v. Nicholson, 21 Vet. App. 319 (2007) that the requirement that a claimant have a current disability before service connection may be awarded for that disability is also satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim, even if no disability is present at the time of the claim's adjudication. The Court also held in Alemany v. Brown, 9 Vet. App. 518 (1996), that in light of the benefit of the doubt provisions of 38 U.S.C. § 5107(b), an accurate determination of etiology is not a condition precedent to granting service connection; nor is "definite etiology" or "obvious etiology." In view of the foregoing, and resolving all reasonable doubt in favor of the Veteran, the Board finds the competent and credible evidence of record reflects it is at least as likely as not the Veteran developed recurrent sinusitis while on active duty. Therefore, service connection is warranted. Increased Rating Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a question as to which of two evaluations applies, assigning the higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disability upon the person's ordinary activity, 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The degree of impairment resulting from a disability is a factual determination and generally the Board’s primary focus in such cases is upon the current severity of the disability. Francisco v. Brown, 7 Vet. App. 55, 57-58 (1994); Solomon v. Brown, 6 Vet. App. 396, 402 (1994). However, in Fenderson v. West, 12 Vet. App. 119 (1999), it was held that the rule from Francisco does not apply where the appellant has expressed dissatisfaction with the assignment of an initial rating following an initial award of service connection for that disability. Rather, at the time of an initial rating, separate ratings can be assigned for separate periods of time based on the facts found – a practice known as “staged” ratings. More recently, the Court held that “staged” ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Here, the Veteran is already in receipt of such “staged” ratings for his service-connected bronchial asthma in this appeal. 7. Entitlement to a rating in excess of 10 percent for service-connected bronchial asthma prior to June 1, 2015. The Veteran's asthma is evaluated pursuant to the criteria found at 38 C.F.R. § 4.97, Diagnostic Code 6602. Under this Code, bronchial asthma manifested by FEV-1 of 71 to 80 percent predicted, FEV-1/FVC of 71 to 80 percent, or intermittent inhalational or bronchodilator therapy warrants a 10 percent disability rating; a 30 percent rating is warranted for FEV-1 of 56 to 70 percent predicted, FEV-1/FVC of 56 to 70 percent, daily inhalational or bronchodilator therapy, or inhalational anti-inflammatory medication; a 60 percent rating is warranted for FEV-1 of 40 to 55 percent predicted, FEV-1/FVC of 40 to 55 percent, 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 of less than 40 percent predicted, FEV-1/FVC of less than 40 percent, more than one attack per week with episodes of respiratory failure, or the requirement of daily use of systemic (oral or parenteral) high dose corticosteroids or immunosuppressive medications. VA amended the Rating Schedule concerning respiratory conditions, effective from October 6, 2006. VA added provisions that clarify the use of pulmonary function tests in evaluating respiratory conditions. A new paragraph (d) to 38 C.F.R. § 4.96, is titled "Special provisions for the application of evaluation criteria for diagnostic codes 6600, 6603, 6604, 6825-6833, and 6840-6845." In pertinent part, this regulation states that post-bronchodilator studies are required when pulmonary function tests 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. 38 C.F.R. § 4.96 (d)(4). Granted, this provision does not appear to be applicable to Diagnostic Code 6602. However, when the final rule amending the respiratory portion of the rating schedule was published in the Federal Register in September 1996, it was noted that one person commented that VA should specify that pulmonary function be tested before bronchodilation in order to reflect ordinary conditions of life. The response of VA was as follows: VA disagrees. The American Lung Association/ American Thoracic Society Component Committee on Disability Criteria recommends testing for pulmonary function after optimum therapy. The results of such tests reflect the best possible functioning of an individual and are the figures used as the standard basis of comparison of pulmonary function. Using this standard testing method assures consistent evaluations. 61 Fed. Reg. at 46,723. Further, the final rule published in the Federal Register also responded to a comment that pulmonary function testing should be the exclusive basis for evaluating lung disorders as the test results are strictly objective. VA disagreed concluding: While we have used the results of pulmonary function tests as evaluation criteria when they are appropriate, they are not suitable for the evaluation of all lung conditions. Asthma, for example, is an episodic condition that may exhibit normal PFT's [pulmonary function tests] at most times despite significantly disabling disease, and it therefore requires other criteria for its evaluation, such as the need for a certain type or frequency of treatment. Id. In this case, the Board acknowledges that an April 2013 VA examination noted that the only medication noted was albuterol as needed. Stated another way, the examination indicated he did not require daily inhalational therapy. However, various treatment records, to include those dated in April 2013 and May 2013, note that he used the albuterol twice a day for shortness of breath. He also contended in his Notice of Disagreement (NOD) that he had daily inhalational therapy. As such, the record reflects it is at least as likely as not he required daily inhalational therapy for the service-connected bronchial asthma for the period prior to June 1, 2015. See 38 C.F.R. §§ 4.3, 4.7. Therefore, he is entitled a 30 percent rating under Diagnostic Code 6602 for this period. 8. Entitlement to a rating in excess of 30 percent for service-connected bronchial asthma. The Board finds the record does not reflect the Veteran’s service-connected bronchial asthma has been manifested by FEV-1 of 40 to 55 percent predicted, FEV-1/FVC of 40 to 55 percent, 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. In pertinent part, pulmonary function testing conducted as part of the April 2013 VA examination revealed FEV-1 to be 82 percent of predicted pre-bronchodilator, and 89 percent post-bronchodilator; while FEV-1/FVC was 97 percent of predicted pre-bronchodilator, and 100 percent post-bronchodilator. In short, the Veteran did not have the required pulmonary function test results for a rating in excess of 30 percent under Diagnostic Code 6602 even without the use of medication. Further, it was noted his asthma did not require the use of oral bronchodilators, and there was no indication of anti-inflammatory medication. It was also noted he did not have any physician visits for required care of exacerbations. Pulmonary function tests conducted as part of a more recent June 2017 VA examination showed FEV-1 was 67 percent predicted pre-bronchodilator, and 71 percent post-bronchodilator. FEV-1/FVC was 95 percent predicted pre-bronchodilator, and 101 percent post-bronchodilator. Thus, the pulmonary function tests did not show the manifestations required for a rating in excess of 30 percent either before or after the use of medication. The June 2017 VA examination further noted that while the Veteran’s bronchial asthma required intermittent use of inhalational use of bronchodilator therapy and inhalational anti-inflammatory medication; it did not require the use of oral or parenteral corticosteroid medications, oral bronchodilators, antibiotics, nor outpatient oxygen therapy. Moreover, it was noted he had not had any physician visits for required care of exacerbations. Nothing in the other evidence of record, to include the medical treatment records, reflects the Veteran meets or nearly approximates the criteria for a rating in excess of 30 percent under Diagnostic Code 6602, to include as a “staged” rating(s) pursuant to Fenderson, supra, and Hart, supra. 9. Entitlement to a compensable rating for service-connected allergic rhinitis. Allergic or vasomotor rhinitis is evaluated pursuant to 38 C.F.R. § 4.97, Diagnostic Code 6522. Under this Code, a 10 percent rating is warranted where there are no polyps, but there is greater than 50-percent obstruction of the nasal passages on both sides or complete obstruction on one side. A 30 percent disability evaluation is for application where the evidence demonstrates polyps. Initially, the Board acknowledges that VA examinations of the Veteran’s service-connected allergic rhinitis in April 2013 and June 2017 did not show any obstruction of the nasal passages. However, as part of his NOD the Veteran contended that he had periods where his allergic rhinitis was active and he did have complete obstruction of the nasal passages. The Board finds no reason to doubt the Veteran’s credibility on this matter. Therefore, the Board finds the record reflects it is at least as likely as not the Veteran’s service-connected allergic rhinitis has been manifested by periods of greater than 50-percent obstruction of nasal passages on both sides or complete obstruction on both sides. See 38 C.F.R. §§ 4.3, 4.7. Accordingly, he is entitled to a compensable rating of at least 10 percent under Diagnostic Code 6522. The Board acknowledges the Veteran contended he was entitled to a 20 percent rating for his allergic rhinitis as part of his NOD. However, no such rating is provided by the applicable Diagnostic Code 6522. Further, it appears the Veteran was also discussing symptoms which he attributed to his now service-connected sinusitis. Moreover, as noted above, a rating in excess of 10 percent is only warranted under Diagnostic Code 6522 when there are polyps associated with the allergic rhinitis. Here, the April 2013 and June 2017 VA examinations both indicated there was no evidence of polyps, nor is such demonstrated by the medical treatment records on file. In addition, the Veteran himself indicated on his NOD that his polyps had been removed many years ago, and did not contend it had recurred since that time. Consequently, the Board concludes he does not meet or nearly approximate the criteria for a rating in excess of 10 percent for his allergic rhinitis, to include as a “staged” rating(s). REASONS FOR REMAND 1. Entitlement to service connection for hypertension is remanded 2. Entitlement to service connection for diabetes mellitus is remanded 3. Entitlement to service connection for erectile dysfunction is remanded 4. Entitlement to service connection for heart disease is remanded. The Veteran has essentially contended that he was exposed to herbicide agents while serving aboard the USS Bashaw, a submarine, while in the waters of Vietnam; and provided details thereof. The Board notes, however, that VA has determined that the presumption of exposure to herbicide agents for veterans who 'served in the Republic of Vietnam' is limited to veterans who served on or visited the Vietnamese landmass or its inland waterways, and does not apply to veterans who served exclusively offshore in ocean-going ships, i.e., the 'blue water' Navy. See 38 C.F.R. § 3.313(a); VAOPGCPREC 27-97 (Mere service on a deep-water naval vessel in waters off the shore of the Republic of Vietnam does not constitute 'Service in the Republic of Vietnam' for purposes of 38 U.S.C. § 101(29) (A)); see also Haas v. Peake, 525 F.3d 1168, 1197 (Fed. Cir. 2008) (upholding VA's statutory interpretation excluding the 'blue water' Navy from presumptive herbicide exposure). The Board further notes that an April 2011 memorandum made a formal finding that the information required to verify herbicide exposure was insufficient to send to the JSRRC and/or insufficient to research the case for a service record. Among other things the memorandum referenced a response earlier that month from the Defense Personnel Record Information System (DPRIS) which, in pertinent part, noted that the USS Bashaw’s ship history or deck logs (apparently for the August to September 1965 period) did not document that the submarine docked, transited inland waterways or that personnel stepped foot in the Republic of Vietnam. The April 2011 memorandum also stated that the Veteran’s service personnel records for his entire service period had been reviewed. However, the service personnel records do not appear to be among the evidence available for the Board’s review, nor are they listed as part of the evidence of record on the September 2014 Statement of the Case (SOC) or the November 2017 Supplemental SOC (SSOC). Without review of such records, the Board cannot conclude whether the circumstances of his service were such that he did or did not have exposure to herbicide agents while on active duty, or whether further development is otherwise warranted on this matter. Accordingly, the Board finds that a remand is required to obtain the Veteran’s service personnel records. With respect to the heart disease claim, the Board also notes that the Veteran’s service treatment records reflect he was evaluated for complaints of chest pain while on active duty; as well as for high cholesterol. In addition, as with other disabilities discussed in more detail below, he has indicated in the alternative that his heart disease is due to medications used to treat his service-connected disabilities both during and since service. Therefore, even if there is no evidence of in-service exposure to herbicide agents, the Veteran should be accorded a competent medical examination to determine whether he currently has heart disease that was incurred in or otherwise the result of his active service. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). 5. Entitlement to service connection for sleep apnea is remanded. 6. Entitlement to service connection for softened/weakened palate is remanded. 7. Entitlement to service connection for sarcoidosis is remanded. 8. Entitlement to service connection for BPH is remanded. The Veteran has contended, in part, that his sleep apnea, sarcoidosis, and BPH had their onset during service or are related to the medications (including Prednisone, Symbicort, Fluticasone and Clobetasol) he has taken during and since service for his service-connected bronchial asthma, allergic rhinitis and atopic dermatitis. He provided similar contentions regarding his claimed heart disease. The Board finds that competent medical evidence is required to address these contentions. Id. The Veteran has also contended that he has a softened/weakened palate secondary to his sleep apnea. As such, this claim is inextricably intertwined with the sleep apnea claim, and the Board must defer adjudication until the development required for the sleep apnea claim has been completed. Moreover, as a competent medical examination is otherwise required for the sleep apnea claim, it should address whether the Veteran does currently have a softened/weakened palate that was caused or aggravated by the sleep apnea. 9. Entitlement to service connection for an acquired psychiatric disorder is remanded. As already noted, the Veteran has contended that he developed symptoms of recurrent depression and anxiety while on active duty, to include when his father passed away during this period. He also indicated that he felt extreme fear that his life would prematurely end due to enemy or terrorist activity during his service in the waters of Vietnam. The Board acknowledges that the criteria for claims of service connection for posttraumatic stress disorder (PTSD) contain special provisions when such are based upon “fear of hostile military or terrorist activity.” See 38 C.F.R. § 3.304(f)(3). However, it is not clear from the evidence of record whether the Veteran currently has PTSD or any other acquired psychiatric disorder, and, if so, whether such is related to service. Therefore, a remand is required to accord the Veteran a competent medical examination and opinion to clarify these matters. 10. Entitlement to service connection for hearing loss is remanded. The record reflects the Veteran’s claim of service connection for hearing loss was denied below because there was no evidence of a current hearing loss disability. For the purpose of applying the laws administered by VA, impaired hearing is considered a disability when the auditory threshold in any of the frequencies 500, 1,000, 2,000, 3,000, or 4,000 Hertz is 40 decibels or greater; or when the auditory threshold for at least three of the frequencies 500, 1,000, 2,000, 3,000, or 4,000 Hertz is 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. Further, the Court has indicated that the threshold for normal hearing is between 0 and 20 decibels and that higher thresholds show some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). When audiometric test results at a veteran’s separation from service do not meet the regulatory requirements for establishing a “disability” at that time, he may nevertheless establish service connection for a current hearing disability by submitting evidence that the current disability is causally related to service. Hensley, 5 Vet. App. at 160. In this case, the Board notes that there does not appear to be any audiological findings in the post-service medical records. Nevertheless, there does appear to be evidence of such in the service treatment records. His January 1961 enlistment examination did not include audiological testing, but showed whispered and spoken voice testing were 15/15. Similar findings were noted on subsequent service examination in June 1962, January 1965, April 1965, and April 1969. However, audiological findings were included as part of a May 1969 examination, revealed pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 6000 RIGHT 15 25 25 15 25 25 LEFT 15 35 35 35 30 35 A February 1973 service examination included audiological results revealed pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 6000 RIGHT 20 20 20 30 30 -- LEFT 40 55 55 35 40 -- Audiological findings on a November 1974 service examination revealed pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 6000 RIGHT 15 15 15 10 10 -- LEFT 15 20 25 20 20 -- Audiological findings on a December 1978 service examination revealed pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 6000 RIGHT 5 15 15 15 15 30 LEFT 5 20 30 20 30 25 Finally, his December 1980 retirement examination revealed pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 6000 RIGHT 10 10 15 15 20 45 LEFT 15 25 35 20 35 35 Despite the foregoing, the Board notes that it is still not clear from the evidence of record whether the Veteran has a current hearing loss disability. Further, given the fact the first audiological evaluation showing evidence of hearing loss appears to have been conducted when he entered a new period of active duty in May 1969, it is not clear whether it is a disability that was incurred during or was otherwise the result of active service. Consequently, the Board concludes a competent medical examination is also required to clarify the nature and etiology of the Veteran’s claimed hearing loss. 11. Entitlement to a rating in excess of 10 percent for service-connected atopic dermatitis is remanded. The Veteran’s service-connected chronic atopic dermatitis is evaluated pursuant to the criteria found at 38 C.F.R. § 4.118, Diagnostic Code 7806. Recently, VA amended the criteria for rating the skin. Under the new criteria, a note preceding 38 C.F.R. § 4.118 provides that, for the purposes of this section, “systemic therapy is treatment that is administered through any route (orally, injection, suppository, intranasally) other than the skin, and topical therapy is treatment that is administered through the skin.” Diagnostic Code 7806 continues to apply to dermatitis or eczema, but is rated under the general rating formula for the skin. Under the general rating formula, a 10 percent rating is warranted where at least one of the following is present: characteristic lesions involving at least 5 percent, but less than 20 percent, of the entire body affected; or at least 5 percent, but less than 20 percent, of exposed areas affected; or intermittent systemic therapy including, but not limited to, corticosteroids, phototherapy, retinoids, biologics, photochemotherapy, PUVA, or other immunosuppressive drugs required for a total duration of less than 6 weeks over the past 12-month period. A 30 percent rating is warranted where at least one of the following is present: Characteristic lesions involving 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas affected; or systemic therapy including, but not limited to, corticosteroids, phototherapy, retinoids, biologics, photochemotherapy, PUVA, or other immunosuppressive drugs required for a total duration of 6 weeks or more, but not constantly, over the past 12-month period. A 60 percent rating is warranted for characteristic lesions involving more than 40 percent of the entire body or more than 40 percent of exposed areas affected; or constant or near-constant systemic therapy including, but not limited to, corticosteroids, phototherapy, retinoids, biologics, photochemotherapy, psoralen with long-wave ultraviolet-A light (PUVA), or other immunosuppressive drugs required over the past 12-month period. With regard to the meaning of “systemic therapy” prior to the new definition of the term in the revised criteria, the Court in Johnson v. McDonald, 27 Vet. App. 497, 505 (2016) held that use of a topical steroid constituted “systemic therapy” within the meaning of Diagnostic Code 7806. In Johnson v. Shulkin, 862 F.3d 1351 (Fed. Cir. 2017), the Federal Circuit reversed this decision and determined that “constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs” under Diagnostic Code 7806 is generally not inclusive of topical corticosteroids. The Federal Circuit found that “systemic therapy” means “treatment pertaining to or affecting the body as a whole,” whereas topical therapy means “treatment pertaining to a particular surface area, as a topical anti-infective applied to a certain area of the skin and affecting only the area to which it is applied.” Thus, according to the Federal Circuit, all applications of topical corticosteroids do not constitute systemic therapy. The Federal Circuit also held that a topical corticosteroid treatment could meet the definition of systemic therapy if it was administered on a large enough scale such that it affected the body, and the use of a topical corticosteroid could be considered either systemic therapy or topical therapy based on the factual circumstances of each case. In Burton v. Wilkie, No. 16-2037, 2018 U.S. App. Vet. Claims Lexis 1314 (Sept. 28, 2018), the Court held that there are at least two other potential ways of showing that a topical corticosteroid is systemic: the method by which the treatment works and its side effects. Significantly, with regard to the effective date of the new criteria, VA indicated in the Supplementary Information to the Final Rule that its “intent is that the claims pending prior to the effective date will be considered under both old and new rating criteria, and whatever criteria is more favorable to the veteran will be applied.” The Veteran’s claim in this case was pending prior to the August 13, 2018 effective date of the new criteria, and therefore the Board will consider both the old and new criteria and apply the more favorable. However, the Federal Circuit’s interpretation of the term “systemic therapy” in the old criteria applies throughout the entire period prior to the August 13, 2018 effective date of the new criteria. Rivers v. Roadway Express, 511 U.S. 298, 312-13 (1994) ("[j]udicial construction of a statute [or regulation] is an authoritative statement of what the statute [or regulation] meant before as well as after the decision of the case giving rise to that construction"); Jordan v. Nicholson, 401 F.3d 1296, 1298-99 (Fed. Cir. 2005) (a new interpretation of a statute retroactively affects decisions still open on direct review); Threatt v. McDonald, 28 Vet. App. 56, 63 (2016) (noting the "normal principle at this Court that judicial decisions operate retrospectively"). Inasmuch as the most recent VA examination of the Veteran’s atopic dermatitis in June 2017 was conducted prior the Federal Circuit’s holding in Johnson v. Shulkin, and the Court’s more recent holding in Burton, the Board finds it appears the evidence of record may not accurately evaluate the service-connected disability in light of the applicable rating criteria. Therefore, a remand is required to accord a new competent medical examination of this disability. 12. Entitlement to SMC based upon the need for regular aid and attendance or being housebound is remanded. The Board notes that resolution of the other claims remanded by this decision may affect whether the Veteran is entitled to SMC based upon the need for aid and attendance or being housebound. As such, these claims are inextricably intertwined, and the Board must defer adjudication of the SMC claim until the development on the other claims have been completed. The matters are REMANDED for the following action: 1. Obtain all outstanding VA treatment records pertaining to the Veteran which cover the period from June 2017 to the present. 2. Request the Veteran identify the names and addresses of all medical care providers who have treated him for his hypertension, diabetes mellitus, erectile dysfunction, heart disease, sleep apnea, softened/weakened palate, sarcoidosis, BPH, psychiatric disorder, hearing loss, and atopic dermatitis from June 2017 to the present. After obtaining any necessary release, request those records not on file. 3. Notify the Veteran that he may submit lay statements from himself and from other individuals who have first-hand knowledge, and/or were contemporaneously informed of his in-service and post-service hypertension, diabetes mellitus, erectile dysfunction, heart disease, sleep apnea, softened/weakened palate, sarcoidosis, BPH, psychiatric, and hearing loss symptomatology; as well as the nature, extent and severity of his atopic dermatitis symptoms and the impact of the condition on his ability to work. He should also be requested to provide additional details regarding the circumstances of his purported exposure to herbicide agents while on active duty. The Veteran should be provided an appropriate amount of time to submit this lay evidence. 4. Obtain the Veteran’s complete service personnel records. 5. Schedule the Veteran for a competent medical examination(s) by an appropriately qualified clinician(s) to address the nature and etiology of his claimed heart disease, sleep apnea, softened/weakened palate, sarcoidosis, BPH, acquired psychiatric disorder, and hearing loss. The respective examiner(s) should express an opinion as to whether it is at least as likely as not the claimed disability(ies) had their onset during service or are related to the medications (including Prednisone, Symbicort, Fluticasone and Clobetasol) he has taken during and since service for his service-connected bronchial asthma, allergic rhinitis and atopic dermatitis. In pertinent part, the examiner(s) should address whether it is at least as likely as not the claimed disability(ies) were caused or aggravated by these disabilities to include the medications used as treatment thereof. By aggravation, the Board means a permanent increase in severity that is beyond natural progression. For the sleep apnea, the respective examiner should also address whether the Veteran has a softened/weakened palate that was caused or aggravated by the sleep apnea. For the heart disease, the respective examiner’s opinion should reflect consideration of the documented in-service treatment for chest pain and high cholesterol. For the psychiatric disorder claim, the respective examiner should specifically address whether the Veteran currently satisfies the criteria for a diagnosis of PTSD. In addition, for any acquired psychiatric disorder found to be present, the examiner’s opinion should reflect consideration of the Veteran’s contention he developed recurrent depression and anxiety while on active duty, to include related to the death of his father during this period; as well as his account of “fear of hostile military or terrorist activity” while serving aboard a submarine in the waters of Vietnam. 6. Schedule the Veteran for a competent medical examination by an appropriately qualified clinician to evaluate the current nature and severity of his service-connected atopic dermatitis. The examination should address whether this disability requires systemic treatment in light of the holdings in Johnson v. Shulkin, 862 F.3d 1351 (Fed. Cir. 2017), and Burton v. Wilkie, No. 16-2037, 2018 U.S. App. Vet. Claims Lexis 1314 (Sept. 28, 2018), as detailed above. STEVEN D. REISS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD John Kitlas, Counsel