Citation Nr: 18158188 Decision Date: 12/14/18 Archive Date: 12/14/18 DOCKET NO. 15-20 729 DATE: December 14, 2018 ORDER Entitlement to service connection for hiatal hernia is granted. Entitlement to service connection for hypercholesterolemia is denied. Entitlement to service connection for epididymitis is denied. Entitlement to a rating higher than 30 percent for eczematous dermatitis is denied. Entitlement to a temporary total disability rating based on the need for hospitalization or convalescence following treatment of a service-connected disability is denied. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) is granted. REMANDED Entitlement to a rating higher than 10 percent for left shoulder supraspinatus tendon strain is remanded. Entitlement to a rating higher than 10 percent for cervical myositis is remanded. Entitlement to a rating higher than 30 percent for asthma is remanded. Entitlement to a rating higher than 30 percent for posttraumatic stress disorder (PTSD) with depression, is remanded. Entitlement to an earlier effective date than January 21, 2016, for PTSD with depression, is remanded. Entitlement to an effective date earlier than January 21, 2016 for sleep apnea with asthma is remanded. FINDINGS OF FACT 1. Resolving all doubt in the Veteran’s favor, his currently diagnosed hiatal hernia had onset during a period of active duty service. 2. Elevated cholesterol is a laboratory finding and is not a disability. 3. There is no competent evidence of record that shows the Veteran has epididymitis. 4. The Veteran’s eczematous dermatitis has affected less than 40 percent of his entire body and exposed areas; and has not required constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs during the appeal. 5. The probative evidence of record supports a finding that the Veteran has been unable to secure or follow substantially gainful employment as a result of his service-connected disabilities. 6. The record evidence does not indicate that any of the Veteran’s service-connected disabilities required hospitalization or convalescence. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for hiatal hernia have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for entitlement to service connection for hypercholesterolemia have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. § 3.303. 3. The criteria for entitlement to service connection for epididymitis have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. § 3.303. 4. The criteria for a rating higher than 30 percent for eczematous dermatitis are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.118, Diagnostic Code 7806. 5. The criteria for entitlement to a total disability rating based on individual unemployability due to service-connected disabilities have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16. 6. The criteria for entitlement to a temporary total disability rating based on the need for hospitalization or convalescence of a service-connected disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.29, 4.30. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1997 to March 1998, from January 2003 to May 2004, and from May 2007 to March 2008. It is noted that the RO denied the Veteran’s TDIU claim in a June 2018 rating decision. Although the issue of TDIU has not been certified on appeal, the Board does have jurisdiction to decide the claim. In this regard, the Board notes that in Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a TDIU claim is part of an increased rating claim when such claim is raised by the record. Accordingly, the Board concludes that it does have jurisdiction over the issue of the Veteran’s claim for entitlement to TDIU, and that issue has been added, as listed above. Since the RO last considered the some of the claims on appeal, additional evidence, to include VA treatment records, has been added to the Veteran’s claims file without a waiver of Agency of Original Jurisdiction (AOJ) consideration of this evidence. As this decision is granting the claim for entitlement to a TDIU, any deficiency in VA’s duties to notify and assist the Veteran for that issue is harmless. Regarding the remaining appellate issues herein decided, the additional evidence is duplicative or cumulative of evidence already of record, and it does not have a bearing on these issues. See 38 C.F.R. § 20.1304 (c). In an April 2017 the RO granted service connection for PTSD with depression, and assigned an evaluation of 30 percent effective January 21, 2016. That rating decision also granted service connection for sleep apnea with an evaluation of 50 percent, effective January 21, 2016. The Veteran filed a timely notice of disagreement (NOD) with the rating assigned for PTSD with depression, as well as the effective dates of the ratings for sleep apnea and PTSD with depression. As a statement of the case (SOC) has not yet been issued, remand is required for the issuance of a SOC. See Manlicon v. West, 12 Vet. App. 238 (1999). The AOJ assigned a single disability rating for his coexisting respiratory conditions of sleep apnea and asthma, rated as 50 percent disabling, effective September 1, 2018. Accordingly, the issues have been characterized as listed above. Service Connection Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting service, was aggravated therein. 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). To establish service connection for a disability, there must be competent evidence of the following: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship or nexus between the present disability and the disease or injury incurred or aggravated during service. Horn v. Shinseki, 25 Vet. App. 231, 236 (2010); Shedden, 381 F.3d at 1167; Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). In many cases, medical evidence is required to meet the requirement that the evidence be “competent”. However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination “medical in nature” and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). Service connection may be established on a presumptive basis for a Persian Gulf veteran who exhibits objective indications of chronic disability resulting from undiagnosed illness that became manifest either during active service in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10 percent or more not later than December 31, 2016, and which by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis. 38 U.S.C. § 1117; 38 C.F.R. § 3.317 (a)(1) (VA has adopted an interim final rule extending this date to December 31, 2016). In claims based on undiagnosed illness, unlike those for direct service connection, there is no requirement that there be competent evidence of a nexus between the claimed illness and service. Gutierrez v. Principi, 19 Vet. App. 1, 8-9 (2004). Notably, laypersons are competent to report objective signs of illness. Id. A “qualifying chronic disability” for purposes of 38 U.S.C. § 1117 is a chronic disability resulting from (A) an undiagnosed illness, (B) a medically unexplained chronic multisymptom illness (such as chronic fatigue syndrome (CFS), fibromyalgia, or irritable bowel syndrome) that is defined by a cluster of signs or symptoms, or (C), any diagnosed illness that the Secretary determines in regulation prescribed under 38 U.S.C. § 1117 (d) warrants a presumption of service connection. 38 U.S.C. § 1117 (a)(2); 38 C.F.R. § 3.317 (a)(2)(i)(B). “Objective indications of chronic disability” include both “signs,” in the medical sense of objective evidence perceptible to a physician, and other, non-medical indicators that are capable of independent verification. To fulfill the requirement of chronicity, the illness must have persisted for a period of six months. 38 C.F.R. § 3.317 (a)(2), (3). Signs or symptoms that may be manifestations of undiagnosed illness include, but are not limited to, the following: (1) fatigue; (2) signs or symptoms involving skin; (3) headache; (4) muscle pain; (5) joint pain; (6) neurologic signs or symptoms; (7) neuropsychological signs or symptoms; (8) signs or symptoms involving the respiratory system (upper or lower); (9) sleep disturbances; (10) gastrointestinal signs or symptoms; (11) cardiovascular signs or symptoms; (12) abnormal weight loss; and (13) menstrual disorders. 38 C.F.R. § 3.317(b). The Board notes that, effective July 13, 2010, VA has amended its adjudication regulations governing presumptions for certain Persian Gulf War Veterans. Such revisions amend § 3.317(a)(2)(i)(B) to clarify that chronic fatigue syndrome, fibromyalgia, and irritable bowel syndrome are examples of medically unexplained chronic multisymptom illnesses and are not an exclusive list of such illnesses. Additionally, the amendment removes § 3.317(a)(2)(i)(B)(4) which reserves to the Secretary the authority to determine whether additional illnesses are ‘medically unexplained chronic multisymptom illnesses’ as defined in paragraph (a)(2)(ii) so that VA adjudicators will have the authority to determine on a case-by-case basis whether additional diseases meet the criteria of paragraph (a)(2)(ii). These amendments are applicable to claims pending before VA on October 7, 2010, as well as claims filed with or remanded to VA after that date. See 75 Fed. Reg. 61,997 (Oct 7, 2010). Compensation under 38 U.S.C. § 1117 shall not be paid if: (1) there is affirmative evidence that an undiagnosed illness was not incurred during active military, naval, or air service in the Southwest Asia theater of operations during the Persian Gulf War; (2) if there is affirmative evidence that an undiagnosed illness was caused by a supervening condition or event that occurred between the Veteran’s most recent departure from active duty in the Southwest Asia theater of operations during the Persian Gulf War and the onset of the illness; or (3) if there is affirmative evidence that the illness is the result of the Veteran’s own willful misconduct or the abuse of alcohol or drugs. 38 C.F.R. § 3.317 (c). The Veteran served in the Southwest Asia Theater of operations during the Persian Gulf War and is a Persian Gulf Veteran. 38 C.F.R. § 3.317 (e). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). 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. See Gilbert, 1 Vet. App. at 54. 1. Entitlement to service connection for hiatal hernia The Veteran claims service connection for hiatal hernia. VA treatment records show that on May 12, 2004, during a period of active duty service, a thorax CT scan revealed a hiatal hernia. Subsequent treatment records list the condition as an active medical problem, managed with diet. As such, because the evidence shows that diagnostic testing coincident with his period of active duty from January 21, 2003 to May 20, 2004, revealed hiatal hernia, resolving all reasonable doubt in his favor, the Board finds that service connection for hiatal hernia is warranted. 2. Entitlement to service connection for hypercholesterolemia The Veteran also contends that he is entitled to service connection for elevated cholesterol associated with Gulf War illness. The Veteran’s post-service treatment records reflect treatment for hypercholesterolemia. However, high cholesterol is not a “disability” for VA purposes, as it does not fall within VA’s definition of disability for which compensation is warranted. In supplementary information preceding revisions to the criteria for evaluating the endocrine system, VA noted that hyperlipidemia, elevated triglycerides, and elevated cholesterol “are actually laboratory test results, and are not, in and of themselves, disabilities.” 61 Fed. Reg. 20440, 20445 (May 7, 1996). Accordingly, service connection for high cholesterol is not appropriate, as it is not a disability for VA benefits purposes. In the absence of a current disability, service connection cannot be established. As the preponderance of the evidence is against the Veteran’s claim, the benefit-of-the-doubt rule does not apply. 38 U.S.C. § 5107 (b); Gilbert, 1 Vet. App. at 53-56. 3. Entitlement to service connection for epididymitis The Veteran contends that he developed epididymitis due to service. The service and post-service treatment records are negative for any complaints or treatment related to epididymitis. Review of the evidentiary record shows that there is no competent or probative evidence showing that the Veteran currently has epididymitis. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (“Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability,” and held that “[i]n the absence of proof of a present disability[,] there can be no valid claim.”); see also Degmetich v. Brown, 104 F.3d 1328 (1997) (38 U.S.C. § 1131 requires existence of present disability for VA compensation purposes). Simply stated, the best evidence in this case provides evidence against the existence of a current “disability” at this time In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against this claim, the doctrine is not for application. See 38 U.S.C. § 5107 (b); Gilbert, supra. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. 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 apply, assigning a 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 disabilities upon the person’s ordinary activity, 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). A claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Thus, separate ratings can be assigned for separate periods of time based on the facts found – a practice known as “staged” ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). 4. Entitlement to a rating higher than 30 percent for eczematous dermatitis The Veteran asserts that his eczematous dermatitis warrants a rating higher than 30 percent. The Veteran’s eczematous dermatitis is rated under the provisions of 38 C.F.R. § 4.118, Diagnostic Code 7806, which specifically contemplates dermatitis. Under Diagnostic Code 7806, a 30 percent rating is warranted for dermatitis affecting 20 percent to 40 percent of the entire body or of the exposed areas, or; requiring systemic therapy such as corticosteroids or other immunosuppressive drugs for a total duration of six weeks or more, but not constantly, during the past 12-month period. Id. A maximum 60 percent rating is warranted for dermatitis affecting 40 percent of the entire body or more than 40 percent of the exposed areas, or; constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs during the past 12-month period. 38 C.F.R. § 4.118. Upon review of the totality of the record, the Board finds that a rating in excess of 30 percent is not warranted for the entire appeal period. On VA examination in October 2012, the Veteran reported constant or near constant use of topical corticosteroids. The dermatitis covered 20 to 40 percent of total body area, with no exposed areas noted. On VA examination in September 2014, the Veteran reported improvement with the use of topical creams and avoiding too much sun exposure, which worsened his condition. He used topical medication six weeks or more in any given 12 months period, but not constant. The examiner found that the Veteran’s dermatitis affected five to 20 percent of total body area, and less than 5 percent of exposed skin. The Veteran was most recently examined in December 2017. At that time, the examiner noted constant or near constant use of oral medications, Cetirizine HLC, as well as topical corticosteroids. His dermatitis affected 20 to 40 percent of total body area and exposed area. To the extent the Veteran’s skin disorder requires treatment with topical corticosteroids, these are not considered as systemic therapy or other immunosuppressive drugs within the meaning of Diagnostic Code 7806. In this regard, in reversing the Veterans Court’s decision in Johnson v. Shulkin, 862 F.3d 1351 (2017) the Federal Circuit agreed with VA that the Court erred when it “read Diagnostic Code 7806 as unambiguously elevating any form of corticosteroid treatment, including any degree of topical corticosteroid treatment, to the level of systemic therapy.” The Federal Circuit noted that Diagnostic Code 7806 “draws a clear distinction between systemic therapy and topical therapy as the operative terms of the diagnostic code.” The Federal Circuit went on to explain 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. Although 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 as a whole, this possibility does not mean that all applications of topical corticosteroids amount to systemic therapy. Here, while the Veteran’s dermatitis has required constant or near-constant treatment with topical medications, to include topical corticosteroids, as noted above the evidence shows that his skin condition has only involved up to 40 percent of his body, and his treatment with topical corticosteroids has been limited to affected areas, as opposed to his body as a whole. As such, although his skin disorder does require a topical corticosteroid treatment, this treatment cannot be considered systemic therapy as contemplated by the Federal Circuit in Johnson and does not rise to the level contemplated by the maximum 60 percent rating under Diagnostic Code 7806. The record also reflects that the Veteran used Cetirizine, an oral antihistamine. To the extent this medication may constitute “systemic” treatment, it is nonsteroidal and thus not an immunosuppressive drug. Accordingly, for reasons outlined above, the Board finds that a rating higher than 30 percent is not warranted. See 38 U.S.C. § 5107 (b); Gilbert, supra. 5. Entitlement to a TDIU The Veteran contends that his service-connected disabilities prevent him from obtaining gainful employment. In order to establish a TDIU, there must be impairment so severe that it is impossible for the average person to follow a substantially gainful occupation. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. In reaching such a determination, the central inquiry is “whether the Veteran’s service connected disabilities alone are of sufficient severity to produce unemployability.” Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Consideration may be given to the Veteran’s level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). Under the applicable criteria, a TDIU may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more service-connected disabilities, provided that one of those disabilities is ratable 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16 (a). Here the criteria of 38 C.F.R. § 4.16(a) have been met. The evidence shows that the Veteran was employed as a full-time employee until his retirement in November 2017. He was employed as an equipment inspector. He was also employed part-time as motor pool sergeant, working 20 hours a week, until September 2017. Reportedly, he could no longer work due to his service-connected PTSD, cervical myositis, shoulder condition and sleep apnea with asthma. The Veteran reported that his highest level of education attained was three years of college. A VA examiner in March 2018 opined that the Veteran’s service-connected eczematous dermatitis did not preclude him from obtaining or maintaining gainful employment. The examiner noted that the Veteran’s skin condition did not result in physical or functional limitations. On VA examination in March 2018 the examiner noted that the Veteran retired in November 2017 as a surface maintenance inspector, a position he had held for 12 years. The examiner found that as a result of the Veteran’s service-connected cervical myositis, right knee disorder and left shoulder disability he should avoid repetitive overhead activities, lifting and/or carrying heavy objects. The examiner opined that the Veteran was able to obtain, perform and secure a job requiring a light to sedentary duty work. The examiner noted that the Veteran was capable of working in a position that allowed him to adjust his body with certain duty restrictions, such as office work, administrative work, or answering phones. He should nonetheless avoid repetitive overhead activities, prolonged standing or ambulation, or lifting and carrying heavy objects. Similarly, a VA examiner in March 2018 opined that the service-connected asthma and/or sleep apnea did not interfere with his ability to sustain a regular employment. On VA PTSD examination in March 2018, the examiner determined that the Veteran’s psychiatric symptoms were productive of occupational and social impairment due to mild or transient symptoms which decreased work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by medication. In contrast, in September 2018 a vocational expert submitted a report wherein he opined that the Veteran’s service-connected sleep apnea with asthma, PTSD with depression, right knee disability, left shoulder disorder and cervical spine condition, rendered the Veteran unable to secure and follow a substantially gainful employment. In support of the opinion the examiner noted that Veteran’s educational background and occupational history in positions that were moderately physically demanding. The Veteran’s service-connected physical disabilities, particularly during flare-ups, could impair his ability to work in this capacity, as he was restricted from prolonged standing and ambulating, as well as lifting and carrying objects. Additionally, his psychiatric symptoms impaired his ability to perform occupational tasks effectively. In sum, these conditions, in the aggregate, precluded physical and sedentary employment. The determination of whether a veteran is employable is a legal determination, rather than a medical determination. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013) (holding that “applicable regulations place responsibility for the ultimate TDIU determination on the VA [adjudicator], not a medical examiner.”). Thus, resolving reasonable doubt in his favor and find that he has been unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. A TDIU is granted. 6. Entitlement to a temporary total evaluation due to convalescence and/or hospitalization for a service-connected disability In April 2014 the Veteran had submitted a claim for a temporary total evaluation. The Board finds that the Veteran’s claim of entitlement to a temporary total disability rating based on the need for hospitalization or convalescence of a service-connected disability must be denied as a matter of law. Although his argument is not a model of clarity, it appears that the Veteran contends that he is entitled to a temporary total disability rating because one of his service-connected disabilities required either hospitalization for more than 21 days or convalescence during the appeal period. See generally 38 C.F.R. §§ 4.29, 4.30. Contrary to the Veteran’s assertions, there is no indication that he was hospitalized for more than 21 days or needed convalescence as a result of a service-connected disability during the appeal period. Id. The Board observes here that a temporary total disability rating may be assigned under 38 C.F.R. § 4.29 when a service-connected disability required hospitalization for more than 21 days. 38 C.F.R. § 4.29. The Board next observes that a temporary total disability rating also may be assigned under 38 C.F.R. § 4.30 when a convalescent period of 1, 2, or 3 months is required for treatment of a service-connected disability following a hospital discharge. 38 C.F.R. § 4.30. To date, the record evidence does not indicate that the Veteran was hospitalized for more than 21 days or required a period of convalescence of between 1-3 months following hospitalization for treatment of any of his service-connected disabilities at any time during the appeal period. Thus, an analysis of the Veteran’s entitlement to a temporary total disability rating is not required in this case because he has not met the threshold requirement of needing hospitalization or convalescence for treatment of a service-connected disability. The Veteran also has not identified or submitted any evidence demonstrating that a service-connected disability required hospitalization or convalescence and entitles him to a temporary total disability rating. Accordingly, the Board finds that the Veteran’s claim of entitlement to a temporary total disability rating must be denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). REASONS FOR REMAND 1. Entitlement to a rating higher than 10 percent for left shoulder supraspinatus tendon strain is remanded. 2. Entitlement to a rating higher than 10 percent for cervical myositis is remanded. Concerning the Veteran’s claim for higher disability ratings for the service-connected left shoulder and cervical spine disabilities, the Board has reviewed the Veteran’s most recent VA examination findings from March 2018, and concludes that these findings do not meet the specifications of Correia v. McDonald, 28 Vet. App. 158, 168-169 (2016). Although range of motion was tested for the opposite undamaged joint and the examiner found no evidence of pain on weightbearing for the cervical spine, the examiner noted pain for the left shoulder with weightbearing, as well as on passive motion for both the cervical spine and the left shoulder, but did not indicate whether range of motion testing was conducted in active motion, passive motion, weight-bearing and nonweight-bearing, as required by Correia. In Correia, the Court found that 38 C.F.R. § 4.59 requires that VA joint examinations must, where possible, include range of motion results for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint. Id. at 165. Further, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Therefore, the Board finds that a new VA examination is required. Given this, further examination is thus necessary under 38 C.F.R. § 3.159 (c) (4). When adjudicating the claims, the AOJ should be mindful of the Court’s holdings in DeLuca v. Brown, 8 Vet. App. 202 (1995) and Mitchell v. Shinseki, 25 Vet. App. 32 (2011) regarding painful motion. 3. Entitlement to a rating higher than 30 percent for PTSD with depression is remanded. 4. Entitlement to an effective date earlier than January 21, 2016 for obstructive sleep apnea with asthma is remanded. 5. Entitlement to an earlier effective date than January 21, 2016, for PTSD with depression is remanded. As noted in the Introduction of this decision, in April 2017 the Veteran filed a timely NOD with the April 2017 rating decision that granted service connection for PTSD and sleep apnea. Specifically, the Veteran appealed for a higher initial rating for PTSD with depression and he also disagreed with the effective date of the assigned ratings for PTSD and sleep apnea. As the Veteran has not been provided with a SOC for these claims, the Board must remand the claim back to the RO to issue a SOC. See Manlicon, supra. 6. Entitlement to a rating higher than 30 percent for asthma is remanded. In a rating decision in October 2012, the AOJ granted service connection for asthma and assigned a disability rating of 30 percent, effective October 20, 2011. An October 2014 rating decision denied a higher rating for asthma and the Veteran appealed for a higher disability rating. As noted, an April 2017 rating decision that granted service connection for sleep apnea and assigned a 50 percent disability rating, effective January 21, 2016. The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; however, 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. Esteban v. Brown, 6 Vet. App. 259, 262 (1994); 38 C.F.R. § 4.14. When there are two co-existing respiratory conditions (including for Diagnostic Codes 6602 and 6847), a single rating will be assigned under the diagnostic code that reflects the predominant disability with elevation to the next higher evaluation where the severity of the overall disability warrants such evaluation. 38 C.F.R. § 4.96 (a). This has been interpreted to mean that VA will evaluate coexisting service-connected respiratory conditions covered by § 4.96(a) under the criteria enumerated in the predominant disability’s diagnostic code. See Urban v. Shulkin, 29 Vet. App. 82, 95 (2017). Rating coexisting respiratory conditions is governed by 38 C.F.R. § 4.96 (a). Section 4.96(a) states that 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 evaluation. Accordingly, in June 2018, the AOJ discontinued separate evaluations for asthma, and sleep apnea, effective September 1, 2018, and assigned a single disability rating for his coexisting respiratory conditions of sleep apnea and asthma, rated as 50 percent disabling, effective September 1, 2018. Consideration of the claim for an increased rating for asthma is deferred since the claim for entitlement to an earlier effective date for the grant of service connection for sleep apnea is being remanded for further development and adjudication. The outcome of the claim for an earlier effective date may impact the issue of a higher disability rating. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are “inextricably intertwined” when they are so closely tied together that a final Board decision on one issue cannot be rendered until the other issue has been considered). Given the granting of TDIU, the Veteran (in consultation with his representative) may wish to withdraw his remaining claims (in writing). The matters are REMANDED for the following action: 1. Issue a statement of the case which addresses the claim for an increased rating for PTSD with depression, as well as the claims for entitlement to an effective date earlier than January 21, 2016, for PTSD and sleep apnea, so that the Veteran may have the opportunity to complete an appeal on these issues (if he so desires) by filing a timely substantive appeal. 2. Obtain all relevant ongoing VA treatment records dated since June 2018. If possible, the Veteran should submit this himself. 3. After the development requested above has been completed, schedule the Veteran for a VA examination to assess the current severity of his service-connected cervical spine and left shoulder disabilities. The Veteran’s claims file should be made available to and reviewed by the examiner, and he or she must indicate whether such review was accomplished. a) The examiner should determine the range of motion of the Veteran’s cervical spine and left shoulder in degrees. Range of motion testing must include both passive and active motion, and in weight-bearing and nonweight-bearing conditions, and the range of the opposite undamaged joint, where applicable. b) It should be indicated whether and at what point during the Veteran’s range of motion he experiences any limitation of motion that is specifically attributable to pain. Further, the degree of additional range of motion loss or favorable or unfavorable ankylosis due to pain on use, weakened movement, excess fatigability, or incoordination should be indicated. If the Veteran endorses flare-ups of symptoms the examiner must comment on the functional limitations of the cervical spine and left shoulder during flare-ups, and the effect of pain on range of motion. If there is no flare-up at the time of the examination, the examiner is asked to opine on further functional limitations based on the Veteran’s subjective complaints and history. (Continued on the next page)   All findings, conclusions, and the rationale for all opinions expressed should be provided in a report. Please note that an examiner’s report that she/ he cannot provide and opinion without resort to mere speculation is inadequate unless the examiner provides a rationale for that statement. JOHN J CROWLEY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Azizi-Barcelo, Tatiana