Citation Nr: 19183279 Decision Date: 11/04/19 Archive Date: 11/04/19 DOCKET NO. 17-06 007 DATE: November 4, 2019 ISSUES 1. Whether new and material evidence has been received to reopen the claim for service connection for a respiratory condition. 2. Entitlement to service connection for necrosis of the right femoral head, to include as secondary to diabetes mellitus, type II. 3. Entitlement to service connection for necrosis of the left femoral head, to include as secondary to diabetes mellitus, type II. 4. Entitlement to service connection for a respiratory disorder, to include chronic obstructive pulmonary disease (COPD) and chronic bronchitis. 5. Entitlement to service connection for sleep apnea. 6. Entitlement to an increased rating for bilateral hearing loss disability, currently rated as zero percent disabling. 7. Entitlement to an increased rating for ischemic heart disease, currently rated as 30 percent disabling. 8. Entitlement to a total disability rating based on individual unemployability (TDIU). ORDER New and material evidence sufficient to reopen the claim of service connection for a respiratory condition has been received, and to that extent only, the claim is granted. Entitlement to service connection for necrosis of the right femoral head, to include as secondary to diabetes mellitus, type II is granted. Entitlement to service connection for necrosis of the left femoral head, to include as secondary to diabetes mellitus, type II is granted. REMANDED Entitlement to service connection for a respiratory disorder, to include chronic obstructive pulmonary disease (COPD) and chronic bronchitis is remanded. Entitlement to service connection for sleep apnea is remanded. Entitlement to an increased rating for bilateral hearing loss disability, currently rated as zero percent disabling is remanded. Entitlement to an increased rating for ischemic heart disease, currently rated as 30 percent disabling is remanded. Entitlement to a TDIU is remanded. FINDINGS OF FACT 1. A July 2007 rating decision denied service connection for a respiratory condition. The Veteran was notified of his rights, but did not express timely disagreement or submit new evidence within one year. That decision became final. 2. The evidence associated with the record since the July 2007 rating decision relates to an unestablished fact necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim of service connection for a respiratory condition. 3. The competent, credible, and probative lay and medical evidence is in relative equipoise as to whether the Veteran’s necrosis of the right femoral head was proximately caused by, or aggravated by, service-connected diabetes mellitus, type II. 4. The competent, credible, and probative lay and medical evidence is in relative equipoise as to whether the Veteran’s necrosis of the left femoral head was proximately caused by, or aggravated by, service-connected diabetes mellitus, type II. CONCLUSIONS OF LAW 1. New and material evidence sufficient to reopen the claim of service connection for a respiratory condition has been received. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (a) (2018). 2. Resolving reasonable doubt in the Veteran’s favor, necrosis of the right femoral head, is proximately due to, or the result of, service-connected diabetes mellitus, type II. 38 U.S.C. § 1110 (2012); 38 C.F.R. §§ 3.303, 3.310 (2018). 3. Resolving reasonable doubt in the Veteran’s favor, necrosis of the left femoral head, is proximately due to, or the result of, service-connected diabetes mellitus, type II. 38 U.S.C. § 1110 (2012); 38 C.F.R. §§ 3.303, 3.310 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1969 to November 1972. The Veteran’s DD-214 shows that he is the recipient of several medals, including the Republic of Vietnam Campaign Medal, the Combat Action Ribbon, and the Vietnam Service Medal with Two Bronze Stars, indicating service in the Republic of Vietnam. Exposure to herbicide agents has been conceded. This matter is before the Board of Veterans Appeals (Board) on appeal from April 2015, January 2016, and May 2016 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. The Veteran testified before the undersigned Veterans Law Judge (VLJ) in July 2019. A copy of the hearing transcript has been associated with the claims file. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2018). The Veteran in this case has not referred to any deficiencies in either the duties to notify or assist; therefore, the Board may proceed to the merits of the claim. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015, cert denied, U.S.C. Oct. 3, 2016) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board....to search the record and address procedural arguments when the [appellant] fails to raise them before the Board”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to an appellant’s failure to raise a duty to assist argument before the Board). The Board has reviewed all of the evidence in the Veteran’s claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board’s analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-130 (2000). Finality of Service Connection Claim 1. Whether new and material evidence has been received to reopen the claim for service connection for a respiratory condition. Service connection for a respiratory condition was denied in a July 2007 rating decision. The Veteran was informed of the decision and of the right to appeal. He did not appeal or submit new and material evidence within one year of notification. That decision is final. At the time of the decision, the record included the claims and the service records. There was no accepted evidence of a respiratory condition associated with asbestosis. Although there was a record of treatment in service for bronchitis, there was no permanent residual or chronic disability subject to service connection shown in the Service Treatment Records (STRs) or demonstrated by evidence following service. There was no evidence of a nexus to service. However, if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. 38 U.S.C. § 5108. New evidence means existing evidence not previously submitted to agency decision makers. 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). The United States Court of Appeals for Veterans Claims (Court) interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold. See Shade v. Shinseki, 24 Vet. App. 110 (2010). The Court emphasized that the regulation is designed to be consistent with 38 C.F.R. § 3.159(c)(4), which “does not require new and material evidence as to each previously unproven element of a claim.” See id. In March 2015, VA received the Veteran’s application to reopen the claim of service connection for a respiratory condition, now claimed as chronic bronchitis. The additional evidence presented includes post-service treatment reports from hospitals and medical centers. The December 2016 Statement of the Case (SOC) reopened the claim of service connection for a respiratory disorder, noting in part that the Veteran’s DD-214 shows that his Military Occupational Specialty (MOS) was as a fireman, which has a high likelihood of exposure to asbestos. Moreover, the new evidence establishes that the Veteran has a history of treatment for and carries a possible diagnosis of COPD and acute bronchitis. As a lack of evidence supporting the presence of respiratory disability was one of the bases for the previous denial of the claim, this evidence is new and material under 38 C.F.R. § 3.156. In light of this new and material evidence, the Veteran’s claim of service connection for a respiratory disorder, to include COPD and chronic bronchitis is reopened. Service Connection 2. Entitlement to service connection for necrosis of the right femoral head, to include as secondary to diabetes mellitus, type II 3. Entitlement to service connection for necrosis of the left femoral head, to include as secondary to diabetes mellitus, type II The Board incorporates its discussion from the sections above by reference. To establish service connection a Veteran must generally show: “(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service.” Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also 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). For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word “Chronic.” When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of evidentiary showing of continuity. Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303 (b). Except as provided in § 3.300(c), disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. 38 C.F.R. § 3.310 (a). Any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service connected. However, VA will not concede that a nonservice-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury. 38 C.F.R. § 3.310 (b). VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154 (a). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Lay evidence cannot be determined not credible merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). However, the lack of contemporaneous medical evidence can be considered and weighed against a Veteran’s lay statements. Id. The Board, as fact finder, is obligated to, and fully justified in, determining whether lay evidence is credible in and of itself, i.e., because of possible bias, conflicting statements, etc. Id. Further, a negative inference may be drawn from the absence of complaints for an extended period. See Maxson v. West, 12 Vet. App. 453, 459 (1999), aff’d sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). By way of background, the STRs include a November 1972 Report of Medical Examination from separation. It disclosed no clinically normal evaluations, but also no negative evaluations for all items. They are blank. The notes section shows “ok.” A related November 29, 1972 notation shows that the Veteran was found to be physically qualified for active duty at sea and/or foreign service. Years later, a July 2007 rating decision in part granted service connection for diabetes mellitus, type II associated with herbicide exposure pursuant to the Agent Orange Act of 1991. Herbicide exposure has been conceded. A March 7, 2014 VA Nursing Inpatient E & M Note shows that the Veteran experienced post-surgical, constant bilateral hip pain. It was daily and sharp, with constant throbbing. It is made worse by exercising. Additional ongoing VA treatment records show impressions of and treatment for hip pain. In June 2019, the Veteran through counsel availed himself a VA Hip and Thigh Conditions Disability Benefits Questionnaire (DBQ). It shows that the claims file was reviewed. The claimed condition was left hip pain, however, the examination went on to show impairment and pain for both hips. The Veteran reported pain even at rest with prolonged sitting and standing for both hips. The Veteran reported the onset of hip pain in 1973. The examiner noted that research shows that there is a connection between diabetes and avascular necrosis, which is the diagnosis given to the Veteran for the cause of his pain. Surgery was performed in 1980 on the left hip and 1981 on the right. Hip pain continued to limit tolerance with functional activities. The examiner documented that the Veteran uses bilateral handheld crutches during flare ups. Next, the private examiner rendered a positive nexus opinion for secondary service connection for both hips. The private examiner remarked: Veteran served in the military in 1969-1972. Veteran states he is also on the Agent Orange Registry due to dioxin exposure for 2 years. Veteran states hip pain started in 1973. Veteran was diagnosed with avascular idiopathic necrosis of bilateral femoral head and had experimental surgery with a bone graft in 1980 on left and 1981 on right. Based on research, such as the American Diabetes Association medical article, Real-World Database Examining the Association Between Avascular Necrosis of the Femoral Head and Diabetes in Taiwan, Nov 2018, those with diabetes have a 1.16-fold higher risk of developing avascular necrosis of the femoral head. Based on the Agent Orange Presumptive Listing, it is known that dioxin exposure has been linked to the presence of Diabetes. Veteran has already been diagnosed with Diabetes and therefore, it is in my medical opinion, that it is as likely a[s] not, that his avascular necrosis is due to his Agent Orange exposure. Veteran presents today with pain on movement, loss of motion, and positive FABER suggesting continued chronic symptoms limiting tolerance with functional activities. Due to current symptoms, veteran continues to have difficulty with walking, running, prolonged standing, and sitting. Next, at the July 2019 hearing, the Veteran’s representative contended, Also there has also been discussion with him regarding the history of these hip issues, and we’re hoping we can get him service connected for these like you said as secondary to his diabetes. You know, he spent time on several vessels while he was in Vietnam waters. His career was as a fireman, but he also worked in the boiler room onboard several ships. So he -- you know, up and down ladders, moving around quite a bit. So -- we’re looking at -- hopefully we can get you to -- or get you folks back there to look at the evidence and agree that we think he needs to be service connected. See July 2019 Hearing Transcript, p. 7. The Veteran then testified: I would say my exposure to different things, particularly a lot of climbing and my job as a full maintenance technician, I did repair on valves. And so a lot of climbing and -- but my connection, my hips only recently was discovered that it connects to diabetes mellitus. And so even though I had claimed it, I didn’t know how to proceed -- with that. And so the hip problem and -- relates back to my marriage with my wife. I was having hip problems 36-some plus years -- even prior to our marriage. I couldn’t hardly walk anymore and I had a -- what’s it called? Idiopathic unknown cause avascular necrosis of the femoral head. See July 2019 Hearing Transcript, p. 9. The Veteran contends that he is entitled to service connection for bilateral necrosis of the femoral heads, to include as secondary to diabetes mellitus, type II. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107 (2012); Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996). The Veteran is competent to provide evidence of that which he experiences, including his symptomatology and medical history. Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Veteran is competent to report hip pain, difficulty with weight bearing, and increased pain following walking or exercise. The Veteran is competent to relate what he has been told by a professional. He is competent to report when he began receiving treatment for the bilateral hips, and when hip disability was first identified by a physician. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Thus, the most probative evidence of record is the Veteran’s self-reported history as to the onset of his pain in the bilateral hips and the June 2019 private medical opinion. The June 2019 private examiner provided clear reasons and bases in explaining that there is diagnosed bilateral hip disability, and a positive causal relationship between the Veteran’s bilateral necrosis of the femoral heads and diabetes mellitus, type II. Here, it appears the Veteran’s central theory for entitlement to service connection for bilateral necrosis of the femoral heads is one of secondary service connection. More specifically, he contends that his bilateral necrosis of the femoral heads is secondary to service-connected diabetes mellitus, type II. Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) aggravated by a service-connected disease or injury. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Service connection has been established for diabetes mellitus, type II, as due to Agent Orange exposure. The Board has considered the evidence of record, and finds that bilateral necrosis of the femoral heads is proximately due to, the result of, or aggravated by diabetes mellitus, type II. In particular, the June 2019 private examination with medical opinion encompasses a theory of secondary rather than direct service connection. It is phrased in terms of, “Based on the Agent Orange Presumptive Listing, it is known that dioxin exposure has been linked to the presence of Diabetes. Veteran has already been diagnosed with Diabetes and therefore, it is in my medical opinion, that it is as likely a[s] not, that his avascular necrosis is due to his Agent Orange exposure.” In short, the opinion from the June 2019 private examiner demonstrates a positive causal association between bilateral necrosis of the femoral head and diabetes mellitus, type II. The private examiner provided reasons and bases to support the positive nexus opinion, including reviewing the claims file, citing to medical literature, and performing a physical examination of both hips. We note that the examiner has not shown any advanced medical expertise on topics such as treating diabetics for related disability of the musculoskeletal system. Still, the Board assigns moderate probative weight to the private examiner’s findings. In contrast, we also assign moderate, but not greater, probative weight to the contemporaneous treatment records, including the STRs. The separation examination does not definitively show clinically normal evaluations of any systems. VA treatment records confirm a diagnostic impression of bilateral avascular necrosis. The Veteran has not been afforded a comprehensive VA examination with medical opinion showing a negative nexus opinion for secondary service connection, or a discussion of this theory of entitlement. Many years have passed during which the RO could have obtained such an examination. Meanwhile, the Veteran’s own lay history shows that he endured rigorous physical duties in service, and was exposed to Agent Orange. We note that the Veteran’s lay history from the June 2019 examination places the onset of hip impairment to 1973, after his time in service. The Veteran has advanced a theory of secondary service connection. The Veteran testified, “And so a lot of climbing and -- but my connection, my hips only recently was discovered that it connects to diabetes mellitus. And so even though I had claimed it, I didn’t know how to proceed -- with that.” Although he also testified at the July 2019 hearing regarding possible idiopathic nature of necrosis of the femoral heads, we also note that that evidence of pain alone which results in functional impairment, even if there is no identified underlying diagnosis, can constitute a disability. Saunders v. Wilkie, 886 F.3d 1356 (2018). In addition, the evidence showing a worsening of his condition over the years is consistent with findings of secondary service connection, to the extent it shows hip disability manifesting after separation. The Veteran has been relatively steady throughout the appeals period regarding his reports of pain resulting in functional impairment in the bilateral hips. However, he is not competent to offer a medical etiology opinion linking any hip disability to diabetes mellitus, type II, as this would require medical expertise. Consequently, we assign moderate probative weight to the Veteran’s lay evidence. At the very least, the evidence of record is in relative equipoise as to the nature and etiology of the Veteran’s bilateral necrosis of the femoral head. The Board has considered that the June 2019 private medical opinion shows that there is a causal relationship between bilateral necrosis of the femoral head and diabetes mellitus, type II due to herbicide exposure. As such, there is sufficient evidence with which to reach a decision. Furthermore, we note that there is no probative evidence of record conclusively disassociating the Veteran’s documented bilateral hip disability from conceded in-service herbicide exposure, diabetes mellitus, type II, or other service-connected disease or injury. 38 C.F.R. § 3.310. The RO has had several years to further develop the Veteran’s claim regarding a claimed relationship between the two disabilities, during which time the Veteran has continued to pursue his appeal. Therefore, resolving all reasonable doubt in the Veteran’s favor, the Board finds that it is at least as likely as not that the Veteran’s current bilateral necrosis of the femoral heads, was either proximately due to, the result of, or aggravated by his diabetes mellitus, type II due to herbicide exposure. The Veteran is therefore entitled to the benefit of the doubt. See 38 U.S.C. § 5107 (b) (2012); 38 C.F.R. § 3.102 (2018). Accordingly, service connection for right and left necrosis of the femoral heads is warranted. Neither the Veteran nor his agent has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). REASONS FOR REMAND A remand is necessary for additional development. 1. Entitlement to service connection for a respiratory disorder, to include chronic obstructive pulmonary disease (COPD) and chronic bronchitis is remanded. The Board incorporates its discussion from the sections above by reference. The Board observes that in cases involving asbestos exposure, the claim must be analyzed under VA administrative protocols. Ennis v Brown, 4 Vet. App. 523 (1993), McGinty v. Brown, 4 Vet. App. 428 (1993). Although there is no specific statutory or regulatory guidance regarding claims for residuals of asbestos exposure, VA has several guidelines for compensation claims based on asbestos exposure M21-1, VBA Adjudication Procedure Manual M21-1, part IV, Subpart ii, Ch 2, Section C. In this regard, the M21-1 provides the following non-exclusive list of asbestos-related diseases/abnormalities: asbestosis, interstitial pulmonary fibrosis, tumors, pleural effusions and fibrosis, pleural plaques, mesotheliomas of pleura and peritoneum, lung cancer, bronchial cancer, cancer of the larynx, cancer of the pharynx, cancer of the urogenital system (except the prostate), and cancers of the gastrointestinal tract. See M21-1, part IV, Subpart ii, Chapter 2, Section C, 2(b). We note there is no current respiratory cancer diagnosis. The Veteran claims that acute bronchitis and COPD are his currently diagnosed respiratory disabilities. Post-service VA treatment records show impressions of and treatment for COPD and acute bronchitis. The issue is a nexus. Next, the Veteran was afforded a November 2016 VA examination with medical opinion. The VA rendered negative nexus opinions. The VA examiner concluded, after a review of the medical records and of the medical literature, that chronic obstructive pulmonary disease with chronic bronchitis is less likely as not permanently aggravated or a result of asbestos exposure. The VA examiner indicated that the Veteran’s condition is more likely than not related to tobacco exposure, even passively, in civilian live working in the construction industry. Additionally, the physician opined that it is less likely than not that the Veteran’s current COPD is due to the two treatments of acute bronchitis that occurred in service in September 1969. The VA examiner reasoned that it is not logical that two episodes of acute bronchitis over 45 years ago, which appear to have resolved in service, have now resulted in the chronic lung condition. Next, in January 2017, the Veteran through his agent perfected his appeal. He wrote in part, “This Form 9 is in response to the SOC dated 12-28-16 on issues of service connection for [a] respiratory condition/COPD/chronic bronchitis. The VARO failed in its duty to assist in its failure to fully review all available medical records on behalf of veteran. The VA further failed to provide the veteran with a comprehensive medical exam.” At the July 2019 hearing, the Veteran’s representative explained that the Veteran worked in a boiler room on older vessels, where he was subjected to asbestos. The Veteran clarified, “As a ship fitter, we repaired the valves and the piping, welded. Did any repair to the hull.” See July 2019 Hearing Transcript, p. 12. There was a lot of insulation on the pipes in the old ships, and they did not wear respiratory masks. He coughs and it slows down his activities. After service, the Veteran then worked in construction as a superintendent. He quit smoking in 1969 in Vietnam. Id. at pp. 14-15. Importantly, the August 7, 2019 private pulmonology note, received by VA on September 16, 2019, shows that objective testing revealed no COPD. It shows no shortness of breath or cough. Here, the Veteran has presented additional, detailed lay evidence describing asbestos exposure as part of his below-deck duties in service, contrasted with a description of his remote smoking history. The January 2017 VA Form 9 raises a duty to assist error, including failure to provide the Veteran with a comprehensive medical examination. Indeed, as to any duty to provide an examination and/or seek a medical opinion, the Board notes that in the case of a claim for disability compensation, the assistance provided to the claimant shall include providing a medical examination or obtaining a medical opinion when such examination or opinion is necessary to make a decision on the claim. 38 U.S.C. § 5103A (d); McLendon v. Nicholson, 20 Vet. App. 79 (2006). 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). There is also inconsistent evidence regarding the presence of any shortness of breath or cough. Therefore, and in light of the Veteran’s agent’s contentions, a remand for a supplemental VA examination is warranted. 2. Entitlement to service connection for sleep apnea is remanded. The Board incorporates its discussion from the sections above by reference. By way of background, one of the January 2017 VA Form 9s raises a duty to assist error, including with failing to provide the Veteran with a VA examination, for the issue of service connection for sleep apnea. It shows, “This Form 9 is in response to the SOC dated 12-28-16 on issues of Increase for bilateral hearing loss; service connection for sleep apnea; [and] service connection for right and left femoral head necrosis. The VARO failed in its duty to assist in its failure to fully review all available medical records on behalf of veteran. The VA further failed to provide the veteran with a comprehensive medical exam.” Later, in the August 7, 2019 private pulmonology treatment record, received by VA on September 16, 2019, there were possible impressions of sleep apnea. It shows at the end, “His clinical presentation is also very suggestive of sleep apnea syndrome. I talked to him about sleep apnea syndrome, its etiology, diagnosis, and treatment.” A sleep study was recommended. It shows no other etiology opinion. Next, the Veteran submitted an August 21, 2019 Split-Night Polysomnographic Interpretation from the Sleep Clinic, received by VA on September 5, 2019. It shows an impression of “Obstructive Sleep Apnea Syndrome (G47.33), mild to severe, with a REM-related component with significant O2 desaturations.” The issue remains a nexus. The Boar observes that VA must provide an examination when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability, the record indicates that the disability or signs and symptoms of disability may be associated with active service; and the record does not contain sufficient information to make a decision on the claim. 38 U.S.C. § 5103A (d) (2012); McLendon v. Nicholson, 20 Vet. App. 79 (2006). There is evidence of disability. The Veteran has requested a “comprehensive” VA examination by way of the Form 9. Therefore, to fully address the Veteran’s contentions, and to assist in fully developing the Veteran’s claim, a VA examination with medical opinion is necessary. 3. Entitlement to an increased rating for bilateral hearing loss disability, currently rated at zero percent disabling is remanded. The Board incorporates its discussion from the sections above by reference. The aforementioned January 2017 VA Form 9 alleges a duty to assist error for failure to fully review available medical records on the Veteran’s behalf, including related to his claim for an increased rating for bilateral hearing loss disability. At the July 2019 hearing, the Veteran through his agent reported that he had undergone a recent audiological examination on July 2, 2019. See July 2019 Hearing Transcript, p. 30. The prior VA examination was from 2016. He had another audiological examination scheduled with VA for August 14, 2019. The Veteran testified that he had been fitted with hearing aids. Therefore, the outstanding VA treatment records since December 2016 should be included in the claims file. See Bell v. Derwinski, 2 Vet. App. 611 (1992). On remand, the Veteran through his agent is also invited to separately submit copies of any recent audiological testing that he referenced at the hearing for consideration. 4. Entitlement to an increased rating for ischemic heart disease, currently rated as 30 percent disabling is remanded. The Board incorporates its discussion from the sections above by reference. By way of history, the Veteran was last afforded a May 6, 2016 VA heart conditions examination. It shows a history of ischemic heart disease with atrial fibrillation. In a not previously discussed January 2017 VA Form 9, the Veteran through his agent averred in part, “This Form 9 is in response to the SOC dated 12-28-16 on Issues of Grant of IU and Increase for ischemic heart disease. The VARO failed in its duty to assist in its failure to fully review all available medical records on behalf of the veteran. The VA further failed to provide the veteran with a comprehensive medical exam.” The August 7, 2019 private pulmonology treatment record, received by VA on September 16, 2019, shows in part, “Cardiovascular: Normal rate, Regular rhythm, No murmur, No edema.” (emphasis in original.) The list of impressions does not include ischemic heart disease. Next, the August 21, 2019 Split-Night Polysomnographic Interpretation from the Sleep Clinic, received by VA on September 5, 2019, shows a list of diagnostic impressions including “arrythmia.” At the July 2019 hearing, the Veteran testified, “Sorry. Why I have a faintness when I lean over and that does connect back to my arterial fibrillation that I have and arterial fibrillation is connected back to the service-connected diabetes. AFib. But I have a -- out of breath which may be some connection to the COPD of exertion, physical exertion. Not able to continue physical exertion tasks.” See July 2019 Hearing Transcript, p. 23. While a new examination is not required simply because of the time which has passed since the last examination, VA’s General Counsel has indicated that a new examination is appropriate when there is evidence of an increase in severity since the last examination. VAOPGCPREC 11-95 (1995). Accordingly, the Board finds that a new VA examination is necessary to determine the current severity of the Veteran’s service-connected ischemic heart disease. See Caffrey v. Brown, 6 Vet. App. 377, 381 (1994), see also Snuffer v. Gober, 10 Vet. App. 400, 403 (1997) (holding that a Veteran is entitled to a new examination after a two year period between the last VA examination and the Veteran’s contention that the pertinent disability had increased in severity); VAOPGCPREC 11-95 (1995); see also 38 C.F.R. § 3.327 (a reexamination will be requested whenever there is a need to verify the current severity of a disability). On remand, the Veteran through his agent is also invited to submit any recent objective testing results from any private treatment providers for review and consideration. 5. Entitlement to a TDIU is remanded. The Board incorporates its discussion from the sections above by reference. Total disability ratings for compensation may be assigned, in circumstances where the scheduler rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. See 38 C.F.R. § 4.16 (a). 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, 52 (1993). Recently, in Ray v. Wilkie, No. 17-0781, slip op. at 11 (U.S. Vet. App. Mar. 14, 2019), the Court held that “substantially gainful employment” contains economic and noneconomic components; the economic component means “an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person,” while the noneconomic component requires consideration of a Veteran’s ability to secure or follow that type of employment. As to the meaning of a Veteran’s ability to “secure and follow” such employment, the Court provided guidance that attention must be given to: the Veteran’s occupational history, education, skill and training; whether the veteran has the physical ability to perform occupational activities; and whether the Veteran has the mental ability to perform occupational activities. By way of background, the March 2016 VA Form 21-8940, Veterans Application for Increased Compensation Based on Unemployability shows that the date disability last affected employment was August 25, 2009. It shows that he became too disabled to work on August 28, 2009. The field is blank for “What service-connected disability prevents you from securing or following any substantially gainful occupation.” Dates of treatment show years later, from March 4, 2016 to the present. The Board observes that this is an incomplete record of his theory of entitlement and disability picture as it relates to this claim. Shortly thereafter, on April 4, 2016, VA received a VA Form 21-4192, Request for Employment Information, from Downey Construction. This form noted that the Veteran last worked on May 27, 2008 and retired on disability with multiple workmen’s compensation claims, possibly for the right and left knee. Related to this, at the July 2019 hearing, the Veteran testified regarding his TDIU claim. He testified that he was adjudicated disabled by the Social Security Administration (SSA) about nine years ago because he was “undergoing some physical repairs of my knees and surgery and because of my work, I was unable to do that physical work.” See July 2019 Hearing Transcript, p. 25. The Veteran clarified his theory of entitlement, which was that even though he had a substantial career in construction as a superintendent, after being adjudicated as disabled by the SSA, he could no longer go back into a supervisory role. This was because he had issues with authority relating to his PTSD, and he had been told that someone else had been fired by the owner. In the instant case, in order to fairly adjudicate the claim, the Board seeks clarification as there are incomplete accounts of the Veteran’s employment history. On remand, a new VA Form 21-8940 should be completed to fully develop his claim. Moreover, the Board observes that consideration of entitlement to TDIU is dependent upon the impact of service-connected disabilities on a Veteran’s ability to secure or follow a substantially gainful occupation. The matter of TDIU is inextricably intertwined with the currently open service connection and increased rating claims. Harris v. Derwinski, 1 Vet. App. 180 (1991). Therefore, a remand is warranted. The matters are REMANDED for the following action: 1. Obtain updated VA treatment records since December 2016, and associate them with the claims file. These should include the results of any July and/or August 2019 audiological testing, to the extent they exist. See July 2019 Hearing Transcript, p. 30. 2. Send the Veteran a VA Form 21-8940, Veterans Application for Increased Compensation Based on Unemployability to be fully completed and returned to VA. 3. Please schedule the Veteran for a VA examination with a physician of appropriate expertise in diagnosing respiratory disabilities, though not necessarily a pulmonologist, to determine the nature and etiology of any respiratory disorder, to include COPD and chronic bronchitis. The claims file should be made available to the VA examiner. For each diagnosed disability, the VA examiner is requested to answer whether it is at least as likely as not (a 50 percent or greater probability) that the disability was incurred in or is otherwise related to the Veteran’s active military service. The VA examiner should specifically opine whether it is at least as likely as not that any lung disabilities were caused by or are otherwise related to the Veteran’s duties working around pipes as a ship fitter, as described at the July 2019 hearing. The examiner should provide a rationale for all opinions expressed. Attention is invited to the August 7, 2019 private pulmonology note, received by VA on September 16, 2019, showing that objective testing revealed no COPD, with no shortness of breath or cough. 4. Please schedule the Veteran for a VA examination to determine the nature and etiology of any sleep disability, variously diagnosed as obstructive sleep apnea. The Veteran need not be examined in person unless deemed necessary by the VA examiner or unless he requests to be present. The claims file should be made available to the VA examiner. For each diagnosed disability, the VA examiner is requested to answer whether it is at least as likely as not (a 50 percent or greater probability) that the disability was incurred in or is otherwise related to the Veteran’s active military service. The examiner should provide a rationale for all opinions expressed. Attention is invited to the results of the August 21, 2019 sleep study, received by VA on September 5, 2019. 5. Schedule the Veteran for a VA examination by an appropriate examiner to determine the current degree of severity of his service-connected ischemic heart disease. To the extent possible, the examiner should identify any symptoms and functional impairments due to the ischemic heart disease alone and discuss the effect of the Veteran’s disability on any occupational functioning and activities of daily living. A complete rationale should be provided for all opinions expressed. 6. After completing all necessary development, adjudicate the Veteran’s TDIU claim in light of all pertinent evidence and legal authority. Attention is invited to the Veteran’s July 2019 hearing testimony showing that he was adjudicated disabled by the SSA based upon a knee disability. See generally July 2019 Hearing Transcript, pp. 24-28. 7. After completing the above, and any other necessary development, the claims remaining on appeal must be readjudicated in light of all pertinent evidence and legal authority. If any benefits sought are not granted, issue the Veteran and his agent an appropriate Supplemental Statement of the Case (SSOC). Michael A. Pappas Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Department of Veterans Affairs The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.