Citation Nr: 21063842 Decision Date: 10/18/21 Archive Date: 10/18/21 DOCKET NO. 18-32 092 DATE: October 18, 2021 ORDER The application to reopen a claim of service connection for sleep apnea is granted. The application to reopen a claim of service connection for hand tremors is granted. The application to reopen a claim of service connection for chronic obstructive pulmonary disease (COPD) is granted. An effective date of December 14, 2017, but no earlier, for the award of a 60 percent rating for organic heart disease is granted. REMANDED The issue of service connection for sleep apnea is remanded. The issue of service connection for hand tremors is remanded. The issue of service connection for a respiratory disability, including COPD and emphysema, is remanded. The issue of a compensable rating for bilateral hearing loss is remanded. The issue of an increased rating in excess of 60 percent for organic heart disease is remanded. The issue of a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. In a July 2010 rating decision, the RO denied service connection for sleep apnea and hand tremors. The Veteran received notice of the decision, did not appeal this decision, and new and material evidence was not received within one year after it was issued. 2. Evidence received since the July 2010 rating decision relates to an unestablished fact and raises a reasonable possibility of substantiating the claims of service connection for sleep apnea and hand tremors. 3. In a May 2014 rating decision, the RO denied service connection for COPD. The Veteran received notice of the decision, did not appeal this decision, and new and material evidence was not received within one year after it was issued. 4. Evidence received since the May 2014 rating decision relates to an unestablished fact and raises a reasonable possibility of substantiating the claim of service connection for COPD. 5. On December 14, 2017, within one year of the Veteran's September 2018 increased rating claim for organic heart disease, VA received the Veteran's intent to file a VA compensation claim; there is no factually ascertainable evidence that the Veteran's organic heart disease increased within one year of his claim. CONCLUSIONS OF LAW 1. The July 2010 rating decision denying the Veteran's claim of service connection for sleep apnea is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 20.302, 20.1103. 2. Since the July 2010 rating decision, new and material evidence has been received to reopen the claim of service connection for sleep apnea. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a). 3. The July 2010 rating decision denying the Veteran's claim of service connection for hand tremors is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 20.302, 20.1103. 4. Since the July 2010 rating decision, new and material evidence has been received to reopen the claim of service connection for hand tremors. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a). 5. The May 2014 rating decision denying the Veteran's claim of service connection for COPD is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 20.302, 20.1103. 6. Since the May 2014 rating decision, new and material evidence has been received to reopen the claim of service connection for COPD. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a). 7. The criteria for an effective date of December 14, 2017, but no earlier, for the award of an increased rating from 10 to 60 percent disabling for organic heart disease have been met. 38 U.S.C. §§ 5107 (b), 5110; 38 C.F.R. §§ 3.102, 3.155, 3.400, 20.110(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1966 to May 1969 and January 1970 to January 1990, including service in the Republic of Vietnam. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2018 and November 2018 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). Regardless of whether the RO determined new and material evidence had been submitted regarding the claims of service connection for sleep apnea, hand tremors, and COPD, the Board must address the issues of the receipt of new and material evidence in the first instance because it determines the Board's jurisdiction to reach the underlying claims and to adjudicate the claims de novo. See Jackson v. Principi, 265 F.3d 1366, 1369 (2001) (the Board has a jurisdictional responsibility to consider whether it was proper for a claim to be reopened, regardless of whether the previous action denying the claim was appealed to the Board). In August 2020, the Veteran presented testimony before the undersigned Veterans Law Judge. During the hearing, the Veteran's request for the record to be held open for an additional sixty days to allow him to submit additional evidence was granted. The Board notes that during the August 2020 Board hearing, the Veteran withdrew the issues of an increased rating for organic heart disease and service connection for hand tremors. However, in a January 2021 hearing brief, the Veteran's attorney, listed an increased rating for organic heart disease and service connection for hand tremors as issues currently on appeal. Therefore, the Board finds that the Veteran did not withdraw the issues of increased rating for organic heart disease and service connection for hand tremors and they are currently on appeal. Sixty days after the Board hearing, additional evidence was associated with the record and the Veteran submitted a January 2021 waiver of Agency of Original (AOJ) consideration. The claims of service connection for a respiratory disability (previously characterized as service connection for COPD) and sleep apnea (previously characterized as service connection for a sleep disturbance) have been recharacterized in light of Clemons v. Shinseki, 23 Vet. App. 1, 4-5 (2009). As to the claim of service connection for sleep apnea, throughout the appeal period, the claim has been characterized as service connection for sleep disturbance. During the August 2020 Board hearing, the Veteran provided testimony regarding his sleeping difficulties, indicated that he underwent a sleep study, and suggested that following his sleep study he would be treated with a CPAP. In light of the Veteran's statements and his testimony during the appeal and that a claim of service connection for an acquired psychiatric is pending in a separate appeal stream, the Veteran's claim of service connection for sleep disturbance is best characterized as service connection for sleep apnea. The Veteran has raised the issue of a TDIU as part and parcel of his increased rating claims for an organic heart disease and bilateral hearing loss. See Rice v. Shinseki, 22 Vet. App. 447 (2009). New and Material Evidence Generally, a claim that has been denied in a final unappealed rating decision may not thereafter be reopened and allowed. 38 U.S.C. § 7105(c). An exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, VA will reopen the claim and review it on the merits. The implementing regulation also provides that new and material evidence received prior to the expiration of the appeal period will be considered as having been filed in connection with the claim that was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b). New evidence is defined as existing evidence not previously submitted to agency decision makers. Material evidence means 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 previously of record and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). In determining whether evidence is new and material, the credibility of the evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 512-513 (1992). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held, however, that evidence that is merely cumulative of other evidence in the record cannot be new and material even if that evidence had not been previously presented. Anglin v. West, 203 F.3d 1343, 1347 (2000). In deciding whether new and material evidence has been received, the Board looks to the evidence submitted since the last final denial of the claim on any basis. Evans v. Brown, 9 Vet. App. 273, 285 (1996). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). 1. Whether new and material evidence has been received to reopen the claim of service connection for sleep apnea. 2. Whether new and material evidence has been received to reopen the claim of service connection for hand tremors. In a July 2010 rating decision, the RO denied the Veteran's claims of service connection for hand tremors and sleep apnea on the basis that there was no current diagnosis. In March 2011, the Veteran submitted a statement indicating that he was "disappointed" with the denials of his service connection claims. In the March 2011 statement, the Veteran did not identify sleep apnea or hand tremors in his statement. He provided no further statements as to his claims of service connection for sleep apnea or hand tremors. The Veteran's statement that he was disappointed in the denials of his service connection claims, is not an expressed disagreement with the denials of the claims of service connection for sleep apnea and hand tremors from the July 2010 rating decision. The Veteran's March 2011 statement is vague as to the specific issues to which the Veteran was "disappointed"; however, the Veteran specifically mentioned his heart, chest pain, right arm, right shoulder and vision trouble. Notably, the Veteran did not mention his hand tremors or sleep disturbances. Therefore, the Board finds that the March 2011 statement cannot be construed as a notice of disagreement (NOD) to the July 2010 rating decision, regarding the claims of service connection for sleep apnea and hand tremors, as the Veteran's March 2011 statement did not express dissatisfaction with the July 2010 rating decision as to the claims of service connection for sleep apnea and hand tremors. Furthermore, a June 2011 VA memo reflects that the AOJ contacted the Veteran and he clarified that he was seeking an increased rating for his heart disability and seeking service connection for his left eye and right should disabilities. In a November 2010 notification letter, the Veteran received notice of the July 2010 rating decision. He did not appeal that decision and new and material evidence was not associated with the record within one year of its issuance. Accordingly, the July 2010 rating decision is final. See 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 3.156(a)-(b), 20.302, 20.1103. The evidence at the time of the July 2010 rating decision included the Veteran's service treatment records (STRs), service records that confirmed that he was stationed in the Republic of Vietnam during the Vietnam War era, his statements relating his disabilities to his military service and his in-service exposure to an herbicide agent and asbestos, and treatment records. Specifically, the Veteran's treatment records showed that he was not diagnosed as having sleep apnea or hand tremors. In September 2018, the Veteran submitted applications to reopen his previously denied claims of service connection for sleep apnea and hand tremors. Relevant evidence received after the July 2010 rating decision includes the Veteran's August 2020 Board hearing testimony, the Veteran's spouse's October 2018 statement, and VA treatment records which reflects a current diagnosis of hand tremors and suggest that he has been diagnosed as having sleep apnea. See VA treatment records (August 2017; September 2020; November 2020). Specifically, with respect to sleep apnea, during the August 2020 Board hearing, the Veteran testified that his sleep apnea was due to his military service or his service-connected disabilities. He also testified that he had an upcoming sleep study in September 2020 and that he currently was not in use of a CPAP and that if he was diagnosed as having sleep apnea then he would wear a CPAP. The Veteran's VA treatment records in September 2020 note that the Veteran underwent a sleep study in September 2020 and that he required home oxygen equipment. Although the Veteran's VA treatment records do not appear to include the findings from the September 2020 sleep study, the evidence suggest that the Veteran may have been diagnosed as having sleep apnea, as he required home oxygen equipment following his sleep study. Since the final prior denial in July 2010, the Veteran's August 2020 Board hearing testimony and VA treatment records were added to the record, which suggests that the Veteran may have been diagnosed as having sleep apnea and that it may be due to his military service or a service-connected disability. With respect to the claim of service connection for hand tremors, the Veteran's VA treatment records show that he was diagnosed as having benign intention tremor. See VA treatment record (August 2017). Additionally, in October 2018, the Veteran's spouse submitted a statement asserting that the Veteran's hand tremors were due to his in-service exposure to an herbicide agent. Since the final prior denial in July 2010, the Veteran's spouses' October 2018 statement and VA treatment records were added to the record, which suggests that the Veteran has been diagnosed as having hand tremors and that it may be due to his military service. The above new evidence was not previously considered in the final prior July 2010 rating decision and relates to unestablished facts necessary to substantiate the claims and raises a reasonable possibility of substantiating the claims of service connection for sleep apnea and hand tremors. Therefore, the criteria for reopening the claims of service connection for sleep apnea and hand tremors are met. 3. Whether new and material evidence has been received to reopen the claim of service connection for COPD. In a May 2014 rating decision, the RO denied service connection for COPD on the basis that it did not incur during service or was caused or aggravated by service. Later that month, in a May 2014 notification letter, the Veteran received notice of the May 2014 rating decision. He did not appeal that decision and new and material evidence was not associated with the record within one year of its issuance. Accordingly, the May 2014 rating decision is final. See 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 3.156(a)-(b), 20.302, 20.1103. The evidence at the time of the May 2014 rating decision included the Veteran's STRs, service records that confirmed that he was stationed in the Republic of Vietnam during the Vietnam War era, and his statements relating his disabilities to his military service and in-service exposure to an herbicide agent and asbestos. In December 2017, the Veteran submitted an application to reopen his previously denied claim of service connection for COPD. Relevant evidence received after the May 2014 rating decision includes the Veteran's August 2020 Board hearing testimony (where the Veteran provided further evidence regarding his COPD symptoms that manifested by shortness of breath) and a December 2017 private treatment report (where a private physician suggested that the Veteran's shortness of breath was due to his in-service exposure to Agent Orange). Since the May 2014 rating decision, the Veteran's August 2020 testimony regarding his COPD symptoms such as shortness of breath and the December 2017 private treatment record suggest that there is a relationship between the Veteran's COPD symptoms and his in-service exposure to Agent Orange has been associated with the record. The Veteran's August 2020 testimony and the December 2017 private treatment record were not previously considered in the last prior final denial and such evidence relates to an unestablished fact necessary to substantiate the claim of service connection for COPD and raises a reasonable possibility of substantiating the claim. Therefore, the criteria for reopening the claim of service connection for COPD are met. Effective date Generally, the effective date of a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. The effective date of an award for increased disability compensation shall be the earliest date as of which it is factually ascertainable that an increase in disability has occurred, if the claim is received within one year from such date; otherwise, it is the date of receipt of the claim. 38 U.S.C. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2); see also Hazan v. Gober, 10 Vet. App. 511 (1997) (requiring VA to consider the evidence of disability during the period one year prior to the application in order to determine when a factually ascertainable increase in disability occurred). The "date of the claim" means the date of the application based upon which benefits are awarded, not the original claim for service connection. Sears v. Principi, 16 Vet. App. 244, 246-47 (2002), aff'd, 349 F.3d 1326 (Fed. Cir. 2003). In this context, the provisions of 38 U.S.C. § 5110 also refer to the date an application is received. Although the term "application" is not defined in the statute, the regulations use the terms "claim" and "application" interchangeably, and they are defined broadly to include "a formal or informal communication in writing requesting a determination of entitlement, or evidencing a belief in entitlement, to a benefit." 38 C.F.R. §§ 3.1(p), 3.155; Servello v. Derwinski, 3 Vet. App. 196, 198 (1992). Effective March 24, 2015, VA amended its regulations to require that all claims governed by VA's adjudication regulations be filed on a standard form. See 38 C.F.R. §§ 3.150 (a), 3.151 (a), 3.155. The Veteran's claim for an effective date earlier than September 28, 2018, for the award of a 60 percent rating for organic heart disease was received by VA after March 24, 2015, the amended regulations apply. The amended regulations implement the concept of an intent to file a claim for benefits, which operates similarly to the informal claim process. 38 C.F.R. § 3.155 (b). If VA receives a complete application form prescribed by the Secretary within one year of receipt of the intent to file a claim, VA will consider the complete claim filed as of the date the intent to file a claim was received. Id. An effective date earlier than September 28, 2018, for the award of a 60 percent rating for organic heart disease. The Veteran claims that his award of the 60 percent rating for organic heart disease should be effective 2014 because he had the same heart symptoms since that time. See Board hearing transcript (August 2020). He also asserts that his award of the 60 percent rating for his organic heart disease should be effective December 7, 2017, the date he submitted his intent to file a VA compensation claim. See hearing brief (January 2021). Procedurally, in an October 2010 rating decision, the RO granted service connection for organic heart disease and assigned an effective date of October 29, 2009. The Veteran did not appeal the October 2010 rating decision. In a February 2013 rating decision, the RO continued the 10 percent rating for the organic heart disease. In a March 2013 notification letter, the Veteran received notice of the February 2013 rating decision. He did not appeal that decision. The February 2013 rating decision is final. On December 14, 2017, VA received a VA Form 21-0966, Intent to File a Claim. On September 28, 2018, VA received the Veteran's supplemental claim for compensation form, which listed an increased rating claim for his organic heart disease. In a November 2018 rating decision, the RO granted an increased rating of 60 percent rating, under DC 7000, for organic heart disease. The Veteran timely appealed the effective date of the award of the increased rating of 60 percent for organic heart disease. For the following reasons, an effective date of December 14, 2017, for the award of a 60 percent rating for organic heart disease is warranted. After the February 2013 final rating decision that continued a 10 percent rating for organic heart disease, on December 14, 2017, VA received the Veteran's intent to file a compensation claim. The Veteran's December 14, 2017, intent to file a compensation claim was received within one year of his September 2018 increased rating claim for an organic heart disease. Thus, as VA received the Veteran's increased rating claim for organic heart disease within one year of the receipt of the intent to file a claim, the Board finds that the Veteran's increased rating claim for an organic heart disease was received December 14, 2017, the date of the intent to file a claim was received. 38 C.F.R. § 3.155 (b). There is no communication after the February 2013 final rating decision and prior to December 14, 2017, the date of the intent to file, that might be construed as a claim for an increased rating for an organic heart disease. The Board acknowledges the Veteran's and his attorney's contentions that the severity of the Veteran's organic heart disease symptoms had remained the same since 2014. The Veteran's heart disability is rated under DC 7000. Under DC 7000, the current 10 percent rating is warranted for valvular heart disease resulting in a workload of greater than 7 METs but not greater than 10 METs resulting in dyspnea, fatigue, angina, dizziness, or syncope; or, requiring continuous medication. A 30 percent rating is warranted for valvular heart disease resulting in a workload of greater than 5 METs but not greater than 7 METs resulting in dyspnea, fatigue, angina, dizziness, or syncope; or, evidence of cardiac hypertrophy or dilatation on electrocardiogram, echocardiogram, or X-ray. A 60 percent rating is warranted for valvular heart disease resulting in more than one episode of acute congestive heart failure in the past year; or, a workload of greater than 3 METs but not greater than 5 METs resulting in dyspnea, fatigue, angina, dizziness, or syncope; or, left ventricular dysfunction with an ejection fraction of 30 to 50 percent. A 100 percent rating is warranted for valvular heart disease resulting in chronic congestive heart failure; or, a workload of 3 METs or less resulting in dyspnea, fatigue, angina, dizziness, or syncope; or, left ventricular dysfunction with an ejection fraction of less than 30 percent; or, during active infection with valvular heart damage and for three months following cessation of therapy for the active infection. 38 C.F.R. § 4.104, DC 7000. Here, one year prior to the Veteran's claim, there is no factually ascertainable evidence that his organic heart disease increased in severity to warrant an earlier effective date than December 14, 2017, for the award of a 60 percent rating for organic heart disease. To this extent, the only evidence dated during the one-year period prior to December 14, 2017, is the Veteran's VA treatment records. Although these treatment records demonstrate that the Veteran was treated for his organic heart disease, they do not contain findings that warrant a rating higher than 10 percent for his organic heart disease under DC 7000. For example, an August 2017 VA treatment record noted the Veteran's heart history, current medications, and indicated that the Veteran had an irregular heart rhythm in 1977 but "no problem since." Additionally, the VA treatment records in the one-year period prior to December 14, 2017, do not contain METs findings or evidence of cardiac hypertrophy or dilatation on electrocardiogram, echocardiogram, or X-ray. As such, the Board finds that it is not factually ascertainable that the Veteran's organic heart disease increased in severity, warranting an effective date earlier than December 14, 2017, for the award of a 60 percent rating for organic heart disease. In sum, the appropriate effective date for the award of a 60 percent rating for an organic heart disease is December 14, 2017, and no earlier. The evidence is against an effective date earlier than December 14, 2017, for the award of a 60 percent rating for an organic heart disease, the benefit-of-the-doubt doctrine is not for application. 38 U.S.C. § 5107 (b); 38 C.F.R. § 4.3. REASONS FOR REMAND 1. The issue of service connection for sleep apnea is remanded. The Veteran claims that his sleep apnea is the result of his combat military service while stationed in the Republic of Vietnam. See Board hearing Transcript (August 2020); hearing brief (January 2021). Alternatively, he asserts that his sleep apnea is secondary to his service-connected lipoma and his non-service connection COPD. Id. The Veteran's service records reflect that he served in the Republic of Vietnam during the Vietnam War era. The Veteran's VA treatment records in September 2020 note that the Veteran underwent a sleep study in September 2020, that he required home oxygen equipment, and that a copy of the sleep study is available for viewing in VISTA imaging. The Veteran's sleep study report has not been associated with the record. Additionally, the Veteran has not been afforded a VA examination nor has an opinion been obtained to determine the nature and etiology of his sleep apnea. A remand is necessary to obtain the Veteran's September 2020 sleep study from VISTA imaging and then schedule him for a VA examination regarding his claim of service connection for sleep apnea, as the evidence reflects that the Veteran may have been diagnosed as having sleep apnea that may be associated with military service or secondary to his service-connected lipoma. 2. The issue of service connection for hand tremors is remanded. The Veteran claims that his hand tremors are due to his military service, to include as due to his in-service exposure to an herbicide agent while stationed in the Republic of Vietnam. The Agency of Original (AOJ) conceded that the Veteran was exposed to an herbicide agent, including Agent Orange, based on his service in Vietnam during the Vietnam War era. See 38 U.S.C. § 1116(f); VA memo (July 2021). Therefore, the Veteran is presumed to have been exposed to herbicide agents, including Agent Orange. The evidence shows a diagnosis of benign intention tremor. See, e.g., VA treatment record (August 2017). Although benign intention tremor is not among the diseases presumed service connected in veterans who served in Vietnam, the Veteran is not precluded from establishing service connection for this disability based on the theory that it was actually caused by Agent Orange exposure. See 38 U.S.C.§ 1113(b); 38 C.F.R. § 3.303(d) (the availability of service connection on a presumptive basis does not preclude consideration of service connection on a direct basis); Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994) (Radiation Compensation Act does not preclude a veteran from establishing service connection with proof of actual direct causation). The Veteran has not been afforded a VA examination or opinion to determine the nature and etiology of his benign intention tremor. As the evidence reveals that the Veteran's benign intention tremor may be related to his presumed exposure to Agent Orange, a remand is necessary to schedule him for a VA examination to determine the nature and etiology of his hand tremors. 3. The issue of service connection for a respiratory disability, including COPD and emphysema, is remanded. The Veteran claims that his respiratory disability is due to his military service, to include as due to in-service chemical exposures, such as exposure to Agent Orange while stationed in the Republic of Vietnam, asbestos, and fumes from vehicles, fires, and cleaning equipment during the course of his military occupational specialty (MOS) duties. See Veteran's statement (February 2014); Board hearing transcript (August 2020). The evidence shows a current diagnosis of COPD. See, e.g., private treatment record (October 2012). As indicated above, the Veteran's exposure to an herbicide agent has been conceded. With respect to asbestos, the Veteran asserts that he was exposed to asbestos when he was stationed in Germany from April 1974 to May 1978. He explained that during this period, he saw pipes wrapped with rotting insulation, that he cleaned by hand. See Veteran's statement (February 2014). The Veteran's DD Form 214, for the period from December 1974 to July 1979, reflects that he was stationed in Fuerth, Germany, and that his MOS included fire control instrument repairman. The Veteran's assertions regarding his in-service exposure to asbestos have not been verified, as it does not appear that the RO contacted U.S. Department of Army, Records Management and Declassification Agency (RMDA) (which formerly included the Joint Services Records Research Center (JSRRC)) or any other appropriate entity to verify whether the Veteran was exposed to asbestos during his military service. As such, the Board finds that a remand is necessary to verify whether the Veteran was exposed to asbestos during his military service. Additionally, upon remand, a VA opinion should be obtained regarding the Veteran's claim of service connection for a respiratory disability, as the opinions of record (namely a December 2017 private opinion and a December 2017 VA opinion) are flawed. For instance, a December 2017 private treatment report reflects that a private physician wrote that the Veteran's shortness of breath is "probably related to his exposure to Agent Orange when he was in service." The December 2017 statement provides no explantation for the association between the Veteran's shortness of breath and his in-service exposure to Agent Orange and the statement contains speculative language. Additionally, a December 2017 VA respiratory examination report provides conflicting findings as to the Veteran's diagnosed respiratory disabilities and contains a negative nexus opinion between the Veteran's COPD and his military service, without addressing whether his COPD was due to his in-service exposure to Agent Orange or the result of his other claimed in-service exposure to chemicals. Specifically, with respect to the conflicting findings as to the Veteran's diagnosed respiratory disabilities, the VA examiner diagnosed COPD, but checked a box indicating that the Veteran had other pulmonary conditions but did not specify other diagnoses than COPD. Also, the examiner suggested that the Veteran had "severe fibro-emphysematous changes in the lungs", but provided no etiology. 4. The issue of a compensable rating for bilateral hearing loss is remanded. During the August 2020 Board hearing, the Veteran testified that his bilateral hearing loss had worsened since his last VA examination in October 2018. Although the claims file shows that the Veteran's bilateral hearing loss was evaluated in November 2020, as a November 2020 audiological evaluation report was associated with the record, the November 2020 audiological evaluation report appears incomplete. For instance, the November 2020 audiological evaluation report does not include the Veteran's functional effects caused by his bilateral hearing loss consistent with Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007). Additionally, the November 2020 audiological evaluation report does not provide a Maryland CNC speech discrimination test pursuant to 38 C.F.R. § 4.85, as the November 2020 audiological evaluation reflects that a NU-6 speech discrimination test was performed. Therefore, a remand is necessary to afford the Veteran a new VA examination to determine the current severity of his service-connected bilateral hearing loss. See, e.g., Snuffer v. Gober, 10 Vet. App. 400, 403 (1997) ("Where the appellant complained of increased hearing loss two years after his last audiology examination, VA should have scheduled the appellant for another examination"). 4. The issue of an increased rating in excess of 60 percent for organic heart disease is remanded. The evidence shows that the Veteran's organic heart disease may have worsened since his last VA examination in October 2018. For example, a September 2020 VA treatment record shows that the Veteran was only able to walk 350 feet without rest due to symptoms such as dyspnea. During a June 2021 VA treatment visit, the Veteran had shortness of breath and chest pain. Therefore, a remand is necessary to afford the Veteran a new VA examination to determine the current severity of his service-connected organic heart disease. See, e.g., Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). 5. The issue of a TDIU is remanded. During August 2020 Board hearing, the Veteran testified that his service-connected disabilities prevented him from working. The Veteran has not submitted a VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability and the AOJ has not adjudicated this matter. The Board finds that a remand is necessary. Upon remand, after giving the Veteran an opportunity to file a formal claim for a TDIU, the AOJ should address this matter, in the first instance. The matters are REMANDED for the following action: 1. Obtain updated VA treatment records. 2. Obtain the Veteran's September 2020 sleep study from VISTA imaging, and any other relevant treatment records from VISTA regarding the Veteran's claim of service connection for sleep apnea. If necessary, ask the Veteran to complete a VA Form 21-4142 regarding his September 2020 sleep study, to include treatment records from VISTA imaging. Make two requests for the authorized records, unless it is clear after the first request that a second request would be futile. Document all attempts to obtain such records as required in 38 C.F.R. § 3.159. Notably, the Board does not have access to the VISTA Imaging system, or the Vista Imaging Display tool, so any documentation of the aforementioned records must be printed from those systems/tools and added to the Veteran's claims file. 2. Verify whether the Veteran was exposed to asbestos during his military service, to include contacting the RMDA or any other appropriate entity to verify whether the Veteran was exposed to asbestos during his active military service. 3. Request that the Veteran complete VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability. Afford the Veteran a reasonable opportunity for response. 4. Schedule the Veteran for an examination regarding the nature and etiology of sleep apnea. The examiner should review the entire claims file, including the August 2020 Board hearing transcript and the September 2020 sleep study, before answering the following: a. Whether it is at least as likely as not (50 percent or greater probability) that the Veteran's sleep apnea had its onset in service or is otherwise related to service. The examiner should address the Veteran's spouse's statements that she has witnessed the Veteran's sleep disturbances since his Vietnam service. See Veteran's spouse's statement (undated, received October 2018). b. Whether it is at least as likely as not (50 percent or greater probability) that the Veteran's sleep apnea was caused by his service-connected lipoma in the right leg and chest. c. Whether it is at least as likely as not (50 percent or greater probability) that the Veteran's sleep apnea was aggravated (worsened) by his service-connected lipoma in the right leg and chest. The examiner must provide a complete rationale for each opinion. 5. Schedule the Veteran for an examination regarding the nature and etiology of hand tremors. The examiner should review the entire claims file, including the August 2020 Board hearing transcript, before answering the following: a. Identity the Veteran's hand tremors since the date of his claim in September 2018 by (1) diagnosis or (2) functional impairment, even if resolved. The examiner must address the diagnosis of benign intention tremor in an August 2017 VA treatment record. b. Whether it is at least as likely as not (50 percent or greater probability) that the Veteran's hand tremors, including benign intention tremor, had its onset in service or is otherwise related to service, including as due to his presumed exposure to an herbicide agent (Agent Orange) in the Republic of Vietnam. The fact that hand tremors, including benign intention tremor, is not on the list of those presumed service connected in veterans exposed to Agent Orange should not be the basis for a negative opinion, as a relationship may nevertheless be shown on a direct basis. The examiner should provide a complete rationale for each opinion. 6. Schedule the Veteran for an examination regarding the nature and etiology of his respiratory disability. The examiner should review the entire claims file, including the August 2020 Board hearing transcript, before answering the following: a. Identity any respiratory disability since the date of the Veteran's claim in December 2017, even if resolved. The examiner should address the December 2017 examination report where the examiner indicated that the Veteran had pulmonary conditions, other than COPD, and the examiner's findings that the Veteran had "severe fibro-emphysematous changes in the lungs". b. Whether it is at least as likely as not (50 percent or greater probability) that the Veteran's respiratory disability, including COPD, had its onset in service or is otherwise related to service, including as due to: a. His presumed exposure to herbicide agents (including Agent Orange) in the Republic of Vietnam; b. Exposure to fumes, vehicle exhaust, and cleaning equipment during the course of his duties as a fire control instrument repairman; and/or c. Exposure to asbestos IF the in-service exposure was verified. The fact that a respiratory disability is not on the list of those presumed service connected in veterans exposed to Agent Orange should not be the basis for a negative opinion, as a relationship may nevertheless be shown on a direct basis. The examiner should provide a complete rationale for each opinion. 7. Schedule the Veteran for a VA examination to determine the current severity of his service-connected bilateral hearing loss. All necessary tests should be conducted. The claims file must be sent to the examiner for review. The examiner should examine the Veteran and provide findings in accordance with the currently applicable disability benefits questionnaire. All opinions must be supported by a detailed rationale. 8. Schedule the Veteran for a VA examination to determine the current severity of his service-connected organic heart disease. All necessary tests should be conducted. The claims file must be sent to the examiner for review. The examiner should examine the Veteran and provide findings in accordance with the currently applicable disability benefits questionnaire. All opinions must be supported by a detailed rationale. (Continued on the next page) 9. After the above development has been completed readjudicate the issues on appeal, including the issue of entitlement to a TDIU. If the benefits sought is not granted to the Veteran's satisfaction, send the Veteran and his attorney a Supplemental Statement of the Case and provide an opportunity to respond. If necessary, return the case to the Board for further appellate review. Tiffany Dawson Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Castillo, Counsel 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.