Citation Nr: 21066941 Decision Date: 11/02/21 Archive Date: 11/02/21 DOCKET NO. 17-29 297 DATE: November 2, 2021 ORDER Entitlement to service connection for a deviated nasal septum is granted. Entitlement to service connection for sleep apnea, to include as due to a service-connected disability is granted. Entitlement to a rating in excess of 10 percent for left ankle sprain is denied. Entitlement to a rating of 30 percent, but not higher, for asthma is granted. REMANDED Entitlement to service connection for chronic obstructive pulmonary disease (COPD) is remanded. Entitlement to a compensable rating for right ankle strain is remanded. FINDINGS OF FACT 1. The Veteran's deviated nasal septum had onset during active duty service. 2. The Veteran's obstructive sleep apnea is proximately due to his service connected deviated nasal septum disability. 3. The Veteran's left ankle sprain has not been manifested by plantar flexion less than 10 degrees or dorsiflexion less than 5 degrees during the appeal period. 4. The clinical evidence of record indicates that the Veteran's service-connected respiratory disability is more appropriately characterized as bronchial asthma. 5. The Veteran's asthma disability requires daily inhalational anti-inflammatory medication. CONCLUSIONS OF LAW 1. The criteria for service connection for a deviated nasal septum have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for obstructive sleep apnea have been met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. 3. The criteria for a rating in excess of 10 percent for left ankle sprain have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4,71a, Diagnostic Code 5271. 4. The criteria for a rating of 30 percent, but not higher, for asthma have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.97, Diagnostic Code 6602. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1974 to July 1991. In connection with this appeal, the Veteran and his wife testified at a hearing before the undersigned in June 2020. A transcript of that hearing is of record. In February 2021, the issues were remanded for further development, to include VA examinations. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § § 3.303 (a). To establish a right to compensation for a present disability, a veteran must 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 (Fed. Cir. 2004). 1. Entitlement to service connection for a deviated nasal septum The Veteran contends that he was diagnosed with a deviated nasal septum during service, and therefore service connection is warranted. First, the Board will address the issue of whether the Veteran's deviated nasal septum preexisted service. A veteran is presumed to be in sound condition when examined and accepted into the service except for defects or disorders noted when examined and accepted for service. 38 U.S.C. §§ 1111, 1137. To rebut the presumption of sound condition under 38 U.S.C. § 1111, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service. The claimant is not required to show that the disease or injury increased in severity during service before VA's duty under the second prong of this rebuttal standard attaches. Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). "Clear and unmistakable evidence" is a more formidable evidentiary burden than the preponderance of the evidence standard. See Anderson v. West, 12 Vet. App. 254, 258 (1999) (noting that the "clear and convincing" burden of proof, while a higher standard than a preponderance of the evidence, is a lower burden to satisfy than that of "clear and unmistakable evidence"). That is, the standard of proof for rebutting the presumption of soundness is not merely evidence that is "cogent and compelling, i.e., a sufficient showing, but evidence that is clear and unmistakable, i.e., undebatable..."Id. at 261. It is an "onerous" evidentiary standard, requiring that the preexistence of a condition and the no-aggravation result be "undebatable." Cotant v. Principi, 17 Vet. App. 116, 131 (2003) (internal citations omitted). The presumption of soundness attaches only where there has been an induction examination. See Bagby v. Derwinski, 1Vet. App.225, 227 (1991). However, the presumption of soundness applies even when the record of a veteran's entrance examination has been lost or destroyed while in VA custody. See Lee v. Brown, 10 Vet. App. 336, 339 (1997) (directing the Board to consider the presumption of soundness on remand in a case in which the veteran's service medical records were presumed destroyed in a fire). In this instance, the Veteran's enlistment medical examination shows a normal clinical evaluation of the sinuses. Likewise, on the Veteran's March 1971 report of medical history for enlistment reflects the Veteran denied ever having nose trouble or sinusitis. As such, the presumption of soundness is for application in this case. See 38 C.F.R. § 3.304 (b). To rebut the presumption of soundness, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service. See Id.; Wagner v. Principi, 370 F.3d 1089, 1093 (Fed. Cir. 2004). A July 2021 VA examiner noted that the Veteran's enlistment examination showed the Veteran's nose was marked as normal and no deviated septum was noted. The examiner also noted an April 1976 diagnosis of deviated septum and septoplasty, with a revision septoplasty was done in April 1986. The December 1990 retirement examination noted the Veteran still had a deviated septum. The examiner opined the claimed condition was at least as likely as not incurred in or caused by service. The rationale provided was that the Veteran did not have a deviated septum on enlistment and thus did not have a deviated septum prior to service. The examiner stated the condition was noticed in 1976 and the Veteran continues to have a deviated septum. The examiner summarized therefore it is at least as likely as not the deviated nasal septum either began during or was otherwise caused by his active service. The examiner also stated that the Veteran's deviated septum was not a congenital defect. As there is no evidence the Veteran's deviated septum preexisted service and the service treatment records note a diagnosis of deviated nasal septum during active duty service, the preponderance of the evidence reflects that the Veteran's deviated nasal septum had onset during his active duty service. Accordingly, as opined by the July 2021 VA examiner, it is at least as likely as not the Veteran's deviated nasal septum occurred on active duty and service connection is granted. 2. Entitlement to service connection for obstructive sleep apnea to include as due to a service connected disability The Veteran has a current diagnosis of sleep apnea that he asserts had onset in service or is secondary to his service-connected asthma disability. During the June 2020 Board hearing, the Veteran and his wife testified that the Veteran experienced symptoms of sleep apnea during active duty to include heavy/loud snoring and the Veteran's breathing stopping during sleep. The Board remanded the issue for a VA examination and opinion. A July 2021 VA sleep apnea examination report reflects the examiner provided a negative opinion based on no evidence of treatment or diagnosis of sleep apnea in service. In a secondary service connection opinion, the examiner opined it is less likely than not the Veteran's sleep apnea is proximately due to or the result of the Veteran's service connected asthma disability. However, the examiner opined it is at least as likely as not that the Veteran's sleep apnea is proximately due to his deviated septum. The rationale provided was that the medical literature shows a connection between a deviated septum and sleep apnea. The examiner cited to a February 2008 National Institute of Health study that listed deviated septum as one of the causes of sleep apnea. As this decision grants service connection for deviated nasal septum, and the July 2021 VA examiner opined it is at least as likely as not the Veteran's sleep apnea is proximately due to deviated septum, service connection is granted for sleep apnea as secondary to service-connected deviated nasal septum. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities. 38 C.F.R. Part 4. The Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The Veteran's entire history is reviewed when making disability ratings. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, when the question for consideration is the propriety of the initial disability rating assigned, evaluation of the medical evidence since the grant of service connection and consideration of the appropriateness of "staged rating" is required. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). Staged ratings are also appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. The relevant focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. Hart v. Mansfield, 21 Vet. App. 505 (2007). 3. Entitlement to a rating in excess of 10 percent for left ankle sprain The Veteran asserts that his service-connected left ankle disability warrants a rating in excess of the 10 percent rating currently assigned. Specifically, at the June 2020 Board hearing, the Veteran reported a worsening of his left ankle symptoms, stating that the pain is a constant ache, and his ankle gives out frequently. The Veteran stated he used orthotics and also a cane for stability. The Veteran's left ankle strain is rated under 38 C.F.R. § 4.71a , Diagnostic Code 5271, for limitation of motion of the ankle. During the pendency of the appeal, the criteria for rating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021. 85 Fed. Reg. 230 (Nov. 30, 2020). These amendments revised select diagnostic codes "to ensure that this portion of the rating schedule uses current medical terminology and provides detailed and updated criteria for the evaluation of musculoskeletal disabilities." Id. If a law or regulation changes during the course of a claim or an appeal, the version more favorable to the Veteran will apply, to the extent permitted by any stated effective date in the amendment in question. 38 U.S.C. § 5110 (g). If the revised version of the regulation is more favorable, the implementation of that regulation under 38 U.S.C. § 5110 (g) can be no earlier than the effective date of that change. If the former version is more favorable, VA can apply the earlier version of the regulation for the period prior to, and from, the effective date of the change. 38 U.S.C. § 5110. Therefore, the Board will consider the Veteran's appeal under the old criteria prior to February 7, 2021, and both the old and new rating criteria from February 7, 2021. The criteria that is more favorable to the Veteran will be applied. Under Diagnostic Code 5271 in effect prior to February 7, 2021, a 10 percent rating was warranted for moderate limited motion of the ankle. A maximum 20 percent rating was warranted for marked limited motion of the ankle. 38 C.F.R. § 4.71a, Diagnostic Code 5271. Effective February 7, 2021, Diagnostic Code 5271 was amended to specify that moderate limited motion of the ankle means less than 15 degrees of dorsiflexion or less than 30 degrees of plantar flexion and that marked limited motion of the ankle means less than 5 degrees of dorsiflexion or less than 10 degrees of plantar flexion. Normal motion of the ankle is dorsiflexion from 0 degrees to 20 degrees and plantar flexion from 0 degrees to 45 degrees. See 38 C.F.R. § 4.71, Plate II. When evaluating musculoskeletal disabilities, VA may, in addition to applying schedular criteria, consider granting a higher rating based on functional loss due to limited or excess movement, pain, weakness, excess fatigability, or incoordination, to include during flare-ups and with repeated use, when those factors are not contemplated in the relevant rating criteria. DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. §§ 4.40, 4.45, 4.59. The provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45 are to be considered in conjunction with the Diagnostic Codes predicated on limitation of motion. Johnson v. Brown, 9 Vet. App. 7 (1996). The Board finds that the preponderance of the evidence is against a rating in excess of 10 percent for left ankle sprain. The Board acknowledges the Veteran's lay reports of symptoms of pain and weakness, and that there was functional loss due to pain in the left ankle. However, even considering the Veteran's lay reports of symptoms and functional loss, the degree of additional limitation reflected by the statements would not result in symptoms more nearly approximating marked limited motion or less than 5 degrees of dorsiflexion or less than 10 degrees of plantar flexion. A February 2017 VA ankle examination showed a diagnosis of left ankle collateral ligament sprain. The Veteran denied flare-ups of the left ankle but reported his ankle was weak and overturns often. Plantar flexion was to 45 degrees and dorsiflexion was to 10 degrees. Pain was noted in dorsiflexion but did not result in/cause functional loss. There was no evidence of pain with weight bearing, localized tenderness or pain on palpation, or crepitus. The Veteran was able to perform repetitive use testing with no additional loss of function or range of motion. The examiner stated that pain limited functional ability with repeated use over a period time that could not be described in terms of range of motion but was described as pain in the heel where the Veteran had the fracture. Muscle strength testing was normal with no atrophy and no ankylosis. The examiner noted that ankle instability or dislocation was suspected but the Anterior Drawer and Talar Tilt tests were negative. The Veteran has surgery in 2001 for a post-service heel injury and reported recurrent pain with use. He denied the use of assistive devices. Functional impact was described as prolonged walking and standing caused increased pain according to the Veteran. The examiner noted that light physical and sedentary work was feasible. The examiner also stated that ankle instability could not be confirmed at the examination and despite repeated ankle inversion claims inversion injuries should be showing some signs of osteoarthritis at this point, but no osteoarthritis is noted. A July 2021 VA ankle examination notes a diagnosis of lateral collateral ligament sprain. The Veteran reported constant pain and that he had swelling. He stated he used a brace. The Veteran denied flare-up of the left ankle. The Veteran described functional loss/impairment as not being able to be on his feet for a long time. He also reported instability, stated his ankle rolled on him. Plantar flexion was to 40 degrees and dorsiflexion was to 5 degrees with pain noted on both. Passive range of motion was the same as active range of motion. There was pain on both active and passive ranges of motion that did not result in/cause functional loss. There was no evidence of pain with weight bearing, localized tenderness or pain on palpation, or crepitus. The Veteran was able to perform repetitive use testing with no additional loss of function or range of motion. The examiner stated that pain limited functional ability with repeated use over a period time estimated as 35 degrees plantar flexion and 5 degrees dorsiflexion. The Veteran did not have muscle atrophy or ankylosis of the left ankle. Anterior Drawer and Talar Tilt tests were negative. The Veteran reported regular use of a brace. The examiner noted the functional impact of the left ankle disability was the Veteran cannot be on his feet for a long period of time. Accordingly, the record shows that during the relevant period the Veteran had, no worse than 5 degrees of dorsiflexion and no worse than 35 degrees of plantar flexion, including on repetitive use over time. In addition, although the changes made to Diagnostic Code 5271 were not in effect prior to February 7, 2021, in making those changes VA noted that, "VA currently uses these standards to define marked and moderate, this change is intended as a clarification of current policy and would ensure consistent application of these criteria among rating personnel." 82 FR 35723. Accordingly, in making changes to Diagnostic Code 5271, VA was codifying a previous policy to ensure more uniformity among its rating personnel. As such, even prior to February 7, 2021, marked limited motion of the ankle would mean less than 5 degrees of dorsiflexion or less than 10 degrees of plantar flexion, which was not shown at any time during the relevant period. Therefore, the Board concludes that the Veteran did not have marked limitation in motion of the left ankle during the relevant period. The Board has considered whether any other Diagnostic Codes related to disabilities of the ankle would provide for a higher disability rating. However, the evidence does not reflect that the symptoms would warrant a higher rating under a different Diagnostic Code. See 38 C.F.R. § 4.71a. The evidence does not show that the Veteran's service-connected left ankle strain manifested in ankylosis, malunion of the os calcis or astragalus, or astragalectomy. See 38 C.F.R. § 4.71a, Diagnostic Codes 5270, 5272, 5273, 5274. The Board therefore finds that the criteria for entitlement to an initial rating in excess of 10 percent for left ankle sprain have not been met at any time during the rating period. As the preponderance of the evidence is against the claim for a rating in excess of 10 percent for a left ankle disability, the benefit of the doubt doctrine enunciated in 38 U.S.C. § 5107 (b) is not applicable, as there is no approximate balance of evidence. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). 4. Entitlement to a rating in excess of 10 percent for asthma The Veteran contends that his asthma disability has worsened, and an increased rating is warranted. Specifically, at the June 2020 Board hearing, the Veteran reported he had recently failed two breathing tests. The Veteran's service-connected respiratory condition is currently rated as 10 percent disabling under Diagnostic Codes (DC) 6699-6603 effective August 1, 1991. If the Board finds that the evidence supports a more appropriate diagnostic code than the one previously assigned, it may assign a new one. Butts v. Brown, 5 Vet. App. 532, 538 (1993). Under 38 C.F.R. § 3.344 (a), if, as here, a rating has been in effect for more than five years, the Board is tasked with evaluating any change in diagnosis " so as to produce the greatest degree of stability of disability evaluations consistent" with the law. Here, after having reviewed the record, because the Veteran has not been diagnosed as having pulmonary emphysema, and because the best evaluation of the Veteran's respiratory condition falls under the rating criteria for bronchial asthma, the Board concludes that the more appropriate diagnostic code is 6602 (bronchial asthma). The Board wishes to make clear that assigning the new diagnostic code does not disadvantage the Veteran. The Board is permitted to change a diagnostic code to reflect an underlying change in the diagnosis of a Veteran's disability without effecting a severance of the disability's service-connected status. Read v. Shinseki, 651 F.3d 1296, 1302 (Fed. Cir. 2011). Put another way, the Board is not altering the conclusion that the Veteran's lung disability is service connected; rather, it is only adjusting the proper degree of the disability to more accurately reflect the evidence. Id. at 1300 (citing Collaro v. West, 136 F.3d 1304, 1307 (Fed. Cir. 1998)). Additionally, changing the DC to 6602 affords the Veteran an opportunity for a higher rating for his asthma symptoms. Under 38 C.F.R. § 4.96, DC 6602, bronchial asthma, a 10 percent rating is warranted where there is a FEV-1 of 71- to 80-percent predicted, or; FEV-1/FVC of 71 to 80 percent, or; intermittent inhalational or oral bronchodilator therapy. A 30 percent rating is warranted where there is a FEV-1 of 56- to 70-percent predicted, or; FEV-1/FVC of 56 to 70 percent, or; daily inhalational or oral bronchodilator therapy, or; inhalational anti-inflammatory medication. A 60 percent rating is warranted where there is a FEV-1 of 40- to 55-percent predicted, or; FEV-1/FVC of 40 to 55 percent, or; at least monthly visits to a physician for required care of exacerbations, or; intermittent (at least three per year) courses of systemic (oral or parenteral) corticosteroids. A 100 percent rating is warranted where there is a FEV-1 less than 40-percent predicted, or; FEV-1/FVC less than 40 percent, or; more than one attack per week with episodes of respiratory failure, or; requires daily use of systemic (oral or parenteral) high dose corticosteroids or immuno-suppressive medications. Post-bronchodilator studies are required when pulmonary function testing (PFT) is conducted for disability evaluation purposes, except when the results of pre-bronchodilator PFTs are normal or when the examiner determines that post-bronchodilator studies should not be done and states the reasons why. 38 C.F.R. § 4.96. When there is a disparity between the results of different PFT's, FEV-1, FVC, etc., so that the level of evaluation would differ depending on which test result is used, use the test result that the examiner states most accurately reflects the level of disability. 38 C.F.R. § 4.96 (d) (5), (6). A February 2017 respiratory conditions examination noted a diagnosis of asthma and chronic obstructive pulmonary disease (COPD). The Veteran reported his breathing was slowly getting worse as he gets older, however the examiner noted the most recent PFT did not support worsening. The Veteran's respiratory condition required the use of intermittent inhalational bronchodilator therapy and daily use of inhalational anti-inflammatory medication. He did not require the use of oral bronchodilators, antibiotics, or oxygen therapy. The Veteran had no asthma attacks with episodes of respiratory failure in the past 12 months and no visits for required care of exacerbations. A January 2017 chest x-ray showed an unchanged appearance of the chest compared with a 2015 x-ray with no acute cardiopulmonary abnormality identified radiographically. PFT results from January 2017 showed a FVC of 78 percent predicted, FEV-w of 72 percent predicted, FEV-1/FVC of 92 percent, and DLCO of 154 percent predicted. The examiner stated the FVC predicted most accurately reflected the Veteran's level of disability. The examiner stated the COPD related by the Veteran could not be confirmed while on active duty and stated that compared to the last PFT in July 2015, the pulmonary function remains stable and not worsening. A July 2021 VA respiratory examination shows a diagnosis of asthma. The Veteran reported that during certain months his condition worsened, and he has more asthma attacks. He reported he had been using the inhalers more frequently. His respiratory condition required intermittent use of inhalational bronchodilator therapy and daily use of Advair. Oral or parenteral corticosteroid medications, oral bronchodilators, antibiotics and outpatient oxygen therapy were not required. The Veteran had not had any asthma attacks with episodes of respiratory failure in the past 12 months or any physician visits for required care of exacerbations. PFT was performed showing FVC of 70 percent predicted, FEV-1 of 74 percent predicted, and FEV-1/FVC of 105 percent predicted. The examiner stated FEV-1 percent predicted most accurately reflects the Veteran's level of disability. The examiner stated the Veteran did not have multiple respiratory conditions. Based on the medical evidence above, the Veteran's asthma disability has required inhalational anti-inflammatory medication during the entire period on appeal. As such, the Board finds that a rating of 30 percent, but not higher, is warranted for the Veteran's service-connected asthma disability. At no time has the Veteran's PFT results shown a FEV-1 of 40- to 55-percent predicted, FEV-1/FVC of 40 to 55 percent, at least monthly visits to a physician for required care of exacerbations, or intermittent (at least three per year) courses of systemic (oral or parenteral) corticosteroids. Therefore, a rating higher than 30 percent is not warranted at any time period on appeal. REASONS FOR REMAND 1. Entitlement to service connection for chronic obstructive pulmonary disease (COPD) is remanded. The Veteran contends that his diagnosed COPD was caused by or related to his active duty service. At the outset, the Board notes that the issue of service connection for COPD was remanded in the February 2021 Board remand, however the issue was inadvertently left out of the remand instructions. As such, the AOJ did not conduct any additional development prior to issuance of the July 2021 SSOC. The Veteran's service treatment records (STRs) reflect a July 1988 diagnosis of mild COPD. The Board notes however, a 1990 PFT found he had a mild, decreased FVC with no obstruction found. A review of the VA treatment records shows that the Veteran's diagnoses of asthma and COPD have been listed together as if they are one in the same and at other times listed as separate conditions. The Veteran underwent a VA respiratory conditions examination in February 2017 that showed a diagnosis of asthma and COPD. The examiner noted a January 2017 chest x-ray noted the lungs were hyperinflated, likely sequela of COPD changes. The examiner opined that it was less likely than not the Veteran's COPD was incurred in or caused by the breathing problems the Veteran had in service. As part of the rationale, the examiner stated that the records failed to support a diagnosis of COPD while on active duty. Unfortunately, the VA examiner was mistaken, as the STRs note a diagnosis of mild COPD in July 1988. The July 2021 VA respiratory conditions examiner did not diagnose the Veteran with COPD. Unfortunately, it is unclear whether the Veteran has a current COPD disability that is related to service or whether the mild COPD initially diagnosed in service was actually restrictive airway disease, later determined to be asthma. Accordingly, the Board finds that a remand is necessary to obtain a VA examination and opinion. 2. Entitlement to a compensable rating for right ankle strain is remanded. The Veteran asserts that his service-connected right ankle disability warrants a compensable rating. Specifically, at the June 2020 Board hearing, the Veteran reported a worsening of his right ankle symptoms, stating that the pain is a constant ache, and his ankle gives out occasionally. The Veteran stated he also used orthotics and a cane for stability. Based on the Veteran's reports of worsening, the issue was remanded for a VA examination to assess the current severity of his right ankle disability. A VA examination was conducted in July 2021. Although the July 2021 VA examination provided additional pertinent evidence bearing on the claim the issue was not addressed in the subsequent July 2021 supplemental statement of the case (SSOC). The Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012, Public Law No. 112-154, 126 Stat. 1165 (amending 38 U.S.C. § 7105 to provide for an automatic waiver of initial RO review of evidence submitted by the Veteran to the RO or to the Board at the time of or subsequent to the submission of a substantive appeal filed on or after February 2, 2013, unless the claimant or claimant's representative requests in writing that the RO initially review such evidence). Here, however, the VA examination reports were not submitted by the Veteran. Given the above, the evidence is not subject to automatic waiver and a SSOC is required. See 38 C.F.R. §§ 19.31, 19.37. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination to determine whether the Veteran has a diagnosis of COPD. All necessary examinations should be performed, to include a pulmonary function test. A copy of this remand and claims file should be reviewed. If the VA examiner finds that the Veteran is not currently diagnosed with COPD, the examiner should explain with a sufficient rational the reason for this and discuss the previous VA examination findings and other findings of such a diagnosis. 2. Furnish the Veteran and his representative an SSOC that includes a review of the July 2021 VA ankle examination. Thomas H. O'Shay Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Mitchell, 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.