Citation Nr: 21068060 Decision Date: 11/09/21 Archive Date: 11/09/21 DOCKET NO. 15-20 112 DATE: November 9, 2021 REMANDED Entitlement to service connection for a respiratory disability, to include chronic obstructive pulmonary disease (COPD), and to include as due to in-service exposure to herbicide agents and/or burn pits, is remanded. Entitlement to service connection for obstructive sleep apnea (OSA), to include as due to in-service exposure to herbicide agents and/or burn pits, is remanded. Entitlement to a rating in excess of 60 percent for the service-connected coronary artery disease (CAD) with hypertensive heart disease and stable angina status post coronary artery bypass graft surgery is remanded. Entitlement to an initial compensable rating prior to September 28, 2017, and in excess of 10 percent from September 28, 2017, through October 2, 2017, for the service-connected sternum scar status post CABG, and an initial rating in excess of 10 percent from October 3, 2017 for the service-connected sternum scar status post CABG and painful chest tube scar is remanded. Entitlement to an initial compensable rating for the service-connected left carotid endarterectomy scar is remanded. Entitlement to an initial rating in excess of 20 percent for the service-connected diabetes mellitus, type 2, is remanded. REASONS FOR REMAND The Veteran had active service from March 1963 to March 1983, to include service in the Republic of Vietnam during the Vietnam Era. During the current appeal, he requested, and was afforded, the opportunity to provide sworn testimony at a Board of Veterans' Appeals (Board) hearing. Prior to the hearing, however, he withdrew his hearing request and asked that his claim be considered based on the record. Service connection for a respiratory disability In-service exposure to herbicide agents has been conceded in this case. The Veteran submitted a written statement in May 2021 wherein he stated that he was being monitored for lung cancer. His VA treatment records note that he had a pulmonary nodule, but it is unclear whether he has been diagnosed with lung cancer. Respiratory cancers can be presumptively service-connected for veterans who have been exposure to herbicide agents in service. The Veteran also has been diagnosed with COPD, a condition for which a presumptive service connection is not allowed, but direct service connection may be possible. He has not been afforded a VA examination to determine the nature and etiology of his respiratory condition. The Board finds that a VA examination is needed to determine all respiratory diagnoses the Veteran has, or has had, during the period on appeal. In case he is not diagnosed with any conditions for which a presumptive service connection is allowed, etiological opinions are needed to determine whether service connection can be granted on a direct basis. Further, the Veteran has submitted lay reports of having worked around burn pits in service. Thus, the direct etiological opinions should address a possible nexus between the Veteran's in-service exposure to herbicide agents and his asserted in-service exposure to burn pits. Service connection for OSA The Veteran also seeks service connection for OSA. He has not yet been afforded a VA examination to address the etiology of this disability, and the Board finds that one is needed, given his in-service exposure to herbicide agents and asserted in service exposure to burn pits, before the Board can decide this claim. A rating in excess of 60 percent for the service-connected CAD with hypertensive heart disease and stable angina status post coronary artery bypass graft surgery This appeal stems from a September 2018 rating decision where the RO reduced the Veteran's rating for his CAD from 60 percent to 30 percent, effective December 1, 2018. The Veteran appealed that decision, and the rating for his CAD was later restored to 60 percent, effective December 1, 2018. The issue of entitlement to a rating greater than 60 percent for his CAD remains on appeal, and the appeal period is dated December 1, 2018, to present. As the Veteran has not been afforded a VA examination to determine the severity of his CAD during the appeal period, a new VA examination to determine the current severity of his service-connected heart disability is needed before it can decide this claim. An initial compensable rating prior to September 28, 2017, and in excess of 10 percent from September 28, 2017, through October 2, 2017, for the service-connected sternum scar status post CABG, and an initial rating in excess of 10 percent from October 3, 2017 for the service-connected sternum scar status post CABG and painful chest tube scar An initial compensable rating for the service-connected left carotid endarterectomy scar The Veteran also seeks higher ratings for his service-connected trunk scars. The Board notes that the Veteran was last examined by VA in September 2017, over four years ago, for his service-connected trunk scar disabilities. Accordingly, on remand, he should be provided an opportunity to report for a VA examination to ascertain the current severity and manifestations of these disabilities. An initial rating in excess of 20 percent for the service-connected diabetes mellitus, type 2 In January 2021, the Veteran's representative requested a new VA examination to determine the severity of the Veteran's diabetes mellitus. In accordance with the Veteran's wishes, the Board finds that a new VA examination is warranted to assess the current severity of his service-connected diabetes mellitus. These matters are, thus, REMANDED for the following action: 1. Obtain all outstanding VA treatment records. 2. After obtaining any outstanding records pursuant to paragraph 1, schedule the Veteran for an appropriate VA examination to diagnose every respiratory disability he has had during the pendency of the appeal (from March 2013 to present). The examiner should review the claims file, to include the Veteran's medical records, submitted lay statements, and this Remand, conduct all necessary tests and studies, and provide the following requested opinions for each diagnosed respiratory disability: Is it at least as likely as not (i.e., 50 percent probability or greater) that any such diagnosed respiratory disability had its onset during the Veteran's active service or is otherwise related to any incident of his active service, to include his in service exposure to Agent Orange or his reports of having served in close proximity to burn pits? The examiner is advised that the Veteran is competent to report his symptoms/history and that such reports must be acknowledged and considered in formulating any opinion. If his reports are discounted, the examiner should provide a reason for doing so. A rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. 3. After obtaining any outstanding records pursuant to paragraph 1, schedule the Veteran for an appropriate VA examination to address the etiology of his obstructive sleep apnea. The examiner should review the claims file, to include the Veteran's medical records, submitted lay statements, and this Remand, conduct all necessary tests and studies, and provide the following requested opinion: Is it at least as likely as not (i.e., 50 percent probability or greater) that the Veteran's obstructive sleep apnea had its onset during his active service or is otherwise related to any incident of his active service, to include his in service exposure to Agent Orange or his reports of having served in close proximity to burn pits? The examiner is advised that the Veteran is competent to report his symptoms/history and that such reports must be acknowledged and considered in formulating any opinion. If his reports are discounted, the examiner should provide a reason for doing so. A rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. 4. After obtaining any outstanding records pursuant to paragraph 1, schedule the Veteran for an appropriate VA examination to determine the current severity of his service-connected CAD with hypertensive heart disease and stable angina status post coronary artery bypass graft surgery. The Veteran's claims file should be made available to the examiner in conjunction with this examination, and the examiner's review of the folder should be annotated in the examination report. The examiner should provide a full description of the Veteran's service-connected CAD with hypertensive heart disease and stable angina status post coronary artery bypass graft surgery and report all signs and symptoms associated with this disorder. To the extent possible, the examiner should identify any symptoms and functional impairments due to this disability alone and discuss the effect of the disability on any occupational functioning and activities of daily living. A rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. 5. After obtaining any outstanding records pursuant to paragraph 1, schedule the Veteran for an appropriate VA examination to determine the current severity of his service-connected sternum scar, chest tube scar, and left carotid endarterectomy scar. The Veteran's claims file should be made available to the examiner in conjunction with this examination, and the examiner's review of the folder should be annotated in the examination report. The examiner should provide a full description of the Veteran's service-connected trunk scars and report all associated signs and symptoms. Also, to the extent possible, the examiner should identify any symptoms and functional impairments due to this disability alone and discuss the effect of the disability on any occupational functioning and activities of daily living. A rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. 6. After obtaining any outstanding records pursuant to paragraph 1, schedule the Veteran for an appropriate VA examination to determine the current severity of his service-connected diabetes mellitus, type II. The Veteran's claims file should be made available to the examiner in conjunction with this examination, and the examiner's review of the folder should be annotated in the examination report. The examiner should provide a full description of the Veteran's service-connected diabetes mellitus, type II and report all associated signs and symptoms. To the extent possible, the examiner should identify any symptoms and functional impairments due to this disability alone and discuss the effect of the disability on any occupational functioning and activities of daily living. A rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. No action is required of the Veteran until he is notified by VA. However, he is advised of his obligation to cooperate in ensuring the duty to assist is satisfied. Kowalski v. Nicholson, 19 Vet. App. 171 (2005). His failure to report for a VA medical examination may impact the determination made. 38 C.F.R. § 3.655. The Veteran also is advised that he has the right to submit additional evidence and argument with respect to this matter. Kutscherousky v. West, 12 Vet. App. 369 (1999). This appeal must be afforded prompt treatment. THERESA M. CATINO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Davidoski, 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.