Citation Nr: 21072050 Decision Date: 12/02/21 Archive Date: 12/02/21 DOCKET NO. 17-16 385 DATE: December 2, 2021 ORDER Entitlement to a rating in excess of 20 percent for diabetes mellitus, type 2, with erectile dysfunction and bilateral upper extremity peripheral neuropathy, is denied. Entitlement to a rating in excess of 30 percent for coronary artery disease (CAD) is denied. Entitlement to a rating in excess of 10 percent for left lower extremity peripheral neuropathy prior to October 1, 2021, is denied. Entitlement to a rating in excess of 10 percent for right lower extremity peripheral neuropathy prior to October 1, 2021, is denied. A 20 percent rating, but not higher, for right lower extremity peripheral neuropathy, beginning October 1, 2021, is granted, subject to the law and regulations governing the payment of monetary benefits. A 20 percent rating, but not higher, for left lower extremity peripheral neuropathy, beginning October 1, 2021, is granted, subject to the law and regulations governing the payment of monetary benefits. Entitlement to a compensable rating for bilateral hearing loss prior to September 28, 2021, and in excess of 20 percent, thereafter, is denied. Entitlement to service connection for a respiratory disorder, to include chronic obstructive pulmonary disorder (COPD) and asbestosis, to include as secondary to asbestos exposure, is denied. REMANDED Entitlement to service connection for hypertension is remanded. FINDINGS OF FACT 1. Management of the Veteran's service-connected diabetes mellitus requires insulin and restricted diet; however, it does not also require regulation of activities. 2. The Veteran's CAD was characterized by evidence of cardiac hypertrophy on echocardiogram, without evidence of acute congestive hearing failure; 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. 3. Prior to October 1, 2021, the Veteran's left lower extremity peripheral neuropathy was manifested by mild incomplete paralysis of the sciatic nerve without diminished or absent muscle strength, absent deep tendon reflexes or muscle atrophy. 4. Prior to October 1, 2021, the Veteran's right lower extremity peripheral neuropathy was manifested by mild incomplete paralysis of the sciatic nerve without diminished or absent muscle strength, absent deep tendon reflexes or muscle atrophy. 5. Beginning October 1, 2021, the evidence supports a finding that the Veteran's left lower extremity peripheral neuropathy was manifest by moderate incomplete paralysis of the sciatic nerve. 6. Beginning October 1, 2021, the evidence supports a finding that the Veteran's right lower extremity peripheral neuropathy was manifest by moderate incomplete paralysis of the sciatic nerve. 7. Prior to September 28, 2021, the Veteran's hearing loss was manifested by no worse than level I in his service-connected right ear and level I in the left ear. 8. Beginning September 28, 2021, the Veteran's hearing loss was manifested by no worse than level VI in his service-connected right ear and level IV in the left ear. 9. The Veteran's respiratory disorder is not related to any injury, disease, or event incurred in service. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 20 percent for diabetes mellitus, type 2, with erectile dysfunction and bilateral upper extremity peripheral neuropathy, have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.119, Diagnostic Code 7913. 2. The criteria for a rating in excess of 30 percent for the Veteran's CAD have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.104, Diagnostic Code 7005. 3. Prior to October 1, 2021, the criteria for a rating in excess of 10 percent for left lower extremity peripheral neuropathy were not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.14, 4.124a, Diagnostic Code 8520. 4. Prior to October 1, 2021, the criteria for a rating in excess of 10 percent for right lower extremity peripheral neuropathy were not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.14, 4.124a, Diagnostic Code 8520. 5. Beginning October 1, 2021, the criteria for a 20 percent rating, but not higher, for left lower extremity peripheral neuropathy have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.14, 4.124a, Diagnostic Code 8520. 6. Beginning October 1, 2021, the criteria for a 20 percent rating, but not higher, for right lower extremity peripheral neuropathy have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.14, 4.124a, Diagnostic Code 8520. 7. The criteria for a compensable rating for bilateral hearing loss prior to September 28, 2021, and in excess of 20 percent, thereafter, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.14, 4.85, 4.86, Diagnostic Code 6100. 8. The criteria for service connection for a respiratory disorder, to include COPD and asbestosis, to include as secondary to asbestos exposure, have not been met. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1969 to October 1970. This case comes before the Board of Veterans' Appeals (Board) from a December 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California. In May 2021, the Veteran testified at a videoconference hearing at the RO before the undersigned Veterans Law Judge sitting in Washington, DC. A transcript of the testimony is associated with the claims file. This claim was previously before the Board in July 2021, at which time it was remanded for further development. Increased Ratings Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degrees of disability specified by the schedule are considered adequate to compensate veterans for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. See 38 U.S.C. § 1155 (West 2002); 38 C.F.R. § 4.1 (2016). Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7 (2016). Any reasonable doubt regarding the degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3 (2016). In general, when 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, staged ratings are also appropriate in any increased rating claim in which distinct time periods with different ratable symptoms can be identified. Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis in this decision is, therefore, undertaken with consideration of the possibility that different ratings may be warranted for different time periods. The schedule recognizes that disability from distinct injuries or diseases may overlap. See 38 C.F.R. § 4.14. However, the evaluation of the same disability or its manifestations under various diagnoses, which is known as pyramiding, is to be avoided. Id. In general, when 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, staged ratings are also appropriate in any increased rating claim in which distinct time periods with different ratable symptoms can be identified. Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis in this decision is, therefore, undertaken with consideration of the possibility that different ratings may be warranted for different time periods. Entitlement to a rating in excess of 20 percent for diabetes mellitus, type 2, with erectile dysfunction and bilateral upper extremity peripheral neuropathy The Veteran's diabetes mellitus, type 2, is evaluated pursuant to 38 C.F.R. § 4.119, Diagnostic Code 7913. Under this criteria, diabetes mellitus requiring more than once-daily injection of insulin, restricted diet, and regulation of activities (avoidance of strenuous occupational and recreational activities) with episodes of ketoacidosis or hypoglycemic reactions requiring at least three hospitalizations per year or weekly visits to a diabetic care provider, plus either progressive loss of weight and strength or complications that would be compensable if separately evaluated, is assigned a 100 percent disability rating. 38 C.F.R. § 4.119, Diagnostic Code 7913. Diabetes mellitus requiring insulin, restricted diet, and regulation of activities with episodes of ketoacidosis or hypoglycemic reactions requiring one or two hospitalizations per year or twice a month visits to a diabetic care provider, plus complications that would not be compensable if separately evaluated, is assigned a 60 percent disability rating. Id. Diabetes mellitus requiring insulin, restricted diet, and regulation of activities is assigned a 40 percent disability rating. Id. The Board notes that the term "regulation of activities" is defined in Diagnostic Code 7913 as "avoidance of strenuous occupational and recreational activities." In Camacho v. Nicholson, 21 Vet. App. 360, 363-364 (2007), the United States Court of Appeals for Veterans Claims (Court) held that medical evidence is required to show that occupational and recreational activities have been restricted. Diabetes mellitus requiring insulin and restricted diet, or; oral hypoglycemic agent and restricted diet warrants a 20 percent evaluation. Id. In addition, the regulations stipulate that compensable complications of diabetes are to be evaluated separately, with noncompensable complications to be considered as part of the diabetic process under Diagnostic Code 7913. Id. at Note (1). The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case." Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, the diagnosis and demonstrated symptomatology. Any change in a diagnostic code by a VA adjudicator must be specifically explained. Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). In this case, the Board has considered whether another rating code is "more appropriate" than the one used by the RO, DC 7913. See Tedeschi v. Brown, 7 Vet. App. 411, 414 (1995). Diagnostic Code 7913 is deemed by the Board to be the most appropriate code, primarily because it pertains specifically to the disability at issue (diabetes mellitus) and also because it provides specific guidance as to how symptoms of this disability are to be evaluated. The Board can identify nothing in the evidence to suggest that another diagnostic code would be more appropriate, and the Veteran has not requested that another diagnostic code should be used. Accordingly, the Board concludes that the Veteran is appropriately rated under Diagnostic Code 7913, with reference to other diagnostic codes as required by the diagnostic criteria set forth therein. The Veteran received a VA diabetes examination in November 2015, and the examiner indicated that the condition was managed by a restricted diet. The Veteran was also prescribed an oral hypoglycemic agent and one insulin injection per day. He did not, however, require regulation of activities as part of the medical management of his condition. The Veteran visited his diabetic care provider for episodes of hypoglycemia less than twice per month. Finally, the Veteran had not been hospitalized for episodes of ketoacidosis or hypoglycemic reactions over the past 12 months. At the May 2021 Board hearing, the Veteran testified that he took insulin and was put on a restricted diet by his doctor. Furthermore, his doctor restricted his activities; the Veteran stated that he could not walk far because of cramping in his legs. Pursuant to the July 2021 Board remand, the Veteran received a VA diabetes examination in October 2021, and the examiner indicated that the condition was managed by a restricted diet and he required more than one insulin injection per day. He did not, however, require regulation of activities as part of the medical management of his condition. The Veteran visited his diabetic care provider for episodes of hypoglycemia less than twice per month. The Veteran also had not been hospitalized for episodes of ketoacidosis reactions over the past 12 months but had been hospitalized for one episode of hypoglycemia reaction in the same time period. In sum, the Board finds that the evidence is against a disability rating in excess of the 20 percent rating presently assigned for diabetes mellitus as the evidence does not support a finding that the Veteran's condition is manifested by a regulation of his recreational and occupational activities by a physician. While the Veteran's testimony at the May 2021 Board hearing regarding regulation of activities is credible with respect to being told by his doctor not to walk too far, the Board does not find that this single limitation is sufficient to constitute the type of regulation of activities contemplated by the rating criteria and that, in any event, there is no medical evidence to support his assertions. See Camacho, 21 Vet. App. at 363-364. In fact, the most recent examiner specifically found that the Veteran did not require regulation of activities as part of the medical management of his condition. Although the October 2021 examiner also acknowledged that peripheral neuropathy of the upper extremities was associated with the Veteran's disability, the examination of the peripheral pulses was within normal limits and motor and sensory evaluation was also within normal limits, to include gait, balance, and the cranial and peripheral nerves. Thus, at this time, there is no basis to assign a separate compensable rating for the Veteran's bilateral upper extremity peripheral neuropathy. For these reasons, there is no basis upon which to assign an increased disability rating for his diabetes mellitus. Therefore, the Board finds that a preponderance of the evidence is against the assignment of a rating in excess of 20 percent for diabetes mellitus, type 2, with erectile dysfunction and bilateral upper extremity peripheral neuropathy under Diagnostic Code 7913 during the entire time frame on appeal. Entitlement to a rating in excess of 30 percent for CAD The Veteran's CAD is evaluated pursuant to 38 C.F.R. § 4.119, Diagnostic Code 7005. Under these criteria, a 10 percent evaluation is warranted where there is a workload of greater than 7 METs but not greater than 10 METs resulting in dyspnea, fatigue, angina, dizziness or syncope; or, continuous medication required. 38 C.F.R. § 4.119, Diagnostic Code 7005. Under Diagnostic Code 7005, a 10 percent evaluation is warranted where there is a workload of greater than 7 METs but not greater than 10 METs resulting in dyspnea, fatigue, angina, dizziness or syncope; or, continuous medication required. Id. A 30 percent evaluation is warranted where there is a workload of greater than 5 METs but not greater than 7 METs, where there is evidence of cardiac hypertrophy or dilatation on electrocardiogram, echocardiogram, or X-ray. Id. A 60 percent evaluation is warranted where there is evidence of more than one episode of acute congestive heart failure in the past year; or, 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. Id. Finally, a 100 percent evaluation is warranted where there is chronic congestive heart failure; or 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. Id. One MET (metabolic equivalent) is defined as the energy cost of standing quietly at rest and represents an oxygen uptake of 3.5 milliliters per kilogram of body weight per minute. When the level of METs at which dyspnea, fatigue, angina, dizziness, or syncope develops is required for evaluation and a laboratory determination cannot be done for medical reasons, an estimation by a medical examiner of the level of activity (expressed in METs and supported by specific examples, such as slow stair climbing or shoveling snow) that results in dyspnea, fatigue, angina, dizziness, or syncope may be used. 38 C.F.R. § 4.104, Note (2). The Veteran received a VA examination in November 2015, and the examiner indicated that there was no congestive heart failure. There was evidence of cardiac hypertrophy but no evidence of cardiac dilatation. An echocardiogram revealed a left ventricular ejection fraction of 62 percent and normal wall motion. Finally, an interview-based METs test was completed and the examiner estimated a METs level of greater than 7 but not greater than 10 METs that resulted in fatigue. The Veteran received a VA examination in October 2021, and the examiner indicated that there was no congestive heart failure. There was evidence of cardiac hypertrophy but no evidence of cardiac dilatation. An echocardiogram revealed a left ventricular ejection fraction of 65 percent and normal wall motion. Finally, an interview-based METs test was completed and the examiner estimated a METs level of greater than 7 but not greater than 10 METs due solely to the cardiac condition that resulted in dyspnea and fatigue. Based on the record, the Board finds that the currently assigned 30 percent rating is appropriate and that the assignment of a higher rating is not warranted. Hypertrophy was revealed on echocardiogram; however, the Veteran's ejection fraction was shown to be 62 percent in November 2015 and at 65 percent in October 2021. The most probative evidence does not establish that the Veteran's test results show any episode of acute congestive heart failure in the past year; or workload of greater than 3 METs but not greater than 5 METs, resulting in dyspnea, fatigue, angina, dizziness or syncope. Evidence of left ventricular dysfunction with an ejection fracture of 30 to 50 percent is also not present. Therefore, the Board finds that a preponderance of the evidence is against the assignment of a rating in excess of 30 percent for CAD. Entitlement to a rating in excess of 10 percent for left lower extremity peripheral neuropathy Entitlement to a rating in excess of 10 percent for right lower extremity peripheral neuropathy The Veteran's right and left lower extremity peripheral neuropathy are rated under Diagnostic Code 8520 for impairment of the sciatic nerve. Incomplete paralysis of the sciatic nerve warrants a 10 percent rating when mild, a 20 percent rating when moderate, a 40 percent rating when moderately severe, and a 60 percent rating when severe, with marked muscular atrophy. Complete paralysis of the sciatic nerve warrants an 80 percent rating. 38 C.F.R. § 4.124a. The term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. 38 C.F.R. § 4.124. The Board observes that the words "slight," "moderate," and "severe" are not defined in the Rating Schedule. Rather than applying a mechanical formula the Board must evaluate all of the evidence to the degree that its decisions are "equitable and just." 38 C.F.R. § 4.6. It should also be noted that use of descriptive terminology such as "mild" by medical examiners, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in order to arrive at a decision regarding an increased rating. 38 U.S.C. § 7104; 38 C.F.R. §§ 4.2, 4.6. The Veteran received a VA examination in November 2015 and exhibited symptoms of mild paresthesias and/or dysesthesias in the right and left lower extremities. There was, however, no constant pain or numbness. The muscle strength testing was normal, as were the deep tendon reflexes, sensation testing for light touch, position sense, vibration sensation and cold sensation. The examiner also noted that there was no muscle atrophy. Based on the results of the examination, the examiner concluded that the Veteran had mild incomplete paralysis of the sciatic nerve bilaterally. The Veteran received a VA examination on October 1, 2021, and exhibited symptoms of moderate constant pain, moderate paresthesias and/or dysesthesias, and moderate numbness. The muscle strength testing was normal, as were the deep tendon reflexes. Light touch/monofilament testing results were decreased in the bilateral ankle/lower leg and bilateral foot/toes. Position sense, vibration sensation, and cold sensation were decreased in the bilateral lower extremities. The examiner also noted that there was no muscle atrophy. Based on the results of the examination, the examiner concluded that the Veteran had moderate incomplete paralysis of the sciatic nerve bilaterally. After careful review of the evidence, and with consideration of the benefit of the doubt doctrine, the Board finds that the preponderance of the evidence is against a rating in excess of 10 percent for the Veteran's left lower extremity peripheral neuropathy and right lower extremity peripheral neuropathy prior to October 1, 2021. Specifically, the November 2015 VA examination revealed that there was mild incomplete paralysis of the Veteran's sciatic nerve bilaterally and there is no additional evidence to indicate symptoms worse than mild for this period. Furthermore, the entire neurological examination performed at the November 2015 VA examination was normal. Accordingly, while the Veteran has been shown to exhibit some neurological impairment of his lower extremities, the record does not show, and the Board cannot conclude, that the left lower extremity peripheral neuropathy and right lower extremity peripheral neuropathy more nearly approximated greater than mild impairment prior to prior to October 1, 2021; thus, such disabilities warranted no more than 10 percent ratings under Diagnostic Code 8520 for this time period. The Board, however, concludes that the symptoms are more accurately characterized as moderate beginning October 1, 2021. The Veteran's constant pain, paresthesias and numbness was moderate, and he experienced decreased sensation to touch, position sense, vibration sensation, and cold sensation in his lower extremities. Accordingly, the Board concludes that the Veteran's left lower extremity peripheral neuropathy and right lower extremity peripheral neuropathy more nearly approximate moderate impairment, warranting a 20 percent rating, beginning October 1, 2021. The Veteran has not alleged, and the record does not show, diminished or absent muscle strength, absent or even reduced deep tendon reflexes or muscle atrophy, and examination did not reveal any findings that were considered severe or even moderately severe in nature. Therefore, the Board finds a rating higher than 20 percent for left and/or right lower extremity peripheral neuropathy is not warranted beginning October 1, 2021. Entitlement to a compensable rating for bilateral hearing loss prior to September 28, 2021, and in excess of 20 percent thereafter Ratings for defective hearing range from 0 percent to 100 percent, based on organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests, together with the average hearing threshold level as measured by pure tone audiometry tests in the frequencies of 1000, 2000, 3000, and 4000 Hertz. To rate the degree of disability from service-connected hearing loss, the rating schedule establishes eleven auditory acuity levels ranging from numeric level I for essentially normal acuity, through numeric level XI for profound deafness. 38 C.F.R. § 4.85, Tables VI and VII, Diagnostic Code 6100. When the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more, Table VI or Table VIa is to be used, whichever results in the higher numeral, to determine the Roman numeral designation for hearing impairment. 38 C.F.R. § 4.86(a). Additionally, when the pure tone threshold is 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz, Table VI or Table VIa is to be used, whichever results in the higher numeral. That numeral will be elevated to the next higher numeral. 38 C.F.R. § 4.86(b). The Veteran received a VA audiological examination in October 2015. Audiometric testing revealed pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 35 50 50 60 60 LEFT 35 40 50 65 60 The average decibel loss in the right ear was 55; the average decibel loss in the left ear was 55. Speech audiometry revealed speech recognition ability of 96 percent in the right ear and of 94 in the left ear. The Veteran received a VA audiological examination in September 2021. Audiometric testing revealed pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 45 50 65 65 75 LEFT 35 40 65 70 75 The average decibel loss in the right ear was 63.75; the average decibel loss in the left ear was 62.50. Speech audiometry revealed speech recognition ability of 60 percent in the right ear and of 80 in the left ear. The results of the October 2015 VA examination correlate to level I hearing in the right ear and level I hearing in the left ear. 38 C.F.R. § 4.85, Table VI. The combination of level I and level I corresponds to a noncompensable disability rating. 38 C.F.R. § 4.85, Table VII. The results of the September 2021 VA examination correlate to level VI hearing in the right ear and level IV in the left ear. The combination of level VI and level IV corresponds to a 20 percent disability rating. An exceptional pattern of hearing loss was not shown during either examination. Based on the evidence above, a compensable rating for the Veteran's bilateral hearing loss prior to a September 28, 2021, and a rating in excess of 20 percent thereafter, is not warranted. The Board expressly acknowledges its consideration of the lay evidence of record when adjudicating this claim, including the Veteran's statements regarding his hearing acuity. He is competent to report difficulty with his hearing; however, disability ratings for hearing loss are derived from a mechanical application of the rating schedule to the numeric designations resulting from audiometric testing. See Lendenmann v. Principi, 3 Vet. App. 345 (1992). The rating criteria contemplate speech reception thresholds and ability to hear spoken words on Maryland CNC testing. The functional impact that the Veteran describes is contemplated by the rating criteria. Doucette v. Shulkin, 28 Vet. App. 366 (2017). The Veteran's main complaint is reduced hearing acuity and clarity, which is what is contemplated in the rating assigned. See Rossy v. Shulkin, 29 Vet. App. 142, 145 (2017). Accordingly, the preponderance of the most probative evidence is against the claim of entitlement to a compensable rating for bilateral hearing loss prior to September 28, 2021, and in excess of 20 percent thereafter. Service Connection Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty, in the active military, naval, or air service. 38 U.S.C. §§ 1110, 1131. 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). Generally, to establish service connection for a disability resulting from a disease or injury incurred in service, there must be (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of incurrence of a disease or injury in active service; and (3) competent evidence of a nexus or connection between the current disability and the disease or injury incurred in service. Horn v. Shinseki, 25 Vet. App. 231, 236 (2010); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009); cf. Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). Entitlement to service connection for a respiratory disorder, to include COPD and asbestosis, to include as secondary to asbestos exposure At the May 2021 Board hearing, the Veteran testified that he worked on planes during service and was exposed to asbestos when removing side panels. He was also exposed to chemicals when they washed the planes and dioxin when working on brakes and tires. The Veteran further testified that he stopped smoking prior to service but, upon entry, he was given cigarettes in his C-rations. As a result, he started smoking again and continued smoking for 47 years following separation. Furthermore, the Veteran received a biopsy in 2015 and there was a spot on the side of his lungs, but a doctor never linked his COPD with his time in service. Pursuant to the July 2021 Board remand, the Veteran received a VA examination in September 2021 and the examiner noted diagnoses of COPD and asbestosis from June 2014. The examiner noted that the Veteran had a history of smoking over 50 packs of cigarettes per year, but he quit in 2014. Based on the results of the examination, the examiner concluded that the Veteran's respiratory disorder was less likely than not caused by service. With regards to the COPD, the examiner noted that the Mayo Clinic found that COPD was caused by smoking and the Veteran reported an over-50 pack per year smoking history which was likely causative of his COPD. With regards to his asbestosis, the examiner noted that the Veteran reported removing covering from aircrafts for a year during service but also reported that he worked with plaster and asbestos for 10 years following service. Considering the prolonged asbestos exposure post-service, the examiner concluded that his current asbestos-related changes were less likely than not related to service and more likely related to exposure after service. There is no medical opinion of record that contradicts the conclusions of this examiner. The Board finds the September 2021 VA medical opinion to be the most probative and competent evidence of record. The examiner's findings are credible and competent, as they were provided with thorough rationales with regards to the Veteran's respiratory disorders and their lack of connection to service. The examiner provided a thorough opinion explaining why it was less likely than not that the Veteran's COPD was the result of his military service, concluding that it was more likely the result of smoking over 50 packs of cigarette per year for almost 50 years. He also provided a thorough opinion explaining why it was less likely than not that the Veteran's asbestosis was the result of his military service, concluding that the condition was more likely related to the decade-long exposure to asbestos following service rather than the brief period of any exposure during service. As a competent medical opinion regarding causation based on an accurate interpretation of the record is against the claim, the Board must unfortunately find that the claim is not in equipoise and that service connection for a respiratory disorder, to include COPD, and asbestosis, is therefore not warranted. REASONS FOR REMAND Entitlement to service connection for hypertension Pursuant to the July 2021 Board remand, the Veteran received a VA examination in September 2021 and the examiner noted a diagnosis of hypertension. Based on the results of the examination, the examiner concluded that the condition was less likely than not related to service, as there was no evidence of a definitive diagnosis found in service. The Veteran self-reported a diagnosis of hypertension around 2013, but this was many years after discharge. The Board notes that a medical opinion based solely on the absence of documentation in the record is inadequate and that a medical opinion is inadequate if it does not take into account the Veteran's reports of symptoms and history (even if recorded in the course of the examination). Dalton v. Peake, 21 Vet. App. 23 (2007). Therefore, this claim must be remanded for a new examination. The matters are REMANDED for the following action: Schedule the Veteran for a VA examination to determine the nature and etiology of his hypertension. The claims file must be made available to the examiner, and the examiner must specify in the examination report that these records have been reviewed. The examiner is asked to opine as to whether it is as least as likely as not (50 percent probability or more) that the hypertension had its onset in service or is otherwise the result of an incident in service. The examiner should consider all evidence, including lay statements, medical records, and other medical opinions of record. The Board notes that a medical opinion based solely on the absence of documentation in the record is inadequate and that a medical opinion is inadequate if it does not take into account the Veteran's reports of symptoms and history (even if recorded in the course of the examination). Any opinions offered should be accompanied by a clear rationale consistent with the evidence of record. Michael J. Skaltsounis Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Daniels, 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.