Citation Nr: 21076836 Decision Date: 12/28/21 Archive Date: 12/28/21 DOCKET NO. 19-32 138 DATE: December 28, 2021 ORDER Entitlement to service connection for bilateral hearing loss is dismissed. REMANDED Entitlement to a disability rating in excess of 60 percent from October 1, 2017 to October 30, 2017 and in excess of 30 percent from October 31, 2017 for coronary artery disease (CAD) is remanded. Entitlement to service connection for respiratory disability, to include chronic obstructive pulmonary disease (COPD), is remanded. Entitlement to service connection for sleep apnea is remanded. Entitlement to service connection for hypertension is remanded. Entitlement to service connection for a cervical spine disability is remanded. FINDING OF FACT A September 2021 rating decision granted service connection for bilateral hearing loss; accordingly, there is no justiciable issue before the Board. CONCLUSION OF LAW The Board lacks jurisdiction over the claim for service connection for bilateral hearing loss because that claim has been granted and rendered moot. 38 U.S.C. §§ 7104, 7105; 38 C.F.R. §§ 19.20, 19.22, 20.104, 20.903. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1965 to December 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from March 2012, February 2017, and December 2017 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded this case in August 2020 for further development. Although the issue certified to the Board was for chronic bronchitis/chronic obstructive pulmonary disease and degenerative joint disease cervical spine, in light of Clemons v. Shinseki, 23 Vet. App. 1 (2009), the issues have been recharacterized to comport with the record. 1. Entitlement to service connection for bilateral hearing loss is dismissed. As a general matter, the grant of a claim of service connection constitutes an award of the full benefits sought on an appeal of the denial of a service connection claim. Seri v. Nicholson, 21 Vet. App. 441, 447 (2007); see also Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105; 38 C.F.R. § 20.202. The Veteran's claim for service connection for bilateral hearing loss was remanded by the Board in August 2020. In a September 2021 rating decision, the Veteran was granted service connection for bilateral hearing loss. As this claim has been resolved by full grant of benefits, it is no longer in appellate status. AB v. Brown, 6 Vet. App. 35 (1993). As such, there is no justiciable issue before the Board and the appeal is dismissed for lack of subject matter jurisdiction. 38 U.S.C. §§ 7104, 7105; 38 C.F.R. §§ 19.20, 19.22, 20.104, 20.903. REASONS FOR REMAND 1. Entitlement to a disability rating in excess of 60 percent from October 1, 2017 to October 30, 2017 and in excess of 30 percent from October 31, 2017 for CAD is remanded. In its August 2020 remand directives, the Board instructed the VA examiner, upon finding that a determination of METs by exercise cannot be done for medical reasons, the examiner should explain why this is the case. The examiner was also instructed to discuss what appeared to be contradictions in the record as to whether, in the past, the Veteran has been capable of participating in exercise testing. The October 2017, November 2017, and October 2019 VA examiners did not perform exercise testing based on the Veteran's health on those days, yet the Veteran had submitted evidence showing that he participated in several stress/exercise tests with his private provider in October and November 2017, and December 2018. In doing so, the examiner was asked to review the assessments from LM Heart Center dated from October 2, 2017 to November 8, 2017, and indicate if any information from those assessments informs on the Veteran's heart functioning at the time, to include METs estimates. However, the January 2021 VA examiner did not do so. Additionally, the examiner's findings as to the Veteran's overall estimated METs and estimated METs due solely to his cardiac conditions is inadequate. While the examiner found that the estimated METs due solely to the Veteran's cardiac condition was higher than his overall METs, the rationale provided indicated that the opposite should be true as the Veteran had multiple comorbidities, including COPD, degenerative disc disease with radiculopathy, and obesity. As such, a new VA examination is warranted. Further, the Board notes that effective November 14, 2021, the rating criteria for the cardiovascular system was amended to evaluate cardiovascular conditions under a General Rating Formula for Diseases of the Heart. Pertinently, the Board must now consider METs that results in heart failure symptoms, which include, but are not limited to, breathlessness, fatigue, angina, dizziness, arrythmia, palpitations, or syncope. As such, the examiner should consider the new rating criteria when evaluating the severity of the Veteran's CAD. 2. Entitlement to service connection for respiratory disability, to include COPD, is remanded. The January 2021 VA examiner found that the Veteran did not have a current, active diagnosis of COPD. However, the Board finds that throughout the period on appeal, VA treatment records (i.e., April 2020, February 2021, and August 2021) show that the Veteran has been assessed with and treated for COPD. As such, the examiner should consider these records in addressing whether the Veteran's diagnosed COPD is due to service. Further, VA treatment records show that the Veteran has been diagnosed with rhinitis during the period on appeal. The examiner should address whether the Veteran's rhinitis is a respiratory disability and, if so, whether it is due to his military service. Additionally, the January 2021 VA examiner opined that it was less likely than not that the Veteran's asthma was aggravated by his service-connected CAD. The examiner found the Veteran's asthma was well-controlled without recent exacerbation. The Board finds that this opinion is inadequate as it focused primarily on what treatment the Veteran was not receiving as opposed to the severity of the asthma itself. As such, a remand is warranted to obtain a supplemental VA medical opinion. 3. Entitlement to service connection for sleep apnea is remanded. The Board finds that the January 2021 VA examination opinion as to whether the Veteran's sleep apnea is secondary to his service-connected posttraumatic stress disorder (PTSD) is inadequate. The examiner acknowledged that PTSD was a risk factor for sleep apnea, but then found that due to the presence of obesity, which was a known and significant risk factor, he could not opine that it was as likely as not that the Veteran's sleep apnea was due to his PTSD. In this same opinion, the examiner also noted that records from the Veteran's initial diagnosis of sleep apnea in the 1990's were not available for review and, as such, could not determine whether he had CAD or PTSD at that time. However, this also means that the examiner should not be able to determine that the Veteran was necessarily obese when he was initially diagnosed with sleep apnea. Further, the examiner did not consider the medical treatise articles the Veteran submitted regarding the link between sleep apnea and PTSD. As such, the Board finds that a remand is warranted to obtain a supplemental VA medical opinion. 4. Entitlement to service connection for hypertension is remanded. VA has conceded that the Veteran served in the Republic of Vietnam during his active duty service. Thus, exposure to Agent Orange is presumed. See 38 U.S.C. § 1116 (f); 38 C.F.R. § 3.307 (a)(6)(iii). Hypertension is not included the list of presumptive diseases under 38 C.F.R. § 3.309 (e) regarding herbicide agent. However, notwithstanding the presumptions, service connection for a disability claimed as due to herbicide exposure during the Vietnam War may be established by showing that a disorder resulting in disability was in fact causally linked to such exposure. Combee v. Brown, 34 F. 3d 1039, 1044 (Fed. Cir. 1994). The January 2021 VA examiner based his opinion that the Veteran's hypertension was less likely than not due to service primarily on the fact that hypertension is not a presumptively service-connected condition. Additionally, the examiner did not address the fact that the National Academies of Sciences, Engineering, and Medicine (NAS) recently upgraded the likelihood of an association between hypertension and exposure to herbicides from "limited or suggestive" evidence of an association to "sufficient" evidence of an association. See Veterans and Agent Orange: Update 11 (2018) (available at http://nationalacademies.org/hmd/reports/2018/veterans-and-agent-orange-update-2018.aspx). The examiner also did not address the medical treatise articles indicating a link between hypertension and Agent Orange and/or PTSD. As such, a remand is warranted to obtain a supplemental VA medical opinion. 5. Entitlement to service connection for a cervical spine disability is remanded. In the body of its August 2020 remand, the Board noted that while the Veteran did not report neck pain in the November 1968 separation examination, he had reported back pain and that there was no opportunity on the report of medical history to report neck pain. The Board also noted that after the November 1968 separation examination, the Veteran had been treated for neck pain and diagnosed with severe spasm and prescribed medication and a neck collar. The January 2021 VA examiner noted that the Veteran had neck pain a few weeks after the separation examination, but did not consider the fact that the Veteran did not have an opportunity to report neck pain on the separation examination's report of medical history. Additionally, the examiner seemed to place weight on the fact that the Veteran had experienced a bad fall in 2002, but did not consider that, according to an April 2021 record, this had injured the Veteran's low back, not neck. The examiner also did not consider the September 2016 chiropractor's note indicating that the Veteran's current, severe degenerative changes of the cervical spine could be the result of the 1965 neck injury. As such, a remand is warranted to obtain a supplemental VA medical opinion. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination by an appropriately qualified examiner to determine the nature and severity of the Veteran's coronary artery disease. Provide the claims file, including a copy of this REMAND, to the examiner for review. A complete history of symptoms should be elicited from the Veteran. The examiner should report all signs and symptoms necessary for evaluating the Veteran's coronary artery disease under the rating criteria and identify all present symptoms and manifestations attributable to the Veteran's coronary artery disease. The examiner should provide to the greatest extent possible comprehensive information that addresses all components of the disability, to include an assessment of workload in terms of METs (metabolic equivalent) that results heart failure symptoms, to include, but not limited to, breathlessness, fatigue, angina, dizziness, arrythmia, palpitations, or syncope; evidence of cardiac hypertrophy or dilatation confirmed by echocardiogram or equivalent; and commentary on the presence, or lack thereof, of congestive heart failure, and its frequency. If the examiner finds that a determination of METs by exercise testing cannot be done for medical reasons (to include the presence of a medical contraindication, LVEF is measured at 50% or less, chronic congestive heart failure is present, or there has been more than on episode of congestive heart failure within the past year), the examiner should explain why this is the case, and provide an estimate of the level of activity expressed in METs and supported by specific examples (such as slow stair climbing or shoveling snow) that results in heart failure symptoms. If an estimate cannot be provided, the reason should also be explained. Importantly, the examiner MUST discuss what appears to be contradictions in the record as to whether, in the past, the Veteran has been capable of participating in exercise testing. The October 2017, November 2017, and October 2019 VA examiners did not perform exercise testing based on the Veteran's health on those days, yet the Veteran has submitted evidence showing he participated in several stress/exercise tests with his private treatment provider in October and November 2017, and subsequently in December 2018. In doing so, the examiner is also asked to review the assessments from LM Heart Center dated from October 2, 2017 to November 8, 2017, and indicate if any information from those assessments informs on the Veteran's heart functioning at the time, to include METs estimates. A complete rationale must be given for all opinions and conclusions expressed. 2. Obtain a supplemental VA opinion from an appropriately qualified examiner regarding the nature and etiology of the Veteran's respiratory disability, to include COPD. Only if deemed necessary to provide an opinion, should the Veteran be afforded a new VA examination. Provide the claims file, including a copy of this REMAND, to the examiner for review. After review of the record, the examiner must address the following: (a) Identify all of the Veteran's respiratory disabilities since October 2016. In doing so, the examiner should address whether the Veteran's rhinitis is a respiratory disability. The examiner is advised that VA treatment records indicate that the Veteran has been assessed with and treated for COPD and an etiological opinion as to the diagnosed COPD must be provided. (b) For each respiratory disability, the examiner must opine whether it is at least as likely as not (approximately 50 percent probability or greater) that each disability had its onset in, or is otherwise related to service. In doing so, the examiner should consider the Veteran's contention that his COPD is due to exposure to jet/diesel and exhaust fumes while serving on active duty. (c) For each respiratory disability, the examiner must opine whether it is at least as likely as not (approximately 50 percent probability or greater) that each disability was proximately due to or aggravated by his service-connected disabilities, specifically his coronary artery disease. A complete rationale must be given for all opinions and conclusions expressed. 3. Obtain a supplemental VA opinion from an appropriately qualified examiner regarding the nature and etiology of the Veteran's sleep apnea. Only if deemed necessary to provide an opinion, should the Veteran be afforded a new VA examination. Provide the claims file, including a copy of this REMAND, to the examiner for review. After review of the record, the examiner must address the following: (a) Whether it is at least as likely as not (approximately 50 percent probability or greater) that the Veteran's sleep apnea had its onset in, or is otherwise related to service. In doing so, the examiner should consider the Veteran's contention that his sleep apnea is due to exposure to jet/diesel and exhaust fumes while serving on active duty. (b) Whether it is at least as likely as not (approximately 50 percent probability or greater) that the Veteran's sleep apnea was proximately due to or aggravated by his service-connected disabilities, specifically his PTSD. In doing so, the examiner is advised that while records from the Veteran's initial diagnosis of sleep apnea in the 1990's is not available for review, this does not necessarily mean that the Veteran was obese at the time of this initial diagnosis. The examiner must also address the medical treatise articles the Veteran submitted regarding the link between sleep apnea and PTSD. A complete rationale must be given for all opinions and conclusions expressed. 4. Obtain a supplemental VA opinion from an appropriately qualified examiner regarding the nature and etiology of the Veteran's hypertension. Only if deemed necessary to provide an opinion, should the Veteran be afforded a new VA examination. Provide the claims file, including a copy of this REMAND, to the examiner for review. After review of the record, the examiner must address the following: (a) Whether it is at least as likely as not (approximately 50 percent probability or greater) that the Veteran's hypertension had its onset in, or is otherwise related to service, to include his in-service exposure to Agent Orange. In doing so, the examiner is advised that although hypertension is not presumptively linked to Agent Orange, it may still in fact be causally linked to such exposure. The examiner must also address the NAS conclusion that there is "sufficient" evidence of an association between Agent Orange and hypertension. (b) Whether it is at least as likely as not (approximately 50 percent probability or greater) that the Veteran's hypertension was proximately due to or aggravated by his service-connected disabilities, specifically his coronary artery disease and/or PTSD. In doing so, the examiner must address the medical treatise articles the Veteran submitted regarding the link between hypertension and coronary artery disease and/or PTSD. A complete rationale must be given for all opinions and conclusions expressed. 5. Obtain a supplemental VA opinion from an appropriately qualified examiner regarding the nature and etiology of the Veteran's cervical spine disability. Only if deemed necessary to provide an opinion, should the Veteran be afforded a new VA examination. Provide the claims file, including a copy of this REMAND, to the examiner for review. After review of the record, the examiner must address the following: (a) Identify all of the Veteran's cervical spine disabilities since October 2011, to include cervical spondylosis, cervical degenerative arthritis, spinal stenosis, and radiculopathy. Consider the VA treatment records which diagnosed cervical spondylosis (August 2013 VA treatment record), cervical stenosis (November 2019 VA treatment record), and the February 2012 VA examiner's diagnosis of degenerative disc disease and degenerative joint disease of the cervical spine. (b) For each cervical spine disability, the examiner must opine whether it is at least as likely as not (approximately 50 percent probability or greater) that each disability had its onset in, or is otherwise related to service. For cervical spine arthritis, the examiner must opine whether it is at least as likely as not (approximately 50 percent probability or greater) that the Veteran's cervical spine arthritis manifested within one year of separation from service. In doing so, the examiner must consider (1) the Veteran's June 2014 statement that his chiropractor told him that it was obvious that his neck injury happened 45 50 years ago; (2) the Veteran's report of back pain in the November 1968 separation examination's report of medical history and the fact that there was no opportunity on the report of medical history to report neck pain; (3) the fact that the Veteran was treated in service for a severe spasm and neck pain with prescribed medication and a neck collar after his separation examination was completed; and (4) the September 2016 chiropractor's note indicating that the Veteran's severe degenerative changes of the cervical spine could be the result of the 1965 neck injury. A complete rationale must be given for all opinions and conclusions expressed. LESLEY A. REIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Ko, Associate 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.