Citation Nr: 21076868 Decision Date: 12/28/21 Archive Date: 12/28/21 DOCKET NO. 16-34 113 DATE: December 28, 2021 ORDER New and material evidence has been received sufficient to reopen a claim for entitlement to service connection for sleep apnea. New and material evidence has been received sufficient to reopen a claim for entitlement to service connection for chronic obstructive pulmonary disease (COPD). New and material evidence has been received sufficient to reopen a claim for entitlement to service connection for hypertension. New and material evidence has been received sufficient to reopen a claim for entitlement to service connection for a heart condition. New and material evidence has not been submitted sufficient to reopen a claim for entitlement to service connection for diabetic retinopathy. An effective date prior to June 14, 2018, for the award of service connection for a lumbar spine disability is denied. A rating in excess of 20 percent for lumbar spine disability is denied. A total disability rating based on individual unemployability due to service-connected disabilities (TDIU) from January 14, 2013, is granted. REMANDED Entitlement to service connection for hypertension is remanded. Entitlement to service connection for sleep apnea is remanded. Entitlement to service connection for COPD is remanded. Entitlement to service connection for a heart condition is remanded. Entitlement to a rating in excess of 20 percent for left lower extremity peripheral neuropathy, sciatic nerve, is remanded. Entitlement to a rating in excess of 20 percent for right lower extremity peripheral neuropathy, sciatic nerve, is remanded. Entitlement to a rating in excess of 20 percent for left lower extremity peripheral neuropathy, femoral nerve, is remanded. Entitlement to a rating in excess of 20 percent for right lower extremity peripheral neuropathy, femoral nerve, is remanded. FINDINGS OF FACT 1. An unappealed July 2006 rating decision denied service connection for sleep apnea and COPD. 2. An unappealed October 2010 rating decision denied service connection for hypertension. 3. An unappealed February 2014 rating decision denied service connection for a cardiac disability, sleep apnea, hypertension, and diabetic retinopathy. 4. Evidence received since the July 2006, October 2010, and February 2014 rating decisions includes evidence that is not cumulative or redundant of the evidence previously of record and is sufficient, when considered by itself or with previous evidence of record, to raise a reasonable possibility of substantiating the claims for service connection for sleep apnea, COPD, hypertension, and a cardiac disability. 5. The evidence associated with the record since the February 2014 rating decision has been cumulative and redundant; does not relate to unestablished facts necessary to substantiate the claim; or does not raise a reasonable possibility of demonstrating entitlement to a claim of service connection for diabetic retinopathy. 6. The claim for entitlement to service connection for a lumbar spine condition was received on June 14, 2018. There were no pending unadjudicated claims for service connection for a lumbar spine condition prior to June 14, 2018. 7. Throughout the entire appeal period, at no point was forward flexion of the thoracolumbar spine limited to 30 degrees upon clinical evaluation or as described by the Veteran; there was no evidence of favorable ankylosis of the entire thoracolumbar spine or the functional equivalent thereof; and there was no indication in the medical documentation or lay statements that incapacitating episodes requiring bed rest lasted a total duration of at least 4 weeks. 8. Prior to January 14, 2013, there is insufficient evidence to substantiate a reasonable possibility that the Veteran is unemployable because of his service-connected disabilities, and the evidence does not support that his service-connected disabilities render him unemployable. 9. From January 14, 2013, the Veteran's service-connected disabilities met the threshold for schedular TDIU and rendered him unable to obtain or maintain substantially gainful employment consistent with his education, work history, skills, and training. CONCLUSIONS OF LAW 1. The July 2006, October 2010, and February 2014 rating decisions denying service connection for sleep apnea, COPD, hypertension, a cardiac disability, and diabetic retinopathy are final. 38 U.S.C. § 7105 (c); 38 C.F.R. § 3.104. 2. As new and material evidence has been received since the issuance of the July 2006, October 2010, and February 2014 rating decisions, the criteria for reopening the claims for service connection for sleep apnea, COPD, hypertension, and a cardiac disability are met. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156. 3. New and material evidence has not been received sufficient to reopen the issue of diabetic retinopathy. 38 U.S.C. § 5108; 38 C.F.R. § 3.156, 3.159. 4. The criteria for an effective date prior to June 14, 2018, for the grant of service connection for a lumbar spine disability have not been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. 5. The criteria for a rating in excess of 20 percent for a lumbar spine disability have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.7, 4.71a, Diagnostic Code (DC) 5237. 6. The criteria for entitlement to TDIU since January 14, 2013, have been met. 38 U.S.C. §§ 1155, 5107; 38C.F.R. §§3.340, 4.16(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from August 1967 to June 1969. These matters come before the Board of Veterans Appeals (Board) on appeal from December 2012, March 2016, and September 2018 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO). The Board previously denied the TDIU claim in a January 2019 decision. The Veteran timely appealed to the Court of Appeals for Veterans Claims (Court) which, pursuant to a Joint Motion for Remand (JMR), in May 2020 vacated the Board's prior denial and remanded the case consistent with the terms of the JMR. The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). 1. New and material evidence has been received sufficient to reopen a claim for entitlement to service connection for hypertension. 2. New and material evidence has been received sufficient to reopen a claim for entitlement to service connection for a cardiac issue. 3. New and material evidence has been received sufficient to reopen a claim for entitlement to service connection for sleep apnea 4. New and material evidence has been received sufficient to reopen a claim for entitlement to service connection for COPD. Generally, a claim that has been denied in an unappealed Board or rating decision may not thereafter be reopened and allowed. 38 C.F.R. §§ 20.1100, 20.1103. The exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence is defined as existing evidence not previously submitted to agency decisionmakers. Material evidence means evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence previously of record and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence, although not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Regardless of the RO's actions, the Board has a legal duty under 38 U.S.C. § 5108 to address the question of whether new and material evidence has been received to reopen the claim for service connection. This matter goes to the Board's jurisdiction to reach the underlying claim and adjudicate the claim on a de novo basis. See Barnett v. Brown, 83 F. 3d 1380, 1383 (Fed. Cir. 1996). The regulation does not require new and material evidence as to each previously unproven element of a claim and creates a low threshold for reopening claims. 38 C.F.R. § 3.156(a); Shade v. Shinseki, 24 Vet. App. 110 (2010). As a final matter before turning to the specific facts of the Veteran's case, the Board notes that it has considered the applicability of 38 C.F.R. § 3.156(b), which provides that when new and material evidence is received prior to the expiration of the appeal period it will be considered as having been filed in connection with the claim that was pending at the beginning of the appeal period. In the instant case, no new and material evidence was submitted within the relevant appeal periods. Accordingly, 38 C.F.R. § 3.156(b) is not applicable. See Bond v. Shinseki, 659 F.3d 1362, 1367 (Fed. Cir. 2011); Roebuck v. Nicholson, 20 Vet. App. 307, 316 (2006); Muehl v. West, 13 Vet. App. 159, 161-62 (1999). Evidence of record at the time of the July 2006 rating decision denying service connection for COPD and sleep apnea included the Veteran's service treatment records (STRs), service personnel records, VA treatment records, and private treatment records. His STRs did not contain any evidence of COPD or sleep apnea in service. Service personnel records confirmed his service in the Republic of Vietnam (Vietnam) and his presumed exposure to herbicide agents. Post-service medical records noted current diagnoses of COPD and sleep apnea. Evidence of record at the time of the October 2010 rating decision denying service connection for hypertension included the STRs, service personnel records, VA treatment records, private treatment records, and an October 2010 VA examination. There was no evidence of hypertension in the STRs but post-service treatment records confirmed a current diagnosis. The examiner found that the Veteran's service-connected diabetes mellitus type II did not cause his hypertension. Evidence of record at the time of the February 2014 rating decision denying service connection for cardiac problems, sleep apnea, and hypertension included the Veteran's STRs, service personnel records, VA treatment records, private treatment records, and a December 2013 VA examination. The STRs did not demonstrate any cardiac symptomology during active service. Post-service treatment records reflected multiple cardiac catheterizations and ongoing diagnoses of sleep apnea and hypertension. The VA examiner determined that the Veteran did not have a current diagnosis of ischemic heart disease. The Veteran did not appeal the July 2006, October 2010, and February 2014 rating decisions and they are final. 38 C.F.R. § 3.156. In November 2015, the Veteran submitted a petition to reopen the claims of service connection for COPD, sleep apnea, and cardiac problems. In June 2018, he submitted a petition to reopen the claim of service connection for hypertension. Since the July 2006, October 2010, and February 2014 final rating decisions, additional evidence has been associated with the record, including, significantly, an August 2018 VA examination evaluating the Veteran's hypertension and VA treatment records indicating a diagnosis of coronary artery disease (CAD). The August 2018 VA examination is new in that it has not previously been reviewed. The evidence is also material. The examination more thoroughly addressed the Veteran's contentions that his hypertension and COPD/sleep apnea are related to his service-connected diabetes mellitus II (DMII) and post-traumatic stress disorder (PTSD). The Veteran's treatment records indicate a diagnosis of CAD not previously of record. This additional evidence raises a reasonable possibility of substantiating the service connection claims. Based on a review of this new evidence, the Board finds that the new and material criteria under 38 C.F.R. § 3.156(a) have been satisfied, and the claims for service connection for sleep apnea, COPD, hypertension and cardiac disability are reopened. 5. New and material evidence has not been submitted sufficient to reopen a claim for entitlement to service connection for diabetic retinopathy. Entitlement to service connection for diabetic retinopathy was previously denied in a February 2014 rating decision based on the lack of a diagnosis of diabetic retinopathy. The Veteran did not appeal the denial. The Board notes that a VA eye conditions examination was submitted within one year of the decision. However, the examination continued to demonstrate that the Veteran did not have a diagnosis of diabetic retinopathy. As such, it does not constitute new and material evidence such that 38 C.F.R. § 3.156(b) is implicated. Accordingly, the February 2014 decision is final. For new evidence to be material, it should be relevant to whether the Veteran has a diagnosis of diabetic retinopathy related to his active service or other service-connected disabilities. As noted above, at the time of the final February 2014 rating decision, the medical evidence of record did not demonstrate a diagnosis of diabetic retinopathy. Since that decision, the Veteran was afforded a VA examination in January 2015. The examiner again did not diagnose diabetic retinopathy. Additionally, treatment records added to the record since the February 2014 rating decision do not contain a diagnosis of diabetic retinopathy. Accordingly, new and material evidence regarding the claim for service connection for diabetic retinopathy not having thus been received since the prior final denial, the petition to reopen must be denied. The Board notes the representative's argument in November 2020 that the Veteran's eye condition should be remanded as the Veteran's cataracts have not been evaluated as secondary to his DMII. However, the Veteran is service connected for DMII with bilateral nuclear cataracts, indicating that his cataracts have already been related to his DMII. 6. An effective date prior to June 14, 2018, for the award of service connection for a lumbar spine disability is denied. The VA received the Veteran's application for service connection for his lumbar spine disability on June 14, 2018. The law and regulations governing effective dates establish that, unless specifically provided otherwise, the effective date of an award based on an original claim, a claim reopened after final adjudication, or a claim for increase, of compensation, dependency and indemnity compensation, or pension, shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefore. 38 U.S.C. § 5110(a). The effective date of an award of disability compensation to a veteran shall be the day following the date of discharge or release if application therefore is received within one year from such date of discharge or release. 38 U.S.C. § 5110(b)(1). This statutory provision is implemented by a regulation which provides that the effective date of an evaluation and award of compensation based on an original claim or a claim reopened after final disallowance will be the date of receipt of the claim or the date entitlement arose, whichever is the later. See 38 C.F.R. § 3.400. A specific claim in the form prescribed by the Secretary of VA must be filed in order for benefits to be paid to any individual under the laws administered by VA. 38 U.S.C. § 5101(a); 38 C.F.R. § 3.151(a). A claim is a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 C.F.R. § 3.1(p). Effective March 24, 2015, VA amended its adjudication regulations to require that all claims governed by VA's adjudication regulations be filed on standard forms prescribed by the Secretary. See 79 Fed. Reg. 57,660 (Sept. 25, 2014). This rulemaking also eliminated the constructive receipt of VA reports of hospitalization or examination and other medical records as informal claims for increase, and revised 38 C.F.R. § 3.400(o)(2). These amendments are applicable with respect to claims and appeals filed on or after March 24, 2015, and are therefore applicable in this case. The mere presence of medical evidence does not establish intent on the part of the Veteran to seek service connection for a disability. Brannon v. West, 12 Vet. App. 32, 35 (1998). The effective date of service connection is not based on the date of the earliest medical evidence demonstrating a causal connection, but rather, on the date the application was filed with VA. Lalonde v. West, 12 Vet. App. 377, 382 (1999). Here, there is no basis for an effective date prior to June 14, 2018, for service connection for a lumbar spine disability, as there is no evidence of VA receipt of a claim, formal or informal, for service connection for a lumbar spine condition prior to that date. Therefore, the Veteran's claim for an effective date prior to June 14, 2018, for the award of service connection for lumbar spine must be denied. 7. A rating in excess of 20 percent for a lumbar spine disability is denied. Service connection for the Veteran's lumbar spine disability was granted at 20 percent disabling under 38 C.F.R. § 4.71a, DC 5010-5242, effective June 14, 2018, in a September 2018 rating decision. Hyphenated diagnostic codes are used when a rating under one code requires use of an additional diagnostic code to identify the basis for the rating. Here, DC 5010 pertains to traumatic arthritis and DC 5242 pertains to degenerative arthritis of the spine. The Board will consider entitlement to a rating in excess of 20 percent from the date of service connection, June 14, 2018. Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran's disability. 38 C.F.R. § 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. Whether the issue is one of an initial rating or an increased rating, separate ratings can be assigned for separate periods of time based on the facts found, a practice known as "staged" ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). The evaluation of the same disability under several Diagnostic Codes (DC), known as pyramiding, must be avoided. 38 C.F.R. § 4.14. Separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other condition. Id. Effective February 7, 2021, VA revised the criteria for evaluating musculoskeletal disorders. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76464 (Nov. 30, 2020); Correction, 86 Fed. Reg. 8142, 8143 (Feb. 4, 2021) (changing new diagnostic code applicable to plantar fasciitis from 5285 to 5269). VA's General Counsel has held that where a law or regulation changes during the pendency of a claim for a higher rating, the Board must first determine whether the revised version is more favorable to the Veteran. In so doing, it may be necessary for the Board to apply both the old and new versions of the regulation. If the revised version of the regulation is more favorable, the retroactive reach of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. The Board must generally apply both the former and the revised versions of the regulation for the period prior and subsequent to the regulatory change, but an effective date based on the revised criteria may be no earlier than the date of the change. VA thus must consider the claim for a higher rating pursuant to the former and revised regulations during the latter part of this appeal. See VAOPGCPREC 3 2000, 65 Fed. Reg. 33,422 (2000); DeSousa v. Gober, 10 Vet. App. 461, 467 (1997). Therefore, the Board will consider the Veteran's claim 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. In this regard, the Board observes that former regulation 38 C.F.R. § 19.9(b)(2) (now renumbered as 38 C.F.R. § 20.904(d)(2)) provided that the Board has the authority to consider appeals in light of laws, including but not limited to statutes, regulations, and court decisions that were not previously considered by the agency of original jurisdiction. In Disabled American Veterans v. Sec of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003), the United States Court of Appeals for the Federal Circuit (Federal Circuit) specifically upheld the validity of 38 C.F.R. § 19.9(b)(2) (now as noted renumbered as 38 C.F.R. § 20.904(d)(2)). Id. at 1349. As such, pursuant to 38 C.F.R. § 20.904(d)(2), the Board will proceed to adjudicate the Veteran's claim. The general rating formula for diseases and injuries of the spine provides disability ratings based on range of motion, and considers associated neurologic abnormalities, unfavorable ankylosis, and intervertebral disc syndrome; additionally, a disability rating may be assigned under the factors prescribed under DeLuca v. Brown, 8 Vet. App. 202 (1995). The General Rating Formula for Diseases and Injuries of the Spine evaluates disabilities for Diagnostic Codes 5235 to 5243. The rating criteria for Diagnostic Codes 5235 to 5243 and the General Rating Formula for Diseases and Injuries of the Spine were not revised. However, effective February 7, 2021, the application of DC 5242 and DC 5243 were revised as follows: DC 5242, which contemplates degenerative arthritis, now includes degenerative disc disease, and DC 5243, which contemplates Intervertebral Disc Syndrome (IVDS), is to be assigned only when there is disc herniation with compression and/or irritation of the adjacent nerve root. Under the general rating formula, with or without symptoms such as pain, stiffness, or aching in the area of the spine affected by residuals of injury or disease, the following ratings will apply. A 20 percent evaluation is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees, but not greater than 60 degrees; the combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or if there is muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent evaluation is warranted if forward flexion of the thoracolumbar spine is to 30 degrees or less or if there is favorable ankylosis of the entire thoracolumbar spine. A 50 percent evaluation is warranted if there is unfavorable ankylosis of the entire thoracolumbar spine and a maximum 100 percent evaluation is warranted if there is unfavorable ankylosis of the entire spine. For VA compensation purposes, unfavorable ankylosis is a condition in which the entire thoracolumbar or entire spine is fixed in flexion or extension and the ankylosis results in certain enumerated impairments. 38 C.F.R. § 4.71a, General Formula for Rating Diseases and Injuries of the Spine, Note (5). IVDS can be evaluated under the general rating formula or the specific formula for rating IVDS based on incapacitating episodes in DC 5243, whichever method results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25. 38 C.F.R. § 4.71a, DC 5243. As indicated above, effective February 7, 2021, DC 5243 is to be assigned only when there is disc herniation with compression and/or irritation of the adjacent nerve root. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. 38 C.F.R. § 4.40. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. Functional loss may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Id. Such evidence may include facial expression, such as wincing, muscle spasm, and crepitation. See 38 C.F.R. § 4.59. Excess fatigability and incoordination should be taken into account in addition to more movement than normal, less movement than normal, and weakened movement. 38 C.F.R. § 4.45. Any associated objective neurologic abnormalities, including, but not limited to bowel or bladder impairment, should be evaluated separately under the appropriate diagnostic code. Note (1). Additionally, under DC 5010, prior to February 7, 2021, traumatic arthritis was rated based on x-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, meriting a 10 percent rating, or x-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations, warranting a 20 percent rating. See 38 C.F.R. § 4.71a, DC 5003. Effective February 7, 2021, traumatic arthritis is rated as "limitation of motion, dislocation, or other specified instability under the affected joint." Consideration of a higher rating for functional loss, to include during flare-ups, due to these factors accordingly is warranted for Diagnostic Codes predicated on limitation of motion. DeLuca v. Brown, 8 Vet. App. 202 (1995). An adequate orthopedic examination should record the range of motion for pain on active motion and passive motion and in weight bearing and non-weight bearing, address the necessary findings to evaluate functional loss during flare-ups, or clearly explain why the required testing cannot be completed or is not necessary. See Correia v. McDonald, 28 Vet. App. 158 (2016). The provisions of 38 C.F.R. §§ 4.40, 4.45 apply when considering whether limitation of motion of a joint has resulted in the functional equivalence of joint ankylosis. Chavis v. McDonough, 34 Vet. App. 1 (2021). An examination does not need to be conducted during an actual flare-up in order to account for additional functional impairment. Sharp v. Shulkin, 29 Vet. App. 26, 34 (2017). Instead, examiners are asked to estimate the functional impairment experienced during a flare-up, considering all competent evidence of functional loss that is available in the record. The Veteran contends that he is entitled to a rating in excess of 20 percent for lumbar spine degenerative disc disease (DDD) currently rated under DC 5242. While this DC was changed in the regulation change, it ultimately directs the disability be rated under the general rating formula, which remains unchanged. As such, a separate analysis is not required. The Board also notes that no ratings in excess of 20 percent are available under the criteria of DC 5010 prior to February 7, 2021. As such, the general rating formula will be applied as it is more potentially favorable to the Veteran. From February 7, 2021, the amended criteria of DC 5010 directs application of rating criteria based on limitation of motion, or under the general rating formula. Turning to the relevant evidence of record, a July 2018 VA treatment note reflected that the Veteran's back had normal alignment and it was not tender to palpation. Treatment records noted ongoing low back pain. VA back examinations were conducted in August 2018 and October 2019. At the August 2018 examination, range of motion (ROM) included forward flexion to 40 degrees, extension to 10 degrees, right lateral flexion to 10 degrees, left lateral flexion to 15 degrees, right lateral rotation to 15 degrees, and left lateral rotation to 10 degrees. An October 2019 VA examination noted ROM of forward flexion to 40 degrees, extension to 10 degrees, right lateral flexion to 15 degrees, left lateral flexion to 15 degrees, right lateral rotation to 15 degrees, and left lateral rotation to 15 degrees. Both examinations stated the Veteran's ROM was not decreased after observed repetitive use or repeated use over time. The August 2018 examiner noted that with repeated use over time, overuse of the back, such as with prolonged walking, would increase the Veteran's back pain, possibly requiring him to stop and rest. Both examinations stated the Veteran did not have guarding or muscle spasms of the thoracolumbar spine. Both examinations noted that flare-ups were not reported. The October 2019 examiner stated that after listening to and recording the Veteran's history and subjective complaints, performing a physical examination, and a thorough review of all available medical records, there was no basis to offer additional losses of function or motion when it came to repetitive use or during flare-ups. Both examinations stated that disturbance of locomotion and interference with standing contributed to the Veteran's disability. The examiners indicated that the Veteran has difficulty with ambulation and prolonged standing. Neither examiners nor the Veteran indicated this results in additional loss of ROM. Normal muscle strength was noted on both examinations. No muscle atrophy was present. Neither examination diagnosed ankylosis of any kind. Radiculopathy was diagnosed in the bilateral lower extremities, but no other neurologic abnormalities were present. The Veteran had evidence of pain with weight-bearing. The October 2019 examiner determined that testing of the lumbar spine in nonweight-bearing, passive ROM, and of a contralateral spine were anatomically impossible or impractical and potentially harmful. At the outset, the Board finds that the VA examinations of record provide an adequate basis upon which to determine the claim. The requirements of DeLuca, Correia, and Sharp have been addressed through appropriate analysis. See DeLuca v. Brown, 8 Vet. App. at 202; Correia v. McDonald, 28 Vet. App. at 158; Sharp v. Shulkin, 29 Vet. App. at 34. The Board finds that a rating in excess of 20 percent for the Veteran's lumbar spine disability is not warranted. Throughout the entire appeal period, at no point was his forward flexion limited to 30 degrees upon clinical evaluation or as described by the Veteran. Further, there was no evidence of favorable ankylosis of the entire thoracolumbar spine or the functional equivalent thereof. See Chavis v. McDonough, 34 Vet. App. at 1. Finally, there was no indication in the medical documentation or lay statements that incapacitating episodes requiring bed rest lasted at least 4 weeks. Accordingly, the Board finds the preponderance of the evidence is against a finding that the Veteran's lumbar spine disability warrants a rating in excess of 20 percent. The Veteran is service connected for bilateral peripheral neuropathy of the femoral and sciatic nerve at 20 percent under DC 8520 and DC 8526, respectively. As a recent examination has been conducted and associated with the claims file, radiculopathy is discussed in the remand section below. Upon examination, there were no other neurologic abnormalities observed warranting additional consideration. The Board determines that the Veteran's disability is fully capable of evaluation under the rating schedule. There is no applicable provision that would warrant a higher rating in this case. 8. A TDIU from January 14, 2013, is granted. A total rating for compensation may be assigned where the schedular rating is less than total when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). Total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340(a). A Veteran's service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue must be addressed. Age may not be considered as a factor in evaluating service-connected disability; and unemployability, in service-connected claims, associated with advancing age or intercurrent disability, may not be used as a basis for a total disability rating. 38 C.F.R. § 4.19. Substantially gainful employment is defined as work which is more than marginal and which permits the individual to earn a living wage. Moore v. Derwinski, 1 Vet. App. 356 (1991). Marginal employment may also be held to exist, on a facts-found basis (including, but not limited to, employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold. 38 C.F.R. § 4.16. The term "substantially gainful occupation" is not defined in the rating schedule. Rather, the Court in Ray v. Wilkie, found the phrase has two components: an economic one and a noneconomic one. 31 Vet. App. 58 (2019). In assessing the Veteran's ability to secure and follow a substantially gainful occupation, the Board is to consider the Veteran's history, education, skill, and training as well as physical abilities and mental abilities required by the occupation at issue. Id. Such specific physical ability factors include lifting, bending, sitting, standing, walking, climbing, grasping, typing, reaching, auditory, and visual. Id. Specific mental ability factors include memory, concentration, ability to adapt to change, handle workplace stress, getting along with coworkers, and demonstrating reliability and productivity. Id. If a claimant does not meet the threshold criteria, a total disability evaluation may still be assigned, but on a different basis. It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16(b). The rating boards are required to submit all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards, to the Director of Compensation Service (Director) for extraschedular consideration. Id. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating alone is a recognition that the impairment makes it difficult to obtain/keep employment. The question is whether a veteran is capable of performing the physical and mental acts required by employment, not whether the veteran can find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). The applicable regulations place responsibility for the ultimate TDIU determination on the VA, not on a medical examiner. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). TDIU is to be awarded based on the judgment of the rating agency. Floore v. Shinseki, 26 Vet. App. 376, 381 (2013). The Veteran submitted his claim for TDIU on March 8, 2011. From that date, his service-connected disabilities included diabetes mellitus at 40 percent; diabetic neuropathy of the left lower extremity at 10 percent; diabetic neuropathy of the right lower extremity at 10 percent; peripheral neuropathy of the left upper extremity at 10 percent; peripheral neuropathy of the right upper extremity at 10 percent; and erectile dysfunction at a noncompensable rate, for a combined evaluation of 60 percent. From January 14, 2013, the Veteran's service-connected disabilities include PTSD at 50 percent; diabetes mellitus at 40 percent; diabetic neuropathy of the left lower extremity at 10 percent; diabetic neuropathy of the right lower extremity at 10 percent; peripheral neuropathy of the left upper extremity at 10 percent; peripheral neuropathy of the right upper extremity at 10 percent; tinnitus at 10 percent; and erectile dysfunction and bilateral hearing loss at noncompensable rates, for a combined evaluation of 80 percent. A subsequent award of service connection for a lumbar spine disability, and increases and recharacterization of the various peripheral neuropathy disabilities resulted in a 90 percent combined evaluation from December 14, 2013, and a 100 percent combined evaluation from June 1, 2015. Accordingly, the Veteran did not meet the schedular threshold for TDIU prior to January 14, 2013. Therefore, the Board will consider whether extraschedular consideration may be warranted prior to January 14, 2013, and consider entitlement to schedular TDIU thereafter. The Board does not have the authority to assign an extraschedular total disability rating for compensation purposes based on individual unemployability in the first instance. Bowling v. Principi, 15 Vet. App. 1 (2001). Rather, the Board's sole inquiry is whether referral for extraschedular consideration is warranted in light of the evidence. If the Board finds "sufficient evidence" to substantiate a "reasonable possibility" that a veteran may be unemployable because of service-connected disabilities, then the proper course of action is to remand the claim for referral to the Director of Compensation Service for an advisory opinion for extraschedular consideration. See 38 C.F.R. § 4.16(b). In contrast, if the Board determines that a referral is not appropriate, a different analysis must be made. In particular, the Court in Snider v. McDonough, No. 19-6707 (CAVC November 19, 2021), held that if the Board denies a referral, it must make two determinations: (1) that a referral for extraschedular TDIU consideration is not warranted because there is insufficient evidence to substantiate a reasonable possibility that a veteran is unemployable because of service-connected disabilities; and (2) that TDIU benefits are not warranted because service-connected disabilities did not render the veteran unemployable. The first inquiry, the question of the referral, is a factual finding based on a lower evidentiary threshold than for a grant of an extraschedular TDIU. See Ray v. Wilkie, 31 Vet. App. at 58. Here, regarding the economic component, the Veteran has a high school education and previously worked as a truck driver for 30 years, owned two adult bookstores, and managed 11 adult bookstores. He asserts that after his DMII diagnosis he was unable to maintain his commercial driver's license (CDL) and could no longer drive trucks. The Veteran last worked in 2006. A November 2011 statement from his former employer noted that he left his job as a truck driver on medical leave and was unable to return to work because he could not pass the drivers' physical examination. Regarding the noneconomic component, a March 2011 statement from a treating clinician noted that the Veteran was considered totally and permanently disabled and unemployable. No rationale or explanation was provided for this statement. An April 2011 VA examiner concluded that even with his diabetes mellitus and upper and lower extremity peripheral neuropathy, the Veteran was able to secure and maintain substantially gainful employment. He would be limited in his ability to walk during physically demanding employment, but would not be limited in sedentary employment. A December 2012 examiner determined that the Veteran's diabetes mellitus impacted his ability to work in that he was unable to drive a truck due to CDL guidelines prohibiting insulin use. However, he was not otherwise limited from obtaining and sustaining physical or sedentary employment. Another December 2012 examiner found that the Veteran's upper and lower extremity peripheral neuropathy would allow for sedentary work, but would prohibit work involving fine motor skills. In December 2013, a VA examiner determined that his peripheral neuropathy would impact his ability to work due to trouble with walking and balance and decreased grip strength. A September 2014 examiner concluded that the Veteran's diabetes mellitus and erectile dysfunction caused no functional impact. A September 2015 VA examiner found that the Veteran's PTSD resulted in occupational and social impairment with reduced reliability and productivity and noted that he was "pushed out" of his previous employment and suffered from distressing dreams, irritability, social isolation, intermittent depression, hypervigilance, and avoidance behavior. The examiner continued that there was no impairment of the Veteran's ability to understand and follow instructions, retain instructions, or sustain concentration to perform simple tasks, and only moderate impairment of his ability to sustain concentration to a task, maintain persistence and pace, respond appropriately to coworkers, supervisors, or the general public, and to appropriately respond to changes in a work setting. An October 2015 VA examiner reiterated that his peripheral neuropathy would make the Veteran want to avoid occupations that involved any fine motor skills of the hands such as sewing and woodcarving. An October 2019 VA examiner determined that the Veteran's service-connected lumbar spine disability causes difficulty walking, standing, twisting, or bending. The Veteran is in receipt of Social Security disability benefits based on COPD and his service-connected lumbar spine disability. In November 2020, a VA examiner found that the Veteran's bilateral upper extremity peripheral neuropathy caused diminished fine motor skills of the hands and he was unable to grip small objects such as ink pens and coffee cup handles. He also experienced increased numbness and tingling. The Veteran had sharp, shooting pains, and burning and tingling sensations in his bilateral lower extremities, causing poor balance and difficulty walking. Based on the foregoing, the Board finds that a TDIU is warranted as of January 14, 2013; however, the evidence does not support referral for extraschedular consideration or an extraschedular TDIU award prior to that date. That is, prior to January 14, 2013, there is insufficient evidence to substantiate a reasonable possibility that the Veteran is unemployable solely because of his service-connected disabilities. The evidence shows that he has the education, skills, work history, and training to perform driving duties and retail store management. His service-connected disabilities prior to January 14, 2013, were described as affecting fine motor skills and prohibiting the maintenance of a CDL for truck driving. There is no indication that he could not perform other driving duties not requiring a CDL or other work not requiring fine motor skills, such as retail store management. Thus, as a whole, the evidence did not show a "reasonable possibility" of unemployability justifying referral for extraschedular consideration. Cf. Snider v. McDonough, No. 19-6707 (CAVC November 19, 2021). Although the Board finds insufficient evidence to substantiate a reasonable possibility that the Veteran is unemployable because of service-connected disabilities and, thus, finds referral for extraschedular consideration is not warranted, the Board nonetheless is required to consider the merits of the Veteran's TDIU appeal. See Snider v. McDonough, No. 19-6707 (CAVC Nov. 19, 2021). In that regard, the Board finds TDIU is not warranted here on an extraschedular basis prior to January 14, 2013, because his service-connected disabilities did not, either alone or in combination, render the Veteran unemployable. From an economic perspective, the Veteran has the education, skills, work history, and training to perform work such as driving and management of retail stores. From a noneconomic perspective, prior to January 14, 2013, his service-connected disabilities affected his ability to perform fine motor skills and to maintain a CDL for truck driving. From January 14, 2013, his service-connected disabilities affected fine motor skills, balance and walking, and moderate impairment of his ability to sustain concentration to a task, maintain persistence and pace, respond appropriately to coworkers, supervisors, or the general public, and to appropriately respond to changes in a work setting. Subsequently, his service-connected lumbar spine disability caused difficulty walking, standing, twisting, and bending. The Board notes that prior to January 14, 2013, several VA examiners found the Veteran capable of sedentary employment. In Withers v. Wilkie, the Court noted that VA has not explicitly defined the meaning of "sedentary employment." Withers v. Wilkie, 30 Vet. App. 139 (2018). Until VA provides such a definition, "the meaning and relevance of the term will have to be discerned on a case-by-case basis from the medical and lay evidence presented and in light of each veteran's education, training, and work history." Id. at 149-150. Here, the Veteran's work history includes truck driving and VA examiners did not conclude that his diabetes mellitus and bilateral upper and lower extremity peripheral neuropathy would limit his ability to drive, only his ability to maintain a CDL. As such, the Veteran would be capable of sedentary employment including the operation of vehicles not requiring a CDL. The Board considered the physical ability factors noted in Ray, to include lifting, bending, sitting, standing, walking, climbing, grasping, typing, reaching, auditory, and visual. See Ray, 31 Vet. App. at 58. Prior to January 14, 2013, the Veteran's ability to climb, grasp, and type were affected by his service-connected disabilities. From January 14, 2013, his ability to stand, walk, climb, grasp, and type were affected by his service-connected disabilities. Subsequently, he was also limited in his ability to lift, bend, and reach due to his service-connected lumbar spine disability. The Board also considered the mental ability factors noted in Ray, to include memory, concentration, ability to adapt to change, handle workplace stress, getting along with coworkers, and demonstrating reliability and productivity. See Ray, 31 Vet. App. at 58. Prior to January 14, 2013, the Veteran's service-connected disabilities did not affect his mental ability factors. However, from January 14, 2013, his memory, concentration, ability to adapt to change, handle workplace stress, getting along with coworkers, and demonstrating reliability and productivity were all moderately impaired by his service-connected PTSD. Based on the totality of the evidence, the Board finds that, prior to January 14, 2013, the Veteran's service-connected disabilities alone did not render him unable to obtain or maintain substantially gainful employment in light of his education, work history, skills, and vocational training such that referral to the Director is warranted for extraschedular consideration. Although he was not employed during this timeframe, and it is clear that the Veteran would likely be precluded from engaging in some of his previous occupations (i.e., truck driving under a CDL), his service-connected disabilities have not been shown to preclude all types of work for which he is qualified based on his education, skills, work history, and training. The Board does not doubt that the Veteran's service-connected disabilities caused impairing symptomology prior to January 14, 2013. This impairment of function is recognized by the ratings assigned to each of his service-connected disabilities. The evidence does not however support that these disabilities alone precluded substantially gainful employment. In light of the Veteran's past work history, training, and skills and in light of the medical evidence in this case, the Board finds the Veteran was capable of substantially gainful work prior to January 14, 2013. As such, entitlement to TDIU on an extraschedular basis is not warranted prior to that date. In contrast, the Board finds that the Veteran's service-connected disabilities did render him unable to obtain or maintain substantially gainful employment from January 14, 2013. Although his disabilities caused impairment prior to that date, the combination of his physical disabilities and PTSD as of that date suggest that he would face significant challenges in maintaining employment. It is unlikely he would be able to drive others or manage a retail store given the combination of his disabilities. As such, the Board finds that TDIU is warranted as of January 14, 2013. The Board notes that as of June 1, 2015, the Veteran is in receipt of a combined rating of 100 percent. A 100 percent disability rating does not necessarily render the issue of entitlement to a TDIU moot because the award of a TDIU may itself justify the award of special monthly compensation (SMC) under 38 U.S.C. § 1114. See Buie v. Shinseki, 24 Vet. App. 242, 250 (2011); Bradley v. Peake, 22 Vet. App. 280, 294 (2008). An award of entitlement to TDIU predicated on a single disability may form the basis for an award of SMC. The Board has reviewed the evidence to see if TDIU could be awarded based on a single disability at any point, but finds the evidence does not support a finding that the Veteran is unemployable due to a single disability. Indeed, it is the combination of his physical impairments and mental impairments that render him unable to maintain employment. Such falls short of the criteria for making the Veteran eligible for SMC based on TDIU. See 38 U.S.C. § 1114. REASONS FOR REMAND 1. Entitlement to service connection for hypertension is remanded. The Veteran contends his hypertension is related to his presumed exposure to herbicide agents in Vietnam, or was caused by or aggravated by the Veteran's service-connected DMII or post-traumatic stress disorders. The Veteran underwent VA examinations in October 2010 and August 2018. The October 2010 examiner opined that his hypertension was not related to diabetes as the conditions were diagnosed around the same time and the Veteran's renal and cardiac function were normal. The August 2018 examiner opined that the Veteran's hypertension was not related to his PTSD as PTSD is not a cause of obesity and the medication he takes to treat his PTSD does not cause weight gain. Additionally, the examiner opined the Veteran's diabetes has not caused his hypertension. Although hypertension is not yet a disability presumed to be related to exposure to herbicide agents, the Veteran is not precluded from establishing service connection on a direct basis. Combee v. Brown, 34 F.3d 1039, 1044 (Fed. Cir. 1994). As noted by the Court, denying service connection "on the basis that it is not likely there is any nexus to service solely because the statistical analysis does not support presumptive service connection, would, in effect, permit the denial of service connection simply because there is no presumptive service connection." See Polovick v. Shinseki, 23 Vet. App. 48 (2009). Further, although VA has not conceded a presumptive relationship between hypertension and Agent Orange, the National Academy of Sciences (NAS) has placed hypertension in a "sufficient evidence" category as of the 2018 Update. That is, although hypertension has not been added to the list of diseases presumptively associated with exposure to herbicide agents, the NAS has recognized "sufficient evidence" of an association between the two such that a correlation cannot be ruled out with reasonable confidence. The Federal Circuit has recently found that this NAS 2018 Update is in the constructive possession of the VA and, therefore, must be considered in the adjudication of appeals where it may be implicated. See Euzebio v. McDonough, 989 F.3d 1305 (Fed. Cir. 2021). No VA examiner has opined as to whether the Veteran's hypertension is directly related to his exposure to herbicide agents in Vietnam. Further, the October 2010 and August 2018 VA examiners did not adequately address whether the Veteran's diabetes aggravated the Veteran's hypertension. As such, an opinion addressing this theory is required. 2. Entitlement to service connection for a heart condition is remanded. The Veteran contends that he has a heart condition related to his military service. The Veteran has been afforded VA examination in December 2013 and February 2016, both of which indicated that the Veteran does not have a diagnosis of ischemic heart disease and did not note any other diagnoses of the heart. However, a review of the Veteran's treatment records indicates a medical history of CAD. No VA examiner has opined whether the Veteran's CAD is related to his military service, to include as directly related to exposure to herbicide agents, or whether it was caused by or aggravated by his service-connected DMII. 3. Entitlement to service connection for COPD is remanded. 4. Entitlement to service connection for sleep apnea is remanded. The Veteran contends that his COPD and OSA are related to his exposure to herbicide agents in Vietnam. Additionally, the record indicates the Veteran's OSA may be related to his weight, which may be related to the physical limitations caused by his service-connected disabilities, including his peripheral neuropathy and lumbar spine disabilities. In December 2013 and August 2018, the Veteran underwent VA examinations to address the etiology of the his OSA and COPD. These examiners opined the Veteran's COPD was less likely than not related to his PTSD, which he argued caused his smoking; and that his OSA was less likely than not related to service-connected DMII. The December 2013 examiner indicated the Veteran's OSA was likely related to his obesity as his body mass index (BMI) was over 40. An August 2014 CAPRI note indicates the Veteran's exercise is reduced by his lumbar spine disability and medical evidence throughout the file indicates that he is limited in his physical abilities by his service-connected disabilities. Obesity is not considered a disease for purposes of establishing entitlement to service connection under 38 U.S.C. § 1110 and 1131. Obesity per se is also not a disability for purposes of 38 C.F.R. § 3.310. However, obesity may be an "intermediate step" between a service-connected disability and a current disability that may be service connected on a secondary basis. VAOPGCPREC 1-2017 (January 6, 2017). No VA examiner has addressed whether the Veteran's COPD or OSA are directly related to his exposure to herbicide agents. Additionally, an opinion should be obtained to determine if the Veteran's physical limitations from his service-connected disabilities, including his back and peripheral neuropathy, leading to difficulty exercising, has led to weight gain, and if so, if that weight gain has contributed to the development of, or has aggravated his OSA or COPD. 5. Entitlement to a rating in excess of 20 percent for left lower extremity peripheral neuropathy, sciatic nerve, is remanded. 6. Entitlement to a rating in excess of 20 percent for right lower extremity peripheral neuropathy, sciatic nerve, is remanded. 7. Entitlement to a rating in excess of 20 percent for left lower extremity peripheral neuropathy, femoral nerve, is remanded. 8. Entitlement to a rating in excess of 20 percent for right lower extremity peripheral neuropathy, femoral nerve, is remanded. Service connection for left lower extremity peripheral neuropathy and right lower extremity peripheral neuropathy were granted at 10 percent disabling, respectively, effective December 14, 2013. The Veteran submitted an intent to file a claim for increase on June 1, 2015. In October 2020, he underwent a VA examination to evaluate the severity of his neuropathy. Subsequently, in a November 2020 rating decision, the left lower extremity and right lower extremity ratings based on involvement of the sciatic nerve were increased to 20 percent, respectively, and additional ratings for involvement in each extremity of the femoral nerve were granted at 20 percent each, all effective June 1, 2015, the date of claim. The decision was issued after certification of this appeal to the Board. The Board sent the Veteran and his representative a letter in September 2021 asking if he wanted the case remanded to allow the Agency of Original Jurisdiction (AOJ) the opportunity to review the evidence. The letter indicated the Veteran would have 45 days to respond. If no response was received within that time period, the Board would assume he did not wish the Board to decide the appeal. No response was received. The Board notes that no Notice of Disagreement has been received regarding the November 2020 decision. However, as the Veteran received the letter from the Board indicating that these ratings are currently on appeal, the Board will remand the claims to the AOJ for review of the evidence and issuance of an SOC. The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of his hypertension. After reviewing the claims file and examining the Veteran, the examiner should determine: (a.) Whether it is at least likely as not that the Veteran's hypertension had its onset in service or is otherwise etiologically related to active service, to include whether it is related to his conceded exposure to herbicide agents. (b.) In so rendering the opinion, the clinician is reminded that the fact that hypertension is not on the presumptive list of conditions due to herbicide agent exposure cannot by itself be the sole basis for a negative nexus opinion. Rather, the clinician should consider the Veteran's specific military history, medical history, risk factors, and any other circumstances deemed relevant by the clinician in rendering an opinion. (c.) Further, the examiner is also asked to consider "Update 2018" from the National Academy of Sciences that indicates "sufficient evidence" of an association between hypertension and herbicide agent exposure in rendering an opinion. See NAS 2018 Update. (d.) Whether it is at least likely as not that the hypertension was proximately caused by his service-connected DMII or PTSD; and (e.) The examiner should also determine whether it is at least likely as not that the Veteran's hypertension underwent any incremental increase in disability, regardless of its permanence, due to service-connected DMII or PTSD. The term "incremental increase in disability" means additional impairment of earning capacity. Objective measurement, or numerical quantification, is not required to ascertain an increase in disability. Moreover, any "incremental increase in disability" need not be permanent. (f.) A complete and fully explanatory rationale should be provided for any opinion. If any opinion cannot be rendered without resorting to speculation, the examiner should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge, by a deficiency in the record, or because the examiner does not have the needed knowledge or training. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any chronic heart condition, to include CAD. After reviewing the claims file and examining the Veteran, the examiner should determine: (a.) Whether it is at least likely as not that the Veteran's heart condition, to include CAD, had its onset in service or is otherwise etiologically related to active service, to include whether a heart condition including CAD is related to herbicide agent exposure; (b.) Whether it is at least likely as not that the Veteran's heart condition, to include CAD, was proximately caused by his service-connected DMII; and (c.) Whether it is at least as likely as not that the Veteran's heart condition, to include CAD, underwent any incremental increase in disability, regardless of its permanence, due to his service-connected DMII. The term "incremental increase in disability" means additional impairment of earning capacity. Objective measurement, or numerical quantification, is not required to ascertain an increase in disability. Moreover, any "incremental increase in disability" need not be permanent. (d.) The examiner should address whether the Veteran's physical limitations created by his service-connected disabilities caused obesity which led to or aggravated a heart condition, to include CAD. (e.) A complete and fully explanatory rationale should be provided for any opinion. If any opinion cannot be rendered without resorting to speculation, the examiner should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge, by a deficiency in the record, or because the examiner does not have the needed knowledge or training. 3. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of his COPD. After reviewing the claims file and examining the Veteran, the examiner should determine: (a.) Whether it is at least likely as not that the Veteran's COPD disability had its onset in service or is otherwise etiologically related to active service, including his conceded exposure to herbicide agents; (b.) Whether it is at least likely as not that the Veteran's COPD, was proximately caused by any of his service-connected disabilities; and (c.) Whether it is at least likely as not that the Veteran's COPD disability underwent any incremental increase in disability, regardless of its permanence, due to his service-connected disabilities. The term "incremental increase in disability" means additional impairment of earning capacity. Objective measurement, or numerical quantification, is not required to ascertain an increase in disability. Moreover, any "incremental increase in disability" need not be permanent. (d.) The examiner should address whether the Veteran's physical limitations created by his service-connected disabilities caused obesity which led to or aggravated his COPD. (e.) A complete and fully explanatory rationale should be provided for any opinion. If any opinion cannot be rendered without resorting to speculation, the examiner should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge, by a deficiency in the record, or because the examiner does not have the needed knowledge or training. 4. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of his sleep apnea. After reviewing the claims file and examining the Veteran, the examiner should determine: (a.) Whether it is at least likely as not that the Veteran's sleep apnea disability had its onset in service or is otherwise etiologically related to active service, including his conceded exposure to herbicide agents; (b.) Whether it is at least likely as not that the Veteran's sleep apnea disability was proximately caused by any of his service-connected disabilities; and (c.) Whether it is at least likely as not that the Veteran's sleep apnea disability underwent any incremental increase in disability, regardless of its permanence, due to his service-connected disabilities. The term "incremental increase in disability" means additional impairment of earning capacity. Objective measurement, or numerical quantification, is not required to ascertain an increase in disability. Moreover, any "incremental increase in disability" need not be permanent. (d.) The examiner should address whether the Veteran's physical limitations created by his service-connected disabilities caused obesity which led to or aggravated his sleep apnea. (e.) A complete and fully explanatory rationale should be provided for any opinion. If any opinion cannot be rendered without resorting to speculation, the examiner should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge, by a deficiency in the record, or because the examiner does not have the needed knowledge or training. 5. Issue an SOC regarding the increased ratings claims for bilateral lower extremity peripheral neuropathy. 6. Thereafter, and after any further development deemed necessary, the issues on appeal should be readjudicated with consideration of all evidence of record. RACHEL E. JENSEN Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Rekowski 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.