Citation Nr: 21009447 Decision Date: 02/22/21 Archive Date: 02/22/21 DOCKET NO. 20-21 684 DATE: February 22, 2021 REMANDED Entitlement to service connection for diabetes mellitus, type II (DMII), to include as due to in-service exposure to herbicide agents, is remanded. Entitlement to service connection for hypertension, to include as due to in-service exposure to herbicide agents or as secondary to service-connected coronary artery disease, is remanded. Entitlement to service connection for a respiratory disorder, to include asbestosis, chronic obstructive pulmonary disease (COPD), and breathing problems, is remanded. Entitlement to an initial rating in excess of 10 percent prior to May 26, 2017 and in excess of 30 percent thereafter, for the service-connected coronary artery disease (CAD) with coronary artery graft is remanded. Entitlement to an initial compensable rating for service-connected scar, status post coronary artery bypass graft is remanded. REASONS FOR REMAND The Veteran had active service in the United States Air Force from March 1964 to January 1968, to include service in the Republic of Vietnam. During the current appeal, and specifically in November 2020, he testified at a virtual Board of Veterans’ Appeals (Board) hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. As the record reflects that the Veteran may possibly have more than one respiratory disorder, the Board characterized the claim for service connection for breathing problems as a claim of entitlement to service connection for a respiratory disorder, to include asbestosis, COPD, and breathing problems. By way of history, an August 2016 Regional Office (RO) rating decision denied service connection for DMII, asbestosis, and hypertension. Instead of filing an official notice of disagreement (NOD) form in response to the August 2016 rating decision, the Veteran submitted a new application for benefits in May 2017, on which he listed these same claims. As the May 2017 application was submitted within one year of the August 2016 rating decision, it is construed as a notice of disagreement for the denials of service connection for DMII, asbestosis, and high blood pressure. Thus, the August 2016 rating decision is rendered non-final, and it is not necessary to address the issue of new and material evidence regarding these claims. See 38 U.S.C. § 7105; 38 C.F.R. § 3.105. Also, in April 2020, the Veteran submitted an Application for Increased Compensation Based on Unemployability in support of entitlement to a total disability rating based on individual unemployability (TDIU). As the record reflects that this issue is currently being addressed by the RO, it will not be discussed herein. The Board also notes that pertinent VA treatment records were obtained after the February 2020 statement of the case was issued. However, the Veteran’s attorney indicated that he wished to waive consideration of this evidence by the RO. See November 2020 Waiver of Consideration of Evidence from Veteran’s attorney. Service Connection for DMII and Hypertension The Veteran contends that he has current diagnoses of DMII and hypertension that are related to his military service, to include his exposure to herbicide agents from his service in Vietnam. Alternatively, he contends that his hypertension is either caused or aggravated by his service-connected CAD. The record reflects that he served in Vietnam. (Indeed, VA conceded his exposure to herbicide agents in the August 2016 rating decision. In addition, presumptive service connection for CAD due to this conceded exposure has been granted. See August 2016 rating decision.) A. DMII The Veteran seeks presumptive service connection for DMII, based on his exposure to herbicide agents. See 38 C.F.R. § 3.307 (a)(6), 3.309(e). However, there is conflicting information as to whether the Veteran has a current diagnosis of DMII. While an August 2016 VA examiner indicated that the Veteran does not have a diagnosis of DMII, private treatment records dated in October 2013, from I.M.C., show that the Veteran has DMII, for which he was prescribed Metformin. Private treatment records from the same facility, dated in August 2015, show pre-diabetes. Private treatment records from S.P.P., dated in March 2018, show a medical history that includes DMII. At the November 2020 hearing, the Veteran testified that he has a current diagnosis of DMII and is receiving private medical care. Thus, to reconcile these reports, it is necessary for the Veteran to undergo another VA examination. Specifically, another medical opinion is necessary to confirm whether the Veteran has a current diagnosis of DMII. In addition, as VA treatment records and the Veteran’s statements indicate that the Veteran has been receiving treatment for his disabilities, including DMII, from a private physician, it is also necessary to obtain those additional records. The last set of records received from the Veteran’s private physician, Dr. G.M., are dated in September 2016. B. Hypertension VA medical records, including a June 2017 VA examination report, show a current diagnosis of hypertension. However, the examiner’s medical opinion regarding the question of whether the Veteran’s hypertension is secondary to his service-connected CAD (which is dated in July 2017) is inadequate. The examiner only noted that hypertension is a risk factor for coronary disease and not vice versa. This statement alone cannot be used to deny the Veteran’s claim. There is also no discussion of whether the Veteran’s hypertension was aggravated by the service-connected CAD. As such, an updated medical opinion is necessary. In addition, although the Veteran is not entitled to service connection for hypertension on a presumptive basis, pursuant to 38 C.F.R. § 3.309, VA must still consider whether the Veteran’s high blood pressure is causally linked to service on a direct basis, to include exposure to herbicide agents. Combee v. Brown, 34 F.3d 1039, 1044 (Fed. Cir. 1994). Thus, upon remand, the RO should obtain an examination and opinion to consider whether the Veteran’s hypertension is related to in-service exposure to herbicide agents. Service Connection for a Respiratory Disorder The Veteran contends that he has a respiratory disorder that is related to his military service. Specifically, he contends that, while in service, he worked in a shipyard and was assigned to the brake repair department, where he was exposed to asbestos. He maintains that he has asbestosis, COPD, and other breathing problems related to such military responsibilities. Although a private settlement agreement, dated in March 2003, indicates that the Veteran has asbestosis, a September 2017 VA examiner noted that a chest radiography did not show evidence of asbestosis. In fact, the examiner concluded that the Veteran does not have a respiratory disorder. However, review of the record does not prove this to be accurate as VA treatment records dated in January 2018 show a diagnosis of mild COPD and as VA treatment records dated in October 2020 reflect that COPD is a current active medical problem. As such, another VA medical examination is necessary. Increased Ratings for CAD and Scar The Veteran contends that his currently assigned ratings do not reflect the severity of his service-connected CAD and service-connected scar. He asserts that these disabilities have increased in severity. For instance, at the November 2020 Board hearing, he testified that his scar is painful, with a pinching and pulling sensation, and that he experiences physical limitations due to his CAD, including the inability to perform the work he once did. He also testified that he is easily fatigued when engaging in activities of daily living. As he maintains that his disabilities have increased in severity, and as he was last examined in December 2017 (over three years ago), additional VA examinations are necessary to determine the current severity of his CAD and scar. It is also necessary to procure pertinent treatment records from the Veteran’s private physician, Dr. G.M., for these disabilities. Accordingly, these matters are REMANDED for the following action: 1. Make appropriate efforts to obtain and associate with the claims file any updated private or VA medical records identified and authorized for release by the Veteran, including records from his private primary care physician, Dr. G.M. 2. Then, schedule the Veteran for an appropriate VA examination to determine whether he has a diagnosis of diabetes mellitus, type II. The examiner must obtain from the Veteran a detailed history of the onset and progression of relevant symptoms. All indicated tests and studies should be performed, and the examiner must review the results of any testing prior to completing the report. The examiner must utilize the appropriate DBQ. The examiner is also asked to consider and address the Veteran’s private treatment records from I.M.C., S.P.P., and the Veteran’s private treatment physician, Dr. G.M. 3. Also, schedule the Veteran for an appropriate VA examination to determine the nature and etiology of his hypertension. The examiner must obtain from the Veteran a detailed history of the onset and progression of relevant symptoms. All indicated tests and studies should be performed, and the examiner must review the results of any testing prior to completing the report. The examiner must review the claims file and opine as to: a. Whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran’s hypertension onset in his service or is otherwise related to his service, including his conceded in-service exposure to herbicides. b. Whether the Veteran’s hypertension was caused by his service-connected coronary artery disease. c. Whether the Veteran’s hypertension has been aggravated (made worse) by his service-connected coronary artery disease. Indicate the level of any such aggravation. 4. Also, schedule an examination to determine the nature and etiology of any respiratory disorder that the Veteran may have. The examiner should review the claims file and indicate such on the examination report. Any testing deemed necessary should be conducted, and the results thereof should be noted in the examination report. Following a review of the claims file, and an interview with, and examination of, the Veteran, the examiner is asked to: a. Identify/diagnose any respiratory disorder that presently exists or that has existed during the appeal period, to include asbestosis, COPD, and breathing problems. b. Opine as to whether it is at least as likely as not (a 50 percent or greater probability), that any such diagnosed respiratory disorder is causally related to the Veteran’s service, to include his claimed exposure to asbestos in service while working in a shipyard and doing brake repairs. The examiner is also asked to consider and examine a March 2003 private settlement agreement, which indicates that the Veteran was exposed to asbestos. 5. Also, schedule the Veteran for an appropriate VA examination to determine the nature and current severity of his coronary artery disease with coronary artery graft, and his scar, status post coronary artery bypass graft. The examiner must review the Veteran’s claims file and utilize the appropriate DBQ for each disability. A complete rationale for all opinions expressed must be provided. An examiner’s report that he or she cannot provide an opinion without resort to speculation is inadequate unless the examiner provides a rationale for that statement. As such, if the examiner is unable to offer an opinion, it is essential that the examiner provide a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided or whether the inability to provide the opinion is based on the limits of medical knowledge. No action is required of the Veteran until he is notified by VA. However, he is advised of his obligation to cooperate in ensuring the duty to assist is satisfied. Kowalski v. Nicholson, 19 Vet. App. 171 (2005). His failure to report for a VA medical examination may impact the determination made. 38 C.F.R. § 3.655. The Veteran also is advised that he has the right to submit additional evidence and argument with respect to this matter. Kutscherousky v. West, 12 Vet. App. 369 (1999). This appeal must be afforded prompt treatment. THERESA M. CATINO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Trowers, 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.