Citation Nr: 21032250 Decision Date: 05/26/21 Archive Date: 05/26/21 DOCKET NO. 19-31 433 DATE: May 26, 2021 ORDER New and material evidence having been received, the petition to reopen the previously denied claim for entitlement to service connection for chronic obstructive pulmonary disease is granted. A disability rating of 50 percent, for service-connected unspecified trauma and stressor-related disorder (claimed as posttraumatic stress disorder (PTSD)), is granted for the period on appeal. An effective date prior to January 19, 2018, for the increased disability rating of 50 percent for service-connected unspecified trauma and stressor-related disorder (claimed as PTSD), is denied. REMANDED Entitlement to service connection for chronic obstructive pulmonary disease is remanded. FINDINGS OF FACT 1. In a September 2014 Department of Veterans Affairs (VA) Regional Office (RO) rating decision, the RO (i) denied the claim for service connection for chronic obstructive pulmonary disease (then characterized as a lung condition); and (ii) granted service connection for unspecified trauma and stressor-related disorder (claimed as PTSD), and assigned a noncompensable disability rating from June 25, 2014. 2. In a May 2015 Notice of Disagreement (NOD), the Veteran disagreed with the initial noncompensable disability rating assigned for the service-connected unspecified trauma and stressor-related disorder; however, following a March 2016 Statement of the Case, the Veteran did not thereafter file a VA Form 9, substantive appeal to the Board of Veterans' Appeals (Board). 3. The Veteran submitted private medical records concerning the lungs within one year of the September 2014 decision, and in an August 2015 rating decision, the RO readjudicated the lung condition service connection claim but confirmed and continued the prior (September 2014) denial; the Veteran did not thereafter submit an NOD with the August 2015 rating decision, and no new and material evidence was received within one year of notice of that determination. 4. Evidence submitted since the August 2015 rating decision is neither cumulative nor redundant of the evidence previously of record, and raises a reasonable possibility of substantiating the claim of service connection for a lung disorder. 5. The Veteran did not file an increased rating claim for his service-connected unspecified trauma and stressor related disorder until January 19, 2018. 6. A factually ascertainable increase in disability of the Veteran's unspecified trauma and stressor-related disorder was not shown to have occurred within the one-year period prior to January 19, 2018. 7. From January 19, 2018 onward, the Veteran's unspecified trauma and stressor-related disorder has manifested as symptoms which more nearly approximate occupational and social impairment with reduced reliability and productivity, but not occupational and social impairment with deficiencies in most areas. CONCLUSIONS OF LAW 1. The September 2014 rating decision, granting service connection for unspecified trauma and stressor-related disorder and assigning a noncompensable rating, is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 19.20, 19.32, 19.52. 2. The August 2015 rating decision confirming the prior denial of service connection for a lung disorder is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 19.20, 19.32, 19.52. 3. The criteria to reopen the previously denied claim of service connection for chronic obstructive pulmonary disease (claimed as a lung disorder) have been met. 38 U.S.C. §§ 5108, 7105(c); 38 C.F.R. § 3.156(a), (b). 4. The criteria for an effective date prior to January 19, 2018 for assignment of a 50 percent rating for unspecified trauma and stressor-related disorder have not been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. § 3.102, 3.400(o). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from December 1962 to May 1965, and in the Marine Corps from December 1965 to December 1968. During the pendency of this appeal, the Agency of Original Jurisdiction (AOJ) conducted the necessary development regarding the Veteran's Blue Water Navy service and determined that exposure to herbicides is conceded based on the Veteran's nautical service in the offshore eligible waters as defined in 38 U.S.C. § 1116A. This case is before the Board of Veterans' Appeals (Board) on appeal from a March 2018 Department of Veterans Affairs (VA) RO rating decision. In that rating decision, the RO (i) denied the Veteran's petition to reopen the previously denied claim for service connection for chronic obstructive pulmonary disease; and (ii) granted an increased disability rating of 30 percent, effective from January 19, 2018, for service-connected unspecified trauma and stressor-related disorder (claimed as PTSD). The Veteran's notice of disagreement (NOD) was received in May 2018. The RO issued the statement of the case (SOC) in August 2019, and the Veteran's VA Form 9, substantive appeal was received in October 2019. The Veteran testified at a Board teleconference hearing before the undersigned Veterans Law Judge in June 2020. Unfortunately, the connection was lost shortly after the hearing began and therefore the hearing transcript of record contains only the beginning portion of the hearing. The Veteran subsequently accepted an offer to appear at another Board hearing, and that hearing was scheduled for February 2021. On the day of the scheduled February 2021 hearing, the Veteran's attorney submitted correspondence indicating that the Veteran had planned to travel to the attorney's office for the scheduled hearing due to lack of internet connection at his home; however, severe inclement weather prevented the Veteran from being able to travel to the attorney's office that day. In addition, the attorney also requested to withdraw the hearing request and a proceed with a decision based on the evidence then of record. 1. Whether new and material evidence has been received to reopen the previously denied claim for service connection for a lung disorder, now claimed as chronic obstructive pulmonary disease. As noted above, the claim for a lung disorder was first denied in September 2014 and August 2015 rating decisions. In the legacy system, the claimant has one year from notification of a RO decision to initiate an appeal by filing a notice of disagreement with the decision, and, after a Statement of the Case has been furnished, filing a timely Substantive Appeal. The Agency of Original Jurisdiction (AOJ or RO) decision becomes final if an appeal is not perfected within the allowed time period. 38 U.S.C. § 7105(c); 38 C.F.R. § 19.20. If new and material evidence is received during the one-year appeal period following notice of an RO decision, the new and material evidence will be considered as having been filed in connection with the claim that was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b). Generally, a claim which has been denied in an unappealed rating decision may not thereafter be reopened and allowed. 38 U.S.C. § 7105(c). 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 means evidence not previously submitted. Material evidence means existing evidence that by itself or when considered with previous evidence relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of last final decision and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). In Shade v. Shinseki, 24 Vet. App. 110 (2010), the Court interpreted the language of 38 C.F.R. § 3.156 (a) as creating a low threshold and viewed the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening." In the September 2014 rating decision, the RO denied the claim of service connection for a lung disorder based on a finding that the Veteran's diagnosed chronic obstructive pulmonary disease was not related to service; specifically, because chronic obstructive pulmonary disease is not one of the listed diseases for which presumptive service connection may be established based on exposure to tactical herbicides such as Agent Orange. 38 C.F.R. § 3.309(e). Following the receipt of additional medical evidence, the RO issued another rating decision in August 2015 confirming the prior denial of service connection for a lung disorder. The RO found that the Veteran's lung disorder may not be presumed to be due to Agent Orange exposure; it was not shown to have had its onset during service, and, that there was no other basis to link the Veteran's lung disorder to service. The Veteran did not appeal that determination and it became final. In January 2018, the Veteran requested to reopen the previously denied claim. Evidence received since the August 2015 rating decision includes (i) literature related to excess mortality rates, in Veterans who were exposed to Agent Orange, due to respiratory diseases including chronic obstructive pulmonary disease; (ii) private imaging records indicating a diagnosis of chronic obstructive pulmonary disease; (iii) private diagnostic imaging records which show pulmonary emphysema with fibrotic changes and a history of chronic obstructive pulmonary disease; (iv) medical literature which discusses a link between asbestos fibers and pulmonary scars/thickening of tissue in the lungs; and (v) the Veteran's Board hearing testimony in which he asserted that he was exposed to asbestos while onboard a ship in service. The evidence is new, because it was not before the RO at the time of the August 2015 rating decision. It relates to an unestablished fact necessary to substantiate the claim, i.e., whether the Veteran's chronic obstructive pulmonary disease is related to service, to include Agent Orange exposure and now, claimed asbestos exposure. When considered with the evidence previously of record, it raises a reasonable possibility of substantiating the claim of service connection for a lung disorder. Accordingly, the application to reopen the previously denied claim of service connection for a lung disorder is granted and the claim is reopened. 2. Entitlement to a disability rating in excess of 30 percent for service-connected unspecified trauma and stressor-related disorder (claimed as PTSD). The Veteran seeks an increased disability rating for service-connected unspecified trauma and stressor-related disorder. From January 19, 2018 onward, the Veteran's service-connected unspecified trauma and stressor-related disorder is currently rated as 30 percent disabling under 38 C.F.R. § 4.130, Diagnostic Code (DC) 9413. Unspecified trauma and stressor-related disorder is rated pursuant to the General Rating Formula for Mental Disorders. Id. Under the General Rating Formula for Mental Disorders, a 30 percent rating is assigned for occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, and mild memory loss (such as forgetting names, directions, recent events). Id. A 50 percent rating is assigned when there is occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; in difficulty establishing effective work and social relationships. Id. A 70 percent rating is warranted for occupational and social impairment, with deficiencies in most areas, such as work, school, family relationships, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); inability to establish and maintain effective relationships. Id. A 100 percent rating is warranted when there is evidence of total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time and place; memory loss for names of close relatives, own occupation or name. Id. Symptoms listed in the General Rating Formula serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. They are not intended to constitute an exhaustive list. Mauerhan v. Principi, 16 Vet. App. 436, 442-44 (2002). Rather, the rating assigned must be based on a "holistic analysis" that considers all associated symptoms, regardless of whether they are listed as criteria. Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017); 38 C.F.R. § 4.130. A veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 114 (Fed. Cir. 2013). However, the presence or lack of evidence of a specific sign or symptom listed in the evaluation criteria is not necessarily dispositive of any particular disability level. Bankhead, 29 Vet. App. at 25. Early May 2017 VA social workers notes show that the Veteran reported sleeping 2-3 hours per night and being awakened by images of dead bodies from his time in service. The dreams were ongoing for 6-7 years at that point. The Veteran showed no significant psychopathology at the time, though the Veteran was motivated to change some current behaviors as shown by his seeking out assistance for trauma symptoms. Thought processes were goal directed; he was oriented to person, place, time, and situation; judgment and insight were fair; mood was "okay;" and speech was of normal rate, rhythm, and volume. Another May 2017 VA social worker's note shows symptoms including pessimism/hopelessness, worthlessness, anger, and feeling anxious/agitated. No history, or present, suicidal/homicidal ideation was noted. The Veteran reported occasional dreams of combat events, blamed himself for the death of other service members, ruminates about combat events, avoids talking about combat events, and is uncomfortable in crowds of five or more people. He reported poor sleep. The Veteran reported a "shaky" relationship with his children and a "great" relationship with a biological brother. He reported having at least five friends, and enjoys mud riding, reading, and studying the Bible. He walks on a treadmill 1-2 times per week and works 40 hours per week at a tire store in sales. The treating social worker noted that the "Veteran appears to have 'moderate' trauma symptoms at this time." A number of protective factors were noted. He was deemed a low risk level for suicide. Screening was consistent with "mild symptoms of depression," "symptoms of anxiety in the severe range," and severe sleep impairment." His treatment plan included individual therapy, behavior-focused improvements, and consulting mental health providers as necessary. Thought processes were goal directed; he was oriented to person, place, time, and topic; judgment and insight were fair; mood was "good" with congruent affect; and speech was normal rate, rhythm, and volume. The Veteran's most recent VA psychiatric conditions examination was in February 2018. The examiner noted a diagnosis of unspecified trauma and stressor related disorder. The Veteran reported being increasingly withdrawn for approximately 4-5 years. He continued to attend church, but rarely interacts with any of the other churchgoers. He mostly stays home, and has no recreational hobbies or interests. The examiner summarized the impairment caused by the disorder as occupational social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. The examiner noted recurrent distressing dreams, avoidance behaviors, feelings of detachment and estrangement from others, and sleep disturbance; symptoms attributable to the disorder also included anxiety, suspiciousness, chronic sleep impairment, and flattened affect. A mental status evaluation report reflects that the Veteran presented as neatly dressed and groomed with normal speech. He was cooperative and built rapport with the examiner easily. Affect was mildly restricted, but the Veteran described his mood as "generally pretty good" and thought content was congruent with mood. He again reported disturbing memories of Vietnam, and reported becoming increasingly isolated. He reported feeling very frustrated with a lack of contact with his children, and reported feeling suspicious for no known reason. He was characterized as a "socially isolated individual who has few interpersonal relationships." VA social worker notes from May 2017 to June 2018 generally show that the Veteran presented with a good or "okay" mood, and affect was generally congruent with mood. His thought processes were goal directed and he consistently appeared oriented to person, place, time, and situation. Judgment and insight were routinely "fair" and there. No speech difficulties or disruptions were noted. A December 2018 VA primary care note shows no suicidal or homicidal ideation, and mood and affect were noted as euthymic/normal. The Veteran submitted a private Disability Benefits Questionnaire (DBQ) dated July 2020, in which a private examiner identified numerous symptoms associated with the service-connected unspecified trauma and stressor-related disorder (characterized as "PTSD" in the DBQ). The examiner also noted "no records reviewed." The examiner checked the box for "occupational and social impairment with deficiencies in most areas." The examiner noted that the Veteran has had no intimate relationships since 1993 and that his "PTSD symptoms requir[e] Ambien." Symptoms related to the Veteran's psychiatric disorder included depressed mood, anxiety, suspiciousness, chronic sleep impairment, mild memory loss, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, and difficulty adapting to stressful circumstances, and inability to establish and maintain effective relationships. The examiner also noted "withdrawn irritable nightmares intrusive thoughts poor sleep detached from others avoidance reminders of his tenure in Vietnam where he had to kill people and saw a lot of friends killed." Based on the foregoing, the criteria for a 50 percent rating for unspecified trauma and stressor-related disorder are more nearly approximated for the entirety of the period on appeal, which began on January 19, 2018. As noted above, a 50 percent rating is warranted when a psychiatric disorder causes occupational and social impairment with reduced reliability and productivity. Symptoms indicative of such a level of impairment include flattened affect; speech impairments; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory; impaired judgment or impaired abstract thinking; disturbances of motivation and mood; and difficulty establishing effective work and social relationships. In this case, the VA treatment records dated throughout the appeal period reflect that the Veteran has consistently had problems with anxiety, poor sleep, and depression. He has had feelings of anger and consistently reexperiences traumatic memories from service in his dreams. In February 2018, he reported that he had begun to stay at home more frequently, and that he rarely interacted with others when he left the house. He does not engage in any hobbies or have any interests, which was attributed to his psychiatric disorder. While he does not exhibit all of those symptoms listed in the criteria as indicative of occupational and social impairment with reduced reliability and productivity, the Veteran has consistently complained of symptoms which are similar in type and frequency with the criteria for a 50 percent ratingmainly, disturbances in mood, difficulty establishing effective social relationships, and increased isolative behavior. Moreover, the Veteran's common re-experiencing contributes to him getting only 2-3 hours of sleep some nights, and it is reasonable to infer that such sleep deprivation further inhibits his ability to function socially. Resolving doubt in the Veteran's favor, the Veteran's unspecified trauma and stressor-related disorder symptoms are of such frequency and severity that the overall disability picture more nearly approximates the criteria for the assignment of a 50 percent rating for the entire period on appeal. The criteria for the next higher rating70 percentare not met or approximated at any time during the period on appeal. The assignment of a 70 percent rating requires a showing of occupational and social impairment, with deficiencies in most areas, such as work, school, family relationships, judgment, thinking, or mood. While the Veteran clearly experiences mood disturbances, he is able to continue a good relationship with his brother. Records from May 2017 reflect that he worked a full-time sales job, and there is no indication that he has since left that position or otherwise become incapable of holding that position. There is no indication of any deficiencies in judgment or thinking. Concerning the criteria noted as indicative of the impairment commensurate with the assignment of a 70 percent rating (suicidal ideation; obsessional rituals; speech issues; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control; spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); inability to establish and maintain effective relationships), none of those symptoms are shown with any degree of consistency in the record. Rather, the Veteran has consistently communicated effectively with his VA medical providers, and he has not asserted, nor does the record show, that his psychiatric disorder has caused occupational and social impairment with deficiencies in most areas. While the private July 2020 examiner selected the box for "occupational and social impairment with deficiencies in most areas," this finding is not supported by any rationale, and the examiner does not refer to any treatment records to support the finding. Moreover, it is not clear from the DBQ whether the examiner ever reviewed any of the Veteran's mental health treatment records. A medical examination is adequate "where it is based upon consideration of the veteran's prior medical history and examinations and also describes the disability . . . in sufficient detail so that the Board's 'evaluation of the claimed disability will be a fully informed one.'" Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007) (quoting Ardison v. Brown, 6 Vet. App. 405, 407 (1994)). Additionally, a medical examiner must provide a "reasoned medical explanation connecting" his observations and his conclusions. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) ("It is the factually accurate, fully articulated, sound reasoning for the conclusion . . . that contributes probative value to a medical opinion."). As the July 2020 private opinion lacked a rationale, it carries no probative value. Accordingly, more weight is afforded to the other examinations and outpatient treatment records described above, which are also more consistent with each other. For those reasons, the assignment of a 70 percent disability rating for the service-connected unspecified trauma and stressor-related disorder is not warranted at any time during the period on appeal. Lastly, there are no other reasonably raised claims with respect to the claim for an increased disability rating for unspecified trauma and stressor-related disorder. This includes that the Veteran has not asserted that his service-connected psychiatric disorder has, at any time during the appeal period, precluded him from securing and/or following gainful employment. See generally, Rice v. Shinseki, 22 Vet. App. 447 (2009). Rather, the probative evidence in the record suggests that he has been employed during the appeal period, and does not show that he ever left employment, or at any time could not secure any employment, because of the psychiatric disorder. When evidence of unemployability is submitted at the same time that a Veteran is appealing the rating assigned for a disability, the issue of entitlement to a total disability rating based upon individual unemployability (TDIU) will be considered part and parcel of the claim for benefits for the underlying disability. Id. As the issue of unemployability has not been raised by the record, the issue of entitlement to a TDIU is not before the Board with respect to this appeal. 3. Entitlement to an effective date prior to January 19, 2018 for the assignment of a 50 percent disability rating for service-connected unspecified trauma and stressor-related disorder (claimed as PTSD). Finally, the Veteran asserts that an effective date prior to January 19, 2018 is warranted for the increased disability rating (now 50 percent) for service-connected unspecified trauma and stressor-related disorder. Except as otherwise provided, the effective date of an evaluation and award of compensation based on an original claim or a claim reopened after a final disallowance will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. Entitlement arises on the date the claimant meets the basic eligibility criteria. A claim filed within one year of separation from service is effective from the date of discharge. See id. For increased rating claims, if the increase occurred within one year prior to the claim, the increase is effective as of the date the increase was "factually ascertainable." 38 C.F.R. § 3.400(o)(2). Harper v. Brown, 10 Vet. App. 125 (1997). If the increase occurred more than a year prior to the claim, the effective date shall be the date of the claim. 38 C.F.R. § 3.400(o)(2); Gaston v. Shinseki, 605 F.3d 979 (Fed. Cir. 2010). Finally, if the increase occurs after the claim is filed, the effective date shall be the date the increase occurred. 38 C.F.R. § 3.400(o)(2); Harper v. Brown, 10 Vet. App. 125, 126-27 (1997). Prior to March 24, 2015, the term "claim" or "application" means 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). From March 24, 2015, VA amended its rules as to what constitutes a claim for benefits; such now requires that claims be made on specific claim form prescribed by the Secretary and available online or at the local Regional Office. This provision effectively removed informal claims from VA's processes. A specific claim in the form prescribed by VA must be filed in order for VA benefits to be paid. 38 U.S.C. § 5101(a); 38 C.F.R. §§ 3.151, 3.160. As noted above, the RO granted the claim of service connection for an unspecified trauma and stressor-related disorder and assigned an initial noncompensable disability rating in the September 2014 rating decision. The Veteran submitted a timely May 2015 NOD with the initial noncompensable disability rating assigned, and the RO issued a statement of the case in March 2016. The Veteran did not thereafter perfect an appeal, by submitting a VA Form 9, within the requisite time period. As a result, the September 2014 rating decision became final as to the noncompensable rating assigned for the service-connected unspecified trauma and stressor-related disorder. Then, the Veteran submitted a new claim, for an increased rating, which was received January 19, 2018. No formal claim for an increased rating for the unspecified trauma and stressor-related disorder was received following the finality of the September 2014 rating decision and until January 19, 2018. As noted above, prior to March 24, 2015, VA would have considered an informal claim submitted by the Veteran. Upon review of the Veteran's entire claims file, including all relevant medical records in the file and all communications of record involving the Veteran, there are no documents in the record which may be construed as an informal claim for increase. See generally, 38 C.F.R. §§ 3.151, 155, 157. In light of the foregoing, there was no increased rating claim for the service-connected unspecified trauma and stressor-related disorder, formal or informal, received before January 19, 2018. Therefore, the question becomes whether there was a factually ascertainable increase in the Veteran's disability within the one-year period prior to January 19, 2018that is, between January 19, 2017 and January 19, 2018. On that issue, the relevant evidence includes the Veteran's own report, in May 2017, that his dreams of seeing dead bodies from his service in Vietnam began 6-7 years prior to that point. Additionally, in February 2018 he reported that his feelings of withdrawal from society began approximately 4-5 years prior to that time. There is, otherwise, limited to no evidence in the record concerning the severity of the unspecified trauma and stressor-related disorder from January 19, 2017 and January 19, 2018. The record is silent as to any medical evidence reflecting that an increase in the severity of the Veteran's unspecified trauma and stressor-related disorder began during the one-year period prior to January 19, 2018. Rather, based on the Veteran's own self-reported history, the increase began several years earlier. Finally, neither the Veteran nor his representative has made any argument, based in the relevant VA laws and regulations, for why an effective date prior to January 19, 2018 is warranted. Based on the foregoing, the evidence is against finding that there was a factually ascertainable increase in the severity of the unspecified trauma and stressor-related disorder within the year prior to January 19, 2018; and, the Veteran failed to perfect an appeal as to the September 2014 rating decision's assignment of an initial noncompensable disability rating for the service-connected trauma and stressor-related disorder. Accordingly, there is no basis to warrant assignment of an effective date prior to January 19, 2018 for the increased 50 percent disability rating for the service-connected unspecified trauma and stressor-related disorder, and the claim is denied. REASONS FOR REMAND 4. Entitlement to service connection for a lung disorder to include chronic obstructive pulmonary disease The Veteran contends that his chronic obstructive pulmonary disease is related to in-service Agent Orange exposure or claimed in-service asbestos exposure. The Veteran was afforded a VA examination in September 2014, and the examination report shows that the Veteran was diagnosed with chronic obstructive pulmonary disease in 2005, and emphysema in 2013. As noted above, the claim of service connection for a lung disorder was then denied in the August 2015 rating decision because chronic obstructive pulmonary disease is not a disease for which presumptive service connection may be granted based on Agent Orange exposure. The RO also found that the Veteran's service treatment records were negative for complaints, findings or diagnosis of a lung disorder, and that the evidence of record did not otherwise establish a link between the current lung disorder(s) and service. At the Veteran's Board hearing in June 2020, the Veteran testified as to a new theory of entitlement to service connection for a lung disorder. More specifically, he asserted that the chronic obstructive pulmonary disease is either due to Agent Orange exposure or asbestos exposure. See Board hearing transcript (incomplete), p. 2-4. The Veteran testified that during the latter part of 1962 and the beginning of 1963, he served aboard the U.S.S. Mount McKinley, "[W]hile it was in a dry dock situation, where they just rip everything out and replace it." The Veteran further testified that he was not directly involved in the removal of the asbestos, but believed that anybody on board the ship was exposed to it. In support of his assertion, the Veteran submitted an October 2017 private chest CT scan report indicating an impression of pulmonary emphysema with fibrotic changes in pattern typical of usual interstitial pneumonitis; and, evidence of prior granulomatous disease. The Veteran also submitted medical literature which addresses increased mortality rates, due to chronic obstructive pulmonary disease, in Veterans who were exposed to Agent Orange; and, a link between asbestos exposure and respiratory diseasesspecifically, in Veterans of the Vietnam era. While chronic obstructive pulmonary disease is not a disease for which presumptive service connection may be granted due to in-service herbicide exposure, a remand is necessary to obtain an opinion as to whether the Veteran's chronic obstructive pulmonary disease is related to service on a direct basisincluding either as due the Veteran's conceded Agent Orange exposure or due to claimed asbestos exposure. The matter is REMANDED for the following action: 1. Conduct any necessary development to determine whether the Veteran was exposed to asbestos during service aboard the USS Mount McKinley, noting his limited June 2020 hearing testimony regarding the ship during a dry dock period when he alleges that asbestos was ripped out. 2. Schedule the Veteran for an examination with a VA clinician with the necessary expertise in respiratory disorders to determine the nature and likely etiology of the Veteran's chronic obstructive pulmonary disease (COPD) and emphysema. The examiner should determine the Veteran's risk factors for developing COPD and emphysema, and, opine as to whether it is at least as likely as not (50 percent probability or better) that the chronic obstructive pulmonary disease, emphysema or other respiratory disorder was incurred in or is otherwise related to the Veteran's active service, to include the Veteran's presumed exposure to (i) Agent Orange and/or (ii) the Veteran's claimed exposure to asbestos. The claims file, including a copy of this remand, must be made available to the examiner for review, and the examiner should indicate that the claims folder was reviewed in connection with the examination. The examiner should review the medical literature and medical evidence provided by the Veteran, including, but not limited to the 2017 chest CT scan and the general treatise evidence mentioned above, and the report should indicate review thereof. The examiner is advised that an opinion based solely on the fact that COPD and/or emphysema are not on the list of diseases for which presumptive service connection may be established due to Agent Orange exposure is inadequate because the absence of the presumption does not, in and of itself, preclude service connection with evidence of direct causation. L. B. CRYAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. KAYS HUKILL 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.