SCARS OTHER NOT OF HEAD FACE OR NECK

Summary

The Veteran, who served in the Navy from July 1992 to November 1997, appealed a rating decision concerning scars from a lobectomy and the restoration of a rating for carcinoid tumor. The Board granted a 10 percent rating for a posterior trunk scar and a 20 percent rating for anterior trunk scars under Diagnostic Code 7804, finding these scars were painful. However, the Board denied a compensable rating under Diagnostic Code 7802 as the scars did not meet the criteria for area or instability. The Board also restored a 10 percent rating for the carcinoid tumor, finding the prior reduction improper due to inadequate examination and outdated pulmonary function test results, and concluding that the evidence did not show improvement in the Veteran's ability to function. The claim for obstructive sleep apnea (OSA) secondary to service-connected conditions with obesity as an intermediate step was remanded. The Board found the evidence inadequate for adjudication, as the AOJ failed to obtain a proper medical opinion on whether obesity, stemming from service-connected disabilities, caused or aggravated the OSA. The case was remanded for a new VA examination to address these specific questions regarding the secondary service connection of OSA through obesity.

Rationale

Criteria for compensable rating under DC 7802 not met.; Scars not unstable, but probative evidence indicates pain.; Evidence in approximate balance regarding pain; doubt resolved in Veteran's favor.

Full Decision Text

Citation Nr: A25111262
Decision Date: 12/31/25	Archive Date: 12/31/25

DOCKET NO. 250502-541176
DATE: December 31, 2025

ORDER

A compensable rating for a posterior trunk scar from lobectomy, under Diagnostic Code 7802, is denied. 

A compensable rating for an anterior trunk scar from lobectomy, under Diagnostic Code 7802, is denied. 

A 10 percent rating for a posterior trunk scar from lobectomy, under Diagnostic Code 7804, is granted. 

A 20 percent rating for an anterior trunk scar from lobectomy, under Diagnostic Code 7804, is granted. 

Restoration of a 10 percent rating for carcinoid tumor in the right lung status post bronchoscopy right lower lobectomy, effective March 6, 2024, is granted. 

REMANDED

Entitlement to service connection for obstructive sleep apnea (OSA), to include as secondary to service-connected conditions including with obesity as an intermediate step, is remanded. 

FINDINGS OF FACT

1. Throughout the pendency of the appeal, the Veteran's posterior trunk scar from lobectomy measured, at worst, 18cm squared. 

2. Throughout the pendency of the appeal, the Veteran's anterior trunk scar from lobectomy measured, at worst, 10cm squared. 

3. Throughout the pendency of the appeal, the Veteran's one posterior trunk scar from lobectomy was painful.

4. Throughout the pendency of the appeal, the Veteran's three anterior trunk scars from lobectomy were painful.

5. The rating reduction of the Veteran's service-connected carcinoid tumor, from 10 percent to 0 percent, effective March 6, 2024, failed to comply with applicable law and regulations. 

CONCLUSIONS OF LAW

1. The criteria for a compensable rating for a posterior trunk scar from lobectomy, under Diagnostic Code 7802, has not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.118, Diagnostic Code 7802. 

2. The criteria for a compensable rating for an anterior trunk scar from lobectomy, under Diagnostic Code 7802, has not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.118, Diagnostic Code 7802.

3. The criteria for a 10 percent rating for a posterior trunk scar from lobectomy, under Diagnostic Code 7804, has been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.118, Diagnostic Code 7804. 

4. The criteria for a 20 percent rating for an anterior trunk scar from lobectomy, under Diagnostic Code 7804, has been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.118, Diagnostic Code 7804. 

5. The criteria for restoration of the 10 percent rating for carcinoid tumor, effective March 6, 2024, have been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.105, 3.344, 4.97, Diagnostic Codes 6819-6844.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served in the Navy from July 1992 to November 1997. 

These matters come to the Board of Veterans' Appeals (Board) on appeal from an April 2025 rating decision of a Department of Veterans Affairs (VA) Regional Office, an Agency of Original Jurisdiction (AOJ). 

In the May 2025 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Evidence Submission docket.

Therefore, the Board may only consider the evidence of record at the time of the April 2025 agency of original jurisdiction (AOJ) decision on appeal, as well as any evidence submitted by the Veteran or representative with, or within 90 days from receipt of, the VA Form 10182. 38 C.F.R. § 20.303. 

If evidence was submitted either (1) during the period after the AOJ issued the decision on appeal and prior to the date the Board received the VA Form 10182, or (2) more than 90 days following the date
5 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Evidence Submission docket.

Therefore, the Board may only consider the evidence of record at the time of the April 2025 agency of original jurisdiction (AOJ) decision on appeal, as well as any evidence submitted by the Veteran or representative with, or within 90 days from receipt of, the VA Form 10182. 38 C.F.R. § 20.303. 

If evidence was submitted either (1) during the period after the AOJ issued the decision on appeal and prior to the date the Board received the VA Form 10182, or (2) more than 90 days following the date the Board received the VA Form 10182, the Board did not consider it in its decision. 38 C.F.R. §§ 20.300, 20.303, 20.801. 

If the Veteran would like VA to consider any evidence that was submitted that the Board could not consider, the Veteran may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claim[s], considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. However, because the Board is remanding the claim of service connection for OSA, any evidence the Board could not consider will be considered by the AOJ in the adjudication of those claims. 38 C.F.R. § 3.103(c)(2)(ii).

Disability Ratings

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. 38 C.F.R. § 4.7.

In considering the severity of a disability, it is essential to trace the medical history of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). While the regulations require review of the recorded history of a disability by the adjudicator to ensure a more accurate evaluation, the regulations do not give past medical reports precedence over the current medical findings.

Where the question for consideration is the propriety of the initial rating assigned, evaluation of the evidence since the effective date of the grant of service connection is required. Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). Where VA's adjudication of the claim for increase is lengthy and factual findings show distinct time periods where the service-connected disability exhibits symptoms which would warrant different ratings, different or "staged" ratings may be assigned for such different periods of time. Hart v. Mansfield, 21 Vet. App. 505, 509- 10 (2007); Fenderson, 12 Vet. App. at 126-27.

A disability rating may be reduced; however, the circumstances under which rating reductions can occur are specifically limited and carefully circumscribed by regulations promulgated by the Secretary.  Dofflemyer v. Derwinski, 2 Vet. App. 277, 280 (1992).

Procedurally, where reduction in the evaluation of a service-connected disability is considered warranted and the lower evaluation would result in a reduction of current compensation payments, a rating proposing the reduction or discontinuance will be prepared setting forth all material facts and reasons.  38 C.F.R. § 3.105 (e).  The beneficiary will be notified at his latest address of record of the contemplated action and furnished detailed reasons therefore and will be given 60 days for the presentation of additional evidence to show that compensation should be continued at the present level.  Id. VA's Office of General Counsel (OGC) has held that the provisions of 38 C.F
 2 Vet. App. 277, 280 (1992).

Procedurally, where reduction in the evaluation of a service-connected disability is considered warranted and the lower evaluation would result in a reduction of current compensation payments, a rating proposing the reduction or discontinuance will be prepared setting forth all material facts and reasons.  38 C.F.R. § 3.105 (e).  The beneficiary will be notified at his latest address of record of the contemplated action and furnished detailed reasons therefore and will be given 60 days for the presentation of additional evidence to show that compensation should be continued at the present level.  Id. VA's Office of General Counsel (OGC) has held that the provisions of 38 C.F.R. § 3.105 (e) do not apply where there is no reduction in the amount of compensation payable.  VAOPGCPREC 71-91 (Nov. 1991).  OGC held that this regulation applies only where there is both (1) a reduction in evaluation of a service-connected disability, and (2) a reduction or discontinuance of compensation payable.  A reduction in evaluation with no corresponding reduction in compensation does not meet the criteria of 38 C.F.R. § 3.105 (e).  See Stelzel v. Mansfield, 508 F.3d 1345, 1349 (Fed. Cir. 2007); O'Connell v. Nicholson, 21 Vet. App. 89 (2007).

Substantively, a rating cannot be reduced unless improvement is shown to have occurred.  38 U.S.C. § 1155; Greyzck v. West, 12 Vet. App. 288 (1999).  VA regulation 38 C.F.R. § 3.344 addresses stabilization of disability ratings.  Provisions at 38 C.F.R. §§ 3.344 (a) and (b) require special scrutiny and care in reducing a rating that has continued at the same level for five years or more.  See Brown v. Brown, 5 Vet. App. 413 (1993).  The provisions of 38 C.F.R. §§ 3.344 (a) and (b) do not apply to disabilities that have not become stabilized and that are likely to improve. 38 C.F.R. § 3.344 (c).

Nevertheless, there are several general VA regulations that apply to all rating reductions, regardless of whether the rating has been in effect for five years or more.  Brown v. Brown, 4 Vet. App. 413 (1993). Specifically, the evidence must reflect an actual change in the Veteran's condition and not merely a difference in the thoroughness of the examination or in the use of descriptive terms.  38 C.F.R. § 4.13.  The evidence must show that the improvement in the disability actually reflects an improvement in the Veteran's ability to function under the ordinary conditions of life and work.  38 C.F.R. §§ 4.2, 4.10.  Furthermore, rating reduction cases must be based upon a review of the entire history of the Veteran's disability.  38 C.F.R. §§ 4.1, 4.2; Brown, 4 Vet. App. at 420-421.  In addressing whether improvement is shown, the comparison point generally is the last examination on which the rating at issue was assigned or continued.  See Hohol v. Derwinski, 2 Vet. App. 169 (1992).  The determination in a reduction in rating case must include the proper application as to the standard of proof.  To warrant reduction in rating, it must be shown that the weight of the evidence supports the reduction itself, and with application of the benefit-of-the-doubt doctrine under 38 U.S.C. § 5107 (b) as required.  See Brown v. Brown, 5 Vet. App. 413, 420 (1993); Peyton v. Derwinski, 1 Vet. App. 292, 286.

Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (benefit-of-the-doubt rule not for application when evidence persuasively favors one side or the other).

Posterior trunk scar from lobectomy.

Anterior
. App. 292, 286.

Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (benefit-of-the-doubt rule not for application when evidence persuasively favors one side or the other).

Posterior trunk scar from lobectomy.

Anterior trunk scar from lobectomy.

The Veteran is assigned noncompensable ratings for posterior and anterior trunk scars from lobectomy pursuant to 38 C.F.R. § 4.118, Diagnostic Code 7802, from March 6, 2024. 

VA amended the criteria for rating skin disabilities effective August 13, 2018. These new regulations apply to all applications for benefits received by VA or that are pending before the agency of original jurisdiction on or after August 13, 2018. Claims pending prior to the effective date will be considered under both old and new rating criteria, and whatever criteria is more favorable to the veteran will be applied. The Board may not apply a current regulation prior to its effective date, unless the regulation explicitly provides otherwise. Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). However, the Board is not precluded from applying prior versions of the applicable regulation to the period on or after the effective dates of the new regulation if the prior version was in effect during the pendency of the appeal.

The Veteran's compensation claim for posterior and anterior trunk scars are secondary to service-connected carcinoid tumor in right lung status post bronchoscopy right lower lobectomy and is effective March 6, 2024. As such, the Board will apply the new criteria.

Since August 13, 2018, Diagnostic Code 7802 is for burn scar(s) or scar(s) due to other causes, not of the head, face, or neck, that are not associated with underlying soft tissue damage. 38 C.F.R. § 4.118. Diagnostic Code 7802 was otherwise unchanged by the August 13, 2018, amendments.

Diagnostic Code 7804 provides progressively higher ratings based on the number of unstable and/or painful scars under both the old and new criteria, which were generally not affected by the August 17, 2018, regulatory changes. Diagnostic Code 7804 provides a 10 percent rating for one or two scars that are unstable or painful.  A 20 percent rating is assigned for three or four scars that are unstable or painful.  A 30 percent rating is authorized when there are five or more scars that are unstable or painful.  Note 1 to Diagnostic Code 7804 explains an unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. Note 2 indicates that, if one or more scars are both unstable and painful, a 10 percent rating should be added to the evaluation that is based on the total number of unstable or painful scars.  38 C.F.R. § 4.118.

Diagnostic Code 7805 instructs that any disabling effect(s) not considered in a rating provided under Diagnostic Codes 7800-04 under an appropriate Diagnostic Code. Diagnostic Code 7805 was not changed by the August 2018 amendments.

In considering the evidence under the laws and regulations as set forth, the Board finds that the Veteran is not entitled to a higher rating for her service-connected posterior and anterior trunk scars during the pendency of the appeal under Diagnostic Codes 7802. However, the Board finds the Veteran is entitled to a 10 percent rating and a 20 percent rating for the entire period on appeal for one painful posterior trunk, and three anterior trunk lobectomy painful scars under Diagnostic Code 7804, respectively. 

An April 2024 VA examination for scars/disfigurement noted scars for the left thumb, right lateral chest, and right upper back. The examiner did not document the Veteran's lay reports regarding the symptomology of her lateral chest and upper back scars. The examiner noted that the scars of the trunk were not painful or unstable. The examiner noted that the Veteran had three scars of the anterior trunk of the right lateral aspect of the chest measuring 6cm by 2cm, 3cm by 1cm, and 3cm (approximate total area 18cm squared). There was one scar of the posterior trunk of the right upper back measuring 5cm by 2cm (approximate total area 10
, respectively. 

An April 2024 VA examination for scars/disfigurement noted scars for the left thumb, right lateral chest, and right upper back. The examiner did not document the Veteran's lay reports regarding the symptomology of her lateral chest and upper back scars. The examiner noted that the scars of the trunk were not painful or unstable. The examiner noted that the Veteran had three scars of the anterior trunk of the right lateral aspect of the chest measuring 6cm by 2cm, 3cm by 1cm, and 3cm (approximate total area 18cm squared). There was one scar of the posterior trunk of the right upper back measuring 5cm by 2cm (approximate total area 10cm squared). The scars were without underlying tissue damage and did not have a total area equal to or greater than 39 square cm, or were located on the head, face, or neck. 

A March 2025 VA examination for respiratory conditions indicated that the Veteran had surgical scars related to her post bronchoscopy right lower lobectomy. The examiner marked "yes" to the prompt asking if any of the scars were painful or unstable, have a total area equal to or greater than 39 square cm, or are located on the head, face, or neck. 

A March 2025 VA examination for scars/disfigurement noted scars of the status post bronchoscopy right lower lobectomy. The examiner did not document the Veteran's lay reports regarding the symptomology of her scars. The examiner noted that the Veteran's scars were not painful or unstable. The Veteran had three anterior trunk scars measuring 5cm by 0.5cm, 2cm by 0.5cm, and 2cm by 0.5cm (approximate total area 4.5cm squared); she had one posterior scar measuring 2cm by 0.5cm (approximate total area 1cm squared). The scars were without underlying tissue damage and did not have a total area equal to or greater than 39 square cm, or were located on the head, face, or neck. The examiner indicated that the scars did not cause functional loss. 

The Veteran submitted a May 2025 statement in support of claim indicating that her lobectomy scars are numb and painful all the time. The Veteran is competent to report these observable symptoms and these reports are credible. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Accordingly, the Veteran's descriptions of her disability constitute highly probative evidence.

The medical evidence offering detailed objective and specialized determinations pertinent to the rating criteria is also probative.

Thus, the probative evidence persuasively weighs against the assignment of a compensable evaluation under Diagnostic Code 7802 because the Veteran's lobectomy scars did not manifest an area or areas of 144 square inches (929 sq. cm.) or greater.

The Board considered the other Diagnostic Codes pertaining to scars. However, the Veteran's lobectomy scars are not of the head, face, or neck, are not deep and non-linear, and are not associated with underlying soft tissue damage. Therefore, Diagnostic Codes 7800 and 7801 are inapplicable.

While the Veteran's scars are not unstable, the probative evidence indicates the lobectomy scars cause numbness and pain. The Board finds that the evidence is in approximate balance regarding whether the Veteran's lobectomy scars approximate pain. After resolving any reasonable doubt in favor of the Veteran, the Board finds that Diagnostic Code 7804 is the most applicable diagnostic code addressing the Veteran's claim. As such, a separate 10 percent rating, but not higher, under Diagnostic Code 7804 is warranted for one posterior trunk lobectomy scar that is approximately painful. A 20 percent rating, but not higher, under Diagnostic Code 7804 is warranted for three anterior trunk lobectomy scars that are approximately painful.

Finally, the probative evidence does not reveal other disabling effect(s) not considered in a rating provided under Diagnostic Codes 7800-04 as contemplated under Diagnostic Code 7805. Indeed, the evidence does not show that the Veteran's scar resulted in instability, limitation of motion, or muscle or nerve damage.  

In conclusion, a compensable rating under Diagnostic Codes 7802 is not warranted. Nevertheless, for the entire appeal period, a separate rating of 10 percent for the posterior trunk lobectomy scar and 20 percent for the anterior trunk lobectomy scar, under Diagnostic Code 7804 is granted.

Carcinoid Tumor.

In the April 2025 rating decision, the AOJ reduced the assigned disability rating for the Veteran's service-connected carcinoid tumor from 10 percent to 0 percent from March 7, 2025. 

Although no reduction notification procedures were undertaken in this case, the Board finds that
 evidence does not show that the Veteran's scar resulted in instability, limitation of motion, or muscle or nerve damage.  

In conclusion, a compensable rating under Diagnostic Codes 7802 is not warranted. Nevertheless, for the entire appeal period, a separate rating of 10 percent for the posterior trunk lobectomy scar and 20 percent for the anterior trunk lobectomy scar, under Diagnostic Code 7804 is granted.

Carcinoid Tumor.

In the April 2025 rating decision, the AOJ reduced the assigned disability rating for the Veteran's service-connected carcinoid tumor from 10 percent to 0 percent from March 7, 2025. 

Although no reduction notification procedures were undertaken in this case, the Board finds that none were required. The reduction in rating of the service-connected carcinoid tumor did not result in a reduction in the amount of compensation payable to the Veteran. Indeed, the Veteran's combined rating remained as 100 percent. As there was no reduction in the overall compensation paid to the Veteran, the special procedural requirements outlined in 38 C.F.R. § 3.105 (e) are therefore not applicable in this case.  See VAOPGCPREC 71-91 (Nov. 7, 1991); Stelzel v. Mansfield, 508 F.3d 1345, 1347-49 (Fed. Cir. 2007) (holding that provisions of § 3.105(e) do not apply when there is no change in the overall disability rating).

The 10 percent disability rating for the carcinoid tumor was in effect for less than five years. Therefore, various provisions of 38 C.F.R. § 3.344, pertaining to stabilization of disability ratings, do not apply, and reexamination disclosing improvement will warrant a rating reduction.  38 C.F.R. § 3.344 (c).

The Veteran's carcinoid tumor is evaluated under Diagnostic Codes 6819-6844. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the assigned rating; the additional code is shown after the hyphen. Here, the hyphenated diagnostic code indicates that the Veteran's rating for residuals of lung cancer (Diagnostic Code 6819) have been rated based upon post-surgical residual (Diagnostic Code 6844). Diagnostic Code 6844 is rated under the General Rating Formula for Restrictive Lung Disease. Pursuant to this, a 10 percent rating is warranted where the forced expiratory volume in one second (FEV-1) is 71- to 80-percent of predicted value, or; the ratio of FEV-1 to forced vital capacity (FEV-1/FVC) is 71 to 80 percent, or; diffusion capacity of the lung for carbon monoxide by the single breath method (DLCO) (SB) is 66- to 80-percent of predicted value. A 30 percent rating is warranted where FEV-1 is 56- to 70-percent of predicted value, or; FEV-1/FVC is 56 to 70 percent, or; DLCO (SB) is 56- to 65-percent predicted. A 60 percent rating is warranted where FEV-1 is 40- to 55- percent predicted, or; FEV-1/FVC is 40 to 55 percent predicted, or; DLCO (SB) of 40- to 55- percent predicted, or; maximum oxygen consumption of 15 to 20 ml/kg/min (with cardiorespiratory limit). A 100 percent rating is warranted for FEV-1 less than 40 percent of predicted value, or; FEV-1/FVC less than 40 percent, or; DLCO (SB) less than 40-percent predicted, or; maximum exercise capacity less than 15 ml/kg/min oxygen consumption (with cardiac or respiratory limitation), or; cor pulmonale (right heart failure), or; right ventricular hypertrophy, or; pulmonary hypertension (shown by Echo or cardiac catheterization), or; episode(s) of acute respiratory failure, or; requires outpatient oxygen therapy. 38 C.F.R. § 4.97, Diagnostic Code 6845.

Post-bronchodilator studies are required when pulmonary function tests (PFTs) are done for disability evaluation purposes except when pre-bronchodilator PFT results are normal, or the examiner determines they should not be done and explains why. 38 C.F.R. § 4.96 (d)(4). When evaluating based on pulmonary function tests, post-bronchodilator results are to be used unless the post-bronchodilator results are poorer than the pre-bronchodilator results,
eterization), or; episode(s) of acute respiratory failure, or; requires outpatient oxygen therapy. 38 C.F.R. § 4.97, Diagnostic Code 6845.

Post-bronchodilator studies are required when pulmonary function tests (PFTs) are done for disability evaluation purposes except when pre-bronchodilator PFT results are normal, or the examiner determines they should not be done and explains why. 38 C.F.R. § 4.96 (d)(4). When evaluating based on pulmonary function tests, post-bronchodilator results are to be used unless the post-bronchodilator results are poorer than the pre-bronchodilator results, in which case, the pre-bronchodilator results are used for rating purposes. 38 C.F.R. § 4.96 (d)(5). When there is a disparity between the results of different PFTs such that the level of evaluation would differ depending on which test result is used, the regulations instruct use of the test result that the examiner states most accurately reflect the level of disability. 38 C.F.R. § 4.96 (d)(6). If the FEV-1 and the FVC are both greater than 100 percent, then a compensable evaluation cannot be assigned based on a decreased FEV-1/FVC ratio. 38 C.F.R. § 4.96 (d)(7).

Upon review of the evidence of record, at the time of the reduction, the Board finds that the evidence does not show improvement in the Veteran's ability to function under the ordinary conditions of life and work. The Veteran was assigned an initial 10 percent rating based on an August 2024 VA examination for respiratory conditions report showing a DLCO of 68 percent predicted. 

The March 2025 VA examination for respiratory conditions report, which the April 2025 AOJ rating decision relied to reduce the rating evaluation, indicated that PFT testing was performed. However, the examiner cited test results from March 28, 2023, showing a FVC at 101 percent predicted, FEV-1 at 92 percent predicted, and an FEV-1/FVC at 81 percent. Indeed, the examination report cited PFT results that were collected approximately one year prior to the effective date of the grant of service connection for carcinoid tumor. In short, the PFT results are not current and therefore do not accurately show the current severity of the Veteran's carcinoid tumor condition. 

In sum, the evidence on file at the time of the rating reduction did not show improvement in the Veteran's ability to function under the ordinary conditions of life and work. The AOJ relied on an inadequate March 2025 VA examination that reported outdated PFT results. As stated above, PFTs are done for disability evaluation purposes except when pre-bronchodilator PFT results are normal, or the examiner determines they should not be done and explains why. 38 C.F.R. § 4.96 (d)(4). The March 2025 VA examiner did not provide any explanation as to why updated PFT testing was not conducted. Considering the facts, the Board concludes that there was insufficient evidence to reduce the rating for the service-connected carcinoid tumor condition from 10 percent to noncompensable under Diagnostic Codes 6819-6844.  Under such circumstances, and granting the Veteran the benefit of any doubt in this matter, the Board concludes that the weight of the evidence did not show that the Veteran's carcinoid tumor condition underwent improvement. See 38 U.S.C. § 5107; 38 C.F.R. §§ 3.105 (e).  Accordingly, the reduction was improper, and the 10 percent evaluation for the Veteran's service-connected carcinoid tumor under Diagnostic Codes 6819-6844, effective March 6, 2024, is restored. 

REASONS FOR REMAND

The appeal is subject to the Appeals Modernization Act. When a pre-decisional duty-to-assist error occurs, the Board may have those errors corrected before deciding the claims on appeal. The Board may also remand for correction of any other error by the Agency of Original Jurisdiction (AOJ) in satisfying a regulatory or statutory duty if correction of the error would have a reasonable possibility of aiding in substantiating a Veteran's claim. 38 C.F.R. § 20.802.

Obstructive Sleep Apnea 

The Veteran contends that her OSA is related to her military service to include as secondary to her service-connected conditions with obesity as an intermediate step. 

Service connection for a disability can be granted on a secondary basis if a Veteran has a (1) current disability; (2) a separate disability already subject to service connection; and (3) the first
 those errors corrected before deciding the claims on appeal. The Board may also remand for correction of any other error by the Agency of Original Jurisdiction (AOJ) in satisfying a regulatory or statutory duty if correction of the error would have a reasonable possibility of aiding in substantiating a Veteran's claim. 38 C.F.R. § 20.802.

Obstructive Sleep Apnea 

The Veteran contends that her OSA is related to her military service to include as secondary to her service-connected conditions with obesity as an intermediate step. 

Service connection for a disability can be granted on a secondary basis if a Veteran has a (1) current disability; (2) a separate disability already subject to service connection; and (3) the first disability is due to or the result of or is aggravated by the service-connected disability. Allen v. Brown, 7 Vet. App. 439 (1995); 38 C.F.R. § 3.310.

Indirect secondary service connection can be granted with obesity acting as an "intermediate step." See Walsh v. Wilkie, 32 Vet. App. 300 (2020); VAOPGCPREC 1 2017 (Jan. 6, 2017). Specifically, a grant is warranted (1) if the service-connected disability caused or aggravated the Veteran's obesity, (2) if the obesity was a substantial factor in causing a subsequent disability, and (3) if the subsequent disability would not have occurred but for obesity.

A January 2025 private treatment record notes obesity. 

The Veteran submitted a statement in support of claim asserting that her OSA is related to her service-connected disabilities to include degenerative disc disease, bilateral lower extremity radiculopathies, cervical cancer, and carcinoid tumor in the right lung, on a secondary basis due to intermediate step of her obesity. See May 2025, Statement in Support of Claim. 

The Board is required to consider all theories of entitlement to service connection reasonably raised. See Szemraj v. Principi, 357 F.3d 1370, 1371 (Fed. Cir. 2004), and Roberson v. Principi, 251 F.3d 1378, 1384 (Fed. Cir. 2001) (explaining that the Board must consider all potential theories of entitlement raised by the evidence).  

A March 2025 VA examiner opined: 

Anyone can develop obstructive sleep apnea. However, certain factors put [the Veteran] at increased risk including, excess weight. Most but not all people with obstructive sleep apnea are overweight. Fat deposits around the upper airway can obstruct breathing. Medical conditions that are associated with obesity, such as hypothyroidism and polycystic ovary syndrome, also can cause obstructive sleep apnea. 

The claimed condition is less likely than not (likelihood is less than approximately balanced or nearly equal) caused by the indicated toxic exposure risk activity(ies), after considering the total potential exposure through all applicable military deployments of the veteran and the synergistic, combined effect of all toxic exposure risk activities of the Veteran. Rationale is there is no medical or scientific evidence available that provides any indication of a relationship between the development of the condition(s) at issue and the TERA. Medical literature confirms the cause of obstructive sleep apnea as the abnormal relaxation of the muscles of the posterior oropharynx. There is no direct or indirect causation relationship between the development of obstructive sleep apnea and TERA exposure. The Veteran also has risk factor for obstructive sleep apnea (excess weight) that outweighs TERA exposures. 

There is currently no medical opinion regarding whether the Veteran's sleep apnea is due to obesity caused by the service-connected disabilities. 

Considerations that can give rise to a reasonably raised theory of secondary service connection with obesity as an intermediate step "may include, but are not limited to, mobility limitations or reduced physical activity as a result of a service-connected physical disability (in particular, orthopedic conditions or chronically painful conditions); reduced physical activity or inability to follow a course of exercise or diet as a result of service-connected mental disability; side effects of medication (e.g., weight gain), where the medication is prescribed for a service-connected disability; treatise evidence suggesting a connection between all or some combination of obesity, service-connected disability, and the claimed condition; lay statements by a veteran attributing weight gain or obesity to the service-connected disability; and statements by treating physicians or medical examiners attributing weight gain or obesity to the service-connected disability." Garner v. Tran, 33 Vet. App. 241, 248 (2021).

After consideration, the evidence of record is inadequate for adjudication. The AOJ failed to afford the Veteran an adequate medical opinion regarding whether obesity served as an intermediate step stemming from a
 or diet as a result of service-connected mental disability; side effects of medication (e.g., weight gain), where the medication is prescribed for a service-connected disability; treatise evidence suggesting a connection between all or some combination of obesity, service-connected disability, and the claimed condition; lay statements by a veteran attributing weight gain or obesity to the service-connected disability; and statements by treating physicians or medical examiners attributing weight gain or obesity to the service-connected disability." Garner v. Tran, 33 Vet. App. 241, 248 (2021).

After consideration, the evidence of record is inadequate for adjudication. The AOJ failed to afford the Veteran an adequate medical opinion regarding whether obesity served as an intermediate step stemming from a service-connected condition in causing or aggravating the Veteran's OSA. This constitutes a pre-decisional duty to assist error that must be remedied on remand. 

The matters are REMANDED for the following action:

Obtain an opinion addressing obesity as an intermediate step between the Veteran's OSA.  The entire claims file must be made available to the clinician for review.  

The clinician must then provide the following opinions:

(a.) Whether any of the Veteran's service-connected disabilities, alone or in concert, caused her to become obese? Why or why not?

(b.) If so, whether the Veteran's obesity was a substantial factor in causing her OSA? Why or why not?

(c.) If so, whether the Veteran's OSA would not have occurred but for obesity caused by her service-connected disabilities? Why or why not?

The examiner must provide all findings, along with a complete rationale for his or her opinion(s) in the examination report.  

1. The examiner is reminded that secondary service connection is warranted where a nonservice-connected disability would have been less severe "but-for" a service-connected disability, either because there is an etiological link (to include worsening of functionality) between the two, or because the service-connected disability resulted in the inability to treat the non-service-connected disability. See Spicer v. McDonough, 61 F.4th 1360 (Fed. Cir. 2023).

If the above-requested opinion cannot be made without resorting to speculation, the examiner must state this and provide a rational for such a conclusion.

 

SHAUN S. SPERANZA

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Bobb, Jessica R.

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.