Citation Nr: 21005021 Decision Date: 01/28/21 Archive Date: 01/28/21 DOCKET NO. 10-22 907A DATE: January 28, 2021 REMANDED Entitlement to service connection for chronic laryngitis is remanded. Entitlement to service connection for asthma is remanded. Entitlement to service connection for obstructive sleep apnea is remanded. REASONS FOR REMAND The Veteran served on active duty from September 1961 to September 1964. He testified at a January 2018 Travel Board hearing before the undersigned Veterans Law Judge. These matters were last before the Board in November 2019, whereupon they were remanded to the Agency of Original Jurisdiction (AOJ) for further development. Following the issuance of a December 2020 supplemental statement of the case continuing the denial of all three claims, the case was returned to the Board for its adjudication. The Board acknowledges that the Veteran has attempted to opt into the new appeal program pursuant to regulations contained within the Appeals Management Act; however, to date, those attempts have not been successful. Specifically, the Veteran submitted a request for higher-level review of the claims of service connection for asthma and obstructive sleep apnea via a VA Form 20-0996 in December 2020; this request was not accepted by the AOJ, as the Veteran neglected to submit a completed form, and the Veteran was informed of the rejection in a December 2020 correspondence. More recently, the Veteran submitted a supplemental claim application regarding the claims of service connection for asthma and obstructive sleep apnea via a VA Form 20-0995 in January 2021; this request was not accepted by the AOJ as the Veteran did not sign it, and he was informed of the rejection in a January 2021 correspondence. Accordingly, as both of the Veteran’s attempts to opt out of the legacy appeal framework have been unsuccessful, the Board still has jurisdiction to address all three claims currently before it. The Board notes that two separate sets of issues on appeal are pending Board hearings, with one hearing presently scheduled for February 2021, and will not be addressed in this decision. 1. Entitlement to service connection for chronic laryngitis is remanded. Pursuant to the Board’s November 2019 decision and remand, the claims file was evaluated in October 2020 by the individual who issued the March 2019 VA examination and opinion regarding the likely etiology of the claimed chronic laryngitis condition, in order to secure an addendum opinion utilizing the proper standard of evaluation for a claim based on secondary service connection. However, rather than provide a secondary etiology opinion as requested, the VA examiner found instead that there was no evidence of a diagnosed chronic laryngitis condition, and so declined to set forth any opinion as to the likely etiology of the claimed condition. This determination is contrary to the findings on the March 2019 VA examination, wherein the same examiner endorsed a diagnosis of chronic laryngitis. The VA examiner offered no explanation for this clear contradiction. As such, on remand, the claims file must be returned to this same VA examiner, or to another qualified medical professional, in order to elicit an opinion regarding the likely etiology of the claimed chronic laryngitis condition. If instead the chosen examiner determines that a diagnosis of chronic laryngitis is not warranted, that individual must provide a thorough explanation for why this is so with consideration of the prior history of a confirmed diagnosis for the condition. If necessary, a new examination should be afforded to the Veteran in order to provide further diagnostic evidence in support of any determination regarding whether the Veteran actually has a diagnosable chronic laryngitis condition. 2. Entitlement to service connection for asthma is remanded. Pursuant to the Board’s November 2019 decision and remand, the claims file was evaluated in October 2020 by the individual who issued the March 2019 VA examination and opinion regarding the likely etiology of the claimed asthma condition, in order to secure an addendum opinion utilizing the proper standard of evaluation for a claim based on secondary service connection. Specifically, the Board instructed the March 2019 examiner to consider the likelihood that the asthma was proximately caused by or aggravated by one or more of the Veteran’s service-connected disabilities. In setting forth a negative response to this query, the examiner noted only that the asthma was not caused by or aggravated by vasomotor rhinitis and did not discuss any of the Veteran’s other service-connected disabilities, of which there are many. The AOJ acknowledged this deficiency and requested that the examiner set forth an addendum opinion that explicitly addressed the likelihood that secondary service connection was warranted for the asthma condition as attributable to one or more of the Veteran’s service-connected disabilities. Unfortunately, in the resulting November 2020 opinion the examiner only discussed the potential relationship between asthma and temporomandibular joint (TMJ) syndrome with bruxism, status post jaw shaving, chronic laryngitis, and obstructive sleep apnea. Despite not complying with the AOJ’s instructions, however, the AOJ apparently accepted the November 2020 opinion and proceeded with its adjudication in the December 2020 supplemental statement of the case continuing the denial of service connection for asthma. The Board finds that remand is necessary for the AOJ to secure an addendum opinion that complies with its own instructions regarding the extent of the opinion required to evaluate whether the claimed asthma condition is service-connected on a secondary basis as attributable to one or more of the Veteran’s many service-connected disabilities as listed in the most recent rating decision dated in January 2021. 3. Entitlement to service connection obstructive sleep apnea is remanded. Pursuant to the Board’s November 2019 decision and remand, the claims file was evaluated in October 2020 by the individual who issued the March 2019 VA examination and opinion regarding the likely etiology of the claimed obstructive sleep apnea, in order to secure an addendum opinion utilizing the proper standard of evaluation for a claim based on secondary service connection. However, rather than provide a secondary etiology opinion as requested, the VA examiner found instead that there was no evidence of diagnosed obstructive sleep apnea, and so declined to set forth any opinion as to the likely etiology of the claimed condition. The Board does acknowledge that the Veteran has never been formally diagnosed with obstructive sleep apnea. However, VA medical records show that he has sought treatment for symptomatology potentially attributable to obstructive sleep apnea for several years through VA, to include daytime somnolence, difficulty sleeping at night, snoring, and chronic fatigue. Furthermore, the Veteran has been utilizing a continuous positive airway pressure (CPAP) machine that was prescribed to him by VA for several years; this is a device commonly used to alleviate the symptoms of obstructive sleep apnea. Indeed, in recognition of the Veteran’s suspected obstructive sleep apnea, he was directed to secure a sleep study and chose to have that study performed by a private physician outside of the VA medical system; an April 2017 outpatient note reflects that he ultimately neglected to follow through with this directive and never got a sleep study through either the VA system or from a private provider. Nevertheless, probable obstructive sleep apnea has been listed as an active problem in his VA medical records. Under these circumstances, the Board finds that the Veteran should be offered a new opportunity to undergo a VA examination that explicitly includes a sleep study that will confirm whether he has diagnosable obstructive sleep apnea. After the Veteran has been afforded the opportunity to undergo the sleep study, if a diagnosis of obstructive sleep apnea is endorsed, a VA examiner should then set forth an opinion as to the likely etiology of the sleep apnea, to include a discussion of whether the condition is at least as likely as not caused by or aggravated by a service-connected disability. The matters are REMANDED for the following action: 1. Provide the claims file to a qualified examiner in order to elicit an addendum opinion regarding the likely etiology of the chronic laryngitis and asthma conditions. The entire claims file, including this REMAND, must be made available. To begin, the chosen examiner must confirm whether the Veteran has a diagnosable chronic laryngitis condition. If the examiner deems it necessary in order to provide an accurate diagnostic picture, the Veteran must be scheduled for an examination to evaluate whether he has chronic laryngitis for VA benefits purposes. In any event, if the examiner determines that a diagnosis of chronic laryngitis is not appropriate, they must set forth a thorough rationale for this determination that explicitly discusses the confirmed diagnosis on the prior March 2019 VA examination. After confirming whether the Veteran has diagnosable chronic laryngitis, the chosen examiner must set forth an opinion as to whether it is it at least as likely as not (a 50 percent probability or higher) that the asthma and/or the chronic laryngitis (if a diagnosis is confirmed) had its onset during service or is otherwise related to active service. In addition, irrespective of the answer to the above, the examiner is also requested to provide an opinion as to whether it is at least as likely as not that one or both of these conditions was caused or aggravated by one or more service-connected disabilities (as listed in an January 2021 rating decision). The examiner must discuss the possibility that either condition on appeal is attributable to each service-connected disability. If the opinion is that a service-connected disability or combination of service-connected disabilities aggravated one or both of these conditions, the examiner should specify, so far as possible, the degree of disability resulting from such aggravation. All opinions must be supported by a rationale. The Board is aware of the complications resulting from COVID-19 in scheduling an examination, and if necessary a telehealth examination may be considered. All opinions must be supported by a rationale. 2. Schedule the Veteran for a VA examination to evaluate the nature and likely etiology of the claimed obstructive sleep apnea condition. The complete electronic claims file, to include this remand, must be reviewed in conjunction with the examination, and the examiner must note that they reviewed the claims file. All necessary diagnostic testing and evaluation must be performed. First, the chosen examiner must determine whether the Veteran has diagnosable obstructive sleep apnea for VA benefits purposes. To that end, the Veteran should be offered the opportunity to undergo a sleep study. Furthermore, in determining whether the Veteran has diagnosable obstructive sleep apnea, the examiner must consider and comment on as necessary evidence in the claims file indicating that the Veteran has been receiving treatment for sleep symptomatology through VA for several years, to include his use of a CPAP machine. If a diagnosis of obstructive sleep apnea is not endorsed by the examiner, he or she must provide a thorough rationale to account for any discrepancy with the earlier evidence of record that does suggest that the Veteran has obstructive sleep apnea. Regardless of whether a diagnosis of obstructive sleep apnea is endorsed, the examiner must opine as to whether it is it at least as likely as not (a 50 percent probability or higher) that obstructive sleep apnea had its onset during service or is otherwise related to active service. Finally, the examiner should also provide an opinion as to whether it is at least as likely as not that obstructive sleep apnea was caused or aggravated by one or more service-connected disabilities (as listed in a January 2021 rating decision). If the opinion is that a service-connected disability or combination of service-connected disabilities aggravated obstructive sleep apnea, the examiner should specify, so far as possible, the degree of disability resulting from such aggravation. The Board is aware of the complications resulting from COVID-19 in scheduling an examination, and if necessary a telehealth examination may be considered. A. C. MACKENZIE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Christopher M. Collins, 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.