Citation Nr: 21061840 Decision Date: 10/05/21 Archive Date: 10/05/21 DOCKET NO. 10-22 907A DATE: October 5, 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. These matters were last before the Board in January 2021, whereupon they were remanded to the Agency of Original Jurisdiction (AOJ) for further development of the record. Following the issuance of an August 2021 supplemental statement of the case continuing the denial of all three service connection claims, the case was returned to the Board for its adjudication. As a reminder, the Veteran testified at a January 2018 Travel Board hearing before the undersigned Veterans Law Judge (VLJ). The Board incorporates by reference the discussion during the June 2021 hearing by the VLJ who issued the August 2021 decision with regards to representation. Essentially, the Veteran has revoked his prior representation by the veterans service organization via his submission of a June 2020 VA Form 21-22a appointing a private individual as his representative. However, the Veteran and this representative expressly restricted that representation to those claims that were the subject of the May 2020 Joint Motion for Partial Remand issued by the Court of Appeals for Veterans Claims. Accordingly, for all remaining claims that are in the appeal process, to include those presently before the Board, the Veteran has indicated that he wishes to proceed without representation. The Board thus has jurisdiction to adjudicate these matters without prejudice to the Veteran. 1. Entitlement to service connection for chronic laryngitis is remanded. The Board in January 2021 remanded the claim of entitlement to service connection for chronic laryngitis in order to afford the Veteran a new VA examination to evaluate whether he had diagnosable chronic laryngitis and to elicit an opinion as to the likely etiology of the condition. Specifically, the Board requested that the chosen examiner determine whether the Veteran currently had laryngitis and to reconcile the findings of a March 2019 VA examiner, who set forth a diagnosis of chronic laryngitis, with his conclusion in a subsequent opinion that the Veteran did not in fact have chronic laryngitis. Regardless of the outcome of any examination and review of the claims file regarding the current status of the Veteran's chronic laryngitis, the chosen examiner was to opine as to the likelihood that the condition was incurred in or is otherwise attributable to service, to include as secondary to a service-connected disability. In an April 2021 examination report, the examiner stated that they found no evidence of diagnosable chronic laryngitis, and concluded instead that the condition, if it did exist back in March 2019, had resolved. As such, the examiner declined to offer a thorough etiology opinion, determining simply that service connection could not be warranted as the Veteran did not have diagnosable chronic laryngitis. The Board cannot rely on this opinion as the examiner ignored the clear directive to provide an opinion regarding the likely etiology of the chronic laryngitis regardless of whether there was a current diagnosis of the condition. The requirement of a current disability is satisfied when a veteran has a disability at the time of filing a service connection claim, during the pendency of that claim, or just prior to the filing of a claim, even if the disability resolves prior to adjudication of the claim. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). In the absence of proof of a current disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Although the Board does not contest the examiner's findings regarding the lack of a current diagnosis of chronic laryngitis, the fact remains that the Veteran has been diagnosed with the condition during the pendency of the appeal and so satisfies the first prong of a claim of service. Accordingly, remand is necessary in order to secure an addendum opinion responsive to the Board's prior queries regarding the likely etiology of the claimed chronic laryngitis; the Board's previous directives are copied in large part below. Stegall v. West, 11 Vet. App. 268 (1998). 2. Entitlement to service connection for asthma is remanded. The Board in January 2021 remanded the claim of entitlement to service connection for asthma in order to secure an addendum etiology opinion. Specifically, the Board requested that the chosen examiner opine as to the likelihood that the diagnosed asthma was secondary to one or more service-connected disabilities. The Board highlighted that previous etiology opinions dated in March 2019, October 2020, and November 2020 failed to address the potential relationship between the Veteran's asthma and a number of his service-connected disabilities and focused instead on a few select service-connected disabilities. The Board directed the chosen examiner to discuss the potential secondary relationship between the asthma and each service-connected disability listed in the most recent rating decision at the time, dated in January 2021. In an April 2021 examination report, the examiner restricted the analysis to discussing only the potential secondary relationship between asthma and vasomotor rhinitis. As such, the Board cannot rely on this opinion, as the examiner ignored the clear directive to consider the potential etiological relationship between the asthma and each service-connected disability, both considered distinct from one another as well as cumulatively. Accordingly, remand is necessary in order to secure an addendum opinion responsive to the Board's prior queries regarding the likely etiology of the claimed asthma. The Board's previous directives are copied in large part below. Stegall, supra. 3. Entitlement to service connection for obstructive sleep apnea is remanded. The Board in January 2021 remanded the claim of entitlement to service connection for obstructive sleep apnea in order to afford the Veteran a new VA examination to determine whether he currently has diagnosable obstructive sleep apnea or had the condition at any point during the appeal period. Specifically, the Board highlighted several pieces of medical evidence tending to support a diagnosis of obstructive sleep apnea, while still acknowledging that the Veteran has never undergone a polysomnographic (sleep) study in order to definitively diagnose the condition. The Board explicitly requested that the AOJ offer the Veteran the opportunity to undergo a sleep study in support of his claim. In an April 2021 examination, the chosen VA examiner declined to endorse a diagnosis of obstructive sleep apnea. While the examiner discussed the medical evidence detailed by the Board in its January 2021 remand, ultimately the examiner asserted that a diagnosis depended on the results of a sleep study, which the Veteran has never undergone. The Board cannot rely on this examination, as it does not appear that the Veteran was ever offered an opportunity to undergo a sleep study as the Board requested. Accordingly, remand is necessary in order to first offer the Veteran an opportunity to undergo a sleep study and then schedule him for a new VA examination pending the results of that sleep study (or in the absence of those results if he does not agree to undergo the sleep study). Stegall, supra. 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 the chosen examiner, who must indicate review of the claims file prior to setting forth any opinion. 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 (an approximate balance of positive and negative evidence) that the asthma and/or the chronic laryngitis (regardless of whether 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 September 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 must 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. 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 must 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 (an approximate balance of positive and negative evidence) that obstructive sleep apnea had its onset during service or is otherwise related to active service. Finally, the examiner must 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 must 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. All opinions must be supported by a rationale 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.