Citation Nr: 21064198 Decision Date: 10/19/21 Archive Date: 10/19/21 DOCKET NO. 14-36 329 DATE: October 19, 2021 REMANDED Entitlement to service connection for a sinus disorder is remanded. Entitlement to service connection for a sleep disorder, to include obstructive sleep apnea, is remanded. Entitlement to service connection for a respiratory disorder is remanded. REASONS FOR REMAND The Veteran served on active duty from July 1982 to December 1982 and from December 1985 to May 1986, with additional service in the National Guard of New York. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2012 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a videoconference hearing in December 2017 before the undersigned Veterans Law Judge (VLJ). A transcript of the proceeding is associated with the electronic claims file. The Board previously remanded the case in April 2018 and July 2020 for further development. The matter of entitlement to service connection for posttraumatic stress disorder (PTSD) was also remanded in July 2020. However, during the course of the appeal, the RO granted service connection for PTSD in an April 2021 rating decision. As such, the grant of service connection represents the full benefit sought on appeal and the matter is no longer for appellate consideration. 1. Entitlement to service connection for a sinus disorder is remanded. 2. Entitlement to service connection for a sleep disorder, to include obstructive sleep apnea, is remanded. 3. Entitlement to service connection for a respiratory disorder is remanded. The Veteran is seeking to establish service connection for a sinus disorder, sleep disorder, and respiratory disorder. Specifically, the Veteran contends he developed breathing problems after breathing in debris, smoke, and chemicals during cleanup following the September 11th terrorist attacks in New York City. In July 2020, the Board remanded the matters to afford the Veteran another opportunity to present at VA examinations pertinent to his claims. In December 2020, a VA examiner opined that the Veteran's sinus disorder, obstructive sleep apnea/sleep disorder, and respiratory disorder were less likely than not related to service. The examiner explained that although the Veteran was treated for shortness of breath in July 2002, there was no documented evidence of continuity of care to establish a chronic respiratory disorder; therefore, the Veteran's asthma was not a result of military service. The examiner also noted that there was no evidence of sleep apnea or a sleep disorder in service to render a diagnosis; therefore, the Veteran's claimed sleep disorder was not the result of service. Finally, the examiner indicated that the Veteran was diagnosed with sinusitis in June 2011, nine years after service, and there was no documented history of a sinus condition while in service to establish chronicity of a sinus condition. In April 2021, the examiner issued an addendum opinion recognizing that the Veteran was competent to report his symptoms and history. However, as the Veteran had reported his asthma condition began in 2011 and evidence did not stablish chronicity of the condition, the examiner continued to opine that the Veteran's respiratory disorder was not the result of service. Unfortunately, the Board finds that the VA medical opinions of record are inadequate to fairly adjudicate the Veteran's claims for service connection. The examiner failed to consider the Veteran's statements regarding the onset and chronicity of his sinus, respiratory, and sleep disorders. Specifically, the Veteran reported that symptoms of the claimed disabilities began during his service on September 11th, 2001; however, the examiner misunderstood the Veteran's reported onset to be in September 2011. Further, the Veteran claimed his sinus and respiratory disabilities occurred as a result of breathing in debris, smoke, and chemicals while serving at Ground Zero, yet the examiner failed to discuss these contentions. Finally, additional diagnoses made in June 2020 private Disability Benefits Questionnaires (DBQ), such as interstitial lung disease, restrictive lung disease, posterior rhinorrhea, and hypertrophy of nasal turbinates were not addressed by the examiner. As such, the Board finds that remand for addendum VA opinions is warranted. The matters are REMANDED for the following action: 1. Obtain an addendum opinion from an appropriate clinician, regarding the Veteran's sinus disorder. The claims file and a copy of this remand must be made available to the examiner. The need for an additional examination of the Veteran is left to the discretion of the clinician selected to write the addendum opinion. The examiner should respond to the following: a) Identify all current sinus disorders. Private DBQs from June 2020 should be reviewed. b) Is it as least as likely as not (50 percent probability or greater) that the Veteran's sinus disorder had its onset in or is otherwise etiologically related to active duty service? Please explain why or why not. An opinion should be provided for each diagnosis. In rendering the requested opinion, the examiner should address the Veteran's statements regarding the onset and chronicity of his symptoms and his service involving clean up following the September 11, 2001 terrorist attacks in New York City. The examination report must include a complete rationale for all opinions expressed. If the examiner feels that a requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e., no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e., additional facts are required, or the examiner does not have the needed knowledge or training). 2. Obtain an addendum opinion from an appropriate clinician, regarding the Veteran's obstructive sleep apnea/sleep disorder. The claims file and a copy of this remand must be made available to the examiner. The need for an additional examination of the Veteran is left to the discretion of the clinician selected to write the addendum opinion. The examiner should respond to the following: Is it as least as likely as not (50 percent probability or greater) that the Veteran's obstructive sleep apnea/sleep disorder had its onset in or is otherwise etiologically related to active duty service? Please explain why or why not. In rendering the requested opinion, the examiner should address the Veteran's statements regarding the onset and chronicity of his symptoms and his service involving clean up following the September 11, 2001 terrorist attacks in New York City. The examination report must include a complete rationale for all opinions expressed. If the examiner feels that a requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e., no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e., additional facts are required, or the examiner does not have the needed knowledge or training). 3. Obtain an addendum opinion from an appropriate clinician, regarding the Veteran's respiratory disorder. The claims file and a copy of this remand must be made available to the examiner. The need for an additional examination of the Veteran is left to the discretion of the clinician selected to write the addendum opinion. The examiner should respond to the following: a) Identify all current respiratory disorders. Private DBQs from June 2020 should be reviewed. b) Is it as least as likely as not (50 percent probability or greater) that the Veteran's respiratory disorder had its onset in or is otherwise etiologically related to active duty service? Please explain why or why not. An opinion should be provided for each diagnosis. In rendering the requested opinion, the examiner should address the Veteran's statements regarding the onset and chronicity of his symptoms and his service involving clean up following the September 11, 2001 terrorist attacks in New York City. The examination report must include a complete rationale for all opinions expressed. If the examiner feels that a requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e., no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e., additional facts are required, or the examiner does not have the needed knowledge or training). 4. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claims should be readjudicated based on the entirety of the evidence. If any benefit sought remains denied, furnish the Veteran and his representative a supplemental statement of the case (SSOC) and return the case to the Board. KRISTI L. GUNN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. Silverblatt, 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.