Citation Nr: 21065387 Decision Date: 10/26/21 Archive Date: 10/26/21 DOCKET NO. 15-35 488 DATE: October 26, 2021 REMANDED Entitlement to service connection for sleep apnea is remanded. Entitlement to service connection for a respiratory disorder is remanded. REASONS FOR REMAND The Veteran served on active duty from February 1966 to February 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2014 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). A hearing was held before the undersigned Veterans Law Judge in March 2019. A transcript has been associated with the record. The Board recharacterized an issue on appeal more broadly in accordance with Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). Specifically, the claim for service connection for pneumonia was recharacterized to include any current respiratory disorder. See July 2019 Board decision. The Board remanded the case for additional development in July 2019. The case has since been returned to the Board for appellate review. Upon review the Board finds that additional development is needed prior to adjudication of the issues on appeal. Initially, the Board notes that, in the prior remand, the agency of original jurisdiction (AOJ) was directed to attempt to obtain any outstanding treatment records from Dr. S., Dr. D., and Dr. W. (identified during the March 2019 hearing) (initials used to protect privacy). In November 2019, the AOJ sent a letter to the Veteran requesting that he complete and return a VA Form 21-4142, Authorization to Disclose Information to VA, and VA Form 21-4142a, General Release for Medical Provider Information to VA. However, the November 2019 letter and enclosed authorization forms were returned in December 2019 as undeliverable. It appears that the letter was sent to an old address in North Carolina, as the Veteran had filed a change of address form in December 2019 in which he listed a new address in New York. There is no indication that the letter and forms were later sent to the Veteran's address in New York. Therefore, on remand, the AOJ should attempt to obtain those records using the Veteran's last known mailing address. In addition, the Veteran was afforded a VA examination in January 2020 in connection with his claim for service connection for sleep apnea. The examiner noted the diagnosis of obstructive sleep apnea in August 2013 and the reported history of symptoms in service and since that time, including loud snoring and witnessed apneas. The examiner opined that the Veteran's sleep apnea is less likely than not related to military service, explaining that there were no complaints, treatment, or diagnosis of a sleep disorder in service and that the Veteran was not diagnosed with sleep apnea until 2013, which was many years after service. The examiner acknowledged the lay statements regarding symptoms in service, but stated that they cannot be used as evidence of sleep apnea during service because they were made many years thereafter. The Board notes that laypersons are competent to report the observable symptoms. See Charles v. Principi, 16 Vet. App. 370 (2002); Barr v. Nicholson, 21 Vet. App. 303 (2007); Layno v. Brown, 6 Vet. App. 465 (1994). Although a layperson may not be competent to opine that the reported symptoms constituted a diagnosis of sleep apnea in service, the examiner did not specifically address whether any in-service symptoms may have been indicative of sleep apnea that was later confirmed with a diagnosis. See Dalton v. Nicholson, 21 Vet. App. 23 (2007) (examination inadequate where examiner did not comment on Veteran's report of in-service injury and instead relied on absence of evidence in service treatment records to provide negative opinion). Therefore, the Board finds that an additional medical opinion is needed in this case. Moreover, regarding the claim for service connection for a current respiratory disorder, a January 2020 VA examiner noted the Veteran's diagnosis of recurrent pneumonia with a reported date of onset of 1966. The Veteran reported having a persistent cough since being hospitalized in 1966 during service, as well as persistent upper respiratory infection symptoms since its onset. It was noted that he was treated for recurrent pneumonia in 2011 and that August 2011 CT scan showed ground glass opacity left lower lobe and pleural effusion. The examiner indicated that the Veteran had a dry cough that was persistent throughout the examination and that he was unable to perform pulmonary function testing; however, the examiner characterized his effort as "poor." The functional impact was described as being unable to walk long distances due to shortness of breath and coughing and feeling tired and weak with low energy to complete assigned tasks. The January 2020 VA examiner opined that the Veteran's recurrent pneumonia is less likely than not related to service, explaining that the condition during service was acute and that there was only one further notation of an upper respiratory condition. During the examination, the Veteran had a persistent cough, but it was without phlegm. The examiner noted that a CT scan in 2013 did reveal some left lower lobe scarring, which may be related to an old infection or pneumonia. However, there was no chronicity of care, and the last date of treatment was 2011. Therefore, the examiner stated that a nexus to service has not been established. Nevertheless, the January 2020 VA examination report appears internally inconsistent. The examiner indicated that the Veteran had a current diagnosis of recurrent pneumonia, yet later stated that his last date of treatment was in 2011. It was also noted that the condition in service was acute, but later indicated that post-service CT scans showed left lower lobe scarring, which was possibly related to an old infection or pneumonia. It is unclear as to whether the Veteran may have any current symptomology related to scarring that resulted from a condition in service. Therefore, the Board finds that an additional medical opinion is needed. The matters are REMANDED for the following action: 1. The agency of original jurisdiction (AOJ) should request that the Veteran provide the names and addresses of any and all health care providers who have provided treatment for sleep apnea and a respiratory disorder. A specific request should be made for any outstanding records from Dr. S., Dr. D., and Dr. W. (identified during March 2019 hearing). After acquiring this information and obtaining any necessary authorization, the AOJ should obtain and associate these records with the claims file. In requesting these records, the AOJ should ensure that the Veteran's last known mailing address is used. Any outstanding VA medical records should also be obtained and associated with the claims file. 2. After the foregoing development has been completed, the AOJ should obtain a VA medical opinion to determine the etiology of the Veteran's sleep apnea. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and lay assertions. The examiner should note that the Veteran is competent to attest to factual matters of which he has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should state this with a fully reasoned explanation. The examiner should state whether it is at least as likely as not that the Veteran has sleep apnea that manifested in or is otherwise related to his military service, including any symptomatology therein. In rendering this opinion, the examiner should specifically consider the lay statements regarding symptomatology in service, including loud snoring and witnessed apneas, and address whether the reported symptoms were indicative of undiagnosed sleep apnea in service. See, e.g., May 2014 lay statements; August 2015 VA Form 9; March 2019 hearing transcript. (The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of the conclusion as it is to find against it.) A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 3. After completing the foregoing development, the AOJ should obtain a VA medical opinion to determine the etiology of any recurrent pneumonia. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and lay assertions. The examiner should note that the Veteran is competent to attest to factual matters of which he has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should state this with a fully reasoned explanation. The examiner should state whether it is at least as likely as not that the Veteran has a current respiratory disorder, including any recurrent pneumonia, that manifested in service or is otherwise causally or etiologically related to his military service, to include any symptomatology therein. The Veteran has reported continuity of symptoms since he was first diagnosed with pneumonia in service, including clear mucus in the back of the throat causing a chronic cough. See, e.g., December 2012 statement; May 2014 correspondence. In rendering this opinion, the examiner should address the Veteran's claim that he has a current respiratory disorder that is related to his April 1966 hospitalization for an upper respiratory infection. The examiner should also address the June 2011 CT scan showing scarring and pleural effusion of the left lower lobe from prior pneumonia. The January 2020 VA examiner had noted that the left lower lobe scarring was possibly related to an old infection or pneumonia, but it is unclear as to whether the Veteran may have any current symptomology or functional impairment resulting from such scarring, and if so, whether the scarring is due to the condition in service. (The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of the conclusion as it is to find against it.) A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 4. The AOJ should review the opinions to ensure that they are in compliance with this remand. If the reports are deficient in any manner, the AOJ should implement corrective procedures. 5. The AOJ should conduct any other development as may be indicated. J.W. ZISSIMOS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D.S. Chilcote 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.