Citation Nr: 21067792 Decision Date: 11/05/21 Archive Date: 11/05/21 DOCKET NO. 16-53 220A DATE: November 5, 2021 REMANDED Entitlement to service connection for chronic obstructive pulmonary disease (COPD) is remanded. Entitlement to service connection for sleep apnea is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Air Force from March 1971 to March 1978 and from June 1980 to April 1986. These matters come before the Board of Veterans' Appeals (Board) on appeal from an October 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office in New Orleans, Louisiana. In August 2021, the Veteran, his wife and his daughter testified before the undersigned at a hearing before the Board. A transcript of that hearing has been associated with the record. Service Connection At the outset, the Board notes that the record appears to be incomplete. Specifically, the Veteran testified at his August 2021 hearing that he received post-service medical treatment at VA facilities in South Dakota, Nebraska, Louisiana and Texas. Review of the record shows that only the VA records from South Dakota, and partial records from Louisiana, have been obtained and associated with the file. Further, the Veteran testified that he received medical treatment from multiple private hospitals in Texas, to include Hill County Memorial Hospital in Fredericksburg, and Peterson Regional Medical Center in Kerrville. Review of the record does not contain the reported VA or private treatment records. Crucially, the Veteran testified that he received treatment for shortness of breath at the South Dakota VA facility, and for COPD and sleep apnea at the VA facilities in Louisiana and Texas. Accordingly, a remand is necessary in order to obtain such records. See 38 C.F.R. § 3.159; Bell v. Derwinski, 2 Vet. App. 611 (1992); Sullivan v. McDonald, 815 F.3d 786 (Fed. Cir. 2016)(where the Veteran "sufficiently identifies" other VA medical records that he or she desires to be obtained, VA must also seek those records even if they do not appear potentially relevant based upon the available information). Turning to the merits of the Veteran's claims, he seeks service connection for COPD and sleep apnea on the premise that these disorders first manifested in service, or were due to in-service chemical exposure. His service treatment records do not contain a diagnosis of either condition. However, they do show that he was seen in November 1983 for a high temperature and cough. A finding of "bronchitis vs pneumonia" was noted. On follow up later that month, an unproductive cough with chest pain was reported. Right lobe pneumonia with small pleural effusion was diagnosed. At his February 1986 Medical Evaluation Board proceedings, it was noted that he had pneumonia without sequalae while in service. In his November 2015 notice of disagreement, the Veteran indicated that he was exposed to chemicals while in service, without the use of safety equipment. He also reported that he had been diagnosed with pneumonia "at least 5 times" while in service; as noted above, he was diagnosed with the condition on a single occasion. However, he testified in August 2021 that he had breathing difficulties throughout his military service. He indicated that he was working with chemicals and cleaning agents during his last period of service, to include methyl ethyl ketone and lead paint chips, which he felt caused his breathing difficulties, to include COPD. Both the Veteran and his wife testified that the Veteran began to experience shortness of breath while in service. The Veteran's wife also testified that he would stop breathing while sleeping, in service. Both reported that the Veteran first began to experience daytime fatigue, which they contributed to sleep apnea, while in service. Based on the evidence of record, the Board finds that VA's duty to assist has been triggered. See McLendon v. Nicholson, 20 Vet. App. 79 (2006) (holding that an examination is necessary if, inter alia, evidence indicates that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran's service or service-connected disability). The Veteran's service treatment records show diagnosis of a serious respiratory condition, and the Veteran has asserted that he developed COPD and sleep apnea as a result. He credibly testified as to in-service exposure to chemicals and paint. Further, his wife testified that she observed symptoms, such as the cessation of breathing while sleeping, during service. For all of these reasons, the Board finds that an examination is necessary. Id.; see also Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (VA may only consider independent medical evidence to support its findings and is not permitted to base decisions on its own unsubstantiated medical conclusions). As a final matter, the Board notes that in his November 2015 notice of disagreement and in his November 2016 substantive appeal, the Veteran indicated that he was a smoker upon entry to service and as such he was provided with cigarettes while in basic training. To the extent that this can be construed as a claim of service connection for COPD and sleep apnea due to in-service cigarette smoking, the Board notes that for claims filed after June 9, 1998, Congress has prohibited the grant of service connection for disability due to the use of tobacco products during active service. 38 U.S.C. § 1103 (a); 38 C.F.R. § 3.300. Therefore, the examiner will not be asked to address this theory of entitlement to service connection for either of the claimed respiratory conditions. The matters are REMANDED for the following action: 1. Obtain all outstanding VA treatment records from the following VA Medical Centers/Federal government facilities for the dates indicated: Ellsworth Air Force Base, South Dakota, 1986 2005 Omaha, Nebraska VA Medical Center, 2005 2012 Shreveport, Louisiana VA Medical Center, 2012 2019 South Texas Veterans Health Care System, to include Kerrville VA Medical Center, 2019 present All reasonable attempts should be made to obtain any identified records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C. § 5103A (b)(2) and 38 C.F.R. § 3.159(e). 2. After securing the necessary authorization from the Veteran, obtain all records from Hill County Memorial Hospital and Peterson Regional Medical Center. Make at least two (2) attempts to obtain the records. If any such records are unavailable, inform the Veteran and afford him an opportunity to submit any copies in his possession. 3. Once all outstanding records have been obtained, provide the Veteran with an appropriate VA examination to determine the nature and etiology of his COPD and sleep apnea. The record and a copy of this Remand must be made available to the clinician. The examiner should offer an opinion as to the following: a) whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's COPD had its onset in, or is otherwise related to, his military service, to include either as a result of in-service exposure to chemicals (such as methyl ethyl ketone and lead paint chips) or his in-service diagnosis of pneumonia. b) whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's sleep apnea had its onset in, or is otherwise related to, his military service, to include either as a result of in-service exposure to chemicals (such as methyl ethyl ketone and lead paint chips) or his in-service diagnosis of pneumonia. The examiner is asked to address the reports by the Veteran and his wife that, while in service, he stopped breathing when asleep. The examiner is advised that the sole basis for a negative nexus opinion may not be the fact that the Veteran's service treatment records are silent as to any complaints, treatment, or diagnosis of COPD or sleep apnea. A rationale for any opinion offered should be provided. R. FEINBERG Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Jeremy J. Olsen, 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.