Citation Nr: 21074372 Decision Date: 12/15/21 Archive Date: 12/15/21 DOCKET NO. 16-31 307 DATE: December 15, 2021 REMANDED Service connection for obstructive sleep apnea (OSA) is remanded. Service connection for a respiratory disability, to include sinusitis and rhinitis, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Marine Corps from April 1966 to April 1969. His decorations include the Vietnam Service Medal with One Star. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2014 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran presented sworn testimony at a hearing before the undersigned Veterans Law Judge (VLJ) in August 2018. The Board remanded this claim in an April 2019 decisions for additional development. In April 2021, the Board denied entitlement to service connection for OSA while remanding the claim to service connection for a respiratory disability, to include sinusitis and rhinitis. In August 2021, the Veteran's attorney submitted a partial motion to vacate the BVA decision from April 2021, arguing that the Board did not address or consider secondary service connection in its denial of the service connection claim for OSA. As the Veteran is currently service connected for unspecified depressive disorder with anxious distress, degenerative osteoarthritis of the left knee, degenerative osteoarthritis of the right knee, tinnitus, painful scars of the bilateral knees, hearing loss, headaches, and scars of the bilateral knees, the Veteran's attorney stated the Board should have remanded the claim to address secondary service connection for OSA, specifically Veteran's psychiatric disability and bilateral knee conditions. See August 2021 Third Party Correspondence. In an August 2021 Board decision, the Board vacated its April 2021 decision to the extent that it denied the issue of entitlement to service connection for OSA, finding that its decision contained an error that impeded due process. See August 2021 BVA Decision. Service connection for obstructive sleep apnea (OSA) The Veteran seeks service connection for his diagnosed OSA. See February 2016 VA treatment record. The Veteran reports that his sleep apnea began in service and has continued since then. In a September 2020 VA medical opinion, the VA examiner opined that Veteran's sleep apnea and sinusitis were less likely than not incurred in or caused by service as service entrance and separation examinations were negative for the conditions, and medical records from 1969 through 2002 are silent for complaints, treatment or diagnoses for the conditions. See September 2020 C&P Exam. However, the VA examiner failed to consider whether Veteran's sleep apnea disability and respiratory disability, to include sinusitis, may be secondarily caused or aggravated by Veteran's service-connected disabilities, primarily his unspecified depressive disorder with anxious distress and bilateral knee degenerative osteoarthritis. As such, the Board finds that another remand is warranted to provide a VA medical opinion that provides a nexus opinion that addresses secondary service connection. Service connection for a respiratory disability, to include sinusitis and rhinitis The Veteran contends that he developed a respiratory disability while in service, where he started having issues with his nose and experiencing sinus drainage during his tour of duty in Vietnam. See August 2018 Hearing Transcript. He added that his respiratory symptoms have been recurrent since that time. The Veteran's medical history details his experiences with sinus issues; at his February 1966 entrance examination, the Veteran endorsed issues with his ear, nose, and throat. The service entrance examination, however, showed that he was normal with respect to his sinuses and the service treatment records do not contain complaints, treatment, or diagnoses for a respiratory condition, aside from the occasional common cold with an upper respiratory infection. The Veteran was afforded a VA examination for sinusitis/rhinitis in September 2020. He was diagnosed with allergic and non-allergic rhinitis, with a date of diagnosis in 2005. The VA examiner noted that Veteran's service treatment records and medical records are silent for respiratory complaints, treatment or diagnoses from 1969-2002. Multiple treatment records from October 2002 through November 2010 show complaints for nasal congestion and sinus pressure/pain with nasal sprays with a diagnosis of allergic rhinitis in 2005. The examiner opined that based on the medical evidence, it is less likely than not the sinusitis/rhinitis condition was incurred in or caused by the Veteran's active service. In the April 2021 Board decision, the Board held that the September 2020 VA examiner opined that Veteran's sinusitis is not related to service but failed to discuss whether his rhinitis is related to service. The claim was remanded for an addendum opinion. See April 2021 BVA Decision. Post-remand, the Veteran was provided a VA Respiratory Conditions examination in June 2021. The examination found Veteran did not have a current diagnosis of a respiratory condition. Veteran reported shortness of breath after a lot of exertion, but that he has no specific respiratory symptoms. The examiner held that Veteran has no respiratory diagnosis as his CXR and PFTs are normal; other than a preop evaluation in 2014 that mentioned COPD (and for which there was not objective evidence given normal imaging and PFTs), Veteran has no records demonstrating a respiratory illness and is not currently seeking treatment for an illness. Further, the examiner references Veterans in-service complaints in January 1967 and February 1968 of URI/cold symptoms but also his separation examination in April 1969 that was silent for any sinus or rhinitis issues. As no nexus can be established between the Veteran's diagnoses of allergic and non-allergic rhinitis, the examiner opined that it is not at least as likely as not that Veteran's respiratory disability was incurred in or caused by his military service. However, the Board finds that the VA examiner did not address whether the Veteran's respiratory disability is secondarily caused or aggravated by his service-connected disabilities. Pursuant to the Board's Order to Vacate the denial of service connection for OSA and the subsequent remand of the claim for further development, the Board finds that the claim of service connection for a respiratory disability, to include sinusitis and rhinitis, is inextricably intertwined with the outcome of the sleep apnea service connection claim and must also be remanded. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are "inextricably intertwined" when a decision on one issue would have a "significant impact" on the resolution of the second issue). The matters are REMANDED for the following actions: 1. Notify the Veteran that he may submit additional lay statements from himself and from other individuals who have first-hand knowledge of the onset of his sleep apnea, respiratory disability, and his in-service event, injury, or disease. The Veteran should be provided an appropriate amount of time to submit this lay evidence. 2. Forward the claims file to a qualified medical professional for an opinion to determine the nature, onset and etiology of the Veteran's sleep apnea. It is left to the examiner's discretion whether to schedule the Veteran for an in-person examination (or telehealth interview, records review, etc., if an in-person examination is not feasible). The examiner should opine as to whether it is at least as likely as not that the Veteran's sleep apnea had its onset during, or is otherwise related to, service. The examiner should specifically address if his sleep apnea is caused by a service-connected disability (to include his service-connected unspecified depressive disorder with anxious distress and his bilateral knee degenerative osteoarthritis) or is aggravated by a service-connected disability. In doing so, the examiner must acknowledge and discuss the Veteran's competent report as to the onset of his sleep apnea symptoms in service. 3. Forward the claims file to a qualified medical professional for an opinion to determine the nature, onset and etiology of the Veteran's respiratory disability. It is left to the examiner's discretion whether to schedule the Veteran for an in-person examination (or telehealth interview, records review, etc., if an in-person examination is not feasible). The examiner should opine as to whether it is at least as likely as not that the Veteran's respiratory disability, to include sinusitis and rhinitis, had its onset during, or is otherwise related to, service. The examiner should specifically address if any diagnosed respiratory disability is caused by a service-connected disability (to include his service-connected unspecified depressive disorder with anxious distress and his bilateral knee degenerative osteoarthritis) or is aggravated by a service-connected disability. In doing so, the examiner must acknowledge and discuss the Veteran's competent report as to the onset of his respiratory symptoms in service. STEVEN D. REISS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Zarar Ahmed, Attorney Advisor 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.