Citation Nr: A21020409 Decision Date: 12/22/21 Archive Date: 12/22/21 DOCKET NO. 181127-1335 DATE: December 22, 2021 ORDER Entitlement to service connection for residuals of left lung spontaneous pneumothorax (claimed as a collapsed lung) is granted. REMANDED Entitlement to service connection for a respiratory disorder, including chronic obstructive pulmonary disorder (COPD) and asthma is remanded. Entitlement to service connection for sleep apnea is remanded. FINDING OF FACT The most probative evidence of record shows that the Veteran's residuals of a left spontaneous pneumothorax onset during service. CONCLUSION OF LAW The criteria for service connection for residuals of a left spontaneous pneumothorax are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1965 to February 1969. A rating decision was issued under the legacy system in July 2017. In July 2018, the Veteran opted into the modernized review system, also known as the Appeals Modernization Act (AMA), by submitting a Rapid Appeals Modernization Program (RAMP) election form and selecting the higher-level review option. The agency of original jurisdiction (AOJ) issued an AMA rating decision pursuant to RAMP in October 2018, which is the decision on appeal. In November 2018, the Veteran submitted a VA Form 21-4138, RAMP Selection, and he elected the Hearing option. A hearing was scheduled for October 2021; however, in September 2021 Correspondence, the Veteran requested to waive his hearing and he stated that he did not wish to reschedule it. Therefore, the Board may only consider the evidence of record at the time of the November 2018 RAMP opt-in, as well as any evidence submitted by the Veteran or his representative within 90 days following receipt of the withdrawal. See 38 C.F.R. § 20.302(b). Service Connection Service connection will be granted for a disability resulting from a disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. §§ 1110, 1131 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). 1. Entitlement to service connection for residuals of a collapsed lung is remanded. The Veteran seeks service connection for residuals of a left lung spontaneous pneumothorax, claimed as a collapsed lung. Specifically, it is the Veteran's contention that he suffered a collapsed lung during service and that he has a surgical scar as a result. See August 2017 Statement in Support of Claim. As to the first element of service connection, the Board finds that the Veteran has residuals of a spontaneous pneumothorax. Here, the Veteran was afforded a Respiratory Conditions (Other than Tuberculosis and Sleep Apnea) DBQ in May 2018. On examination, the examiner noted that the Veteran had "other pulmonary conditions, pertinent physical findings, or scars due to pulmonary condition," which was characterized as a left chest scar measuring 2 x 2 cm (non-tender, deep, non-linear). Regarding an in-service incident, the Veteran's service treatment records document that he developed a spontaneous pneumothorax during service. Specifically, in a January 1969 Report of Medical History, conducted at separation, the Veteran reported that his lung collapsed in January of 1968. In the Physician's Summary section of the report, the examiner similarly stated that the Veteran had a spontaneous left pneumothorax in January 1968. The examiner additionally reported that the Veteran was hospitalized with good results and that the procedure did not result in any complications, sequalae, or recurrence. Turning to the question of whether a causal link is present between the Veteran's residuals of a spontaneous pneumothorax and his in-service-event, the May 2018 examiner stated that the Veteran's left chest scar was "due to" a 1968 chest tube for spontaneous pneumothorax. Based on the above, the Board finds that the record is sufficient to award service connection for residuals of a spontaneous pneumothorax as the most probative evidence of record shows that the Veteran's spontaneous pneumothorax onset during service resulting in a left chest scar. The claim is granted. REASONS FOR REMAND 1. Entitlement to service connection for a respiratory disorder, including chronic obstructive pulmonary disorder (COPD) is remanded. The Veteran contends that he has a current respiratory disorder (claimed as COPD and asthma) which is proximately due to service. As an initial matter, the Board notes that the Veteran's VA treatment records show that he has been diagnosed with COPD and asthma. The Veteran was afforded a Respiratory Conditions (Other than Tuberculosis and Sleep Apnea) DBQ in May 2018. The examiner noted that the Veteran had a diagnosis of COPD. The Veteran reported that he had a history of spontaneous pneumothorax, treated with a chest tube and without recurrence, in 1968 and that he was taking Symbicort, Spiriva, and albuterol inhalers. The examiner opined that it was less likely than not that the Veteran's COPD was incurred in or caused by the claimed in-service injury, event, or illness. The examiner reasoned that while there were in-service notations, variously dated in 1968, of spontaneous pneumothorax and right lower lobe pneumonia, a review of medical literature does not indicate that either spontaneous pneumothorax or right lower lobe pneumonia would cause the development of COPD. The examiner also stated that there were not any studies that supported a causal link. The Board finds that the examination is inadequate for several reasons. More specifically, the examiner failed to address the Veteran's lay statements of record; failed to address the etiology of the Veteran's asthma; and failed to address whether any other aspect of service (aside from his spontaneous pneumothorax and right lower lobe pneumonia) caused his respiratory disorders. As to the Veteran's lay statements, in an August 2017 Statement in Support of Claim, the Veteran has stated that as a part of his in-service duties, he fought forest fires and inhaled smoke; that he transported fog machines and inhaled unknown chemicals; that he experienced lung issues during service; and that he believed that his lung issues were due to lifting equipment and working in the motor pool and on tarmacs during service. Based on the above, the Board finds that a remand is warranted to obtain an adequate opinion to correct the pre-decisional duty to assist error. 2. Entitlement to service connection for sleep apnea is remanded. The Veteran contends that service connection is warranted for sleep apnea. The Veteran's private treatment records, dated in 2016, reveal that the Veteran had been diagnosed with sleep apnea. To date, no VA medical opinion has been obtained in connection with the current appeal with regard to the Veteran's sleep apnea. Therefore, the Board finds that a VA medical opinion is warranted to address the nature and etiology of his sleep apnea. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The failure to provide an etiology opinion is a pre-decisional duty to assist error and, thus, remand is necessary. The matters are REMANDED for the following action: 1. RESPIRATORY DISORDER: Provide the Veteran with another VA examination by an appropriate clinician (who has never examined the Veteran) in connection with his service connection claim for a respiratory disorder. The entire claims file, including a copy of this remand, should be made available to and be reviewed by the examiner, and it should be confirmed that such records were available for review. Any indicated tests and studies must be accomplished, and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. The Veteran is competent to attest to matters of which he has first-hand knowledge, including events that occurred during service and observable symptoms. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examiner must provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that a respiratory disorder, to include COPD and asthma manifested during service or is otherwise related to service. In providing the above opinion, the examiner must consider the Veteran's lay statements of record, to include the following statements: a) The Veteran's January 1969 Report of Medical History, conducted at separation, showing that he complained of pain/pressure in the chest. b) The Veteran's statements made in an August 2017 Statement in Support of Claim, to include the Veteran's statements that his COPD was related to inhalation of smoke and chemicals from fog machines; lifting equipment and working in a motor pool and on tarmacs; and that the Veteran had lung issues during service. 2. SLEEP APNEA: Provide the Veteran with a VA examination by an appropriate clinician in connection with his service connection claim for sleep apnea. The entire claims file, including a copy of this remand, should be made available to and be reviewed by the examiner, and it should be confirmed that such records were available for review. Any indicated tests and studies must be accomplished, and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. The Veteran is competent to attest to matters of which he has first-hand knowledge, including events that occurred during service and observable symptoms. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examiner must provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that sleep apnea manifested during service or is otherwise related to service. The examiner is also asked to discuss the relationship, if any, between the Veteran's in-service complaints of pain/pressure in the chest, as documented in a January 1969 Report of Medical History, and his sleep apnea. Z. SAHRAIE Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Hanson, Tiffany 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.