Citation Nr: 21010913 Decision Date: 02/26/21 Archive Date: 02/26/21 DOCKET NO. 19-02 481 DATE: February 26, 2021 REMANDED Entitlement to service connection for chronic obstructive pulmonary disease (COPD) to include as due to allergic rhinitis and sinusitis, is remanded. Entitlement to service connection for obstructive sleep apnea as due to allergic rhinitis and sinusitis; tinnitus; and depressive disorder, is remanded. REASONS FOR REMAND The Veteran served in active duty service with the Navy from January 1963 to January 1967. This matter is on appeal from a March 2018 rating decision. The Veteran was afforded a hearing before the undersigned Judge in January 2021. A transcript of the hearing has been associated with the claims record. This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C. § 7107(a)(2). The Board finds that remand is warranted for further development. Chronic obstructive pulmonary disease In January 2018, the Veteran filed a claim for COPD as due to service-connected sinusitis. The Veteran was afforded a February 2018 VA examination. The examiner found it less likely than not that the Veteran’s COPD was due to sinusitis and stated, “sinus x-rays today do not verify the diagnosis of chronic sinusitis.” The Board notes that in a separate February 2018 VA examination, the examiner found no evidence of chronic sinusitis and changed the Veteran’s diagnosis to allergic rhinitis. The Board notes the February 2018 VA examination’s rationale does not provide an aggravation opinion or identify a baseline. Furthermore, at the January 2021 hearing, the Veteran testified that at each duty station he was assigned to in service he had to go to sick bay at least once due to issues breathing. The Veteran stated that he had problems with high humidity and each station that he was assigned to was close to the ocean and so may have affected the reason why he was treated in service. As this testimony was made after the February 2018 opinion and not considered, the Board finds remand is warranted for a new opinion. Obstructive sleep apnea In January 2018, the Veteran filed a claim for OSA as due to service-connected sinusitis. The Veteran was afforded a February 2018 VA examination. The examiner also found it less likely than not that the Veteran’s OSA was due to sinusitis and provided the same rationale where, “sinus x-rays today do not verify the diagnosis of chronic sinusitis.” As addressed above, the Board notes that this opinion does not address aggravation or identify a baseline. At the January 2021 hearing, the Veteran testified that his claim for OSA should be also considered as secondary to service-connected tinnitus as well as his service-connected depressive disorder. The Board notes that a September 2020 rating decision granted service connection for a depressive disorder. As the February 2018 VA opinion has not opined on the raised secondary theory on entitlement in relation to service-connected tinnitus and depressive disorder, the Board finds remand is warranted for addendum opinion to address the raised secondary service connection theories. The matters are REMANDED for the following action: 1. Obtain and associate with the claims file all updated and outstanding treatment records. 2. After all outstanding records have been associated with the claims file, return the claims file to the VA examiner who provided the February 2018 medical opinion on the Veteran’s chronic obstructive pulmonary disease (COPD) and sleep apnea. The record and a copy of this remand must be made available to the examiner. If the examiner determines that an examination of the Veteran is necessary to provide the requested opinion with rationale, then such examination should be scheduled. If the February 2018 VA examiner is not available, the requested opinion with rationale should be rendered by another appropriate medical professional. The VA examiner should opine as to the following: (a.) Whether it is at least as likely as not (50 percent probability or more) that the Veteran’s COPD is due to his service-connected allergic rhinitis and sinusitis. (b.) Whether it is at least as likely as not (50 percent probability or more) that the Veteran’s COPD is aggravated by his service-connected allergic rhinitis and sinusitis. (c.) If the Veteran’s COPD is NOT aggravated by his service-connected allergic rhinitis and sinusitis, is it at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran’s COPD had its onset during, or is otherwise related to, the Veteran’s active duty service. (d.) Whether it is at least as likely as not (50 percent probability or more) that the Veteran’s obstructive sleep apnea is due to his service-connected allergic rhinitis and sinusitis. (e.) Whether it is at least as likely as not (50 percent probability or more) that the Veteran’s obstructive sleep apnea is aggravated by his service-connected allergic rhinitis and sinusitis. (f.) Whether it is at least as likely as not (50 percent probability or more) that the Veteran’s obstructive sleep apnea is due to his service-connected tinnitus. (g.) Whether it is at least as likely as not (50 percent probability or more) that the Veteran’s obstructive sleep apnea is aggravated by his service-connected tinnitus. (h.) Whether it is at least as likely as not (50 percent probability or more) that the Veteran’s obstructive sleep apnea is due to his service-connected depressive disorder. (i.) Whether it is at least as likely as not (50 percent probability or more) that the Veteran’s obstructive sleep apnea is aggravated by his service-connected depressive disorder. (j.) The examiner is advised that “Aggravation” is defined as any worsening beyond the natural progression of the disability. The examiner should establish a baseline level of all claimed disabilities prior to aggravation. If a baseline cannot be established, the examiner should explain why. 3. In addressing any of the above opinions, the VA examiner should discuss the Veteran’s assertions and statements to include statements made in the April 2018 Notice of Disagreement and the January 2021 testimony regarding the humidity of the stations the Veteran was assigned to affecting him and how his tinnitus and depressive disorder affected his sleep. (a.) The examiner is also advised that the Veteran is competent to report in-service events and treatment, and his symptoms and history, and such reports and assertions must be specifically acknowledged and considered in formulating any opinions. If the examiner rejects the Veteran’s reports, the examiner must provide a reason for doing so. If the examiner rejects the Veteran’s reports, the examiner must provide a reason for doing so (b.) The examiner should provide a complete and clearly stated rationale for any opinion provided. If the VA examiner is unable to provide an opinion without resorting to speculation, he or she should explain whether the inability is due to the limits of the examiner’s medical knowledge, medical knowledge in general or there is evidence that, if obtained, would permit the opinion to be provided. 4. After completion of the above and any additional development deemed necessary, the issues on appeal should be reviewed with consideration of all applicable laws and regulations. If any benefit sought remains denied, the Veteran should be furnished a supplemental statement of the case and be afforded the opportunity to respond. Thereafter, the case should be returned to the Board for appellate review. MICHAEL LANE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Yang, 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.