Citation Nr: 21010977 Decision Date: 02/26/21 Archive Date: 02/26/21 DOCKET NO. 13-29 255 DATE: February 26, 2021 REMANDED Entitlement to service connection for obstructive sleep apnea is remanded. Entitlement to an increased rating in excess of 10 percent for bronchitis prior to August 31, 2015 is remanded. Entitlement to an evaluation in excess of 60 percent from August 31, 2015 for asthma with bronchitis is remanded. REASONS FOR REMAND The Veteran served on active duty from May 1979 to August 1979, January 1980 to January 1984, and February 1988 to June 1997. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2012 rating decision by the Department of Veterans Affairs (VA). This case was remanded in October 2017 and August 2019 for further development; it has since been re-assigned to the undersigned. Service connection for asthma was granted in a September 2018 rating decision, effective August 31, 2015, and the disability was combined with his already service-connected bronchitis. Because the new disability is evaluated under a different Diagnostic Code, the Board has bifurcated the issue into separate appeals for an increased rating for bronchitis prior to August 31, 2015, and an increased rating for asthma with bronchitis from August 31, 2015. 1. Entitlement to service connection for obstructive sleep apnea. VA treatment records reflect that the Veteran first had a sleep study done and was diagnosed with obstructive sleep apnea in 2005. See November 2005 VA treatment records. However, he reported that his wife began complaining to him about loud snoring during active duty service, sometime in 1993 to 1994. See August 2012 VA examination. He later reported that he developed a gradual onset of fitful sleep and daytime fatigue shortly after separation from service. See December 2019 VA examination. An October 2017 VA examiner opined it was less likely than not that the Veteran’s obstructive sleep apnea was related to service because he was obese at the time of his diagnosis in 2005, his diagnosis was seven to eight years after service, and service treatment records (STRs) did not reflect any diagnosis or treatment for symptoms of obstructive sleep apnea. This opinion is inadequate because it relies on the absence of evidence in STRs to dismiss the Veteran’s lay reports of symptoms during or shortly after service. Moreover, STRs reflect that the Veteran was on a weight management program shortly before his separation from service, see May 1996 STRs, suggesting that a possible cause of the Veteran’s obstructive sleep apnea was incurred during service. As a result, remand for a new opinion is necessary. 2. Entitlement to an increased rating in excess of 10 percent for bronchitis prior to August 31, 2015; entitlement to an evaluation in excess of 60 percent for asthma with bronchitis from August 31, 2015. The Veteran has received treatment at multiple VA Medical Centers (VAMCs), to include the San Juan VAMC, Orlando VAMC, and Augusta VAMC. Although the Agency of Original Jurisdiction (AOJ) notes that full records from the San Juan VAMC are of record, it appears that there are records missing. For example, the Veteran appeared to get regular treatment from 2012 to 2013 and in 2015, but the Board cannot locate any records from 2014. Additionally, January 2010 records from the Orlando VAMC note that the Veteran was seen at the Charleston VAMC and, in November 2009 records, was possibly previously seen at the Tampa or North Florida/South Georgia VAMC; there are no records from the North Florida/South Georgia VAMC in the claim file. Although these records may be outside of the appeal period, it is unclear if the Veteran has ever returned for treatment at these facilities. Lastly, it is unclear whether VA treatment records since 2017 have been requested or merely whether the Veteran stopped going to a VAMC at all. Because the record indicates that there are VA treatment records outstanding, the Board must remand to ensure that all VA treatment records have been obtained. The matters are REMANDED for the following action: 1. The AOJ should ensure that all relevant VA treatment records have been obtained, to include from the San Juan VAMC, Orlando VAMC, Augusta VAMC, Charleston VAMC, Tampa VAMC, and the North Florida/South Georgia VAMC, including but not limited to records from December 2010 to the present. 2. After the above development is completed, the AOJ should arrange for a VA medical opinion, with examination or telehealth interview of the Veteran only if deemed necessary by a medical professional, to determine the nature and likely cause of the Veteran’s obstructive sleep apnea. The examiner should review the claim file (including this remand) and note such review was conducted. Based on review of the record, the examiner should provide an opinion with detailed rationale that responds to the following: Is it at least as likely as not (50% or greater probability) that the Veteran’s obstructive sleep apnea was either incurred in or otherwise related to his military service? Please explain why. The examiner may not rely on the absence of evidence in STRs and must discuss lay statements regarding symptoms in service or shortly after separation. The examiner must also discuss the Veteran’s weight problems in service, as demonstrated in STRs. 3. If upon completion of the above action the issues remain denied, the case should be returned to the Board after compliance with appellate procedures. E. I. VELEZ Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Sandler, 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.