Citation Nr: 21012095 Decision Date: 03/03/21 Archive Date: 03/03/21 DOCKET NO. 14-15 352A DATE: March 3, 2021 REMANDED The claim for service connection for chronic allergic rhinitis, claimed as sinus problems and sore throat pain, is remanded. The claim for service connection for sleep apnea is remanded. REASONS FOR REMAND The Veteran honorably served on active duty from April 1980 to September 1992. In an October 2011 rating decision, the Regional Office (RO) denied his claims for service connection for sleep apnea and chronic allergic rhinitis, claimed as sinus problems and sore throat pain. The Veteran appealed. In June 2017, the Veteran testified via a Board’s video conference hearing, a transcript of which is of record. In December 2017, the Board remanded the claims for further development. In October 2019, the Board remanded the claim for sleep apnea and denied service connection for chronic allergic rhinitis. In August 2020, the RO issued an SSOC affirming the prior denial of service connection for sleep apnea and returned the appeal to the Board. Meanwhile, the Veteran appealed the October 2019 Board’s denial of service connection for allergic rhinitis to the United States Court for Veterans’ Appeals (Court). In July 2020, the Court vacated the portion of the Board’s decision denying service connection for chronic allergic rhinitis and remanded the claim. Per Joint Motion for Partial Remand (JMPR), the parties agreed that remand is necessary for the following reasons. First, as stipulated in the JMPR, the remand is warranted because the Board has not specifically discussed whether VA’s duty to assist the Veteran in obtaining his private medical treatment records from Dr. G.A., MD, has been satisfied. As noted in the JMPR, the Veteran reported that his private medical care provider, Dr. G.A., had called him after receiving the request from VA for his records and told the Veteran that he would mail the records to VA for an $18 fee. The Veteran stated he did not have $18 for this purpose. In the October 2011 rating decision, the RO noted that the treatment records from Dr. G.A. were requested. However, due to the Veteran’s report that he did not have the money to pay for the records, the RO concluded that “a follow-up for these records was not completed.” As further noted in the JMPR, the Board did not reference in its decision the identified outstanding private treatment records potentially relevant to the Veteran’s claim and did not discuss whether VA’s duty to assist has been satisfied with regard to obtaining these treatment records pursuant to 38 C.F.R. § 3.159(c)(1). Here, the Board notes that the VA’s duty to assist veterans in developing their claims, to include assistance in obtaining private medical records, is not limitless. This much is clear from the unequivocal regulatory language: “VA will make reasonable efforts to help a claimant obtain evidence necessary to substantiate the claim.” 38 C.F.R. § 3.159(c) (emphasis added). Further, 38 C.F.R. § 3.159(e) states: (1) If VA makes reasonable efforts to obtain relevant non-Federal records but is unable to obtain them, . . . VA will provide the claimant with oral or written notice of that fact . . .. For non-Federal records requests, VA may provide the notice at the same time it makes its final attempt to obtain the relevant records. In either case, the notice must contain the following information: (i) The identity of the records VA was unable to obtain; (ii) An explanation of the efforts VA made to obtain the records; (iii) A description of any further action VA will take regarding the claim, including, but not limited to, notice that VA will decide the claim based on the evidence of record unless the claimant submits the records VA was unable to obtain; and (iv) A notice that the claimant is ultimately responsible for providing the evidence. On April 27, 2011, the RO requested Dr. G.A. provide the Veteran’s medical treatment records in connection with his claims for VA benefits, including an unequivocal statement: “Please Note: We can’t pay any fees for this information.” Concurrently, the RO notified the Veteran of its attempt to obtain his records from Dr. G.A., while also advising the Veteran that it is ultimately his responsibility to ensure that VA receives any private medical records he wants to be considered in adjudication of his claims, apart from the federal departmental records in the VA’s constructive possession such as his VA medical records, service treatment records, or Social Security Administration medical records. The RO then sent the Veteran a VCAA notice outlining his rights and options on how to proceed. In his statement in support of claim (VA Form 21-4138 received in May 2011) the Veteran acknowledged the receipt of the April 2011 Notice and further replied: “I have received a phone call from Dr. [G.A.] saying that VA had contacted him wanting his medical records. He told me to bring him $18.00 and he would mail them to VA. I do not have $18.00 for this purpose. Please obtain the evidence from the other two doctors that I sent 21-4142s on. I have no further evidence to submit. I have attached VCAA notice.” The enclosed VCAA Notice signed by the Veteran reflects an express waiver of his right to submit any additional evidence, electing to proceed without any further evidence submissions and requesting his claims to be decided as soon as possible. As such, VA has complied with all regulatory requirements. The Court instructed the Board to address whether any further efforts, such as a request to Dr. G.A. for a fee-waiver, are warranted to obtain these identified private treatment records. Of note, the Veteran, who is in privity with his private medical providers, is in the best position to request any fee-waivers from those providers. Otherwise, the regulation unequivocally states, “VA will not pay any fees charged by a custodian to provide records requested.” 38 C.F.R. § 3.159(c). This much was communicated to both Dr. G.A. and the Veteran. As such, given the facts that Dr. G.A. would not release the Veteran’s records without a fee and the Veteran would not pay that fee, any further efforts on the part of VA to obtain those records is considered to be futile. This finding is further supported by the RO’s previous two attempts to obtain the records from the same provider in April 2007, when Dr. G.A. also did not release the Veteran’s treatment records without a fee. By implication, following the three unsuccessful attempts, it cannot be said the RO has not exhausted all reasonable efforts to obtain the Veteran’s private treatment records, at which point the VA’s duty to assist the Veteran in obtaining his records from Dr. G.A. has ceased and no further duty arisen. Accordingly, the Board finds that the VA’s duty to assist the Veteran in obtaining his private treatment records from Dr. G.A. has been fully satisfied. Second, as stipulated in the JMPR, the parties agreed that prior VA examinations were inadequate and the Veteran should be afforded another medical examination as to the nature and etiology of both chronic allergic rhinitis and sinusitis, specifically instructing the VA examiner to address the favorable evidence, to include the Veteran’s service treatment records as well as his reports of onset in and continuing symptoms since service, as outlined in the Court’s remand order. In further considering the Veteran’s claim for sleep apnea, the Board finds that this claim is inextricably intertwined with his claim for rhinitis and sinusitis. Of particular note is a December 2019 examination report reflecting the examiner’s discussion of sleep apnea pathophysiology. The examiner notes, among other things, that sleep apnea occurs due to a low blood oxygen level sufficient for the brain to sense an inability to breathe, which is caused by narrowing of airways. The examiner then states that muscles in the back of the throat relax too much to allow normal breathing. These muscles support structures including the soft palate, the uvula - a triangular piece of tissue hanging from the soft palate, the tonsils and the tongue. When the muscles relax, your airway narrows or closes as you breathe in and breathing may be inadequate. Based on this information, interrupted sleep due to inadequate breathing appears to be possible regardless of whether or not specifically the throat muscles relax, so long as the blood oxygen levels drop sufficiently for the brain to sense an inability to breathe, for example, due to nasal airways blockage. The Veteran underwent nasal turbinates hypertrophy, tonsillectomy, uvulopalatoplasty, and adenoidectomy in May 1997. A comparison between the two sleep studies administered before and after those surgical procedures, namely, in April 1997 and in August 1997, shows that the Veteran’s Apnea-Hypopnea Index (AHI) improved from 51.1 to 24.6. It is unclear whether this connects the sinusitis/allergic rhinitis with the sleep apnea. The December 2019 VA examination report is further inadequate. The examiner has noted that the Veteran had loud snoring and excessive daytime sleepiness during service. The examiner further noted that the Veteran’s separation physical examination reflects his complaints of sleep trouble. The examiner then at some length discussed medical literature about OSA pathophysiology, concluding that sleep “disruptions impair your ability to reach the desired deep, restful phases of sleep, and you’ll probably feel sleepy during your waking hours.” Yet, upon applying this information to the Veteran-specific circumstances, the examiner then states that difficulty sleeping at night and therefore sleepiness during the day, noted on his separation report, does not indicate a symptom specific to sleep apnea. This potential inconsistency should be addressed. Accordingly, the matters are REMANDED for the following action: 1. Obtain VA treatment records from December 20, 2019, forward. 2. Obtain a medical opinion as to the etiology of the Veteran’s claimed chronic allergic rhinitis and/or sinusitis, as well as his sleep apnea. The examiner is asked to answer the following questions: a) Does the Veteran have chronic allergic rhinitis and/or sinusitis? Why or why not? In so doing, the examiner should take note of the February 2011 VA examination in which the Veteran was diagnosed with allergic rhinitis. b) Is it at least as likely as not (meaning probability of 50 percent or greater) that the Veteran’s chronic allergic rhinitis, if so diagnosed, had onset in service, was caused by service, or otherwise is etiologically related to his service? Why or why not? In so doing, the examiner should review the JMR (CAVC Decision dated 7/23/20) which noted that the Veteran had been possibly diagnosed with seasonal allergic rhinitis on his separation physical, for an explanation as to why earlier medical opinions had been inadequate. c) Is it at least as likely as not (meaning probability of 50 percent or greater) that the Veteran’s sinusitis, if so diagnosed, had onset in service, was caused by service, or otherwise is etiologically related to his service? Why or why not? d) Is it at least as likely as not (meaning probability of 50 percent or greater) that the Veteran’s sleep apnea had onset in service, or otherwise is etiologically related to his service? Why or why not? In so doing, the examiner is asked to specifically address whether the Veteran’s documented loud snoring in service and his daytime sleepiness in service should be considered manifestations of his OSA, which was clinically diagnosed five years later. e) Is it at least as likely as not (meaning probability of 50 percent or greater) that the Veteran’s sleep apnea resulted from or was proximately caused by rhinitis and/or sinusitis, if so diagnosed? Why or why not? f) Is it at least as likely as not (meaning probability of 50 percent or greater) that the Veteran’s sleep apnea was aggravated (made worse) by rhinitis and/or sinusitis, if so diagnosed? Why or why not? In forming the medical opinions, the examiner is asked to review the Veteran’s entire claims file, to include his service treatment records (marked STR – Medical 1/5/2015); the past examinations of record (marked C&P exam 12/20/2019; 4/18/2018; Medical Treatment Record – Government Facility 7/16/2011); the Board’s orders (12/27/2017; 10/18/2019), and CAVC Decision (7/27/20) outlining the specific reasons why the previous VA examinations and opinions were inadequate. The examiners are further asked to specifically address the Veteran’s lay statements as to the onset and continuity of symptomatology, to include his statements outlined in the CAVC Decision (7/27/20), at the Board’s hearing (Hearing Transcript 6/7/2017), and during any medical examinations. MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Alex Bardin, Associate 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.