Citation Nr: 21014797 Decision Date: 03/15/21 Archive Date: 03/15/21 DOCKET NO. 03-22 930 DATE: March 15, 2021 REMANDED The issue of entitlement to service connection for a respiratory condition, to include sinusitis and sleep apnea, to include as secondary to service-connected disability is remanded. REASONS FOR REMAND The Veteran served on active duty from September 1982 to April 1991. This matter comes before the Board of Veterans’ Appeals (Board) on appeal of a September 2002 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). This case was previously remanded by the Board in February 2016. A review of the claims file shows that there has been substantial compliance with the Board’s remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). The case has been returned to the Board for review. In January 2021, the Veteran testified during a video conference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the claims file. The Veteran initially submitted a claim for entitlement to service connection for chronic sinusitis and bronchial asthma. See VA Form 21-526 Veteran’s Application for Compensation or Pension, received January 2002. The medical evidence of record includes diagnoses for respiratory conditions other than chronic sinusitis and bronchial asthma, including sleep apnea. The scope of a disability claim includes any disability that may reasonably be encompassed by the claimant’s description of the claim, reported symptoms, and other information of record. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). As such, the Board has reframed the issue on appeal, as shown above. Entitlement to service connection for a respiratory condition is remanded. The Veteran contends that he has a respiratory condition that is directly related to his active service. Specifically, the Veteran testified that his respiratory conditions are related to in-service asthma and sinusitis or secondary to his service-connected chronic bronchitis. The Veteran has yet to be provided a VA examination related to his claim for entitlement to service connection for sleep apnea. Here, a June 2010 sleep study reflects a diagnosis of obstructive sleep apnea. Additionally, the Veteran’s service treatment records reflect treatment for sinus problems. Thus, there is evidence of a current disability, an in-service event, and an indication that the disability may be associated with service. See 38 U.S.C. § 5103A (d) (2); 38 C.F.R. § 3.159 (c) (4) (i); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). Accordingly, remand is required for an examination. Additionally, the Board notes that the record for review may be incomplete. The most recent VA treatment records are from August 2017. VA treatment records, even if not in the claims file, are considered part of the record on appeal because they are within VA’s constructive possession. See 38 U.S.C. § 5103A; Bell v. Derwinski, 2 Vet. App. 611 (1992). On remand, updated VA treatment records must be obtained and associated with the record. The matter is REMANDED for the following action: 1. Obtain all outstanding treatment records relevant to the matter being remanded, to include from August 2017. 2. Schedule the Veteran for a VA examination to determine the nature and etiology of any respiratory disability. Provide a copy of this remand and the record for the examiner to review. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner must address the following: (a.) Provide a diagnosis for any respiratory disability, to include sleep apnea and sinusitis, demonstrated since service, found on current examination or in the record. (b.) For each respiratory disability, provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the condition had its onset during the Veteran’s service or is otherwise etiologically related to his service, to include his treatment for sinus problems during his active service. (c.) If not, whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s respiratory disability is proximately due to or the result of his service-connected disabilities, specifically to include his service-connected chronic bronchitis. Rationale must be provided for the opinion proffered. In rendering the requested rationale, the examiner must note that it is not required that the respiratory disability is shown to be “predominantly” due to or result of chronic bronchitis, but rather, whether there is any contributing degree of etiological relationship to chronic bronchitis. (d.) If not, whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s respiratory disability is aggravated beyond natural progression by his service-connected disabilities, specifically to include his service-connected chronic bronchitis. Rationale must be provided for the opinion proffered. In rendering the requested rationale, the examiner must note that it is not required that the respiratory disability is shown to be aggravated beyond natural progression “predominantly” by chronic bronchitis, but rather, whether there is any contributing degree of aggravation beyond natural progression by the service-connected chronic bronchitis. 3. After completion of the above, review the expanded record, including the evidence entered since the most recent statement of the case, and determine whether service connection for a respiratory disability may be granted. If the benefit sought remains denied, furnish the Veteran and his representative with a supplemental statement of the case. The appropriate period should be allowed for response before the appeal is returned to the Board. ANTHONY C. SCIRÉ, JR Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. G. LeMoine, 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.