Citation Nr: 21022810 Decision Date: 04/19/21 Archive Date: 04/19/21 DOCKET NO. 11-08 497 DATE: April 19, 2021 REMANDED Entitlement to service connection for a respiratory disorder, to include chronic obstructive pulmonary disease (COPD), remanded. Entitlement to service connection for obstructive sleep apnea is remanded. REASONS FOR REMAND The Veteran had active service in the United States Army from September 1961 to August 1963 and from September 1963 to September 1981. This case comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). This case was previously before the Board in November 2017 and September 2019, at which times the issues currently on appeal were remanded for additional development. The case has now been returned to the Board for further appellate action. The Board has broadened the scope of the Veteran’s claim to include consideration of any respiratory disorder, including COPD. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). In the above-mentioned November 2017 and September 2019 Board decision, the issues were classified as one issue for entitlement to service connection for a disability manifested by difficulty breathing. Service Connection The Board finds that additional development is required before adjudication of the issues on appeal. Respiratory Disorder and Sleep Apnea The Veteran asserts that his diagnosed COPD and sleep apnea are related to his period of active service, to include as secondary to service-connected disabilities. In February 2020, the examiner opined that the Veteran’s diagnosed COPD and sleep apnea were not related to service, to include as due to service-connected disabilities. In reaching this conclusion, the examiner commented that the Veteran’s service treatment records (STRs) were silent for complaints or treatment of snoring, fatigue, or shortness of breath, and that the Veteran did not seek treatment for COPD or sleep apnea until several years following his separation from service. The Board finds that the February 2020 VA opinion is inadequate for adjudication purposes. In this regard, the examiner relied on the fact that the Veteran’s STRs were silent for reports of symptoms related to COPD and sleep apnea; however, the Board notes that in the Veteran’s May 1981 separation examination Report of Medical History, the Veteran indicated that he experienced chronic cough, chronic colds, and frequent trouble falling asleep. See Reonal v. Brown, 5 Vet. App. 460, 461 (1993) (an opinion based on an inaccurate factual premise has no probative value). Moreover, the examiner relied otherwise solely on the absence of post-service treatment for several years as the rationale for the negative nexus opinion. See, e.g., Dalton v. Nicholson, 21 Vet. App. 23 (2007). Therefore, the Board finds that new VA medical opinions are warranted to address the nature and etiology of the Veteran’s respiratory disorder and sleep apnea. Stegall v. West, 11 Vet. App. 268 (1998) (holding that a remand by the Board confers the right to compliance with remand orders). The matters are REMANDED for the following actions: 1. The Veteran should be given the opportunity to identify any outstanding private or VA treatment records relevant to the claims on appeal. After obtaining any necessary authorization from the Veteran, all outstanding records should be obtained, to include updated VA treatment records beginning August 2020. For private treatment records, make at least two (2) attempts to obtain records from any identified sources. If any such records are unavailable, inform the Veteran and his representative and afford him an opportunity to submit any copies in his possession. For federal records, all reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. Following the receipt of outstanding records, obtain an etiology opinion from an appropriate examiner to determine the nature and etiology of the Veteran’s respiratory disorder. The need for a physical examination is left to the discretion of the medical professional offering the medical opinion. The record must be made available to the examiner for review, and the examiner should indicate that the record was reviewed in connection with the examination. All indicated tests and studies should be accomplished and the findings then reported in detail. Based on the review of the record, the examiner must provide an opinion as to the following: (A) Is at least as likely as not (50 percent or better probability) that any currently present respiratory disorder, to include COPD, had its onset during his active service, or is otherwise etiologically related to such service? (B) Is at least as likely as not (50 percent or better probability) that any currently present respiratory disorder, to include COPD, was caused OR aggravated by his service-connected disabilities, to specifically include diabetes and/or nephropathy? The examiner must consider the Veteran’s lay statements regarding the onset and continuity of his symptoms, to include symptoms listed on his May 1981 separation examination Report of Medical History. A complete rationale should be given for each opinion expressed. In this regard, a discussion of the facts and medical principles involved would be considerable assistance to the Board. 3. Following the receipt of outstanding records, obtain an etiology opinion from an appropriate examiner to determine the nature and etiology of the Veteran’s sleep apnea. The need for a physical examination is left to the discretion of the medical professional offering the medical opinion. The record must be made available to the examiner for review, and the examiner should indicate that the record was reviewed in connection with the examination. All indicated tests and studies should be accomplished and the findings then reported in detail. Based on the review of the record, the examiner must provide an opinion as to the following: (A) Is at least as likely as not (50 percent or better probability) that the Veteran’s sleep apnea had its onset during his active service, or is otherwise etiologically related to such service? (B) Is at least as likely as not (50 percent or better probability) that the Veteran’s sleep apnea was caused OR aggravated by his service-connected disabilities, to specifically include diabetes and/or nephropathy? (C) If the above are negative and if it is found that the Veteran’s COPD is related to service, the examiner should opine as to whether the Veteran’s COPD caused the Veteran to become obese (through lack of exercise); (2) if so, whether the obesity as a result of the service-connected COPD was a substantial factor in causing sleep apnea; and (3) whether the sleep apnea would not have occurred but for obesity caused by the COPD. The examiner must consider the Veteran’s lay statements regarding the onset and continuity of his symptoms, to include symptoms listed on his May 1981 separation examination Report of Medical History. Inform the examiner further that, for VA purposes, obesity is not a disease or disability for which service connection may be granted, but it may act as an “intermediate step” between a service-connected disability and a current disability that may be service-connected on a secondary basis. To determine whether any weight gain or obesity is an “intermediate step” between either any or all of the Veteran’s service-connected disabilities and his left ankle disability, the examiner is to fully answer the above questions to assist the Board with adjudication of these matters. A complete rationale should be given for each opinion expressed. In this regard, a discussion of the facts and medical principles involved would be considerable assistance to the Board.If an opinion cannot be provided without resorting to speculation, the examiner must explain why this is so and state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), the record (additional facts are required), or the examiner (does not have the knowledge or training). CHRISTOPHER J. O’DONNELL Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G. Morales, 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.