Citation Nr: 21024283 Decision Date: 04/22/21 Archive Date: 04/22/21 DOCKET NO. 16-04 549 DATE: April 22, 2021 REMANDED Service connection for sleep apnea. Service connection for a lung condition. Service connection for a paralyzed diaphragm.   REASONS FOR REMAND The Veteran served on active duty from February 1975 to February 1978. The case is on appeal from a September 2015 rating decision. In May 2019, the Veteran testified at a Board hearing. In November 2019, the Board remanded the claims for additional development. 1. Service connection for sleep apnea. 2. Service connection for a lung condition. 3. Service connection for a paralyzed diaphragm. The Veteran is seeking service connection for sleep apnea, a lung condition, and a paralyzed diaphragm. He contends that he has sleep apnea, a lung condition, and a paralyzed diaphragm, and that these conditions are related to two medical procedures he underwent during service, to include the drainage of a right peritonsillar abscess and a surgery to remove a nodule on the right side of his neck. The Veteran, who is service connected for the residuals of those surgeries, alternatively asserts that his sleep apnea, lung condition, and paralyzed diaphragm were caused by or aggravated by the service-connected residuals of the two procedures. The Veteran also asserts that these surgeries have caused a blockage in his throat, which has caused his sleep apnea, and his sleep apnea has caused his lung condition and his paralyzed diaphragm. The Veteran’ s service treatment records (STRs) show, that in August 1976, after experiencing a sore throat, he underwent an incision and drainage of a right peritonsillar abscess. The Veteran’s STRs also show that, in December 1977, he underwent surgery to excise a nodule on the right side of his neck. Concerning the Veteran’s claim of service connection for sleep apnea, pursuant to the Board’s November 2019 remand, additional opinions were obtained in December 2019, June 2020 and October 2020. However, those opinions are not entirely sufficient to decide the claim. The examiners provided negative etiology opinions based on the absence of any abnormal findings with regard to the Veteran’s airway. However, the Veteran submitted correspondence in November 2020 stating that he was referred for treatment to stretch his throat by his otolaryngologist. As this clinical significance of this treatment was not addressed in the December 2019, June 2020 and October 2020 opinions and may be relevant to his claim, a new opinion is warranted on remand. In addition, in November 2020, the Veteran submitted correspondence asserting his sleep apnea is secondary to his service-connected tinnitus. He also included medical literature in support of this contention. As the opinions of record have not yet addressed this theory of entitlement, the Board finds remand is also warranted for an opinion concerning whether the Veteran’s sleep apnea is secondary to his service-connected tinnitus. Concerning the Veteran’s claims of service connection for hemiparalysis of the diaphragm and a lung condition, additional opinions were obtained in December 2019, June 2020, and October 2020 pursuant to the Board’s November 2019 remand. However, those opinions are not entirely sufficient to decide the claims. In this regard, the examiners did not identify whether the Veteran has a lung condition and the opinions do not distinguish between the Veteran’s hemiparalysis of the diaphragm and a lung condition. Accordingly, an new examination is warranted on remand to determine whether the Veteran has a lung condition, an if so, its etiology. In addition, concerning the Veteran’s contention that his hemiparalysis of the diaphragm is secondary to residuals of his in-service surgeries, the examiners determined that it is less likely than not that the Veteran’s hemiparalysis of the diaphragm was caused by residuals of his in-service surgeries. However, the examiner who provided the October 2020 addressed in-service aggravation rather than secondary aggravation. Accordingly, a new opinion is warranted on remand that addresses secondary aggravation of the Veteran’s hemiparalysis of the diaphragm by his service-connected surgery residuals under 38 C.F.R. § 3.310. Concerning the Veteran’s claim of service connection for a lung condition, an opinion was obtained in June 2020. However, that opinion is not entirely sufficient to decide the claim. The examiner determined that it is less likely than not that the Veteran’s dyspnea was caused by the residuals of the Veteran’s in-service surgeries. However, the examiner did not provide an opinion concerning whether the Veteran’s dyspnea was aggravated by residuals of his in-service surgeries. Accordingly, a new opinion is warranted on remand. In addition, the issues of service connection for a paralyzed diaphragm and a lung condition are intertwined with the claim of service connection for sleep apnea remanded herein, and the Board must remand the claims of service connection for a paralyzed diaphragm and a lung condition as well. In light of the remand, updated VA treatment records should be obtained. The matters are REMANDED for the following action: 1. Obtain updated VA treatment records since September 2020. 2. Thereafter, schedule the Veteran for a VA examination (or telehealth interview, record review, etc., if an in-person examination is not feasible) by a qualified medical professional for an opinion to determine the nature and etiology of the Veteran’s sleep apnea. The need for an examination is left to the discretion of the examiner. The entire claims file should be reviewed by the examiner. After reviewing the claims file, the examiner is to state whether: It is at least as likely as not that the Veteran’s sleep apnea had its onset in or is otherwise related to service, to include his in-service neck and throat surgeries. It is at least as likely as not (a degree of probability of 50 percent or higher) that the Veteran’s sleep apnea is caused or aggravated by the service-connected residuals of his abscess excision or residuals of his right cervical lymph node excision. The examiner should address the clinical significance that the Veteran was referred for treatment to stretch his throat by his otolaryngologist. It is at least as likely as not (a degree of probability of 50 percent or higher) that the Veteran’s sleep apnea is caused or aggravated by his service-connected tinnitus. The examiner should address the medical literature provided by the Veteran. “Aggravation” is an increase in disability beyond the natural progress of the disease. The examiner should provide rationale for all opinions expressed, including by citing to the record. 3. Also, schedule the Veteran for a VA examination (or telehealth interview, record review, etc., if an in-person examination is not feasible) by a qualified medical professional for an opinion to determine the nature and etiology of the Veteran’s lung condition. The entire claims file should be reviewed by the examiner. The examiner should indicate the current lung condition diagnosis. The examiner should then provide an opinion as to whether: It is at least as likely as not (a 50 percent or greater probability) that the Veteran’s lung condition had its onset during, or is otherwise related to, the Veteran’s service, to include the in-service neck and throat surgeries. It is at least as likely as not (a degree of probability of 50 percent or higher) that the Veteran’s lung condition is caused or aggravated by the service-connected residuals of his abscess excision or residuals of his right cervical lymph node excision. If it is determined that the Veteran’s sleep apnea is caused by or aggravated by the service-connected residuals of his abscess excision or residuals of his right cervical lymph node excision and/or his service-connected tinnitus, the examiner should then provide an opinion as to whether itis at least as likely as not (a 50 percent or greater probability) that the Veteran’s lung condition is caused or aggravated by his sleep apnea. “Aggravation” is an increase in disability beyond the natural progress of the disease. 4. Also, schedule the Veteran for a VA examination (or telehealth interview, record review, etc., if an in-person examination is not feasible) by a qualified medical professional for an opinion to determine the nature and etiology of the Veteran’s hemiparalysis of the diaphragm. The entire claims file should be reviewed by the examiner. The examiner should then provide an opinion as to whether: It is at least as likely as not (a 50 percent or greater probability) that the Veteran’s lung condition had its onset during, or is otherwise related to, the Veteran’s service, to include the in-service neck and throat surgeries. It is at least as likely as not (a degree of probability of 50 percent or higher) that the Veteran’s lung condition is caused or aggravated by the service-connected residuals of his abscess excision or residuals of his right cervical lymph node excision. If it is determined that the Veteran’s sleep apnea is caused by or aggravated by the service-connected residuals of his abscess excision or residuals of his right cervical lymph node excision and/or his service-connected tinnitus, the examiner should then provide an opinion as to whether itis at least as likely as not (a 50 percent or greater probability) that the Veteran’s hemiparalysis of the diaphragm is caused or aggravated by his sleep apnea. “Aggravation” is an increase in disability beyond the natural progress of the disease. RYAN T. KESSEL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Gray, 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.