Citation Nr: 21029466 Decision Date: 05/13/21 Archive Date: 05/13/21 DOCKET NO. 16-39 406 DATE: May 13, 2021 REMANDED Entitlement to service connection for obstructive sleep apnea (OSA) is remanded. Entitlement to an evaluation in excess of 10 percent prior to May 21, 2013 and in excess of 30 percent thereafter for asthma is remanded. REASONS FOR REMAND The Veteran served on active duty from December 1985 to January 2004. The issues were previously remanded by the Board of Veterans' Appeals (Board) in October 2019 for further development. Entitlement to service connection for obstructive sleep apnea (OSA) is remanded. The Veteran has a current diagnosis of obstructive sleep apnea. He contends that he has experienced symptoms consistent with sleep apnea since 1995 while in service. In support of this contention, the Veteran submitted a number of lay statements from other service members who witnessed his snoring and fatigue during service and his wife who has witnessed the symptoms during their marriage. The Board notes that the Veteran is service connected for asthma and allergic rhinitis. Symptomatology associated with these respiratory conditions including difficulty breathing, coughing, sinus pain, and congestion clearly existed during service. While the Veteran has not explicitly asserted a theory of service connection for OSA secondary to his asthma and/or allergic rhinitis, the record has indicated that respiratory symptomatology for these conditions may have some overlap with his OSA. Thus, the Board finds that a secondary theory of entitlement to service connection has been reasonably raised by the record. See DeLisio v. Shinseki, 25 Vet. App. 45, 53 (2011) (VA "generally must investigate the reasonably apparent and potential causes of the veteran's condition and theories of service connection that are reasonably raised by the record or raised by a sympathetic reading of the claimant's filing"); Bailey v. Wilkie, No. 19-2661, 2021 U.S. App. Vet. Claims LEXIS 13, at *20-22 (Vet. App. Jan. 6, 2021) (finding that entitlement to secondary service connection was reasonably raised by the record). In this regard, the Veteran was provided a VA examination in January 2020 whereby the examiner opined that the Veteran's OSA was less likely than not related to his military service. However, the examiner did not provide an opinion as to whether the Veteran's OSA was proximately due to or aggravated by his service-connected asthma and/or allergic rhinitis. Further, while the examiner acknowledged the numerous lay statements indicating symptomatology consistent with OSA during service, he did not provide any reasons or bases as to why he did not find these statements to be credible or probative in reaching his conclusion. For these reasons, the Board finds that the January 2020 examination is not adequate for rating purposes. Once VA undertakes the effort to provide an examination when developing a service connection claim, it must provide one that is adequate for purposes of the determination being made. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Therefore, an addendum opinion must be obtained in order to address these deficiencies prior to adjudication on the merits. Entitlement to an evaluation in excess of 10 percent prior to May 21, 2013 and in excess of 30 percent thereafter for asthma is remanded. The Board notes that the Veteran was granted service connection for asthma (previously rated as reactive airway disease) with a 10 percent evaluation effective June 17, 2009. During the pendency of this appeal, a June 2020 rating decision granted an increased evaluation of 30 percent for asthma effective May 21, 2013, resulting in staged ratings. The Veteran has asserted that he is entitled to a 60 percent evaluation and maintains his assertion that he is entitled to higher evaluations throughout the entire appeal period. Specifically, the Veteran asserted in an August 2020 correspondence that he has received intermittent courses of systemic oral or parenteral corticosteroids for his asthma treatment. Along with the correspondence, the Veteran submitted pharmacy receipts indicating prescriptions for a corticosteroid (methylprednisolone) on at least two occasions in 2019. There is no indication of this prescription in the available medical records in the claims file, and thus, the Board finds it pertinent that any outstanding medical records pertaining to the treatment of the Veteran's asthma using corticosteroids be obtained. Further, during the December 2014 and January 2020 VA examinations, the examiners indicated that the Veteran did not require the use of oral or parenteral corticosteroid medications. Therefore, further development is required to clarify whether the Veteran's asthma requires the use of corticosteroid medications and to identify the exact dates and frequency of use. The matters are REMANDED for the following action: 1. Obtain any outstanding VA and/or private treatment records relevant to treatment the Veteran received for his asthma that are not already of record, specifically any treatment indicating the use of corticosteroids, if available. The Veteran's assistance in identifying and obtaining the records should be requested as needed. All obtained records should be associated with the evidentiary record. If any identified records are not obtainable (or none exist), the Veteran and his representative should be notified, and the record clearly documented. 2. Arrange for an opinion by an appropriate clinician for the purpose of determining the etiology of the Veteran's obstructive sleep apnea. The entire claims file must be made available to the clinician for review. A new physical or telehealth examination is only required if deemed necessary by the clinician. After reviewing the claims file, the clinician must provide opinions as to the following: a. Whether it is as likely as not (a probability of 50 percent or greater) that any current sleep apnea had its origin in service or is related to the Veteran's active service. b. Whether it is as least as likely as not that any current sleep apnea was caused by the Veteran's service-connected asthma and/or allergic rhinitis. c. Whether it is as least as likely as not that any current sleep apnea was aggravated beyond its natural progression by the Veteran's service-connected asthma and/or allergic rhinitis. The rationale for any opinion expressed should be provided. Note that the fact that a disability is not mentioned in treatment records cannot serve as the sole basis for a negative finding. If an opinion cannot be made without resort to speculation, the clinician should so state and provide reasoning as to why a conclusion would be so outside the norm that such an opinion is not possible. All prior reports should be addressed and/or reconciled as necessary. The examiner should specifically address the Veteran's contentions and the lay statements regarding onset of symptomatology and any continuity of symptomatology since discharge from service or since onset of symptomatology. It should be noted that lay persons are competent to attest to factual matters of which he or she had first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran or other layperson, the examiner(s) should provide a fully reasoned explanation. 3. After the development indicated in (1) has been completed, but whether or not additional records are obtained, arrange for the production of an addendum opinion from a VA examiner of appropriate expertise to clarify the current severity of the Veteran's service-connected asthma. Specifically, the examiner is asked to state whether intermittent (at least 3 per year) courses of systemic (oral or parenteral) corticosteroids have been required during any time period on appeal, and indicate the approximate time periods. All prior reports should be addressed and/or reconciled as necessary, to include the December 2014 and January 2020 VA examinations indicating no corticosteroid treatments and the August 2020 correspondence from the Veteran. If additional examination is deemed indicated it should be scheduled in accordance with applicable procedures. 4. After the development requested has been completed, the examination reports should be reviewed to ensure that they are in complete compliance with the directives of this remand. If any report is deficient in any manner, corrective procedures should be implemented. MICHAEL D. LYON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. Sneeringer, 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.