Citation Nr: 22017908 Decision Date: 03/27/22 Archive Date: 03/27/22 DOCKET NO. 10-16 387 DATE: March 27, 2022 REMANDED Entitlement to a compensable disability rating for residuals of tonsillectomy is remanded. Entitlement to service connection for sleep apnea, to include as secondary to service-connected tonsillectomy, is remanded. REASONS FOR REMAND The Veteran had active service from January 1975 to January 1978, to include subsequent Reserve and Army National Guard service. These matters come before the Board of Veterans' Appeals (Board) on appeal from an April 2008 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). At a November 2018 videoconference hearing, the Veteran testified before the undersigned Veterans Law Judge. A copy of the transcript has been associated with the file. Previously, the issues were before the Board in May 2019 and December 2020. In May 2019, the Board remanded for additional development, including new VA examinations and opinions. In a December 2020 decision, the Board denied entitlement to a compensable rating for residuals of tonsillectomy and service connection for sleep apnea. The Veteran appealed the Board's December 2020 decision to the United States Court of Appeals for Veterans Claims (CAVC). In an October 2021 Order, the CAVC vacated the December 2020 Board's decision, and remanded the issue of a compensable rating for residuals of tonsillectomy and service connection for sleep apnea to the Board for further development. 1. Entitlement to a compensable rating for residuals of tonsillectomy is remanded. 2. Entitlement to service connection for sleep apnea, to include as secondary to service-connected tonsillectomy, is remanded. As noted in the Introduction, in October 2021, the CAVC vacated and remanded the Board's December 2020 decision denying the claim of a compensable rating for tonsillectomy and service connection for sleep apnea, to include as secondary to service-connected tonsillectomy. In the October 2021 Joint Motion for Remand (JMR), the parties agreed that the Board previously erred when it failed to ensure VA fulfilled its duty to assist by retrieving relevant medical treatment records; relevant service treatment records (STRs) for all periods of service; and relied upon an inadequate opinion to deny service connection for sleep apnea. First, the JMR notes that as part of the statutory duty to assist, VA is required by law to make reasonable efforts to help a claimant obtain evidence, including efforts to request records from both private and government custodians. 38 U.S.C. § 5103A(b)(c); 38 C.F.R. § 3.159(c). The Board has reviewed the Veteran's medical records and finds that there may be outstanding relevant private medical records that have not been associated with the file. In October 2019 CAPRI records, it is noted that the Veteran underwent an endoscopy several months ago by a private provider, however, the record does not indicate a copy of these records. In addition, the Veteran testified during his Board hearing to undergoing a sleep study in the 1980s at Phelps Hospital in New York City. Those records have not been associated with the file. Furthermore, following active-duty service, the record notes Reserve service through January 1981 and Army National Guard service in June 1988. Despite these multiple periods of service, the claims file does not contain treatment records from the Veteran's Reserve service or Army National Guard service, apart from an entrance examination in June 1988 and a few STRs from 1993. A remand to obtain the Veteran's complete service treatment records from his subsequent Reserve service and National Guard service is required. As such, the Board finds further development is required in order to comply with the contents of the JMR and the VA's duty to assist the Veteran in the development of facts pertinent to his claim. 38 U.S.C. § 5103A(a)(1); 38 C.F.R. § 3.159. Second, the parties found that the November 2019 VA opinion for sleep apnea was inadequate, and remand was required for a new opinion. Specifically, the parties agreed that the examiner did not address the Veteran's contentions or other lay evidence of record, including lay evidence from the Veteran's roommate. Additionally, the parties agreed that remand was required for the examiner to discuss the aggravation prong of secondary service connection as a separate and distinct concept. The aggravation prong of secondary service connection must be considered independently of causation, and medical examinations must provide adequate reasoning and conclusions on both points as independent concepts. El-Amin v. Shinseki, 26 Vet. App. 136, 139-40 (2013). Moreover, the examiner presented risk factors for sleep apnea, but failed to discuss the Veteran's specific risk factors based on the facts of the instant case, to include whether the service-connected tonsillectomy was a way to help treat sleep apnea. The examiner noted a tonsillectomy has been demonstrated to be an effective treatment tool for OSA in both children and adults. However, the examiner did not address whether the in-service tonsillectomy could have lessened the Veteran's contended sleep apnea symptoms temporarily during service. Therefore, a remand is warranted for a new VA examination and opinion. Third, the Board finds the November 2019 VA examination for Sinusitis/Rhinitis inadequate. During the examination, the examiner checked that the Veteran had not underwent an endoscopy. That is inaccurate. See Treatment Records, February 2009, June 2011, October 2019. In order for a medical opinion to be probative, the medical examiner must have correct information regarding the relevant facts. Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (A medical opinion based on an inaccurate factual premise has no probative value). Moreover, the examiner failed to address the Veteran's contentions, including that he suffers from hoarseness, inflammation of his vocal cords, and mucous build up in his throat that causes him to clear his voice. Upon remand, the Veteran should be provided a new VA examination and opinion. The matters are REMANDED for the following action: 1. Undertake appropriate efforts to locate and secure complete copies of all service treatment records and personnel records from January 1975 to April 1993. (a.) Records from January 1975 to January 1978 involve service in the United States Army; he was subsequently a reservist until January 15, 1981. Requests of the NPRC and RMC (through DPRIS, PIES, or another appropriate vehicle) must be made and documented. (b.) An entrance examination in June 1988 is of record for the Army National Guard. Requests through NPRC and RMC (through DPRIS, PIES, or another appropriate vehicle) must be made and documented. Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or futility in making further attempts to obtain them must be verified and documented in the record and the Veteran notified accordingly. If the records are not obtained, send the Veteran a letter informing his of that fact and informing him that he can submit evidence in lieu of his STRs to include, but not limited to, statements from service medical personnel, VA military files, medical evidence from hospital, clinics and private physicians who treated the Veteran, pharmacy prescription records, employment physical examinations, insurance examinations, letters written during service, and buddy statements. 2. Obtain any updated VA medical records and associate them with the claims file. 3. Ask the Veteran to identify all private providers of evaluations or treatment he has received (records of which are not already in the record) and to submit authorizations for VA to secure for the record complete outstanding clinical records from all such providers identified, including, but not limited to, Phelps Hospital and his private endoscopy provider in 2019. 4. After the foregoing development has been completed to the extent possible, arrange to have the Veteran scheduled for a VA examination to determine the current severity of his service-connected tonsillectomy. The evidentiary record, including a copy of the JMR and a copy of this Board remand, must be made available to and reviewed by the examiner. The examination must include all physical and diagnostic testing deemed necessary by the examiner in conjunction with this request. (a.) The examiner should also state whether the examination is taking place during a period of flare-up. If not, the examiner should ask the Veteran to describe the flare-ups he experiences, including: frequency, duration, characteristics, precipitating and alleviating factors, severity and/or extent of functional impairment he experiences during a flare-up. In rendering this opinion, the examiner is advised that the Veteran is competent to report his symptoms and history and that such reports must be acknowledged and considered in formulating any opinion. If the Veteran's reports are discounted, the examiner should provide a reason for doing so. The examiner may not simply rely on the absence of objective evidence in order to provide a medical opinion and must note and specifically address the lay assertions of record, including: (1) the March 2010 VA examination during which the Veteran contended increased phlegm worsening in recent years and "cobble stone" mucosal changes were noted consistent with reflux; (2) the March 2011 treatment record noting a history of GERD and burning in his throat; (3) the Veteran's November 2018 Board testimony of experiencing hoarseness, inflammation and more mucous in this throat; (4) the Veteran's contentions during the November 2019 VA examination including intermittent episodes of difficulty swallowing and itching throat; and (5) the April 2020 medical treatment record noting complaints of hoarseness. 5. Schedule the Veteran for a VA examination by an appropriate clinician to determine the nature and etiology of his obstructive sleep apnea. The evidentiary record, including a copy of the JMR and a copy of this Board remand, must be made available to and reviewed by the examiner. Following a review of the claims file, the examiner should address: (a.) Whether it is at least as likely as not (50 percent or greater probability) that the Veteran's sleep apnea is related to active service. (b.) Whether it is at least as likely as not (50 percent or greater probability) that the Veteran's sleep apnea was caused by his service-connected disabilities, to include tonsillectomy. (c.) Whether it is at least as likely as not (50 percent or greater probability) that the Veteran's sleep apnea was aggravated (any incremental increase in disability) by his service-connected disabilities, to include tonsillectomy. The examiner is reminded that causation and aggravation are independent concepts. Therefore, the examiner must provide separate findings and rationales for causation and aggravation. In rendering these opinions, the examiner is advised that the Veteran is competent to report his symptoms and history and that such reports must be acknowledged and considered in formulating any opinion. If the Veteran's reports are discounted, the examiner should provide a reason for doing so. The examiner may not simply rely on the absence of objective evidence in order to provide a medical opinion and must note and specifically address: (1) lay assertions from the Veteran's wife that she has witnessed his loud snoring, choking during sleep, interrupted breathing, and restlessness; (2) lay assertions from a former in-service roommate, attesting that the Veteran snored loudly through most of the night, was restless throughout the night, and would often wake up coughing and choking; (3) the Veteran's contentions that his sleep apnea, including snoring, coughing, choking, daytime sleepiness, and dry mouth started during basic training and that his symptoms worsened in Germany; (4) the contention that his in-service tonsillectomy could have temporarily lessened his OSA symptoms in service, since tonsillectomy's are known to alleviate OSA symptoms; and (5) discuss the Veteran's specific risk factors. A complete rationale should be provided for any opinions reached. H.M. WALKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Krista Johnson, 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.