Citation Nr: 22018558 Decision Date: 03/29/22 Archive Date: 03/29/22 DOCKET NO. 17-55 122 DATE: March 29, 2022 REMANDED Entitlement to service connection for a respiratory condition is remanded. REASONS FOR REMAND On his October 2017 VA Form 9, the Veteran requested a hearing before the Board. The Veteran was notified he was scheduled for a Board hearing in December 2021. See November 2021 VA Form 27-0820; September 2021 Board letter. As the Veteran did not appear for the December 2021 hearing, the hearing request is deemed withdrawn. 38 C.F.R. § 20.603(d). In a March 2018 rating decision, the Agency of Original Jurisdiction denied the Veteran's claim of entitlement to service connection for sleep apnea. A notice of disagreement with the March 2018 decision was not received, and that issue is not currently before the Board. Remand of entitlement to service connection for a respiratory condition is required for a medical examination. The Veteran had active service in Saudi Arabia from December 1990 to May 1991. Therefore, he is considered a Persian Gulf veteran. 38 C.F.R. § 3.317(e). The Veteran reports experiencing respiratory problems, to include difficulty breathing. See October 2017 VA Form 9; May 2015 VA respiratory examination report; December 2014 claim. Medical evidence of record includes indications of significant upper airway resistance, a lung nodule, dyspnea, shortness of breath, and cough. See, e.g., February 2017 VA nursing inpatient E&M note; May 2015 Sleep Apnea Solutions, Inc. report; February 2015 VA chest CT report; December 2014 VA Persian Gulf Exam note; December 2014 VA chest x-ray report; May 2013 Dr. R.A. treatment note. Neither the May 2015 nor January 2018 VA examiners discussed the respiratory symptoms of record, or the December 2014 VA Persian Gulf Exam note with an assessment of respiratory symptoms. Further, it does not appear an examiner has fully evaluated the Veteran to determine whether there is a diagnosis for his symptoms. Accordingly, on remand, the Veteran should be scheduled for an examination to determine the nature and etiology of any chronic respiratory condition. The matter is REMANDED for the following action: 1. Obtain any VA treatment records from March 2018 to the present. 2. Schedule the Veteran for an appropriate examination to determine the nature and etiology of any current respiratory condition. The examiner must review the entire claims file, including a copy of this remand. The examiner should conduct all appropriate diagnostic testing. The examiner should then record all noted signs and reported symptoms, document all clinical findings, and provide a diagnosis if possible. The examiner is asked to provide responses to the following: a) Identify the Veteran's objective indications of a disability. "Objective indications" of a qualifying chronic disability include both objective evidence perceptible to an examining physician and other non-medical indicators that are capable of independent verification. 38 C.F.R. § 3.317(a)(3). Non-medical indicators include evidence such as time lost form work, the Veteran having sought treatment for his symptoms, and change in the Veteran's appearance, physical abilities, and mental or emotional attitude. 60 Fed. Reg. 6661, 6663 (Feb. 3, 1995). The examiner should address the Veteran's reports of difficulty breathing, and the indications of significant upper airway resistance, a lung nodule, dyspnea, shortness of breath, and cough of record. b) By history, physical examination, or laboratory testing, can the Veteran's objective indications of a disability be attributed to a known clinical diagnosis? If the signs and symptoms are not characteristic of a known clinical diagnosis, the examiner should so indicate. There is no requirement that the examiner provide a diagnosis of undiagnosed illness. c) If the Veteran's objective indications cannot be attributed to a known clinical diagnosis, is there affirmative evidence that the undiagnosed illness is not incurred during active service during the Persian Gulf War or that it was caused by a supervening condition or event that occurred since the Veteran's departure from service during the Persian Gulf War? The examiner should note that a positive response to this question requires affirmative evidence. The mere absence of evidence is not sufficient. d) If the Veteran's objective indications can be attributed to a known clinical diagnosis, is the etiology of the Veteran's condition (1) inconclusive, (2) partially understood, or (3) fully understood? This determination as to each must be based on the Veteran's specific case and cannot be based on the etiology of the disease or disability population as a whole. e) If the Veteran's objective indications can be attributed to a known clinical diagnosis, is the pathophysiology of the Veteran's condition (1) inconclusive, (2) partially understood, or (3) fully understood? This determination as to each must be based on the Veteran's specific case and cannot be based on the pathophysiology of the disease or disability population as a whole. f) If both the etiology and pathophysiology are partially understood or fully understood, then is it at least as likely as not (a 50 percent or greater probability) that the Veteran's diagnosed condition was incurred in, or is otherwise related to, his active service? The examiner should address the Veteran's reported exposures upon the December 2014 VA Persian Gulf Exam. A complete rationale must be provided for all opinions expressed. 3. After the above development, and any additionally indicated development, has been completed, readjudicate the issue on appeal. If the benefit sought is not granted to the Veteran's satisfaction, send the Veteran and his representative a Supplemental Statement of the Case and provide an opportunity to respond. If necessary, return the case to the Board for further appellate review. David Gratz Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. M. Cooney, 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.