Citation Nr: 18154185
Decision Date: 11/29/18	Archive Date: 11/29/18

DOCKET NO. 16-54 950
DATE:	November 29, 2018
REMANDED
Entitlement to service connection for a chronic restricted breathing condition, to include asthma, reactive airway disease, dyspnea and vocal cord dysfunction (claimed as breathing and respiratory problems) is remanded.
Entitlement to service connection for obstructive sleep apnea (claimed as breathing and respiratory problems) is remanded.
REASONS FOR REMAND
The Veteran served on active duty from January 1986 to May 1999 and from May 1999 to December 2011.
Entitlement to service connection for a chronic restricted breathing condition, to include asthma, reactive airway disease, dyspnea and vocal cord dysfunction. 
The Veteran has reported that he has a chronic restricted breathing condition, including asthma, reactive airway disease, dyspnea and probable vocal cord dysfunction, related to his exposure to airborne dirt, dust and smoke (including from burn pits) in Afghanistan, Pakistan and Iraq.
Service treatment records show the Veteran was diagnosed with asthma in December 2010, while serving on active duty. The post-service medical evidence of record is conflicting regarding the nature and etiology of any currently diagnosed chronic restricted breathing condition.
In this regard, On VA examination in December 2011, the Veteran complained of orthopnea, difficulty breathing and shortness of breath at rest. He denied cough with purulent sputum. He reported weekly asthmatic attacks, and claimed to be using Albuterol and Singulair to treat his condition. However, on examination, chest and lungs were normal, breath sounds were symmetric, there were no rhonchi, rales or wheezes, and expiratory phase was within normal limits. The examiner concluded that there was no pathology to render a diagnosis. 
During private treatment in April 2012, the Veteran reported symptoms of asthma following a tour of duty in Afghanistan. Notes indicate that PFTs revealed small airway disease with response to bronchodilator, but methacholine challenge test was normal. Notes also indicate that his symptoms were consistent with airway disease, which could progress to asthma.  He was placed on Singulair daily to stop the progression and given access to Albuterol.  It was also noted that follow-up was needed for PFTs and symptoms. He was diagnosed with reactive airway disease and allergic rhinitis. VA treatment records show that in June 2013, the Veteran was diagnosed with mild asthma. However, in September 2013, it was noted that he had unexplained periodic dyspnea and that his methacholine challenge testing was negative. It was also noted that given the lack of evidence of hyperactive airways, asthma was a very unlikely explanation for his symptoms. The conclusion was that there was a strong possibility that his symptoms were related to allergic rhinitis and/or possible vocal cord dysfunction. 
During a full VA respiratory conditions examination in October 2015, he was diagnosed with sleep apnea, sinusitis and allergic rhinitis, but no diagnosis of asthma was made.  It was also noted that he did not require the use of inhaled medications or oral bronchodilators, and the Veteran denied any asthma attacks or asthma exacerbations during the previous 12 months. During an April 2017 VA respiratory conditions examination, the examiner concluded that there was no evidence of chronic breathing problems, and that the diagnosis of asthma made in 2010 was not based in clinical evidence and followup PFT with methacholine challenge did not demonstrate asthma. April 2017 PFTs and chest X-ray were normal. 
The April 2017 VA examiner opined that the claimed breathing/respiratory problems was less likely than not incurred in or caused by the claimed in-service injury, event or illness, based on his finding that there was no evidence at that time of chronic breathing problems.  In rendering the opinion, the examiner noted that the Veteran had a single episode of acute bronchitis in service, and the diagnosis of asthma made in 2010 was not based in clinical evidence and followup PFT with methacholine challenge did not demonstrate asthma.  However, the examiner failed to give an opinion on the etiology of the asthma and other restricted breathing conditions diagnosed earlier during the appeal period, including reactive airway disease, dyspnea and possible vocal cord dysfunction. See McClain v. Nicholson, 21 Vet. App. 319 (2007) (the requirement that a current disability be present is satisfied "when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim...even though the disability resolves prior to the Secretary's adjudication of the claim."). As such, the Board finds that the April 2017 VA examiner's opinion is incomplete and therefore, inadequate for evaluation purposes. Therefore, the Board believes that the Veteran should be afforded another VA respiratory conditions examination to determine the nature and etiology of all currently present restricted breathing conditions. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); 38 U.S.C. § 5103A (d) (2012).
Entitlement to service connection for obstructive sleep apnea is remanded.
The Veteran also contends that his currently diagnosed obstructive sleep apnea (OSA) is related to his exposure to airborne dirt, dust and smoke (including from burn pits) in Afghanistan, Pakistan and Iraq.2017.
He has been diagnosed with OSA during private treatment and on VA examination in October 2015 and April 2017. VA examiners have concluded that the Veteran’s OSA is not related to his active military service, with the rationale that sleep apnea is the result of various oro-pharyngeal structural changes, and there is no evidence he has experienced any illness, event or injury that would cause such a structural change. A more recent June 2017 addendum opinion also found that there is no evidence of event or injury consistent with sleep apnea occurring during military service found in the service treatment records. See April 2017 VA examination report and June 2017 VA examination addendum. However, none of the VA examiners considered the Veteran’s reports that his sleep disorder is related to exposure to airborne dirt, dust and smoke during active duty in Afghanistan and other locations. As the examiners did not consider an accurate history, the opinions are inadequate.  As such, the Board finds that a remand for a new examination and medical opinion as to the etiology of the Veteran's current OSA is necessary. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); 38 U.S.C. § 5103A (d) (2012).
The matter is REMANDED for the following action:
1. Updated treatment records should be obtained and added to the claims folder/efolder.
2. Following completion of the above, afford the Veteran an appropriate VA examination to determine the nature and etiology of any currently diagnosed asthma or reactive airway disease. The claims folder should be made available to the examiner for review in connection with the examination and the examiner should acknowledge such review in the examination report or in an addendum. 
The examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or more) that any such currently diagnosed asthma or reactive airway disease was first manifested in service and/or is causally related to event(s) in service, including the Veteran’s exposure to dirt, dust and smoke (including from burn pits) during active duty in Afghanistan, Pakistan and Iraq. 
A complete rationale should be given for all opinions and conclusions expressed. 
The examiner is advised that the Veteran is competent to report injuries as well as symptoms, and that his reports must be considered in formulating the requested opinion. 
The examiner is also advised that the absence of evidence in the service treatment records is an insufficient basis, by itself, for a negative opinion. 
If the examiner cannot provide an opinion without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made.
3. Afford the Veteran an appropriate VA examination to determine the nature and etiology of any currently diagnosed obstructive sleep apnea. The claims folder should be made available to the examiner for review in connection with the examination and the examiner should acknowledge such review in the examination report or in an addendum. 
The examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or more) that any such currently diagnosed obstructive sleep apnea was first manifested in service and/or is causally related to event(s) in service, including the Veteran’s exposure to dirt, dust and smoke (including from burn pits) during active duty in Afghanistan, Pakistan and Iraq. 
A complete rationale should be given for all opinions and conclusions expressed. 
The examiner is advised that the Veteran is competent to report injuries as well as symptoms, and that his reports must be considered in formulating the requested opinion. 
The examiner is also advised that the absence of evidence in the service treatment records is an insufficient basis, by itself, for a negative opinion. 
If the examiner cannot provide an opinion without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made.
4. Readjudicate the claims on appeal. If any benefit on appeal remains denied, an SSOC must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review
 
KELLI A. KORDICH
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	F. Yankey, Counsel

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