Citation Nr: 1312281 Decision Date: 04/15/13 Archive Date: 05/02/13 DOCKET NO. 08-16 423 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for a claimed gait disorder. 2. Entitlement to service connection for spinal arthritis, to include as due to exposure to ionizing radiation. 3. Entitlement to service connection for sleep apnea. 4. Entitlement to service connection for chronic fatigue syndrome, to include as due to an undiagnosed illness. 5. Entitlement to service connection for a claimed breathing disorder, to include as due to exposure to ionizing radiation and as due to an undiagnosed illness. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD G. E. Wilkerson, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1974 to October 1974, from July 1977 to November 1984, and from September 1990 to July 1991 and had additional service with the Army National Guard until June 1998 when he retired. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2007 rating decision of the RO. During the course of the Veteran's appeal, in a January 2012 rating decision, the RO granted service connection for posttraumatic stress disorder. As this represents a full grant of the issue previously on appeal, it is no longer before the Board. A review of the Veteran's Virtual VA electronic claims file reveals additional VA outpatient treatment records dated through 2012. As the RO reviewed these records, as indicated in the October 2012 Supplemental Statement of the Case, a remand for initial RO consideration of this evidence is not warranted. The issues of service connection for sleep apnea, chronic fatigue syndrome and a breathing disorder are being remanded to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The Veteran is not shown to have a disease process that is manifested by an altered or disturbed gait. 2. The Veteran is not shown to have manifested complaints or findings referable to spinal arthritis during a period of service or for several years thereafter. 3. The currently demonstrated spinal arthritis is not shown to be due to a documented injury or other event or incident of the Veteran's periods of active service, to include any exposure to ionizing radiation. CONCLUSIONS OF LAW 1. The Veteran does have a disability manifested by gait impairment due to disease or injury that was incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131, 5103(a), 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012). 2. The Veteran's disability manifested by spinal arthritis is not due to disease or injury that was incurred in or aggravated by active service, nor may arthritis be presumed to have been incurred therein. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 1137, 5103(a), 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.311 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act (VCAA) The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). The RO provided a VCAA notice letter to the Veteran in April 2006, prior to the initial adjudication of the claims. The letter notified the Veteran of what information and evidence must be submitted to substantiate a claim for service connection, as well as what information and evidence must be provided by the Veteran and what information and evidence would be obtained by VA. The Veteran was also told to inform VA of any additional information or evidence that VA should have, and was told to submit evidence in support of his claim to the RO. The content of the letter complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). The requirements of VCAA also include notice of a disability rating and an effective date for award of benefits if service connection is granted. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Veteran was provided with notice of the type of evidence necessary to establish a disability rating and effective dates in the April 2006 letter. The Board finds that all relevant evidence has been obtained with regard to the Veteran's claims herein decided, and the duty to assist requirements has been satisfied. All available service treatment records, to include records from the Alabama Army National Guard, were obtained. The VA treatment records dated from 2002 to 2012 are associated with the claims folder. Various private treatment reports are also associated with the claims folder. The Board acknowledges that, while the duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law, the Veteran has not been afforded such an examination in this case. See 38 C.F.R. § 3.159(c)(4). Under the law, an examination or medical opinion is considered necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but (1) contains competent lay or medical evidence of a current diagnosed disability or persistent or recurrent symptoms of disability; (2) establishes that the veteran suffered an event, injury, or disease in service; and, (3) indicates that the claimed disability or symptoms may be associated with the established event, injury, or disease in service or with another service-connected disability. 38 C.F.R. § 3.159(c)(4). In the case of McLendon v. Nicholson, 20 Vet. App. 79 (2006), the United States Court of Appeals for Veterans Claims (Court) held that an examination is required when (1) there is evidence of a current disability, (2) evidence establishing an "in-service event, injury or disease," or a disease manifested in accordance with presumptive service connection regulations occurred which would support incurrence or aggravation, (3) an indication that the current disability may be related to the in-service event, and (4) insufficient evidence to decide the case. In this case, a VA examination is unnecessary to decide the claims for service connection for the claimed gait disorder and spinal arthritis, because there is insufficient evidence to link either of these claimed disorders to service. As will be explained, the record does not establish that the Veteran was diagnosed or treated for either of the claimed disorders during a period of active service, and the record does not otherwise suggest that either of the claimed disorders is due to an event or incident of his service. Therefore, because an essential criterion for establishing service connection for a gait disorder or spinal arthritis-evidence of an in-service event, injury or disease or any indication that the current disability may be related to service-has not been met, Board finds that a VA examination is unnecessary. 38 C.F.R. § 3.159(c)(4)(i); cf. Duenas v. Principi, 18 Vet. App. 512, 517 (2004), citing Paralyzed Veterans of Am. v. Sec'y of Veterans Affairs, 345 F.3d 1334, 1355-57 (Fed. Cir. 2003) (noting that a medical examination conducted in connection with claim development could not aid in substantiating a claim when the record does not already contain evidence of an in service event, injury, or disease). Under the circumstances, the Board finds that there is no reasonable possibility that further assistance would aid the Veteran in substantiating the claims herein decided. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist him in the development of the claims. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). Service Connection Laws and Regulations Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third elements is through a demonstration of continuity of symptomatology. However, 38 C.F.R. § 3.303(b), applies to only those chronic diseases listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). With respect to the current appeal, this list includes arthritis. See 38 C.F.R. § 3.309(a). Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In addition, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, including arthritis, are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307(a), 3.309(a). With disability compensation claims, VA adjudicators are directed to assess both medical and lay evidence. In certain circumstances, lay evidence may be sufficient to establish a medical diagnosis or nexus. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). In addressing lay evidence and determining its probative value, if any, attention is directed to both competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). See Layno v. Brown, 6 Vet. App. 465, 469 (1994). In terms of competency, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." See Barr v. Nicholson, 21 Vet. App. 303, 308-09 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370, 374 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398, 405 (1995) (flatfoot). In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self-interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. See generally Caluza v. Brown, 7 Vet. App. 498 (1995). The Board may weigh the absence of contemporaneous medical evidence against the lay evidence in determining credibility, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006); but see Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000) (evidence of a prolonged period without medical complaint after service can be considered along with other factors in the analysis of a service connection claim). Once the evidence has been assembled, it is the Board's responsibility to evaluate the evidence. 38 U.S.C.A. § 7104(a). The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 7105; 38 C.F.R. §§ 3.102, 4.3. A. Gait Disorder The Veteran asserts that he experiences a disturbance in his gait that originated during his active service. The Veteran's service treatment records are negative for complaints or findings referable to a gait disturbance. There were no abnormalities with respect to the Veteran's gait found on the March 1991 examination or in connection with a June 1991 report of medical history. Following service, the various private and VA outpatient treatment records discuss a variety of the Veteran's medical problems, including back and neck pain. However, none of these records discuss any disorder responsible for an abnormal gait. In connection with VA treatment in June 2002, the Veteran was noted to be ambulatory and not in any distress. It was noted that he walked slowly, but there was no indication of an altered gait. Other outpatient treatment records, including the May 2009 and February 2011 fall risk assessments indicated dizziness and balance problems, unsteady gait and weakness; however, they do not indicate a particular gait disorder or disability responsible for an abnormal gait. The Board emphasizes that Congress has specifically limited entitlement to service connection for disease or injury to cases where such incidents have resulted in disability. See 38 U.S.C.A. § 1110. See also McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Accordingly, where, as here, competent medical evidence indicates that the Veteran does not have a disability for which service connection is sought, there can be no valid claim for service connection for the disability. See Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The Board has considered the Veteran's general averments that he is entitled to service connection for a gait disorder. Implicit in the claim is his honest belief that he has a condition impairing his gait that is related to an injury or event in service. Moreover, his lay statements are found to lack specificity for the purpose of linking the onset of any claimed disability (e.g., specific complaints of any alteration in his gait or ability to walk) to a disease or injury that was incurred in or aggravated by active service or any period of active or inactive duty for training. As noted, when last examined in connection with service in the Reserve in June 1996, he denied having or ever having "lameness." Thus, his lay assertions are found to be of limited probative value. Accordingly, on this record, the claim of service connection for the claimed gait disorder must be denied. B. Spinal Arthritis The Veteran also is seeking service connection for spinal arthritis the he believes is due to his lengthy service that included active duty as well as duty with the Reserve. In particular, in his February 2006 claim, the Veteran asserted that his spinal arthritis was due to exposure to ionizing radiation in service in 1990. In addition to the noted basic legal authority, it is observed that, specific to claim based upon exposure to ionizing radiation during service, service connection can be demonstrated by three different methods. See Hilkert v. West, 11 Vet. App. 284, 289 (1998). First, if a veteran exposed to radiation during active duty later develops one of the diseases listed in 38 C.F.R. § 3.309(d)(2), a rebuttable presumption of service connection arises. See 38 U.S.C.A. §§ 1112 , 1113; 38 C.F.R. §§ 3.303, 3.309. Second, service connection may be established if a radiation- exposed veteran develops a "radiogenic disease". See 38 C.F.R. § 3.311. Third, service connection may be established by competent evidence establishing the existence of a medical nexus between the claimed condition and exposure to ionizing radiation during active service. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). See also Davis v. Brown, 10 Vet. App. 209, 211 (1997); Rucker v. Brown, 10 Vet. App. 67, 71 (1997). The Board notes at the outset that the claimed spinal arthritis is neither a presumed cancer listed under the provisions of 38 C.F.R. § 3.309(d) nor a radiogenic disease listed under the provision of 38 C.F.R. § 3.311(b)(2). As such, for purposes of this claim, the Veteran cannot avail himself of the presumptive provisions of 38 C.F.R. § 3.309 or 38 C.F.R. § 3.311 for radiation exposed veterans. Therefore, the Board must now determine if service connection for spinal arthritis is warranted on a direct basis. See Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). The Veteran's service treatment records are negative for any complaints or findings referable to a back disorder or spinal arthritis. In connection with a March 1991 report of medical history, the Veteran endorsed having or having had painful joints, arthritis, and bone or joint deformity. Significantly, the Veteran also denied having or having had recurrent back pain in March 1991. He did report having arthritis of the right wrist, but did not identify the spine in relation to his complaints. The Veteran's spine also was noted to be normal on examination in March 1991. When examined in June 1991, the Veteran again denied having recurrent back pain. In addition, the June 1991 examination report noted that the spine was normal. The Veteran also reported having or having had painful joints, arthritis, and bone or joint deformity in a June 1996 report of medical history in connection with his National Guard service, but there were no specific complaints noted with respect to the spine. In fact, he once again denied have recurrent back pain. Significantly, a private treatment record in October 1996 did record a diagnosis of cervical strain. Another private treatment report dated in September 1997 noted that the Veteran complained of having an occasional, sharp mid-thoracic back pain. The April 2000 and June 2000 private treatment reports noted an assessment of muscular back pain. A June 2002 VA outpatient treatment report noted that the Veteran had reported having chronic lower back pain since 1996. On examination, there was some tenderness on palpation of the lumbosacral area. An impression of chronic low back pain was noted. A September 2002 cervical spine MRI report noted an impression of degenerative disc disease with disc bulge at C5-6 with associated spondylosis and mild disc bulge at C3-4. Localized stenosis and mild bilateral foraminal stenosis was also noted. A March 2004 VA outpatient treatment report noted that the Veteran's medical history was remarkable for cervical spine degenerative disorder, back pain secondary to spurs, and arthritis. The VA outpatient treatment records dated through 2012 noted the Veteran's complaints of low back pain and cervical spine arthritis. In sum, with respect to the lumbar spine, the Board notes that the record reflects only complaints of low back pain, with no diagnosis related to the lumbar spine. However, pain, alone, without evidence of underlying pathology, does not constitute a disability for VA purposes. See Sanchez-Benitez v. West, 13 Vet. App. 282 (1999), appeal dismissed in part, and vacated and remanded in part sub nom. Sanchez-Benitez v. Principi, 259 F.3d 1356 (Fed. Cir. 2001); see also Evans v. West, 12 Vet. App. 22, 31-32 (1998). As such, there is no medical evidence showing that the Veteran has a current lumbar spine disability that is attributable to an event or incident of his extended active service or any period of active duty or inactive for training, including in 1996 or 1997 prior to his retirement. As regards the cervical spine, the record clearly reflects an initial diagnosis of degenerative disc disease in 2002. The Board notes that the passage of so many years between discharge from active service and the objective documentation of a claimed disability is a factor that tends to weigh against a claim for service connection. See Maxson, 230 F.3d at 1333. Moreover, this diagnosis is well beyond the one-year period for presumptive service connection for arthritis. Hence, the Board finds that the Veteran's current cervical spine arthritis was not present in active service or the one-year presumptive period thereafter. To the extent that the Veteran was rendered medical attention for cervical strain in October 1996 and other back pain in September 1997, the evidence of record does not serve to link the onset of the spinal manifestations identified at that time to an injury or another event or incident of a period of active or inactive duty for training during that period. In fact, there is no identified injury in service to which the Veteran's current spinal arthritis could be related. See 38 C.F.R. § 3.159(c)(4)(i); cf. Duenas v. Principi, 18 Vet. App. 512, 517 (2004), citing Paralyzed Veterans of Am. v. Sec'y of Veterans Affairs, 345 F.3d 1334, 1355-57 (Fed. Cir. 2003) (noting that a medical examination conducted in connection with claim development could not aid in substantiating a claim when the record does not already contain evidence of an in-service event, injury, or disease). In addition, there is no medical evidence relating the claimed back pain or cervical spine degenerative changes to any claimed exposure to ionizing radiation in service. None of the treatment records contain any comment to that effect; nor has the Veteran identified any existing evidence or provided a medical opinion to support these lay assertions. Finally, the Veteran is not found to have advanced any specific assertions as to the etiology of the claimed spinal arthritis or for the purpose of linking the spinal arthritis to documented radiation exposure. Therefore, the Board finds that the Veteran's claimed spinal arthritis cannot be found to be causally or etiologically related to any event or incident of his service. In essence, the Veteran's claim rests on his own general assertions that his spinal arthritis is somehow related to his service. The Board has considered his assertions. However, in light of the Veteran's other statements denying that he had recurrent back pain during service and the absence of any current discussion by the Veteran as to why the claimed spinal arthritis is due to service, the Board finds that the lay assertion are not credible for the purpose of establishing a continuity of symptomatology referable to spinal arthritis since service. In this case, the Board places far greater probative value on the normal contemporaneous service department records than it does on the more recent statements of the Veteran, made in connection with his claim for monetary benefits. Curry v. Brown, 7 Vet. App. 59, 68 (1994) (contemporaneous evidence has greater probative value than history as reported by the veteran). Such records are more reliable, in the Board's view, than the Veteran's current unsupported and rather vague assertions. Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991). (VA cannot ignore a veteran's testimony simply because the veteran is an interested party; personal interest may, however, affect the credibility of the evidence). Accordingly, the Board finds the Veteran's statements to be lacking in probative value for the purpose of linking any spinal arthritis to an disease or injury during active service or a period of active duty for training or an injury during a period of inactive duty for training. Hence, the Board concludes that the preponderance of the evidence is against the Veteran's claim of service connection for spinal arthritis. To the extent that the Veteran now asserts that a general etiological relationship exists between the claimed spinal arthritis and his long service, such statements on their own cannot constitute competent evidence. Generally, to the extent that laypersons are not capable of opining as to matters requiring medical knowledge, the Veteran in this case is not shown to have the requisite medical expertise. Accordingly, on this record, the claim of service connection for spinal arthritis, to include as due to in-service exposure to ionizing radiation, must be denied. ORDER Service connection for a claimed gait disorder is denied. Service connection for spinal arthritis, to include as due to exposure to ionizing radiation, is denied. REMAND A review of the claims file shows that additional development is needed in connection with the claims of service connection for a chronic breathing disorder, chronic fatigue syndrome, and sleep apnea. As noted, service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge from service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection may also be established under 38 C.F.R. § 3.317 for a veteran who served in the Southwest Asia Theater of operations during the Persian Gulf War. Under that section, service connection may be warranted for a Persian Gulf veteran who exhibits objective indications of a qualifying chronic disability that became manifest during active military, naval or air service in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10 percent or more not later than not later than December 31, 2011. See 38 C.F.R. § 3.317(a)(1)). For purposes of 38 C.F.R. § 3.317, there are three types of qualifying chronic disabilities: (1) an undiagnosed illness; (2) a medically unexplained chronic multi symptom illness, to include chronic fatigue syndrome; and (3) a diagnosed illness that the Secretary determines in regulations prescribed under 38 U.S.C.A 1117(d) warrants a presumption of service-connection. The Veteran service personnel records reflect that he served in Southwest Asia from October 1990 to May 1991 in support of Operation Desert Shield/Desert Storm. With respect to the claimed chronic fatigue syndrome, on VA treatment in June 2002, the Veteran reported experienced chronic fatigue since 1992. Along with fatigue, he endorsed having muscle aches, short term memory loss, and difficulty sleeping. It was noted that the Veteran served in the Gulf War and was exposed to hazards such as burning oil fields and diesel engine fumes. An impression of chronic fatigue syndrome was indicated. With regard to the claimed breathing disorder, the service treatment records contain a number of complaints relative to breathing difficulties. A May 1984 treatment report reflects that the Veteran complaints of cough and chest pain. There was anterior chest wall tenderness to palpation. An assessment of costochrondritis versus pleurodynia was noted. On the discharge examination in November 1984, occasional wheezing in the right lung field was indicated. It was also noted that the Veteran smoked. On March 1991 report of medical history, the Veteran reported having shortness of breath, pain/pressure in the chest and a chronic cough. The examining physician commented that the Veteran had chronic bilateral expiratory wheezing. Bilateral expiratory wheezing was noted on examination in March 1991. However, no abnormalities were noted on June 1991 report of medical history or discharge examination. The Veteran continued to report breathing problems on his June 1996 report of medical history during National Guard service. Following service, an April 1999 private treatment report included an impression of dyspnea and wheezing both with lying down and with exertion. A questionable diagnosis of asthma in the past was also noted. An April 2000 report notes an assessment of bronchitis. A June 2002 CT scan of the chest report notes findings suggesting early emphysema. On VA treatment in March 2005, the Veteran reported being diagnosed with mild chronic obstructive pulmonary disease at St. Vincent several years ago. He stated that his family reported that his breathing was "so loud you [could] hear it across the room." On VA treatment in May 2005, the Veteran requested to be evaluated for a history of emphysema. He complained of worsening shortness of breath. An assessment of mild air trapping, emphysema changes on x-ray study in 2002, was noted. A November 2005 pulmonary clinic note reflected an assessment of likely asthma and/or chronic obstructive pulmonary disease. In written statements, the Veteran has reported experiencing breathing problems since his return from the Persian Gulf War. The records from St. Vincent's, where the Veteran indicated that he received treatment for the claimed breathing disorder, are not of record. Thus, on remand, the Board believes that attempts to obtain these records should be undertaken. In addition, VA will provide a medical examination or obtain a medical opinion if the record, including lay or medical evidence, contains competent evidence of a disability that may be associated with an event, injury, or disease that occurred in service, but the record does not contain sufficient medical evidence to decide the claim. 38 U.S.C.A. § 5103A(d) (West 2002); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The threshold for determining whether the evidence "indicates" that there "may" be a nexus between a current disability and an in-service event, injury, or disease is a low one. McLendon, 20 Vet. App. at 83. Given that the record reflects complaints related to a breathing disorder in service and following service, and notations various post-service diagnoses including asthma, COPD, and emphysema, the Veteran's reports of breathing problems since the Gulf War, as well as a diagnosis of chronic fatigue syndrome that is possibly related to the Veteran's Gulf War service, the Board must remand the identified claims so that the RO can obtain a medical opinion as to the medical relationship between any current breathing disorder or chronic fatigue syndrome and service, to include whether the Veteran's complaints are due to an undiagnosed illness from Persian Gulf War Service. As regards the sleep apnea, the Veteran's service treatment records do not reflect any complaint, findings, or diagnosis of sleep apnea, but he did endorse having trouble sleeping in March and June 1991 reports of medical history. However, there was no clarification as to whether this difficulty was due to sleep apnea or another disorder, and there was no indication of diagnosis of sleep apnea. The Veteran also reported having trouble sleeping on a June 1996 report of medical history for his National Guard service, but there was no indication of treatment or diagnosis of sleep apnea at that time. Following service, a June 2002 VA outpatient treatment report notes that the Veteran reported having a variety of somatic complaints, including memory problems, diffuse muscle aches, history of poor sleep since 1992, and waking up frequently during the night. The Veteran subsequently underwent a sleep study in April 2003, and on VA treatment in March 2004, it was noted that the Veteran had been diagnosed with sleep apnea. Given that the record reflects complaints related to sleep problems in service and following service, and the Veteran's reports of difficulty sleeping and sleep apnea since service, the Board must also remand this claim so that the RO can obtain a medical opinion as to the medical relationship between the current sleep apnea and service. Accordingly, these remaining matters are REMANDED for the following action: 1. The RO should take appropriate action to contact the Veteran in order to request that he provide sufficient information, and if necessary, authorization, to obtain copies of any outstanding evidence pertinent to the claims of service connection for sleep apnea, a breathing disorder and chronic fatigue syndrome. If the Veteran identifies any other pertinent medical records, the RO should undertake to obtain copies of those records. If the RO is unsuccessful in its efforts to obtain any such evidence, it should so inform the Veteran and request that he obtain them. 2. The RO then should schedule the Veteran for a VA Gulf War/undiagnosed illness examination, with an appropriate examiner, to determine the nature and likely etiology of the claimed breathing disorder and chronic fatigue syndrome. The examiner must review the claims file in conjunction with the examination. All tests and studies deemed necessary by the examiner should be performed. The examiner is requested to state whether it is at least as likely as not that the Veteran's breathing and fatigue complaints are attributable to a known clinical diagnosis or disease process. If the examiner cannot identify a known diagnosis or disease which causes these symptoms, the examiner should clarify whether the symptoms in question are chronic in nature (e.g., present for 6 months or more) and indicate whether the Veteran's symptoms and complaints represent a medically unexplainable chronic multi-symptom illness defined by a cluster of signs or symptoms. If the Veteran's breathing and fatigue-related complaints are attributable to a known diagnosis, the examiner should render an opinion as to whether such disability at least as likely as not (e.g., a 50 percent or greater probability) had its onset in service or is otherwise etiologically related to an event or incident to his active service, to specifically include the notations of bilateral expiratory wheezing. The examiner should set forth all examination findings, along with the complete rationale for any conclusions reached. If the requested opinions cannot be provided without resorting to mere speculation, the examiner should clearly so state, and the reasons and bases for the inability to provide the opinion must be included in the examination report. 3. The RO also should schedule the Veteran for examination to determine the nature and likely etiology of the claimed sleep apnea. The examiner must review the claims file in conjunction with the examination. All tests and studies deemed necessary by the examiner should be performed. The examiner should render an opinion as to whether the claimed sleep apnea is at least as likely as not (e.g., a 50 percent or greater probability) had its onset in service or otherwise is due to an event or incident of his active service. In providing the requested opinion, the examiner is asked to consider the Veteran's report of sleeping difficulties in service and shortly thereafter. The examiner should set forth all examination findings, along with the complete rationale for any conclusions reached. If the requested opinions cannot be provided without resorting to mere speculation, the examiner should clearly so state, and the reasons and bases for the inability to provide the opinion must be included in the examination report. 4. After completing all indicated development, the RO should readjudicate the claims remaining on appeal in light of all the evidence of record. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished a fully responsive Supplemental Statement of the Case and afforded a reasonable opportunity for response. Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ STEPHEN L. WILKINS Veterans Law Judge Board of Veterans' Appeals Department of Veterans Affairs