Citation Nr: 1314843 Decision Date: 05/06/13 Archive Date: 05/15/13 DOCKET NO. 10-06 703 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for chronic fatigue, to include as due to an undiagnosed illness or a medically unexplained multisymptom illness. 2. Entitlement to service connection for dermatitis, claimed as skin rash, to include as due to an undiagnosed illness or a medically unexplained multisymptom illness. 3. Entitlement to service connection for obstructive sleep apnea, to include as due to an undiagnosed illness or a medically unexplained multisymptom illness. 4. Entitlement to service connection for reactive arthritis of the hands, right elbow, hips, low back, and left knee, to include as due to in-service food poisoning, also claimed as a disability manifested by joint pain as due to an undiagnosed illness or a medically unexplained multisymptom illness. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. D. Deane, Counsel INTRODUCTION The Veteran served on active duty from September 1974 to September 1978 and from May 1988 to August 1991. He had service in Southwest Asia from October 1990 to April 1991. This appeal comes before the Board of Veterans' Appeals (Board) from an April 2009 rating decision rendered by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Veteran testified before the undersigned Veterans Law Judge at a hearing at the RO in October 2012. A transcript of the hearing is of record. At that time, the Veteran submitted to the Board additional evidence for consideration in connection with the claims on appeal along with a waiver of his right to have the evidence initially considered by the RO The issue of entitlement to service connection for a cognitive disorder, to include as due to an undiagnosed illness or a medically unexplained multisymptom illness, was raised during the October 2012 Board hearing, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. The issues of entitlement to service connection for obstructive sleep apnea, to include as due to an undiagnosed illness or a medically unexplained multisymptom illness, and entitlement to service connection for reactive arthritis of the hands, right elbow, hips, low back, and left knee, to include as due to in-service food poisoning, also claimed as a disability manifested by joint pain as due to an undiagnosed illness or a medically unexplained multisymptom illness are addressed in the REMAND that follows the ORDER section of this decision. The record before the Board consists of the Veteran's paper claims file and an electronic file known as Virtual VA. FINDINGS OF FACT 1. The Veteran had active service in the Southwest Asia Theater of operations during the Persian Gulf War. 2. The Veteran has a disability manifested by excessive or chronic fatigue as a result of an undiagnosed illness. 3. The Veteran's current dermatitis is etiologically related to his active service. CONCLUSIONS OF LAW 1. A disability manifested by chronic or excessive fatigue as a result of an undiagnosed illness is presumed to have been incurred in active service. 38 U.S.C.A. §§ 1110, 1117, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.317 (2012). 2. Dermatitis was incurred in active service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist As a preliminary matter, the Board notes that the Veteran has been provided all required notice, to include notice pertaining to the disability-rating and effective-date elements of the claims. In addition, the evidence currently of record is sufficient to substantiate the claims decided herein. Therefore, no further development is required under 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012) or 38 C.F.R. § 3.159 (2012). Legal Criteria Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may be granted for any disease initially diagnosed after 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). A Persian Gulf veteran who exhibits objective indications of a qualifying chronic disability may be service-connected, provided such disability became manifest either 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 December 31, 2016, and by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis. 38 U.S.C.A. § 1117; 38 C.F.R. § 3.317(a)(1); 76 Fed. Reg. 81,834 (December 29, 2011). A "qualifying chronic disability" has been defined to mean a chronic disability resulting from any of the following (or any combination of the following): (1) an undiagnosed illness; (2) medically unexplained chronic multisymptom illnesses that are defined by a cluster of signs or symptoms (specifically chronic fatigue syndrome, fibromyalgia, irritable bowel syndrome, or any other illness the Secretary determines meets the criteria of a medically unexplained chronic multisymptom illnesses); or (3) any diagnosed illness the Secretary determines warrants a presumption of service connection. 38 C.F.R. § 3.317(a)(2)(i). The term "medically unexplained chronic multisymptom illness" means a diagnosed illness without conclusive pathophysiology or etiology characterized by overlapping symptoms and signs and has features such as fatigue, pain, disability out of proportion to physical findings, and inconsistent demonstration of laboratory abnormalities. Chronic multisymptom illnesses of partially understood etiology and pathophysiology will not be considered medically unexplained. 38 C.F.R. § 3.317(a)(2)(ii). "Objective indications of chronic disability" include both "signs," in the medical sense of 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). Disabilities that have existed for six months or more and disabilities that exhibit intermittent episodes of improvement and worsening over a six-month period will be considered chronic. The six-month period of chronicity is measured from the earliest date on which the pertinent evidence establishes the signs or symptoms of the disability first became manifest. 38 C.F.R. § 3.317(a)(4). Signs or symptoms that may be a manifestation of an undiagnosed illness or a medically unexplained chronic multisymptom illness include, but are not limited to the following: fatigue; signs or symptoms involving the skin; headache; muscle pain; joint pain; neurologic signs or symptoms; neuropsychological signs or symptoms; signs or symptoms involving the respiratory system (upper or lower); sleep disturbances; gastrointestinal signs or symptoms; cardiovascular signs or symptoms; abnormal weight loss; and, menstrual disorders. 38 C.F.R. § 3.317(b). If signs or symptoms have been medically attributed to a diagnosed (rather than undiagnosed) illness, the Persian Gulf War presumption of service connection does not apply. VAOPGCPREC 8-98. Notwithstanding the foregoing presumptive provisions, the Veteran is not precluded from establishing service connection for a disease averred to be related to Gulf War service, as long as there is proof of such direct causation. See generally Combee v. Brown, 34 F.3d 1039, 1043-1044 (Fed. Cir. 1994). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. 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. § 5107 (West 2002); 38 C.F.R. § 3.102 (2012); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Factual Background and Analysis Chronic Fatigue The Veteran contends that he has a disability manifested by chronic fatigue that is the result of his military service. Service treatment records are void of any complaints, findings, or diagnosis of fatigue. The Veteran submitted pictures and buddy statements showing stationed locations in Southwest Asia and discussing his exposure to hazardous materials while stationed in Iraq near an ammo detonation area. Post-service VA treatment records reveal complaints of excessive fatigue. The report of a September 2008 VA Persian Gulf War registry examination shows complaints of fatigue present for the past five years. The Veteran reported that he usually feels somewhat refreshed in the morning but then gets easily fatigued over the course of the day. Physical examination of all systems was normal. The examiner assessed chronic fatigue (rule out other cause than hepatitis C) and referred the Veteran for a polysomnography. A November 2008 follow up registry note lists another assessment of chronic fatigue (rule out other cause than hepatitis C). A September 2008 polysomnography was noted to reveal sleep apnea. Parenthetically, the Board notes that the matter of entitlement to service connection for obstructive sleep apnea is also on appeal. According to a February 2009 VA Gulf War Guidelines examination report, the Veteran reported having had chronic fatigue since March 1991. He asserted that he had chemical exposure during service while stationed near an ammo dump that was detonated and began to experience multiple symptoms including excessive fatigue, gradual onset pain of all joints, and bowel changes approximately one year later. The Veteran reported nearly constant fatigue but indicated that he does not need daily naps. It was noted that yard work greater than 45 minutes and walking increased his fatigue the next day. On physical examination, the Veteran exhibited full muscle strength and positive rheumatoid factor. The examiner also noted the Veteran was prescribed several medications for chronic pain. After reviewing the claims file and examining the Veteran, the examiner diagnosed reactive arthritis with fatigue and generalized myalgias/arthralgias. He designated findings of ongoing myalgias/arthralgias and fatigue as nonspecific and as results that have not been determined to be part of a known clinical diagnosis. He later opined that he could not resolve this issue, fatigue, without resorting to mere speculation. The examiner noted that despite extensive work ups to determine the underlying pathology of excessive fatigue and joint pain, the objective evidence and findings were not specific enough in any of the documentation to determine a pathology. He indicated that it was speculative to opine as to which pathology, food poisoning versus hepatitis C versus Gulf war syndrome, was the underlying pathology. In an October 2012 medical opinion, a VA physician stated that the Veteran's chronic fatigue was at least as likely as not related to his exposure to hazardous materials during active service, specifically during Iraqi munitions demolition at Khamisiyah, Iraq, in March 1991. During his October 2012 hearing, the Veteran reported that his chronic fatigue began in 1992, that his fatigue eventually caused him to stop working in 2003, that he first received treatment for chronic fatigue in 2005, and that he had fatigue of unclear etiology. Based on a review of the evidence, the Board finds that service connection for a disability manifested by excessive or chronic fatigue as a result of an undiagnosed illness is warranted. In this case, the Veteran has confirmed service in the Southwest Asia theater of operations during the Persian Gulf War. While the Veteran has not been diagnosed with chronic fatigue syndrome, post-service VA treatment records and the February 2009 VA examination report show subjective complaints and objective findings of chronic or excessive fatigue. In addition, the February 2009 VA examiner specifically indicated in his report that the findings of fatigue had not been determined to be part of a known clinical diagnosis. The Board observes that a "qualifying chronic disability" has been defined to mean a chronic disability resulting from an undiagnosed illness. 38 C.F.R. § 3.317(a)(2)(i). Fatigue is specifically listed as a sign or symptom that may be a manifestation of an undiagnosed illness. 38 C.F.R. § 3.317(b). Service connection for a disability manifested by excessive or chronic fatigue as a result of an undiagnosed illness is warranted on a presumptive basis when the disability becomes 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 before December 31, 2016. 38 U.S.C.A. § 1117; 38 C.F.R. § 3.317. To determine whether the undiagnosed illness is manifested to a degree of 10 percent or more the condition must be rated to a disease or injury in which the functions affected, anatomical location, or symptomatology are similar. See 38 C.F.R. § 3.317(a)(5); see also Stankevich v. Nicholson, 19 Vet. App. 470, 472 (2006). Chronic fatigue can be rated by analogy to chronic fatigue syndrome under 38 C.F.R. § 4.88(b), Diagnostic Code 6354. A 10 percent evaluation pursuant to Diagnostic Code 6354 is warranted when symptoms wax and wane but result in period of incapacitation of at least one but less than two weeks total duration per year, or symptoms are controlled by continuous medication. 38 C.F.R. § 4.88(b), Diagnostic Code 6354 (2012). Here, the Board finds that the evidence of record adequately shows that the disability has been manifested to a degree of 10 percent or more. The Veteran has complained of experiencing chronic fatigue for many years, has been found to exhibit abnormal symptoms of fatigability, and has been prescribed several medications for treatment of chronic joint pain and fatigue. In light of the Veteran's service in the Southwest Asia theater of operations during the Persian Gulf War, his credible and competent reports of the onset of his chronic fatigue symptoms, the current objective findings of chronic fatigue, and in affording the Veteran the benefit-of-the-doubt, the Board finds that that service connection for a disability manifested by chronic fatigue on a presumptive basis as an undiagnosed illness is warranted. Dermatitis Service treatment records document no complaints, findings, or diagnosis of any skin disorder. In a February 2009 VA Gulf War Guidelines examination, the Veteran complained of having an occasional outbreak of an itchy rash on his feet that began in service. The examiner noted that the Veteran had been seen by a private physician in 1999 for a rash on his feet and diagnosed with atypical eczema of the feet. The Veteran reported his current use of an over the counter medication, Lamisil, for treatment of his outbreaks when they occurred. On physical examination, the examiner noted two to three minimally visible, tiny individual red dots that were resolving on the Veteran's left arch. After reviewing the claims file and examining the Veteran, the examiner diagnosed dermatitis. He later opined that he could not resolve this issue, noted as rash, without resorting to mere speculation as to bad food in service or hepatitis C or Gulf War syndrome. In an October 2012 medical opinion, a VA physician succinctly stated that the Veteran's presently diagnosed rash was at least as likely as not related to his exposure to hazardous materials during active service, specifically during Iraqi munitions demolition at Khamisiyah, Iraq, in March 1991. During his October 2012 hearing, the Veteran reported that he first noticed his skin on his hands and feet "bubble up" right after he got back from Iraq and that he had treated his skin eruptions with over the counter medications since that time. On review of the evidence above, the Board finds that the Veteran has a current skin disability diagnosed as dermatitis. The Veteran has reported that the symptoms associated with his disability began during service shortly after his return from Iraq in 1991 and have continued since. The Veteran is competent to testify in regard to the onset and continuous nature of symptomatology, as well as observable symptoms such as bubbling skin eruption on different parts of his body. See Layno v. Brown, 6 Vet. App. 465, 469 (1994); Heuer v. Brown, 7 Vet. App. 379, 384 (1995); Falzone v. Brown, 8 Vet. App. 398, 403 (1995); Caldwell v. Derwinski, 1 Vet. App. 466 (1991). In view of the totality of the evidence, including the Veteran's credibly asserted in-service skin symptoms, current findings of dermatitis, the inadequacy of the February 2009 VA examiner's opinion due to conflicting conclusions and inability to resolve the matter without resorting to mere speculation, the succinct but clearly favorable VA treatment provider's October 2012 medical opinion, and the competent and credible reports of continuous skin symptomatology since service, the Board finds that the Veteran's current dermatitis originated during his active service. ORDER Entitlement to service connection for chronic fatigue is granted. Entitlement to service connection for dermatitis, claimed as skin rash, is granted. REMAND The Board's review of the record reveals that further development on the matters of entitlement to service connection for obstructive sleep apnea, to include as due to an undiagnosed illness or a medically unexplained multisymptom illness, and entitlement to service connection for reactive arthritis of the hands, right elbow, hips, low back, and left knee, to include as due to in-service food poisoning, also claimed as a disability manifested by joint pain as due to an undiagnosed illness or a medically unexplained multisymptom illness, is warranted. Joint Pain Joint pain is one of the symptoms cited in 38 C.F.R. § 3.317 as possibly indicative of an undiagnosed illness or medically unexplained chronic multisymptom illness. The Veteran contends that he has a disability manifested by diffuse joint pain that is the result of his military service. Service treatment records reveal that the Veteran sustained a right hand injury playing softball in May 1976, a right hand cut in December 1976, and a superficial wound after pinching his right hand in January 1991. He was treated for acute gastroenteritis after eating bad food in February 1987. Post-service private treatment records dated from 1999 to 2004 reveal complaints for multiple joint pains, hand pain, and back pain, and show that the Veteran underwent chiropractic care. He was treated for thoracic myositis, bilateral hand trigger finger, and tenosynovitis of the hands. A September 1999 right hand X-ray study revealed normal findings. A September 1999 left hand X-ray study revealed probable mild old fracture deformity of the 5th metacarpal. VA treatment records dated in April and August 2005 reveal complaints of knee pain and chronic intermittent low back pain. In January 2008, the Veteran was noted to have a history of back surgery with low back pain from mobility abnormality. The report of a September 2008 VA Persian Gulf War registry examination shows complaints of joint pains with gradual onset over that last two years affecting the low back, hips, knees, and ankles. The Veteran reported experiencing pain and morning stiffness, and suffering from trigger finger in the left hand for several years. Physical examination of all systems was normal. The examiner assessed diffuse joint pains, questionably due to hepatitis C versus other cause, and ordered a rheumatology consult. A November 2008 follow up registry note indicates a rheumatology consult resulted in a diagnosis of reactive arthritis. X-ray studies of the hands and hips revealed no significant abnormality while lumbosacral spine X-rays revealed disc narrowing at the L4-5 level with spondylosis and osteoarthritis. A November 2008 VA rheumatology consult note lists an assessment of likely reactive arthritis possibly due to food poisoning versus hepatitis C versus Chlamydia. Treatment notes dated in January and February 2009 show similar findings as well as complaints of low back pain and chronic polyarticular arthralgias. He was started on medications for suspected reactive arthritis. A March 2009 treatment record shows a finding of suspect SPA (spondyloarthropathy) and notes a history of food poisoning, rash on palms and soles, sexually transmitted disease, and hepatitis C. Additional treatment notes dated in 2009 reveal findings of diffuse arthritis pain of unclear etiology based on X-rays and physical findings as well as complaints of bilateral hand and chronic low back pain. In October 2008, the Veteran filed a claim for entitlement to service connection for reactive arthritis secondary to his service-connected hepatitis C or from in-service food poisoning. One month later, he clarified that he was on medical protocol for reactive arthritis with no positive results that he asserted was related to food poisoning contracted during service. He reported experiencing arthritic pain and stiffness in his hands, elbows, hips, lower back, and knees. Subsequently, in December 2008, the Veteran claimed entitlement to service connection for joint pain due to Gulf War Syndrome, undiagnosed illness. Evidence of record details that the Veteran already receives VA disability compensation benefits for hepatitis C, left elbow post-traumatic medial/lateral epicondylitis, right knee chondromalacia patella, and right ankle degenerative joint disease. In February 2009 VA Gulf War examination reports, the examiner noted symptoms of pain in all joints, which the Veteran reported began in March 1991. The Veteran asserted that he had chemical exposure during service while stationed near an ammo dump that was detonated and began to experience multiple symptoms including excessive fatigue, gradual onset pain in all joints, and bowel changes approximately one year later. After reviewing the claims file and examining the Veteran, the examiner diagnosed reactive arthritis with fatigue and generalized myalgias/arthralgias. He designated findings of ongoing myalgias/arthralgias as nonspecific and as results that have not been determined to be part of a known clinical diagnosis. In attached February 2009 VA joints, hand, and spine examination reports, it was noted that the Veteran further described having gradual onset of bilateral elbow pain and stiffness, bilateral knee pain and stiffness, lumbar spine pain, and bilateral hand and finger pain. Symptoms or complaints relating to the hips were not indicated. On physical examination, the examiner noted objective evidence of bilateral elbow tenderness of the lateral epicondyles only with moderate deep palpation; bilateral knee tenderness and abnormal patellar tracking; low back pain and tenderness; and bilateral hand and finger pain, stiffness and mild swelling. X-ray reports dated in February 2009 note probable post-traumatic sequel in the epicondyles of the left humerus; normal right elbow; right knee osteoarthritis; left knee superior patellar enthesophyte; degenerative joint/disc disease of the thoracolumbar spine; normal hands/fingers; and normal hips. Lab testing revealed positive rheumatoid factor. The examiner diagnosed post-traumatic medial/lateral epicondylitis, right elbow medial epicondylitis, bilateral knee tendonitis with left knee enthesophyte, degenerative joint/disc disease/osteoarthritis of the thoracolumbar spine, and tenosynovitis of the hands and fingers with left long trigger finger. He further indicated that there was no objective evidence of a hip disability. After reviewing the claims file and examining the Veteran, the examiner diagnosed reactive arthritis with fatigue and generalized myalgias/arthralgias. He designated findings of ongoing myalgias/arthralgias and fatigue as nonspecific and as results that have not been determined to be part of a known clinical diagnosis. He later opined that he could not resolve this issue, reactive arthritis, without resorting to mere speculation. The examiner noted that despite extensive work ups to determine the underlying pathology of excessive fatigue and joint pain, the objective evidence and findings were not specific enough in any of the documentation to determine a pathology. He indicated that it was speculative to opine as to which pathology, food poisoning versus hepatitis C versus Gulf War syndrome, was the underlying pathology. Additional VA treatment records dated in 2010 show continued findings of joint pain, reactive arthritis, and chronic neuropathic pain. During his October 2012 hearing, the Veteran reported that his joint pain started in the very early 1990s, that he did not seek medical care from 1991 to 1999 due to lack of medical insurance, that he suffered in-service food poisoning, that he was told by treatment providers that food poisoning led to his reactive arthritis, and that he had joint pain of unclear etiology. Based on the foregoing, the Board finds the February 2009 VA examination report to be inadequate for adjudicative purposes in regard to the issue of entitlement to service connection for reactive arthritis of the hands, right elbow, hips, low back, and left knee, to include as due to in-service food poisoning, also claimed as a disability manifested by joint pain as due to an undiagnosed illness or a medically unexplained multisymptom illness. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). It is noted that a VA medical examination is not inadequate merely because the medical examiner states he or she cannot reach a conclusion without resort to speculation. Jones v. Shinseki, 23 Vet. App. 382 (2010). Thus, while VA has a duty to assist a veteran by providing a medical examination in certain situations, that duty does not extend to requiring a VA physician to render an opinion beyond what may reasonably be concluded from the procurable medical evidence. Nevertheless, the Court did find in Jones that simply concluding that the etiology of a disability could not be resolved without speculation without providing any explanation as to why, was inadequate. The phrase "without resort to speculation" should reflect the limitations of knowledge in the medical community at large and not those of a particular examiner. Further, the Court indicated the examiner should clearly identify precisely what facts cannot be determined. For example, it should be clear in the examiner's remarks whether it cannot be determined from current medical knowledge that a specific in-service injury or disease can possibly cause the claimed condition, or that the actual cause cannot be selected from multiple potential causes. In this case, the February 2009 VA examiner appears to find that the actual cause of the Veteran's diffuse joint pain cannot be selected from multiple potential causes or pathologies, to include food poisoning, hepatitis C, and Gulf War syndrome. However, he provided very little rationale for his medical opinion, simply noting that objective evidence and findings were not specific enough in any of the documentation to determine a pathology of joint pain despite extensive work ups. In addition, the Board notes that the February 2009 VA examiner did assign multiple, specific musculoskeletal diagnoses in his examination reports but did not opine as to whether any of those diagnosed joint disorders was etiologically related to service or secondary to service-connected hepatitis C. In cases where a veteran applies for service connection under 38 C.F.R. § 3.317 but is found to have a disability attributable to a known diagnosis, further consideration under the direct service connection provisions of 38 U.S.C.A. Vet. App. 1110, 1131 is nevertheless warranted. In light of the cumulative record discussed above, the originating agency should obtain addendum VA medical opinions with supporting rationale concerning the etiology of the Veteran's claimed joint disorder(s) on appeal. Obstructive Sleep Apnea Service treatment records document no complaints, findings, or diagnosis of a sleep disorder. Post-service VA treatment records dated in November 2005 and November 2008 reveal complaints of sleep problems. A September 2008 VA sleep study (polysomnography) was noted to show sleep apnea. In a February 2009 VA Gulf War examination report, the examiner simply noted that the Veteran had been diagnosed with mild obstructive sleep apnea by sleep study in September 2008. After reviewing the claims file and examining the Veteran, the examiner diagnosed mild obstructive sleep apnea and mild nocturnal hypoxemia. During his October 2012 hearing, the Veteran reported that he had difficulty using his prescribed CPAP machine, averaged three hours of sleep a night, and that his sleep apnea started around 1996. In this case, the Veteran's claimed sleep disorder has been attributed to a known clinical diagnosis, mild obstructive sleep apnea. However, in cases where a veteran applies for service connection under 38 C.F.R. § 3.317 but is found to have a disability attributable to a known diagnosis, further consideration under the direct service connection provisions of 38 U.S.C.A. §§ 1110, 1131 is nevertheless warranted. See generally Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). Pursuant to VA's duty to assist, VA will provide a medical examination or obtain a medical opinion based upon a review of the evidence of record if VA determines it is necessary to decide the claim. 38 C.F.R. § 3.159(c)(4)(i) (2012). Based on the foregoing, the originating agency should arrange for the Veteran to undergo a VA examination to ascertain the nature and etiology of his claimed sleep disorder. The claims files also reflect that the Veteran has received medical treatment for his claimed disorders from the VA Medical Center (VAMC) in Tampa, Florida; however, as the claims files and Virtual VA file only include treatment records from that provider dated up to April 2010, any additional records from that facility should be obtained. The Board emphasizes that records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). The originating agency should obtain all outstanding, pertinent VA records. Accordingly, this case is REMANDED to the RO or the Appeals Management Center (AMC), in Washington, D.C., for the following actions: 1. The RO or the AMC should undertake appropriate development to obtain any outstanding records pertinent to the Veteran's claims, to include records from the Tampa VAMC for the period from April 2010 to the present. 2. Then, the claims file and any pertinent evidence in Virtual VA that is not contained in the claims file should be returned to and reviewed by the examiner who performed the February 2009 VA Gulf War guidelines examination of the Veteran. A notation to the effect that this record review took place should be included in the report of the examiner. The examiner should be requested to provide an opinion, consistent with sound medical principles, as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran has an undiagnosed illness or medically unexplained chronic multisymptom illness of which the claimed diffuse joint pain is a manifestation. For each diagnosed joint disorder, the examiner is requested to provide an opinion as to whether it is as least as likely as not (50 percent probability or greater) that the Veteran's diagnosed joint disorder began during service or is otherwise etiologically related to the Veteran's military service, to include documented in-service treatment for gastroenteritis and/or asserted in-service hazardous materials exposure while stationed in Southwest Asia. If the examiner is of the opinion that any diagnosed joint disorder is not related to the Veteran's active service, the examiner should provide an opinion as to whether it is as least as likely as not (50 percent probability or greater) that the disorder was caused or permanently worsened by the Veteran's service-connected hepatitis C. In doing so, the examiner should acknowledge and discuss the findings contained in the service treatment records as well as post-service VA and private treatment notes of record, the February 2009 VA examination report findings, and the Veteran's lay statements as to onset and etiology of his claimed joint disorder(s). For purposes of the opinions, the examiner should assume that the Veteran is a reliable historian. Rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. If the February 2009 VA examiner is not available, the claims folder and any pertinent evidence in Virtual VA that is not contained in the claims folder should be provided to and reviewed by another examiner with appropriate expertise who should review the record and provide the required opinion with supporting rationale. Another examination of the Veteran should only be performed if deemed necessary by the person providing the opinions. 3. The Veteran also should be afforded a VA examination by a physician with sufficient expertise to determine the etiology of his obstructive sleep apnea. The claims files and any pertinent evidence in Virtual VA that is not contained in the claims files must be made available to and reviewed by the examiner. A notation to the effect that this record review took place should be included in the report of the examiner. Based on a review of the record, examination of the Veteran, and utilizing sound medical principles, the examiner is requested to provide an opinion as to whether it is as least as likely as not (50 percent probability or greater) that the Veteran's obstructive sleep apnea began during service or is otherwise etiologically related to the Veteran's military service, to include asserted in-service hazardous materials exposure. In doing so, the examiner should acknowledge and discuss the findings contained in the post-service VA treatment notes of record, the February 2009 VA examination report findings, and the Veteran's lay statements as to onset and etiology of his claimed obstructive sleep apnea. For purposes of the opinion, the examiner should assume that the Veteran is a reliable historian. Rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. 4. The Veteran must be given adequate notice of the date and place of any requested examination. A copy of all notifications, including the address where the notice was sent must be associated with the claims files if the Veteran fails to report for any scheduled examination. The Veteran is to be advised that failure to report for a scheduled VA examination without good cause shown may have adverse effects on his claims. 38 C.F.R. § 3.655. 5. The RO or the AMC should also undertake any other development it determines to be warranted. 6. Then, the RO or the AMC should readjudicate the issues remaining on appeal. If any benefit sought on appeal is not granted to the Veteran's satisfaction, the Veteran and his representative should be furnished an appropriate supplemental statement of the case and be afforded the requisite opportunity to respond. Thereafter, the case should be returned to the Board for appellate action. By this remand, the Board intimates no opinion as to any final outcome warranted. The Veteran need take no action until he is otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999). This REMAND must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or the Court 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). ______________________________________________ Shane A. Durkin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs