Citation Nr: 18145405 Decision Date: 10/30/18 Archive Date: 10/26/18 DOCKET NO. 16-38 452 DATE: October 30, 2018 REMANDED 1. Service connection for chronic obstructive pulmonary disease (COPD) is remanded. 2. Service connection for sleep apnea is remanded.   REASONS FOR REMAND The Veteran served on active duty from September 1971 to September 1991. These matters are before the Board of Veterans’ Appeals (Board) on appeal from an October 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California. Jurisdiction of the Veteran’s claims file currently resides with the Winston-Salem, North Carolina RO. Service Connection for COPD and Sleep Apnea The Board cannot make a fully-informed decision on the issues of service connection for COPD and sleep apnea because, presently, there are no adequate medical opinions of record addressing the etiology of the Veteran’s current claimed disabilities. As a threshold matter, there remains a question as to whether the Veteran qualifies as a “Persian Gulf veteran” under 38 C.F.R. § 3.317. The Veteran maintains that he served in Saudi Arabia durign the Persian Gulf War. At present, the RO has been unable to verify this service. A Department of Defense Form 214 (DD 214) associated with the Veteran’s claims file indicates that he was awarded the Southwest Asia Service Medal. According to the Department of Defense Manual of Military Decorations and Awards, a Southwest Asia Service Medal can be awarded to individuals for service in several different areas during the Gulf War to include individuals who served in Israel, Egypt, Turkey, Syria and Jordan directly supporting combat operations. Crucially, some of the areas of service that would make a veteran eligible for receipt of a Southwest Asia Service Medal would not be considered service in the Southwest Asia theater of operations for purposes of 38 C.F.R. § 3.317. See 38 C.F.R. § 3.317(e)(2) (defining the Southwest Asia theater of operations as including Iraq, Kuwait, Saudi Arabia, the neutral zone between Iraq and Saudi Arabia, Bahrain, Qatar, the United Arab Emirates, Oman, the Gulf of Aden, the Gulf of Oman, the Persian Gulf, the Arabian Sea, the Red Sea and the airspace above these locations). More recently, in August 2016, the Veteran’s attorney submitted copeis of service personnel records. Unfortunately, these copies are of poor quality and are difficult to read. However, the readable portions show temporary duty (TDY) orders and travel voucher reimbursements for the Veteran’s service “to participate in Operation ‘Desert Shield.’” These papers do not contain explicit orders to Saudi Arabia or otherwise directly place his presence there. Such information is marked as “classified.” Of note, the records do contain many abbreviations and code numbers that may indicate service in Saudi Arabia, but those abbreviations and code numbers are not defined. As such, the Board has no way to interpret them as showing service in Saudi Arabia. Thus, overall, these papers are not direct evidence of his presence in Southwest Asia. At this point, the Board has no reason to doubt the Veteran’s credibility. However, the record is too incomplete to make any binding decision at this point as the Veteran’s complete service personnel records (SPRs) have not been obtained. See, e.g., 38 C.F.R. § 3.203. Upon remand, they should be obtained. Also, if the SPRs continue to show his service during the Persian Gulf War as “classified,” steps should be taken to contact the U.S. Special Operations Command (USSOCOM) to research this question. Aside from this question, the current medical evidence in the claims file is insufficient to resolve the appeal. Regarding COPD, there are two medical opinions of record neither of which is entirely adequate. First, private (non-VA) doctor concluded in an August 2015 statement that the Veteran’s COPD was related to service. This private doctor opined from the position that the Veteran had exposure to hazardous fumes, including industrial dust, chemical fumes, and asbestos “over a long period of time.” Based on context, the doctor appears to have assumed that such exposure occurred throughout the Veteran’s service from 1971 to 1991. However, the Veteran’s specialty during service, as identified on his DD 214, was wideband communications equipment specialist/electrician. It is not obvious to the Board that this specialty would involve exposure to hazards mentioned by the private doctor throughout his entire service. If not, the doctor did not make clear that “long term” meant the last two years of his service. To this extent, in an August 2015 statement, the Veteran described exposure to dust storms only during his last two years of service, when stationed in Oklahoma. He also indicated exposure to sandstorms, diesel fumes, and extreme heat while in Saudi Arabia. This statement describes exposures for a far shorter duration than indicated by the private doctor (hence the need for the SPRs). Relatedly, the private doctor did not address the Veteran’s approximate 20-year smoking history. It is not clear if the doctor was unaware of this history or simply chose not to address it. In either event, these two deficiencies limit the probative weight assignable to this opinion. Likewise, the June 2016 VA examiner appeared to acknowledge the Veteran’s Southwest Asia service, but reasoned from the basis that the Veteran did not have long-term exposure except for a 20-year history of smoking cigarettes. The VA examiner did not consider the Veteran’s statement of exposure to sandstorms throughout his last two years of service and, again, it is unclear at this point to whether or not the Veteran had longer term exposures during the earlier part of his service. Nor did the examiner address whether the Veteran’s condition may be consistent with an undiagnosed illness or medically unexplained chronic multisymptom illnesses under 38 C.F.R. § 3.317. As such, the VA examiner’s assessment is likewise incomplete. From these deficiencies, the Board concludes that both medical opinions are inadequate, and remand is required for an additional opinion. Regarding sleep apnea, the June 2016 VA examiner stated that this disability was not related to service because, in part, in-service reports of snoring are not unique to sleep apnea. However, the clinician did not address lay reports of other symptoms the Veteran experienced while in service. Specifically, in August 2015, the Veteran reported that he experienced the following additional symptoms while in service: waking up with a choking or gasping sensation; sleepiness or lack of energy; attention difficulty; insomnia; sleepiness while driving; restless sleep; and episodes of breathing cessation during sleep. Some of these symptoms were also observed by E.B. and P.B.—who served with the Veteran—as reported in April 2015 statements. The August 2015 private doctor gave an opinion found the Veteran’s sleep apnea “more likely than not [ ] attributed to his COPD and long term exposure to chemicals, motor oils, and sand.” As discussed above, it is not clear if the factual foundation for this examiner’s opinion is entirely accurate at this point. Accordingly, the matters are REMANDED for the following action: 1. Obtain updated VA treatment records and associate them with the claims file—particularly those dated since July 2015. If no such records exist, the claims file should be annotated to reflect as such and the Veteran notified as such. 2. Obtain the Veteran’s complete service personnel records, including copies of all TDY orders and expense reports/receipts for his travel. 3. If the service personnel records do not confirm service in Saudi Arabia (or elsewhere in Southwest Asia), prepare a Special Operations Forces Incident Document, and submit the request for stressor verification to the U.S. Special Operations Command (USSOCOM) to research this question. 4. After the above has been completed to the extent possible, schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of his COPD. (a.) Please provide a medical statement explaining whether the Veteran’s disability pattern is: 2. (1) an undiagnosed illness 5. (2) a diagnosable but medically unexplained chronic multi-symptom illness of unknown etiology 6. (3) a diagnosable chronic multi-symptom illness with a partially explained etiology, or 7. (4) a disease with a clear and specific etiology and diagnosis (a.) If, after examining the Veteran and reviewing the claims file, you determine that the Veteran’s disability pattern consistent with options (3) or (4) above, (i.e., either a diagnosable chronic multi-symptom illness with a partially explained etiology or a disease with a clear and specific etiology and diagnosis), then please provide a medical opinion as to whether it is at least as likely as not that the disability pattern or diagnosed disease is related to a specific exposure event experienced by the Veteran during service in Southwest Asia. (b.) If no, is it at least as likely as not that COPD had its onset directly during the Veteran’s service or is otherwise causally related to any event or circumstance of his service, including exposure to dust storms during his last two periods of service? If the examiner determines that the Veteran’s COPD is more likely due to smoking, the examiner should explain whether his other exposures during service played any role whatsoever in the development of his COPD. 3. After the items above have been completed to the extent possible, schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of his sleep apnea. After examining the Veteran and thoroughly reviewing the Veteran’s claims file, the clinician must address the following: (a.) Please state whether it is at least as likely as not (50 percent probability or more) that the Veteran’s sleep apnea was caused by or related to service, including his exposure to environmental hazards in Southwest Asia. (Continued on the next page)   In answering these questions, the examiner is asked to consider the statements from the Veteran and other lay individuals who directly witnessed his symptoms, not just snoring, during service. The examiner is asked to explain why their statements make it more or less likely that sleep apnea started during service. If indicated, it should be explained whether there is a **medical** reason to believe that their recollection of his symptoms during service may be inaccurate or not medically supported as the onset or cause of his current diagnosis. C. BOSELY Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD N.S. Pettine, Associate Counsel