Citation Nr: 18146512 Decision Date: 10/31/18 Archive Date: 10/31/18 DOCKET NO. 16-21 084 DATE: October 31, 2018 REMANDED Entitlement to service connection for back pain with body aches, to include as due to exposure to smoke from burn pits and dust storms. Entitlement to service connection for shortness of breath, to include as due to exposure to smoke from burn pits and dust storms. Entitlement to service connection for fatigue and a sleep disorder, to include sleep apnea and restless leg syndrome, to include as due to exposure to smoke from burn pits and dust storms. Entitlement to service connection for chest pain, to include as due to exposure to smoke from burn pits and dust storms. Entitlement to service connection for hypertension, to include as due to exposure to smoke from burn pits and dust storms. Entitlement to service connection for heartburn, to include as due to exposure to smoke from burn pits and dust storms. Entitlement to service connection for low testosterone, to include as due to exposure to smoke from burn pits and dust storms. Entitlement to service connection for skin rashes, to include as due to exposure to smoke from burn pits and dust storms. Entitlement to service connection for migraines, nausea, and vertigo, to include as due to exposure to smoke from burn pits and dust storms. Entitlement to service connection for memory loss and night sweats, to include as due to exposure to smoke from burn pits and dust storms. REASONS FOR REMAND The Veteran served on active duty from May to September 1993 and from January to September 2003. Service personnel records show that the Veteran was stationed in Afghanistan from February 5, 2003 to August 21, 2003. These matters come before the Board of Veterans' Appeals (Board) on appeal from November 2013 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran has contended that his claimed disabilities began during service or are due to exposure to burn pits while stationed at Kandahar Airfield, Afghanistan. His military occupational specialty (MOS) was as a carpenter and mason. He reported that he built up the base and that, when they had extra materials, they were placed into a large burn pit, and that other people used this pit as well. He has also asserted that, while stationed in Afghanistan, he was exposed to sand storms. As an initial matter, the Veteran’s service treatment records from his period of service while stationed in Afghanistan are not in the claims file. On remand, these records should be obtained and added to the record. The Board notes that service connection is available to Veterans who served during the Persian Gulf War and exhibit objective indications of a qualifying chronic disability that manifested 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, 2021. See 38 U.S.C. § 1154 (2012); 38 C.F.R. § 3.317(a)(1) (2018). For the purposes of service connection based upon the Persian Gulf War, Southwest Asia refers to 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. 38 U.S.C. §§ 1117, 1118 (2012); 38 C.F.R. § 3.317(e) (2018). The record reflects that the Veteran's service was in Afghanistan; as such, the provisions of 38 C.F.R. § 3.317 do not apply. 38 U.S.C. § 1117; 38 C.F.R. § 3.317(e)(2); Cox v. McDonald, 28 Vet. App. 318 (2016) (Afghanistan is not part of the Southwest Asia theater of operations for the purposes of 38 U.S.C. § 1117; 38 C.F.R. § 3.317). With regard to the Veteran’s claims that appear to be based on symptoms without an underlying diagnosis, that is, for back pain and body aches, the Board notes that under a recent case, Saunders v. Wilkie, 886 F.3d 1356 (2018), an opinion must also be provided as to whether the Veteran has pain associated with his claimed disorders that causes functional impairment such that it may qualify as a disability in the event an underlying diagnosis is not provided. As noted above, the Veteran has contended that he was exposed to burn pits in Afghanistan while in service. The Board finds that his reports are credible, and as such, he should be provided with a VA examination to determine whether his claimed disorders are related to exposure to burn pits in service. In this regard, the VA examiner must be provided with the Fact Sheets entitled “Burn Pits in Iraq, Afghanistan, and Djibouti on the Horn of Africa” and “Particulate Matter throughout Iraq, Afghanistan, and Djibouti” and address this information in the opinion provided. In addition, the examiner should address the Veteran’s contentions that he was exposed to dust storms. Finally, the examiner must address the contentions set out by the Veteran in his November 2013 statement, and those set out by his representative in the November 2014 notice of disagreement and the May 2016 substantive appeal. The matters are REMANDED for the following action: 1. Obtain the Veteran’s service treatment records from his active duty while stationed in Afghanistan from February 5, 2003 to August 31, 2003. Any negative search must be noted in the record. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of the Veteran’s back pain with body aches. For all disabilities diagnosed based on the Veteran’s reports of back pain with body aches or, if there is no current diagnosis but there is evidence of pain with limitation of motion or the affected joint, the examiner must opine whether it is at least as likely as not that the impairment is at least as likely as not is related to an in-service injury, event, or disease, including, to include as due to exposure to smoke from burn pits and dust storms. The examiner must address the contentions set out by the Veteran in his November 2013 statement, and those set out by his representative in the November 2014 notice of disagreement and the May 2016 substantive appeal. 3. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of his shortness of breath. The examiner must determine whether the Veteran has a diagnosed disorder associated with his shortness of breath, and opine as to whether it is at least as likely as not shortness of breath is related to an in-service injury, event, or disease, including, to include as due to exposure to smoke from burn pits and dust storms. The examiner must address the evidence in the record showing that the Veteran has been prescribed an inhaler, and the contentions set out by the Veteran in his November 2013 statement, and those set out by his representative in the November 2014 notice of disagreement and the May 2016 substantive appeal. 4. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of his fatigue and sleep disorder, to include sleep apnea and restless leg syndrome. The examiner must opine whether it is at least as likely as not fatigue and sleep disorder, to include sleep apnea and restless leg syndrome (RLS), are related to an in-service injury, event, or disease, including, to include as due to exposure to smoke from burn pits and dust storms. The examiner must address the Veteran’s contentions that RLS began during active duty, and must also consider the contentions raised in his November 2013 statement, and those set out by his representative in the November 2014 notice of disagreement and the May 2016 substantive appeal. 5. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of the Veteran’s chest pain and hypertension. The examiner must determine whether the Veteran has a diagnosed disorder associated with is chest pain, and opine whether it is at least as likely as not chest pain or hypertension is related to an in-service injury, event, or disease, including, to include as due to exposure to smoke from burn pits and dust storms. The examiner must address the contentions set out by the Veteran in his November 2013 statement, and those set out by his representative in the November 2014 notice of disagreement and the May 2016 substantive appeal. 6. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of the Veteran’s heartburn. The examiner must opine whether it is at least as likely as not heartburn is related to an in-service injury, event, or disease, including, to include as due to exposure to smoke from burn pits and dust storms. The examiner must address the contentions set out by the Veteran in his November 2013 statement, and those set out by his representative in the November 2014 notice of disagreement and the May 2016 substantive appeal. 7. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of the Veteran’s low testosterone. The examiner must opine whether it is at least as likely as not low testosterone is related to an in-service injury, event, or disease, including, to include as due to exposure to smoke from burn pits and dust storms. Moreover, the examiner should clarify whether low testosterone is a disability or merely a laboratory finding. In this regard, the examiner should list any symptoms and manifestations that may be expected as a result of low testosterone. The examiner must address the contentions set out by the Veteran in his November 2013 statement, and those set out by his representative in the November 2014 notice of disagreement and the May 2016 substantive appeal. 8. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of skin rashes. The examiner must opine whether it is at least as likely as not skin rashes is related to an in-service injury, event, or disease, including, to include as due to exposure to smoke from burn pits and dust storms. The examiner must address the Veteran’s contentions that skin rashes began during active duty and the contentions set out by the Veteran in his November 2013 statement, and those set out by his representative in the November 2014 notice of disagreement and the May 2016 substantive appeal. 9. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of the claimed migraines, nausea, and vertigo. The examiner must opine whether it is at least as likely as not migraines, nausea, and vertigo are related to an in-service injury, event, or disease, including, to include as due to exposure to smoke from burn pits and dust storms. The examiner must address the Veteran’s contentions that headaches began during service, that headaches are related to sleep apnea, and the contentions set out by the Veteran in his November 2013 statement, and those set out by his representative in the November 2014 notice of disagreement and the May 2016 substantive appeal. 10. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of the Veteran’s memory loss and night sweats. The examiner must opine whether it is at least as likely as not memory loss and night sweats are related to an in-service injury, event, or disease, including, to include as due to exposure to smoke from burn pits and dust storms. The examiner must address the contentions set out by the Veteran in his November 2013 statement, and those set out by his representative in the November 2014 notice of disagreement and the May 2016 substantive appeal. ERIC S. LEBOFF Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Harrigan Smith