Citation Nr: 18152563 Decision Date: 11/27/18 Archive Date: 11/23/18 DOCKET NO. 16-28 098 DATE: November 27, 2018 ORDER New and material evidence having been received, the previously denied claim of entitlement to service connection for sleep apnea is reopened; to this limited extent only, the appeal is granted. REMANDED The claim of entitlement to service connection for sleep apnea is remanded. The claim of entitlement to service connection for dizziness, to include as due to an undiagnosed illness, is remanded. The claim of entitlement for service connection for muscle and joint pain, to include as due to an undiagnosed illness, is remanded. The claim of entitlement to service connection for left and right-hand tremors, to include as due to an undiagnosed illness, is remanded. The claim of entitlement to service connection for muscle movement disorder in the eyes, to include as due to an undiagnosed illness, is remanded. The claim of entitlement to service connection for muscle movement disorder in the tongue, to include as due to an undiagnosed illness, is remanded. The claim of entitlement to service connection for tingling and cramping in the left and right leg, is remanded. The claim of entitlement to a rating in excess of 10 percent for fatigue is remanded. The claim of entitlement to a rating in excess of 10 percent for memory loss is remanded. FINDINGS OF FACT 1. The April 2003 Board decision denied service connection for sleep apnea (claimed as sleep disturbance). 2. Evidence received since the Board decision is new and relates to an unestablished fact necessary to substantiate the claim. CONCLUSION OF LAW The criteria for reopening a previously denied claim of service connection for sleep apnea disability have been met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from September 1982 to July 1986 and from January 1991 to March 1991, with additional Reserves service. The Veteran had service in Southwest Asia. These matters are before the Board of Veterans’ Appeals (Board) on appeal from a November 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). At the outset, the Board finds the evidence submitted in the February 2015 claim for sleep apnea tends to substantiate an element of the previously adjudicated matter of service connection for a sleep disorder. Accordingly, the February 2015 claim has been characterized as a claim to reopen. See Velez v. Shinseki, 23 Vet. App. 199, 204 (2009) (quoting Boggs v. Peake, 520 F.3d 1330, 1337 (Fed. Cir. 2008). The RO has reopened and adjudicated the claim for sleep apnea in the rating decision on appeal. Notwithstanding previous determination by the RO, the Board must address whether new and material evidence has been received to reopen the claim. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); Barnett v. Brown, 83 F.3d 1380 (Fed Cir. 1996). In April 2015, additional service medical and personnel records were associated with the claims file. Upon review, they are not relevant to the claims on appeal and as such, 38 C.F.R. § 3.156(c) is not for application. New and Material Evidence VA may reopen and review a claim, which has been previously denied, if new and material evidence is submitted by or on behalf of the Veteran. 38 U.S.C. § 5108. Service connection for sleep apnea (claimed as a sleep disturbance) was last denied in an April 2003 Board decision. 38 U.S.C. § 7104. Board decisions are final when issued. 38 C.F.R. §§ 3.104, 20.1100. The basis of the April 2003 Board decision was that the Veteran was not currently experiencing a sleep disturbance. Significantly, it was noted that a November 2002 VA psychiatric examination showed that the Veteran slept nine hours per night. In February 2015, VA received an application to reopen the claim. See also April 2016 Correspondence. Upon review of the record, the Board finds that new and material evidence sufficient to reopen the claim has been obtained. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. New evidence in the form of VA medical records, the Veteran’s statements, and a September 2015 VA sleep apnea examination, showing a diagnosis of obstructive sleep apnea, pertains to establishing a current disability; a previously unestablished fact needed to substantiate the claim. As new and material evidence has been received, the appeal is reopened. Additional development is required and addressed in the remand section below. REASONS FOR REMAND While delay is regrettable, further development is necessary. First, a review of the record identified relevant outstanding private treatment records. Specifically, the Veteran continues to seek primary medical care at Wedgewood Family Practice. The claims file showed records were last associated prior to the current appeals period. Outstanding records should be obtained upon remand. Also, updated treatment records should be obtained from the Clarksburg VA medical center (VAMC) upon remand. 1. Sleep apnea The Veteran contends that his sleep apnea is due, in part, to an unexplained chronic multisymptom illness as per § 3.317, during his Gulf War service. See January 2016 notice of disagreement; April 2016 correspondence. He also contends it is due to his exposure to hazards, such as taking the pyridostigmine bromide (PB) pills, depleted uranium missions, and taking the anthrax vaccine. See February 2015 correspondence. The Veteran has a current diagnosis for sleep apnea. See June 2015 CAPRI. The was afforded a VA sleep apnea examination in September 2015. The examiner noted a private sleep study was completed and that it was not attached to his file for review. The examiner then provided a negative nexus opinion on the basis that a review of the available medical literature did not reveal an association between environmental exposures and sleep apnea. Unfortunately, the examiner did not provide an opinion as to whether the Veteran’s sleep apnea is related to his military service on a direct basis, to include on the basis of continuity of symptomatology. Significantly, a review of the record shows complaints of sleep disturbances as early as May 1996. As such, another opinion is needed on remand. Upon remand, the RO is also asked to obtain and associate the private sleep study referenced in the September 2015 VA examination report. 2. Dizziness The Veteran seeks service connection for dizziness. At a September 2015 VA ear condition examination, the examiner did not find subjective or objective evidence for dizziness and therefore, did not provide a current diagnosis. The examiner opined that the dizziness was not caused by or a result of a specific exposure event during Gulf War service and that its etiology was most likely due to the lumbar radiculopathy noted on the electromyograph (EMG) report. However, a January 2014 VA Persian Gulf examination note and an October 2014 VA treatment record show subjective dizziness which, in the latter note, indicated he was treated with medication. These notes did not include a radiculopathy diagnosis or a causal connection between the two. The Board observes that the “current disability” requirement for service connection is satisfied if a claimant has a disability at any time during the pendency of a claim, even if the disability resolves prior to the adjudication of the claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). An opinion has not been provided with respect to the Veteran’s claimed dizziness and is needed on remand. 3. Muscle and joint pain The Veteran seeks service connection for muscle and joint pain due to an unexplained chronic multisymptom illness as per § 3.317, during his Gulf War service. See January 2016 notice of disagreement; April 2016 correspondence. He also contends it was due to his exposure to hazards, such as taking the pyridostigmine bromide (PB) pills, depleted uranium missions, and taking the anthrax vaccine. See February 2015 correspondence. The Board notes that a VA general Gulf War examination was requested in July 2015. While a report was associated with the file in October 2015, it does not appear that it was completed. Upon remand, the RO is asked to schedule another examination with respect to the Veteran’s muscle and joint pain claim. 4. Left and right-hand tremors, muscle movement disorder in the eyes, muscle movement disorder in the tongue The Veteran seeks service connection for tremors to his left and right hand as well as a muscle movement disorder of both the eyes and tongue, to include as due to an undiagnosed illness. The Veteran underwent a VA central nervous system/neuromuscular disease examination for his tremors in September 2015. The examiner diagnosed a movement disorder, specifically tremors, and provided a negative nexus opinion as to the contended exposures the Veteran experienced during the Gulf War. Unfortunately, the examiner did not provide an opinion as to whether the Veteran’s tremors are related to his military service on a direct basis, to include on the basis of continuity of symptomatology. In addition, the examiner did not address the contentions with respect to his tongue. A December 2013 VA treatment record noted positive tongue tremors. As such, an addendum opinion is needed on remand. At the September 2015 VA eye examination, the examiner did not find any ocular diseases. The examiner noted the Veteran experienced vertical diplopia in his left eye. He provided a negative nexus opinion with rationale, but did not address a December 2013 VA treatment record that noted a positive perioral tremor of the eyes. As such, another opinion is needed on remand. 5. Tingling and cramping in the left and right leg The Veteran contends that he has tingling and cramping in his legs due to his exposure to hazards, such as taking the pyridostigmine bromide (PB) pills, depleted uranium missions, and taking the anthrax vaccine. See February 2015 correspondence. He underwent a VA examination in October 2015, where the examiner noted an October 2015 EMG report revealed mild chronic lumbar radiculopathy, bilaterally. The examiner opined that the tingling and cramping of the legs was due to radiculopathy and therefore, a diagnosed illness. Unfortunately, the examiner did not provide an opinion as to whether the Veteran’s radiculopathy is related to his military service on a direct basis, to include on the basis of continuity of symptomatology. As such, on remand, another opinion is needed. Also, the Board notes that the October 2015 EMG report is not associated to the file for review. See October 2015 CAPRI. On remand, the RO is asked to locate and associate it to the claims file. 6. Fatigue The Veteran seeks a higher rating for his service-connected fatigue condition. Adjudication is deferred on this matter as there are outstanding private treatment records. 7. Memory loss The Veteran seeks a higher rating for his service-connected memory loss condition. He contends that his condition is now more profound or severe. See February 2015 correspondence; January 2016 notice of disagreement. His last examination was in 1996. Given the Veteran’s contentions, he should be scheduled for a VA examination to ascertain the current severity and occupational impact of his memory loss. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159; see also Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). The matters are REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records from the Clarksburg VAMC from October 2015 to the present. 2. Ask the Veteran to complete a VA Form 21-4142 for any non-VA health provider, including Wedgewood Family Practice and the private sleep study center. Make two requests for the authorized records, unless it is clear after the first request that a second request would be futile. 3. Take all actions necessary to obtain the October 2012 and January 2013 sleep study reports (see June 2015 CAPRI) and the October 2015 EMG report (see October 2015 CAPRI) and associate the reports with the claims file. 4. Return the file to the September 2015 VA sleep apnea examiner for an addendum opinion on the Veteran’s sleep apnea. If that examiner is unavailable, the opinion should be provided by an appropriate examiner. The claims file, the October 2012 and January 2013 sleep study reports, if obtained, and a copy of this remand must be reviewed by the examiner. The examiner is asked to review the October 2012 and January 2013 sleep study report and provide an addendum opinion as to whether the current sleep apnea is at least as likely as not (a 50 percent or greater probability) related to his second period of service. A fully-explained rationale for the requested opinions should be provided. If the examiner feels that the requested opinions cannot be rendered without resorting to speculation, he or she must explain why this is so. 5. Return the file to the September 2015 VA ear conditions examiner for an addendum opinion on the Veteran’s dizziness. If that examiner is unavailable, the opinion should be provided by an appropriate examiner. The claims file and a copy of this remand must be reviewed by the examiner. The examiner is asked to review VA treatment records that discuss the Veteran’s dizziness and provide an addendum opinion as to whether the current dizziness is at least as likely as not (a 50 percent or greater probability) related to his second period of service. A fully-explained rationale for the requested opinions should be provided. If the examiner feels that the requested opinions cannot be rendered without resorting to speculation, he or she must explain why this is so. 6. Schedule the Veteran for a VA Gulf War examination to determine the nature and etiology of any of his undiagnosed symptoms or disorders, including but not limited to his claimed muscle and joint pain. All test and studies deemed necessary shall be performed. The examiner should be provided with the Veteran’s claims file, including a copy of this remand. After reviewing the claims file and examining the Veteran, the examiner is asked to address the following: Determine whether the Veteran’s reported muscle and joint pain currently at issue are signs or symptoms of an undiagnosed illness or a medically unexplained chronic multisystem illness that is defined by a cluster of signs or symptoms. A fully-explained rationale for the requested opinions should be provided. 7. Request an addendum opinion from the September 2015 VA central nervous system/neuromuscular disease examination and eye examiners regarding the Veteran’s claimed tremors to his left and right hand, eyes, and tongue. The claims file and a copy of this remand must be reviewed by the examiner. The examiners are asked to review VA treatment records that discuss the Veteran’s tremors and provide an addendum opinion as to whether the current tremors of the left and right hands, eyes, and tongue are at least as likely as not (a 50 percent or greater probability) related to his second period of service, to include the Veteran’s contentions of his exposure to hazards, taking the PB pills, anthrax vaccine, and depleted uranium missions. A fully-explained rationale for the requested opinions should be provided. If the examiner feels that the requested opinions cannot be rendered without resorting to speculation, he or she must explain why this is so. 8. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected fatigue. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. 9. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected memory loss condition. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. (Continued on the next page)   10. Readjudicate the claims. APRIL MADDOX Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Tang, Associate Counsel