Citation Nr: 1824538 Decision Date: 04/25/18 Archive Date: 05/03/18 DOCKET NO. 14-31 346A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Whether there is new and material evidence to reopen the claim of entitlement to service connection for back pain. 2. Entitlement to service connection for a lumbar spine condition. 3. Entitlement to service connection for radiculopathy of the bilateral lower extremities as secondary to service-connected lumbar spine disability. 4. Entitlement to service connection for cervical spondylosis. 5. Entitlement to service connection for joint stiffness. 6. Entitlement to service connection for a lung condition. 7. Entitlement to service connection for stomach ulcers. 8. Entitlement to service connection for gastroesophageal reflux disease (GERD). 9. Entitlement to service connection for a disability characterized by memory loss. 10. Entitlement to service connection for disability characterized by sleep problems. 11. Entitlement to service connection for obstructive sleep apnea. 12. Entitlement to a rating greater than 30 percent for service-connected migraine headache disability. REPRESENTATION Appellant represented by: Douglas E. Sullivan, Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. Barner, Counsel INTRODUCTION The Veteran served on active duty from September 1989 to September 1992. He had active service in the Southwest Asia Theater of Operations during the Persian Gulf War. This appeal comes before the Department of Veterans Affairs (VA) Board of Veterans' Appeals (Board) from February 2012 and March 2013 rating decisions of the VA Regional Office (RO) in Decatur, Georgia. Jurisdiction is with the RO in Atlanta, Georgia. The Veteran had a videoconference hearing before the Board in November 2017, and a transcript is of record. The record was held open an additional 30 days in order for evidence to be submitted, and the Veteran submitted evidence along with a waiver of AOJ review of such evidence. The issue of entitlement to service connection for amyotrophic lateral sclerosis has been raised by the record in an April 2013 statement, 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. 38 C.F.R. § 19.9(b) (2017). The Board acknowledges that the issues of entitlement to service connection for hearing loss, tinnitus, bilateral upper extremity neuropathy, and TDIU have been appealed, but not yet certified to the Board. The Board's review of the claims file reveals that the AOJ is still taking action on these issues. As such, the Board will not accept jurisdiction over them at this time, but they will be the subject of a subsequent Board decision, if otherwise in order. The issue of entitlement to service connection for radiculopathy of the bilateral lower extremities has been raised by the record; and, the Board will grant service connection for that disability in the first instance. While investigating the pending claim for the lumbar spine, VA received medical evidence indicating that the Veteran also has a diagnosis of radiculopathy of the bilateral lower extremities, which was proximately due to or the result of his service-connected lumbar spine disability. Accordingly, the issue of entitlement to service connection for radiculopathy of the bilateral lower extremities as secondary to service-connected lumbar spine disability is included in the present appeal. See DeLisio v. Shinseki, 25 Vet. App. 45, 54 (2011). The issues of entitlement to service connection for sleep apnea, sleep problems, memory loss, stomach ulcers, joint stiffness, lung condition, and cervical spine disability are addressed in the REMAND portion of the decision below and are REMANDED to the AOJ. FINDINGS OF FACT 1. In an October 1993 rating decision, the RO denied entitlement to service connection for back pain. The Veteran did not timely appeal this decision, nor did he submit new and material evidence within one year of the decision. 2. Evidence received since the October 1993 rating decision relates to the basis for the prior denial. 3. The Veteran's lumbar spine disability is related to service. 4. The evidence is at least in equipoise as to whether the Veteran's radiculopathy of the bilateral lower extremities is proximately due to or the result of his service-connected lumbar spine disability. 5. The Veteran's GERD is secondary to his service-connected migraines. 6. It is reasonably shown that, throughout the period on appeal, the Veteran's migraines have been manifested by symptoms more nearly approximating very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability, which corresponds to a 50-percent rating, which is the maximum schedular rating available for the migraine headaches disability. CONCLUSIONS OF LAW 1. The October 1993 rating decision that denied service connection for back pain is final. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 3.156(b), 20.1103 (2017). 2. Evidence received since the October 1993 rating decision is new and material and the claim for service connection for a back condition is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2017). 3. The criteria for entitlement to service connection for a lumbar spine disability have been met. 38 U.S.C. §§ 1131, 1154, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2017). 4. The criteria for entitlement to service connection for radiculopathy of the bilateral lower extremities as secondary to service-connected lumbar spine disability have been met. 38 U.S.C. §§ 1131, 1154, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.310 (2017). 5. The criteria for entitlement to service connection for GERD as secondary to service-connected migraine disability have been met. 38 U.S.C. §§ 1131, 1154, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.310 (2017). 6. For the entire period on appeal, the criteria for a 50-percent rating for migraine headaches, which is the maximum schedular rating, have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.14, 4.124a, Diagnostic Code 8100 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS New and Material Evidence Generally, a claim that has been denied in a final unappealed rating decision may not thereafter be reopened and allowed. 38 U.S.C. § 7105(c). An exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, VA shall reopen the claim and review the former disposition of the claim. New evidence means existing evidence not previously submitted to agency decisionmakers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Furthermore, in determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the VA Secretary's duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. Evidence is presumed to be credible for the purpose of determining whether the case should be reopened; once the case is reopened, the presumption as to the credibility no longer applies. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The evidence must be both new and material; if the evidence is new, but not material, the inquiry ends and the claim cannot be reopened. Smith v. West, 12 Vet. App. 312 (1999). In an October 1993 rating decision, the RO, inter alia, denied entitlement to service connection for back pain. The Veteran was notified but did not appeal the decision. Accordingly, the October 1993 rating decision is final. See 38 U.S.C. § 7105(c); 38 C.F.R. § 20.1103. In October 201,1 the Veteran filed an application to reopen his claim of entitlement to service connection for a back condition, which was in part denied because there was no X-ray evidence of any back disease or injury. In support of his claim for a back condition, the Veteran has submitted private medical records showing diagnoses for his lumbar spine, to include X-rays showing lumbar disabilities, and underwent VA examinations for the same. In light of the "low" threshold required for new and material evidence established in Shade, the Board finds that in this case the evidence submitted since the October 1993 rating decision, when considered with previous evidence of record, relates to previously unestablished facts necessary to substantiate the claim. As such, the evidence is new and material and warrants reopening of the claims. See 38 C.F.R. § 3.156. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a link between the claimed in-service disease or injury and the present disability. Romanowsky v. Shinseki, 26 Vet. App. 289, 293 (2013). Service connection may also be granted for any disease 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 after December 31, 1946, there is a presumption of service connection for certain chronic diseases, including arthritis, if the disability is manifest to a compensable degree within one year of discharge from service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." Continuity of symptomatology after discharge is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b); see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic as per 38 C.F.R. § 3.309(a)). Service connection may also be granted on a secondary basis for disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. Reasonable doubt is defined as doubt that exists because of an approximate balance of positive and negative evidence, which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102 (2017). Lumbar Spine, and radiculopathy of the bilateral lower extremities as secondary to lumbar spine disability The Veteran contends that he is entitled to service connection for a lumbar spine disability, and the Board agrees. In addition, the evidence has shown that he has radiculopathy of the lower extremities as secondary to his lumbar spine disability. Service treatment records show that in September 1991 the Veteran reported experiencing acute low back pain for three days, which began after heavy lifting, and was assessed as having mechanical muscle strain. At separation, in August 1992 the Veteran reported experiencing recurrent back pain. Private medical records from at least 2000 show that the Veteran reported experiencing recurrent low back pain. In 2004 the Veteran reported experiencing low back pain with sciatic symptoms to his left hip and leg, and was assessed as having sciatica, probably secondary to herniated nucleus pulposus. A 2004 lumbar MRI showed a small herniated disk at L4-5. In 2006 the Veteran reported back spasms and pain, and was assessed with low back sprain/spasms. VA examination for the low back indicated that the Veteran had a 2013 diagnosis of degenerative joint disease/degenerative disc disease of the thoracolumbar spine; a 1991 diagnosis of lumbar strain; and a 2013 diagnosis of residuals of T-12 wedge compression. The Veteran reported that he experienced pain in his low back, and sought treatment from a chiropractor weekly. He indicated that his symptoms had been present since military service. The pain was in his lumbar area, traveling to his buttocks and right thigh. The examiner reviewed the C-file and noted there was a 1991 report of mechanical lumbar strain injury. She indicated that medical records then showed reports of treatment for back pain/sciatica in July 2011. The examiner indicated that arthritis of the thoracolumbar spine was documented by imaging. The examiner assessed multilevel thoraco-lumbar degenerative joint and disc disease. The examiner opined that the Veteran's DJD/DDD of the thoracolumbar spine was less likely than not related to a specific exposure experienced by the Veteran in SW Asia while on active military duty. The examiner also opined that it was less likely related to the Veteran's one episode of treatment for lumbar pain in 1991. The examiner reasoned that the Veteran's service treatment records showed only one entry for mechanical back strain and there was no record documenting ongoing processes with the back beyond the Veteran's subjective report three years prior to examination, and it was unlikely the Veteran's multilevel spinal degenerative changes related to one incident of muscle strain. In addition, the 2013 VA examiner noted that the Veteran reported radicular symptoms, specifically mild right lower extremity intermittent pain. The examiner indicated that the right L2/L3/L4 nerve roots were involved, such that there was mild right radiculopathy. The examiner assessed subjective report of intermittent sciatic radiculopathy on the right, without examination findings of sensory or motor pathology. An October 2017 private examiner's Disability Benefits Questionnaire identified lumbosacral strain/sprain; degenerative disc disease; and radiculopathy involving the lumbar spine. The lumbar X-rays showed interval progression in advanced degenerative changes, old unchanged remote 10 percent compression deformity, superior endplate T12 developmental changes, and moderately advanced symmetric degenerative change involving both sacroiliac joints. The examiner opined, based on review of the service treatment records and civilian medical records that the Veteran low back conditions were more likely than not due to or incurred during his service. He reasoned that the Veteran's low back conditions were chronic and progressive in nature. The October 2017 examiner indicated that the Veteran had radiculopathy, with constant, moderate pain, severe intermittent pain, moderate dull pain, and moderate paresthesias and numbness of the bilateral lower extremities. Examination of muscle strength testing showed active movement against some resistance; reflexes for the right and left knees and ankles were hypoactive; sensation was decreased in the upper anterior thigh, thigh/knee, and foot/toes bilaterally. In addition, vibration and position sense were decreased bilaterally. Straight leg raising test was positive. The femoral and sciatic nerve roots were involved bilaterally. At the November 2017 Board hearing, the Veteran's representative suggested that the February 2013 VA opinion regarding the back relied on faulty information. Specifically, the representative explained that the examiner indicated that there was one treatment note regarding the Veteran's mechanical muscle strain after heavy lifting, and this did not equate to a chronic problem. The examiner failed to mention, however, that the Veteran also reported back pain on his separation examination. Indeed, the Board finds that the VA opinion relies on faulty reasoning and as such, the opinion is not probative. Considering the Veteran's lay statements of back symptoms since service, diagnosis of arthritis, and the positive nexus opinion from the October 2017 private examiner, resolving all reasonable doubt in the Veteran's favor, the Board finds that service connection for a lumbar spine disability is warranted. See Wise v. Shinseki, 26 Vet. App. 517, 531 (2014) ("By requiring only an 'approximate balance of positive and negative evidence' . . ., the nation, 'in recognition of our debt to our veterans,' has 'taken upon itself the risk of error' in awarding . . . benefits."). The evidence shows that the Veteran has bilateral lower extremity radiculopathy involving the femoral and sciatic nerve roots of his lumbar spine, such that by definition, and resolving all reasonable doubt in the Veteran's favor, it is secondary to his now service-connected lumbar spine disability. GERD The Veteran contends that he is entitled to service connection for GERD, to include as due to service-connected migraine disability, and the Board agrees. The Veteran has a diagnosis of GERD, confirmed by fluoroscope in February 2013. Indeed, at the examination for stomach ulcers, the impression included mild spontaneous GERD such that the assessment had an ancillary finding of GERD. The Veteran's migraine disability is service-connected. In September 2016 Dr. Mitchell indicated that he strongly suspected the Veteran had developed GERD over time secondary to his use of NSAIDS (Excedrin migraine, aspirin, Motrin) for his headaches. Further, in an October 2017 Disability Benefits Questionnaire the examiner concluded that the Veteran's GERD was more likely than not due to and incurred during military service. The examiner indicated that the Veteran had chronic GERD symptoms while on active duty. Although this direct nexus opinion was provided, the Board finds that it is less probative than the secondary nexus opinion because it provides a conclusion without rationale. For instance, the chronic GERD symptoms on active duty are not specifically discussed to support in service incurrence, and the nexus opinion does not have rationale. Resolving reasonable doubt in the Veteran's favor, the Board finds the secondary service-connection opinion probative, in that it explains that NSAID use over time, was being used for the Veteran's migraines and likely caused the Veteran's GERD. Service connection for GERD secondary to migraine disability is warranted. See Wise v. Shinseki, 26 Vet. App. 517, 531 (2014). Increased Rating Disability ratings are determined by application of the criteria set forth in VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a particular Diagnostic Code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating; otherwise, the lower rating applies. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2017). The Veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). The Board long has recognized that when considering initial ratings the degree of impairment since the effective date of the grant of service connection must be considered, to include the possibility that a staged rating may be assigned. See Fenderson v. West, 12 Vet. App. 119 (1998). As such, the Board will consider whether staged ratings are appropriate in the pending appeal. The Board must assess the credibility and weigh all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Under Diagnostic Code 8100 for migraine headaches a 50-percent rating is assigned for migraines with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. A 30-percent rating is assigned with characteristic prostrating attacks occurring on an average once a month over the last several months. A 10-percent rating is assigned with characteristic prostrating attacks averaging one in 2 months over last several months. With less frequent attacks, a 0-percent rating is assigned. 38 C.F.R. § 4.124a. Significantly, the rating criteria under Diagnostic Code 8100 does not contemplate the ameliorating effects of medication to treat migraines; consequently, the Board may not deny entitlement to a higher disability rating based on the relief provided by the medication. See Jones v. Shinseki, 26 Vet. App. 56 (2012). September 2016 treatment note showed that the Veteran experienced migraine type headaches associated with photophobia, phonophobia, and nausea. Note indicated he experienced three to four headaches per (blank) with two that were "bad" with associated noise and light sensitivity. Assessment was of migraine with aura, not intractable, without status migrainous. September 2017 treatment note indicated that the Veteran experienced three to four headaches weekly, with two that also had noise and light sensitivity. At his November 2017 hearing, the Veteran reported experiencing migraines two to three times a week, which required him to avoid noises and light, and take his medications and try to sleep. He described leaving work or not going to work at all such that he exhausted his sick and vacation time. A December 2017 opinion based on record review indicated that the Veteran experienced migraines with phonophobia associated with nausea. He took medications, to include Acetaminophen/Butalbital/Caffeine capsules. He experienced characteristic prostrating attacks of migraine pain, once in two months, without very prostrating and prolonged attacks of migraines productive of severe economic inadaptability. The Veteran's ability to work was affected according to the examiner, and yet there were no functional limitations. A February 2018 addendum opinion indicated that the opinion was based on records review without an in person examination, and that actually there was no impact on the Veteran's work. The Board observes that this examination based on records review, is inconsistent with the records. The record is not entirely clear as to how frequently the Veteran experiences migraines, as it reflects that the frequency varies over time. However, the Board notes that even the lowest documented frequency exceeds the once monthly frequency contemplated by a 30-percent rating. Consequently, the Board's analysis focuses on the severity of the Veteran's migraines, and whether they are consistent with the characteristic "prostrating attacks" described in the rating criteria. Significantly, the rating criteria under Diagnostic Code 8100 do not contemplate the ameliorating effects of medication to treat migraines; consequently, the Board is prohibited from assigning a disability rating based on the severity when such medication is taken. See Jones v. Shinseki, 26 Vet. App. 56 (2012). Thus, when considering the frequency of the Veteran's headaches in light of their severity without the use of medication, and resolving reasonable doubt in the Veteran's favor, the Board finds that the disability picture more nearly approximates the criteria required for the 50-percent rating for the entire time on appeal. 38 C.F.R. § 4.7. The Board has carefully considered the Veteran's contentions with respect to the nature of his service-connected migraines and notes that his lay testimony is competent to describe the symptoms associated with such disability. The Veteran's history and symptom reports have been considered, including as presented in the medical evidence discussed above, and are contemplated by a 50-percent rating. In short, the findings reflect that he regularly experiences recurrent headaches, and they are of such severity as to constitute the type of completely prostrating and prolonged attacks required for a higher rating under Diagnostic Code 8100. Consequently, the Board finds that an increased 50-percent rating is warranted for the entire time on appeal. This is the maximum schedular rating provided by regulation. ORDER The application to reopen the claim of entitlement to service connection for back pain is granted. Entitlement to service connection for lumbar spine disability is granted. Entitlement to service connection for radiculopathy of bilateral lower extremities as secondary service-connected lumbar spine disability is granted. Entitlement to service connection for GERD is granted. For the entire period, a 50-percent rating for the Veteran's migraine headaches is granted, subject to the laws and regulations governing the award of monetary benefits. REMAND Further development is warranted with respect to the Veteran's claims of entitlement to service connection for sleep apnea, for cervical spine disability, for lung condition, and for stomach ulcers, sleep problems, memory loss, and joint stiffness, to include as due to an undiagnosed illness. For Persian Gulf War veterans like the appellant, service connection may be granted for objective indications of a chronic disability resulting from an illness or combination of illnesses manifested by one or more signs or symptoms, to include, but not limited to, fatigue; muscle or joint pain; neurologic signs or for Persian Gulf War veterans like the appellant service connection may be granted for objective indications of a chronic disability resulting from an illness or combination of illnesses manifested by one or more signs or symptoms, to include, but not limited to, fatigue; muscle or joint pain; neurologic signs or symptoms; neuropsychological signs or symptoms; signs or symptoms involving the respiratory system; or sleep disturbances. The chronic disability must have become 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 must not be attributed to any known clinical diagnosis by history, physical examination, or laboratory tests. 38 U.S.C. § 1117 (2012); 38 C.F.R. §3.317(a)(b) (2017). The United States Court of Appeals for Veterans Claims has held that an examination based on an inaccurate factual premise has no probative value. See Reonal v. Brown, 5 Vet. App. 458, 460 (1993). Therefore, it is incumbent upon the Board to find that the February 2013 clinical reports pertaining to the cervical spine, stomach ulcers, and sleep apnea are inadequate. It is well established that once VA provides an examination in a service connection claim, the examination must be adequate. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). An inadequate examination frustrates judicial review. Hicks v. Brown, 8 Vet. App. 417, 422 (1995). Lungs, Joint Stiffness, Sleep Problems, Ulcers, and Memory Loss At his hearing the Veteran's representative suggests that the Veteran's symptoms regarding his sleep problems (other than sleep apnea), memory loss, ulcers, joint stiffness (to include in the elbows, knees, and wrists), and lungs are all part of 38 C.F.R. § 3.317 undiagnosed Gulf War illness, either symptoms of medically undiagnosed illness or medically unexplained chronic multi-symptom illness. In addition, the representative took issue with the February 2013 VA examiner's conclusion that there was a diagnosis, but no pathology. The representative suggests that this is internally inconsistent to suggest there is a diagnosis but no abnormality (pathology), and lacks specificity in detailing the diagnosis. In addition, the Board notes that the medical records suggest that the Veteran may suffer sleep problems in relation to his GERD, and as such a secondary medical opinion is sought. Cervical Spine At the November 2017 Board hearing, the Veteran's representative suggested that the February 2013 VA opinion was inadequate because the facts were misstated. Specifically, the examiner indicated that the Veteran's C-file was silent for treatment of cervical injury or cervical pain, and a cervical spine X-ray in 1989 showed normal cervical spine. Service treatment records, however, show that in December 1989 the Veteran had a head injury with neck pain, and was advised to take Motrin for related pain and Robox for spasms, ice the bruises and rest. As such, this examination is based on an inaccurate factual premise, and another VA examination is necessary. In addition, the Board notes that the Veteran completed a February 2013 release of records by Dr. Eric Schendorf in regards to his back, and because this may involve his cervical spine the Board finds these records must be requested and associated with the record if possible. Ulcers In February 2013 the VA examiner indicated that there was no active disease for the Veteran's claimed peptic ulcer disease. The Veteran's representative emphasized at the hearing that the Veteran reported flare-ups of his ulcer several times weekly, experienced blood in his stool up to five times monthly, took Ranitidine, and that such symptoms were the same that he experienced while in service. Although the fluoroscope confirmed old, healed peptic ulcer disease, the representative argued that Diagnostic Code 7305 recognized there were reoccurring symptoms, and as such, the representative suggested that the ulcer did not need to be a constant thing. Indeed, the Board agrees that the Veteran's residuals of peptic ulcer disease are for consideration of service connection, and would like a nexus opinion regarding such symptoms, to include as noted above, whether this is part of a Gulf War illness. Sleep Apnea The Veteran reported at his hearing that while in service others brought his snoring to his attention, suggesting he snored like a freight train and stopped breathing for seconds, or minutes at a time. Such statements were not considered in the February 2013 VA examination, which specifically indicated that service treatment records were silent for sleep apnea or snoring. March 2013 VA polysomnography test confirmed the Veteran had severe obstructive sleep apnea. The Board would find it helpful for a VA examiner to opine whether the reported in service symptoms of snoring, and halted breathing are symptoms of the Veteran's currently diagnosed sleep apnea, such that it was at least as likely as not that his sleep apnea was incurred in or due to service. Remand for another VA opinion is necessary. Accordingly, the case is REMANDED for the following action: 1. With any necessary assistance from the Veteran, request outstanding records from Dr. Eric Schendorf pertaining to the Veteran's spine. 2. Schedule the Veteran for an examination by a VA physician, preferably one who is a specialist in Gulf War syndrome/undiagnosed illnesses, to determine whether the Veteran has sleep problems, memory loss, ulcers, lung condition or chronic joint pain or a medically unexplained chronic multi-symptom illness, to include its likely etiology or lack thereof. All indicated tests and studies should be performed and clinical findings must be reported in detail. Access to the Veteran's electronic claims folder must be made available to the examiner for review prior to examination. The examiner must be afforded a copy of this remand. A comprehensive clinical history should be obtained, to include a discussion of the Veteran's documented history and assertions. After a thorough review of the evidence and physical examination, the examiner should provide an opinion with supporting rationale as to whether it is at least as likely as not (50 percent probability or better) that: a) the Veteran has a disability characterized by sleep problems (other than sleep apnea) that relates to service b) if not (a), then whether the Veteran has a disability characterized by sleep problems that is at least as likely as not (i) caused or (ii) worsened by his service-connected disabilities. c) if not (a) or(b) then, whether it is at least as likely as not that any disability characterized by sleep problems may be classified as an undiagnosed illness or symptoms of a medically unexplained chronic multi-symptom illness. d) the Veteran has memory loss that relates to service, e) if not (d), then whether it is at least as likely as not that any memory loss may be classified as an undiagnosed illness or symptoms of a medically unexplained chronic multi-symptom illness. f) the Veteran has residuals of stomach ulcers that relate to service, g) if not (f), then whether it is at least as likely as not that any stomach ulcer residuals are classified as an undiagnosed illness or symptoms of a medically unexplained chronic multi-symptom illness. h) the Veteran has chronic joint pain that relates to service, i) if not (h), then whether it is at least as likely as not any joint pain may be classified as an undiagnosed illness or symptoms of a medically unexplained chronic multi-symptom illness. j) the Veteran has a lung condition that relates to service, to include any asbestos exposure, k) if not (j) then whether it is at least as likely as not that the Veteran has a lung condition that may be classified as an undiagnosed illness or symptoms of a medically unexplained chronic multi-symptom illness. l) the Veteran has a cervical spine disability that is related to service, to include his reported neck pain and injury in service. m) the Veteran has sleep apnea that is related to service, to include his reported symptoms of snoring and halted breathing while in service. The examiner is requested to provide a well-supported opinion and complete rationale for the opinions and conclusions reached. 3. The Veteran is hereby notified that it is his responsibility to report for the examination and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. See 38 C.F.R. § 3.655. In the event that the Veteran does not report for the aforementioned examination, if required, documentation should be obtained which shows that notice scheduling the examination was sent to the last known address. It should also be indicated whether any notice that was sent was returned as undeliverable. 4. THE AOJ MUST REVIEW THE CLAIMS FILE AND ENSURE THAT THE FOREGOING DEVELOPMENT ACTION HAS BEEN COMPLETED IN FULL. IF ANY DEVELOPMENT IS INCOMPLETE, APPROPRIATE CORRECTIVE ACTION MUST BE IMPLEMENTED. IF ANY REPORT DOES NOT INCLUDE ADEQUATE RESPONSES TO THE SPECIFIC OPINIONS REQUESTED, IT MUST BE RETURNED TO THE PROVIDING EXAMINER FOR CORRECTIVE ACTION. 5. After taking any further development deemed appropriate, re-adjudicate the remaining issues on appeal. If any benefit is not granted, provide a supplemental statement of the case and afford the Veteran and his Representative an opportunity to respond before the case is returned to the Board. The appellant 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. §§ 5109B, 7112 (2012). ______________________________________________ YVETTE R. WHITE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs