Citation Nr: 20034079 Decision Date: 05/15/20 Archive Date: 05/15/20 DOCKET NO. 16-37 380 DATE: May 15, 2020 ORDER The petition to reopen the previously denied claim of entitlement to service connection for a left knee condition is granted. The petition to reopen the previously denied claim of entitlement to service connection for a right knee condition is granted. The petition to reopen the previously denied claim of entitlement to service connection for a lung condition, including shortness of breath, is granted. Entitlement to service connection for sleep apnea is denied. REMANDED Entitlement to service connection for a bilateral knee condition is remanded. Entitlement to service connection for a lung condition, including shortness of breath, is remanded. Entitlement to service connection for irritable bowel syndrome, to include as due to a chronic qualifying disability as a result of service in Southwest Asia, is remanded. Entitlement to service connection for chronic fatigue syndrome, to include as due to a chronic qualifying disability as a result of service in Southwest Asia, is remanded. Entitlement to service connection for multiple joint and muscle pain, to include as due to a chronic qualifying disability as a result of service in Southwest Asia, is remanded. FINDINGS OF FACT 1. In a rating decision dated in July 2014, the RO denied the Veteran’s claim of entitlement to service connection for a bilateral knee condition and a lung condition, including shortness of breath. 2. Evidence added to the record since the final July 2014 denial is cumulative or redundant of the evidence of record at the time of that decision and does not raise a reasonable possibility of substantiating the claim of entitlement to service connection for a bilateral knee condition. 3. The competent evidence of record does not relate the Veteran’s sleep apnea to his military service. CONCLUSIONS OF LAW 1. A July 2014 rating decision denied the Veteran’s claims of entitlement to service connection for bilateral knee and lung conditions. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156(b), 20.302, 20.1103. 2. New and material evidence has been received sufficient to reopen the Veteran’s claims of entitlement to service connection for bilateral knee and lung conditions. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(b). 3. The criteria for service connection for sleep apnea have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1983 to December 1991, to include service in the Persian Gulf War. This matter comes before the Board of Veterans’ Appeals on appeal from August 2015 (chronic fatigue and multiple joint/muscle pain) and October 2016 (bilateral knees, lung, irritable bowel syndrome, sleep apnea) rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). New and Material Evidence Generally, a claim that has been denied in an unappealed rating decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104(b), 7105(c). The 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, the Secretary shall reopen the claim and review the former disposition of the claim. See 38 C.F.R. § 3.156(a). 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. 38 C.F.R. § 3.156(a). Whether new and material evidence was received to reopen a previously denied claim of service connection for a bilateral knee condition and a lung condition characterized as shortness of breath. In a July 2014 rating decision, the RO denied service connection for bilateral knee conditions and a lung condition. The rating decision was mailed on July 14, 2014, with notice of the Veteran’s procedural and appellate rights to his address of record and to his representative. He did not file a notice of disagreement within one year of the notice. The Veteran filed a Fully Developed Claim in March 2015 for other disabilities, including a left shoulder disability and “Gulf War Syndrome/ undiagnosed illnesses.” The left shoulder issue was granted and the undiagnosed illness issue is presently before the Board as entitlement to service connection for irritable bowel syndrome, chronic fatigue syndrome, and multiple joint and muscle pain. He included additional records with that filing. The RO also obtained a VA examination in May 2015. The Board finds the evidence associated with the file in the year following the July 2014 rating decision was “received” such that the RO was obligated to make a determination whether the evidence was new and material. Beraud v. McDonald, 766 F.3d 1402, 1407 (Fed. Cir. 2014). This prevented finality from attaching to the 2014 rating decision. See id. In the 2016 rating decision on appeal here, the RO did not address the March or May 2015 evidence. The RO denied the bilateral knee and lung condition claims because there was no current disability associated with either claim. The Board notes that joint pain and signs or symptoms involving the respiratory system are among the listed, potential manifestations of medically unexplained chronic multisymptom illness. 38 C.F.R. § 3.317(b). The Board finds the records received with the March 2015 FDC and developed by the RO since then are new and material as to the bilateral knee and lung condition claims. Consequently, new and material evidence has been received to reopen the claim and reopening the claim is warranted. 38 C.F.R. § 3.156(a) (2018). These issues will be discussed further in the Remand section below. Service Connection Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110; 38 C.F.R. § 3.303. The evidence must show (1) the existence of a current disability, (2) an in-service incurrence or aggravation of a disease or injury, and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). When there is an approximate balance of positive and negative evidence regarding any material issue, reasonable doubt will be resolved in favor of the Veteran. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 49. Entitlement to service connection for sleep apnea. The Veteran contends that his sleep apnea is related to his military service. The Veteran’s medical records show a diagnosis of sleep apnea in July 2014 after undergoing a sleep study. Thus, a current disability is shown. In regard to the second element for service connection, the Veteran’s service-treatment records (STRs) do not contain any complaints of, treatment for, or diagnosis of any sort of sleep-related issues. The earliest record of any sleep-related issue is from 2014, over 20 years after the Veteran’s separation from active service, when the Veteran complained of snoring and witnessed apneas. In regards to nexus, there is no competent evidence that links the Veterans’ sleep apnea to service. The Veteran underwent a 2014 sleep study with VA after changing primary care providers. He reported apneas, mild general fatigue, snoring, frequently waking from sleep and non-refreshing sleep at a May 2014 primary care visit to establish care. In July 2014, he underwent a sleep study, resulting in the diagnosis of sleep apnea. Notably, no history of symptoms dating back to service was recorded. The Veteran’s statements in support of his appeal do not indicate that he was told by a medical professional that his sleep apnea is related to any incident of service. He has not reported a history of lay observable symptoms dating to service. The Board finds that the question of whether the Veteran’s sleep apnea is related to service is of such complexity that a lay person is not competent to provide evidence on this issue of etiology. The Board notes that the Veteran has not been provided a VA examination, but VA’s duty to provide a medical opinion is not triggered in this case because the only indication of a nexus between the claimed disability and service is a general conclusory lay statement by the Veteran. See Waters v. Shinseki, 601 F.3d 1274, 1278-79 (Fed. Cir. 2010) (distinguishing cases where only a conclusory generalized statement is provided by the veteran and rejecting the theory that medical examinations are to be routinely and virtually automatically provided to all veterans in disability cases involving nexus issues). As there is insufficient probative evidence suggesting the condition is related to service, the Board finds the preponderance of the evidence is against the claim of entitlement to service connection for sleep apnea and the claim is denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND 1. Entitlement to service connection for irritable bowel syndrome, to include as due to a chronic qualifying disability as a result of service in Southwest Asia. The Veteran asserts that his irritable bowel syndrome, to include gastrointestinal issues, are related to his time in service, to include Gulf War exposures. STRs show the Veteran reported “hypoactive bowel sounds” in June 1991 while he was in service. The Veteran’s military records show he was exposed to hazardous materials in the Kuwait/Saudi theater in support of Operation Desert Storm from February to March 1991. Service connection can be established for a Persian Gulf veteran who exhibits objective indications of a qualifying chronic disability which became manifest either during active 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; and which by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis. 38 U.S.C. § 1117; 38 C.F.R. § 3.317(a)(1). A “qualifying chronic disability” means a chronic disability resulting from either (A) an undiagnosed illness; or (B) a “medically unexplained chronic multisymptom illness” (MUCMI) such as chronic fatigue syndrome, fibromyalgia, or functional gastrointestinal disorders (excluding structural gastrointestinal disorders). 38 C.F.R. § 3.317(a)(2). Unlike an “undiagnosed illness,” MUCMIs require a diagnosed illness without conclusive pathophysiology or etiology characterized by overlapping symptoms and signs with features such as fatigue, pain, disability out of proportion to physical finding, and inconsistent demonstration of laboratory abnormalities. Id. Relevantly here, signs or symptoms of undiagnosed illness and/or MUCMIs include, but are not limited to irritable bowel syndrome, to include gastrointestinal issues. 38 C.F.R. § 3.317(b). The Board notes that the Veteran has not been afforded a VA examination for his irritable bowel or gastrointestinal symptoms. Given the above, the Board finds there is insufficient information to make a decision on the Veteran’s claim and that the low threshold for providing a VA examination, in order to obtain a medical opinion, has been met in this case. See 38 U.S.C. § 5103A; McClendon v. Nicholson, 20 Vet. App. 79, 81 (2006). Thus, the Board must remand to obtain a VA examination (if found necessary) and medical opinion to determine the nature and etiology of the Veteran’s irritable bowel syndrome and other possible gastrointestinal symptoms. 2. Entitlement to service connection for chronic fatigue syndrome, to include as due to a chronic qualifying disability as a result of service in Southwest Asia. 3. Entitlement to service connection for multiple joint and muscle pain, to include the bilateral knees, as due to a chronic qualifying disability as a result of service in Southwest Asia. 4. Entitlement to service connection for a bilateral knee condition, as due to a chronic qualifying disability as a result of service in Southwest Asia. 5. Entitlement to service connection for lung condition, including shortness of breath, to include as due to a chronic qualifying disability as a result of service in Southwest Asia. The Veteran filed a claim asserting he suffers from chronic fatigue and multiple joint and muscle pain related to his service in the Persian Gulf War. An August 2015 Gulf War general medical examination evaluated the Veteran’s claimed symptoms. The examination report includes specific examinations regarding the Veteran’s claimed chronic fatigue syndrome and joints, including hands, ankle, and hip and thigh examinations. The examiner concluded in all the examinations that the evidence was insufficient to warrant or confirm a diagnosis of chronic fatigue syndrome or an ankle, hip/thigh and hands condition. However, the examiner provided no explanation regarding the etiology of the Veteran’s reported symptoms, nor were any supporting facts or a cogent rationale provided for the conclusions reached. In addition, the examiner did not adequately address 38 C.F.R. § 3.317 regarding a chronic disability due to undiagnosed illness or medically unexplained chronic multi-symptom illness, or otherwise present the examination findings in a manner that permits the Board to make the requisite determinations under 38 C.F.R. § 3.317. In particular, the examiner failed to consider all of the Veteran’s reported symptoms, to include knee pain and shortness of breath. Thus, the Board finds the August 2015 examinations and opinions are inadequate to evaluate the issues. Accordingly, the Board finds that a remand is necessary in order to obtain an addendum opinion (and examination, if found necessary) that addresses the above deficiencies. The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination (if found necessary) with an appropriate clinician to determine whether the Veteran’s irritable bowel syndrome, to include other gastrointestinal issues, are related to his military service, to include exposure to hazardous materials during his service in the Persian Gulf War. The examiner must specifically address whether the claimed irritable bowel or gastrointestinal symptoms are attributable to a diagnosed condition. If the symptoms are attributable to a diagnosed condition, the examiner must then discuss both the etiology and pathophysiology of the condition to which the Veteran’s reported symptoms have been attributed with emphasis on whether both the etiology and pathophysiology of the condition is understood or at least partially understood in the context of the Veteran’s unique circumstances. If any of the claimed symptoms are attributable to a diagnosed condition with both an etiology and pathophysiology that are at least partially understood in the context of the Veteran’s unique circumstances, the examiner must then address whether the condition is at least as likely as not (50 percent probability or greater) the result of disease or injury in active service. The examiner is advised the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinion. If the examiner rejects the Veteran’s reports, he or she must provide a reason for doing so. The examination report must include a complete rationale for all opinions provided. 2. Schedule the Veteran for a new examination (if found necessary) regarding his service connection claims for joint pain, to include bilateral knee pain, muscle pain, chronic fatigue, and shortness of breath. The examiner must specifically address whether the claimed symptoms of joint pain, muscle pain, and chronic fatigue are attributable to a diagnosed condition. If the symptoms are attributable to a diagnosed condition, the examiner must then discuss both the etiology and pathophysiology of the condition to which the Veteran’s reported symptoms have been attributed with emphasis on whether both the etiology and pathophysiology of the condition is understood or at least partially understood in the context of the Veteran’s unique circumstances. If any of the claimed symptoms are attributable to a diagnosed condition with both an etiology and pathophysiology that are at least partially understood in the context of the Veteran’s unique circumstances, the examiner must then address whether the condition is at least as likely as not (50 percent probability or greater) the result of disease or injury in active service. The examiner is advised the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinion. If the examiner rejects the Veteran’s reports, he or she must provide a reason for doing so. The examination report must include a complete rationale for all opinions provided. J. B. Freeman Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Ariasaif, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.