Citation Nr: 21065170 Decision Date: 10/25/21 Archive Date: 10/25/21 DOCKET NO. 16-19 647A DATE: October 25, 2021 REMANDED Entitlement to service connection for sleep apnea is remanded. Entitlement to service connection for hypertension is remanded. Entitlement to service connection for a gastrointestinal disorder, to include as due to service in Southwest Asia, is remanded. REASONS FOR REMAND The Veteran had multiple periods of active service to include service in Southwest Asia. The Veteran also had additional service in the South Carolina National Guard with periods of active duty training (ACDUTRA) and inactive duty training (INACDUTRA). This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2013 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In March 2019, the Veteran testified at a hearing before the undersigned. This matter was previously remanded by the Board in August 2019. The case has been returned to the Board at this time for further appellate review. 1. Entitlement to service connection for sleep apnea is remanded. Pursuant to the August 2019 Board remand, the Veteran was afforded a VA examination in August 2020 which the Board finds to be inadequate. First, the VA examiner noted that the Veteran's sleep apnea was diagnosed in 2011, eight years after the Veteran separated from service. However, the Veteran had periods of active service as late as 2008. Thus, it appears as though the August 2019 VA examination is based on an inaccurate factual premise. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (indicating an opinion based on an inaccurate factual history is of limited probative value). Second, in providing an opinion, the VA examiner did not address the lay statements that, since 1993, when the Veteran was sleeping, he would stop breathing and suddenly jerk awake. Finally, the August 2020 VA examination report appears to be internally inconsistent. The VA examination report reflects that the onset of the Veteran's obstructive sleep apnea was in the 1990s, however, in providing an opinion, the VA examiner noted that the Veteran was not diagnosed with obstructive sleep apnea until 2011. Without further explanation, this appears to be internally inconsistent. For these reasons, remand for a new VA opinion is warranted. The Board also notes that a service treatment record reflects that the Veteran's sleep problems may be affected by his service-connected posttraumatic stress disorder and/or lumbar spine disability. Thus, the Board finds that the theory of secondary service connection has been reasonably raised by the record. Accordingly, remand is warranted to obtain an opinion regarding secondary service connection. 2. Entitlement to service connection for hypertension is remanded. Pursuant to the August 2019 Board remand, the Veteran was afforded a VA examination in August 2020 which the Board finds to be inadequate. Specifically, the VA examiner noted that the Veteran's hypertension was noted two years after the Veteran's separation, in 2005, and treatment was initiated five years after separation, in 2008. However, the Veteran had periods of active service in 2005, 2006, and 2008. Thus, it appears as though the August 2019 VA examination is based on an inaccurate factual premise. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (indicating an opinion based on an inaccurate factual history is of limited probative value). In addition, the August 2020 VA examination appears to be internally inconsistent. The VA examination report reflects that the onset of the Veteran's hypertension was in 2000 and that the Veteran began taking medication for hypertension in 2000; however, in providing an opinion, the VA examiner noted that the Veteran's hypertension was first noted in 2005 and his treatment for hypertension began in 2008. Without further explanation, this appears to be internally inconsistent. Thus, remand is warranted for a new VA examination. 3. Entitlement to service connection for a gastrointestinal disorder, to include as due to service on Southwest Asia, is remanded. Pursuant to the August 2019 Board remand, the Veteran was afforded a VA examination in August 2020 which the Board finds to be inadequate. Specifically, the VA examiner did not address the Veteran's August 2015 VA treatment record which documents the Veteran's complaint of several chronic problems, including suspected anemia/possible gastrointestinal bleed, as well as a diagnosis of GERD, as directed in the August 2019 remand. Accordingly, remand is warranted to ensure compliance with the Board's prior remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). The Board also notes that the August 2020 VA examination noted no diagnosed gastrointestinal disorder. Service connection may be granted on a presumptive basis for a Persian Gulf veteran who exhibits objective indications of qualifying chronic disability, including resulting from undiagnosed illness, that 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" for VA purposes is a chronic disability resulting from (A) an undiagnosed illness, (B) a medically unexplained chronic multi-symptom illness (MUCMI) (such as chronic fatigue syndrome (CFS), fibromyalgia, or IBS) that is defined by a cluster of signs or symptoms, or (C) any diagnosed illness that the Secretary determines in regulation prescribed under 38 U.S.C. § 1117(d) warrants a presumption of service connection. 38 U.S.C. § 1117(a)(2); 38 C.F.R. § 3.317(a)(2)(i)(B). In Stewart v. Wilkie, the Court of Appeals for Veterans Claims (Court) addressed the definition of a MUCMI under 38 C.F.R. § 3.317 (a)(2)(ii) and held a diagnosed condition does not constitute a MUCMI, as defined under 38 C.F.R. § 3.317 (a)(2)(ii), when both the etiology and the pathophysiology of the illness are at least partially understood in the context of the claimant's unique circumstances. 30 Vet. App. 383 (2018) (holding VA relied on an inadequate examination when it determined a claimant's asthma was not a MUCMI when an examiner failed to address both the etiology and pathophysiology of the condition in the context of the claimant's unique circumstances). In other words, if either the etiology or the pathophysiology of a diagnosed condition is not at least partially understood, the condition may constitute a MUCMI. Military personnel records confirm that the Veteran served from February to May 1991 in Saudi Arabia. Thus he qualifies as a Persian Gulf Veteran. A September 2015 VA Persian Gulf Exam noted a diagnosis of gastrointestinal issues. Thus, on remand, the possibility of an undiagnosed illness or MUCMI should be addressed. Finally, the Board notes that the Veteran appears to continue to receive treatment for his gastrointestinal issues from a private physician. It is not clear if all of the relevant private treatment records have been associated with the claims file. The matters are REMANDED for the following action: 1. Ask the Veteran to identify any private treatment that he may have had for gastrointestinal disorders. After securing the necessary releases, attempt to obtain and associate those identified treatment records with the claims file. If any identified records cannot be obtained and further attempts would be futile, such should be noted in the claims file and the Veteran should be notified so that he can make an attempt to obtain those records on his own behalf. 2. Obtain an opinion with a qualified clinician to determine the nature and etiology of the Veteran's obstructive sleep apnea. If the selected clinician determines that an examination is necessary to respond to this request, such examination should be scheduled. Following review of the claims file, and examination of the Veteran if deemed necessary, the examiner should opine whether it is at least as likely as not (50 percent or greater probability) that the Veteran's obstructive sleep apnea began in or is otherwise caused by the Veteran's active service. The examiner should also opine whether it is at least as likely as not (50 percent or greater probability) that the Veteran's obstructive sleep apnea was (a) caused by; or (b) aggravated (i.e., worsened beyond the normal progression of the disease) by the Veteran's service-connected posttraumatic stress disorder and/or lumbar spine disability. If aggravation is found, the examiner must attempt to establish a baseline level of severity of the Veteran's obstructive sleep apnea prior to aggravation by the service-connected posttraumatic stress disorder and/or lumbar spine disability. Please note, causation and aggravation are separate concepts and must be addressed independently. In providing their opinions, the VA examiner should address (1) the May 1993 private treatment record noting that the Veteran has felt fatigued since his time in Desert Storm, (2) the January 2011 sleep study, (3) the June 2011 VA examination, (4) the March 2014 treatment record noting that the Veteran's sleep issues may be affected by his back pain and posttraumatic stress disorder, and (5) the August 2015 statement from the Veteran's ex-spouse reflecting that, since 1993, when the Veteran slept, he would snore, stop breathing, and suddenly jerk awake. The examiner is advised that 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, however, the Veteran's history of symptoms capable of lay observation cannot be dismissed solely on the basis that they are not recorded in contemporaneous treatment records. All findings must be reported in detail and all opinions must be accompanied by a clear rationale. If any of the above issues cannot be resolved without resorting to speculation, then a detailed medical explanation as to why this is so must be provided. 3. Obtain an opinion with a qualified clinician to determine the nature and etiology of the Veteran's hypertension. If the selected clinician determines that an examination is necessary to respond to this request, such examination should be scheduled. Following review of the claims file, and examination of the Veteran if deemed necessary, the examiner should opine whether it is at least as likely as not (50 percent or greater probability) that the Veteran's hypertension began in or is otherwise caused by the Veteran's active service. In this regard, the VA examiner should address (1) the August 2004 private treatment record reflecting that the Veteran was told his blood pressure was out of control in 2003, (2) the April 1, 2005 service treatment record reflecting an isolated elevated blood pressure reading and instructing the Veteran to return to the clinic for a blood pressure check, (3) the April 4, 2005 service treatment record noted as follow up for elevated blood pressure that notes a diagnosis of rule out hypertension, and (4) the Veteran's November 2020 lay statement that he was diagnosed with hypertension while on active duty. The examiner is advised that 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, however, the Veteran's history of symptoms capable of lay observation cannot be dismissed solely on the basis that they are not recorded in contemporaneous treatment records. All findings must be reported in detail and all opinions must be accompanied by a clear rationale. If any of the above issues cannot be resolved without resorting to speculation, then a detailed medical explanation as to why this is so must be provided. 4. Obtain an opinion with a qualified clinician to determine the nature and etiology of the Veteran's gastrointestinal disability. If the selected clinician determines that an examination is necessary to respond to this request, such examination should be scheduled. Following review of the claims file, and examination of the Veteran if deemed necessary, the examiner should identify all diagnosed gastrointestinal disabilities found during the time period on appeal. For each diagnosed gastrointestinal disability identified during the time period on appeal, the examiner should opine: a) If the etiology of the Veteran's diagnosed gastrointestinal disability is (1) inconclusive, (2) partially understood, or (3) fully understood. This determination as to each must be based on the Veteran's specific case and cannot be based on the etiology of the disease or disability in the population as a whole. b) If the pathophysiology of the Veteran's diagnosed gastrointestinal disability is (1) inconclusive, (2) partially understood, or (3) fully understood. This determination as to each must be based on the Veteran's specific case and cannot be based on the pathophysiology of the disease or disability in the population as a whole. c) If both the etiology and pathophysiology of the Veteran's diagnosed gastrointestinal disability are partially understood or fully understood, then is it at least as likely as not (a 50 percent or greater probability) that the Veteran's disability began in or is otherwise caused by the Veteran's active service? If no gastrointestinal disability is diagnosed during the time period on appeal, the examiner is asked to address the following: a) Identify the Veteran's objective indications of a disability. "Objective indications" of a qualifying chronic disability include both objective evidence perceptible to an examining physician and other non-medical indicators that are capable of independent verification. 38 C.F.R. § 3.317(a)(3). Non-medical indicators include evidence such as time lost form work, the veteran having sought treatment for his symptoms, and change in the veteran's appearance, physical abilities, and mental or emotional attitude. b) If the Veteran's objective indications cannot be attributed to a known clinical diagnosis, is there affirmative evidence that the undiagnosed illness is not incurred during active service during the Persian Gulf War or that it was caused by a supervening condition or event that occurred since the Veteran's departure from service during the Persian Gulf War? The examiner should note that a positive response to this question requires affirmative evidence. The mere absence of evidence is not sufficient. In providing these opinions, the examiner must specifically address the following: (1) the May 1991 service treatment record reflect that the Veteran complained of abdominal discomfort, nausea, and diarrhea since coming back from Saudi Arabia, (2) the February to June 2000 service treatment records regarding the Veteran's gastrointestinal issues, including gastroenteritis and rectal bleeding, (3) the diagnoses of gastroesophageal reflux disorder, (4) the June 2011 VA examination, (5) the August 2015 VA treatment record reflecting that the Veteran's private physician was working up suspected anemia/possible GI bleed, (6) the September 2015 VA Persian Gulf Examination reflecting a diagnosis of gastrointestinal issues, and (7) the Veteran's lay statements that he has experienced gastrointestinal issues since his time in Turkey in 2000 and that he has been taking medication since then. The examiner is advised that 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, however, the Veteran's history of symptoms capable of lay observation cannot be dismissed solely on the basis that they are not recorded in contemporaneous treatment records. All findings must be reported in detail and all opinions must be accompanied by a clear rationale. If any of the above issues cannot be resolved without resorting to speculation, then a detailed medical explanation as to why this is so must be provided. M. HYLAND Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Elias, 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.