Citation Nr: 21068391 Decision Date: 11/10/21 Archive Date: 11/10/21 DOCKET NO. 17-49 112 DATE: November 10, 2021 ORDER 1. Entitlement to service connection for left foot neuropathy is granted. REMANDED 2. Entitlement to service connection for obstructive sleep apnea (OSA) is remanded. FINDINGS OF FACT 1. The Veteran served in the Southwest Asia (SWA) Theater of operations during the Persian Gulf War Era. 2. The competent and probative evidence is at least in equipoise as to whether the Veteran's left foot neuropathy had its onset in service. CONCLUSION OF LAW Resolving reasonable doubt in the Veteran's favor, service connection for left foot neuropathy is warranted. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSION The appellant is a Veteran who served on active duty from August 8, 1990 to September 7, 1990 and from July 19, 1993 to January 22, 1994. These matters are before the Board of Veterans' Appeals (Board) on appeal from an October 2014 rating decision. In March 2021, a videoconference hearing was held before the undersigned; a transcript is in the record. 1. Entitlement to service connection for left foot neuropathy is granted. The Veteran asserts that his left foot neuropathy is due to exposure to environmental hazards while he served in Southwest Asia. The Veteran's service personnel records reflect that he served in the SWA Theater of operations during the Persian Gulf War Era from August 8, 1990 to September 7, 1990. Under 38 C.F.R. § 3.317, service connection may be warranted for a Persian Gulf veteran who exhibits objective indications of a qualifying chronic disability that became manifest 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 not later than December 31, 2021. See 38 U.S.C. § 1117; 38 C.F.R. § 3.317(a)(1). The term 'qualifying chronic disability' means a chronic disability resulting from any of the following (or any combination of the following): (A) an undiagnosed illness; or (B) a medically unexplained chronic multi-symptom illness that is defined by a cluster of signs or symptoms, such as: (1) chronic fatigue syndrome; (2) fibromyalgia; (3) functional gastrointestinal disorders (excluding structural gastrointestinal diseases). 38 U.S.C. §§ 1117, 1118; 38 C.F.R. § 3.317(a)(2)(i). The SWA of operations includes 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 C.F.R. § 3.317(e)(2). The term "medically unexplained chronic multi-symptom illness" means a diagnosed illness without conclusive pathophysiology or etiology, that is characterized by overlapping symptoms and signs and has features such as fatigue, pain, disability out of proportion to physical findings, and inconsistent demonstration of laboratory abnormalities. Chronic multi-symptom illnesses of partially understood etiology and pathophysiology, such as diabetes and multiple sclerosis, are not considered medically unexplained. 38 C.F.R. § 3.317(a)(2)(ii). Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. §§ 1110; 38 C.F.R. § 3.303(a). Substantiating a claim of service connection generally requires evidence of: (1) a current disability (for which service connection is sought); (2) incurrence or aggravation of a disease or injury in service; and (3) a nexus between the claimed disability and the disease or injury in service. See Shedden v, Principi, 381 F.3d 1153, 1166-1167 (Fed. Cir. 2004). Notwithstanding the aforementioned provisions relating to presumptive service connection, a claimant is not precluded from establishing service connection with proof of direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). The Veteran's primary theory of entitlement is that service connection for his left foot neuropathy is warranted on the basis that it is due to various environmental exposures during his service in SWA. As noted below (on March 2017 VA Gulf War examination) the Veteran's exposure to herbicides used near bases, ingestion of pyridostigmine bromide tablets, and exposure to other environmental elements has not been established definitively by the records. However, the Veteran may have at least had exposures to pesticides used around base camp areas given his service early in the Gulf War when bases were being constructed. The Veteran's service treatment records (STRs) are silent for complaints and treatment for, or a diagnosis of, a left foot disability. An October 2012 private treatment record notes that the Veteran reported a sudden onset of severe pain in the middle part of the pad of his great toe over the plantar aspect. He related there was no trauma other than two months prior, when he stubbed the toe on a wall. He did not have a history of gout, and a foot X-ray was normal. An MRI was attempted, but he could not hold still. On sensory examination, there was no sensitivity to light touch, no redness, and no joint swelling. The provider noted that the etiology was unclear, but a neurological basis was not suspected. An additional ( October 24, 2012 ) private treatment record notes that metatarsalgia of the second, third, and fourth metatarsals of the left foot was diagnosed. A November 2012 private treatment record notes that the Veteran reported that he received recent podiatry treatment for toe pain and that now his whole foot vibrates. A left foot MRI was normal, and the provider noted that the Veteran had previous diagnoses of mononeuritis and metatarsalgia. A November 2013 private neurological evaluation report notes that the Veteran reported ongoing toe pain, that he began using a cane in October 2012 because any pressure to the ball of his foot was painful, and that he had since returned to work. He related that he experienced ongoing burning, tingling, and shooting left great toe and forefoot pains, and electric-type shocks, and that he has been tested for gout, diabetes, and autoimmune disease, with all results negative. The Veteran's gait was normal except for discomfort noted in the left forefoot when getting on his toes. An EMG was normal, but nerve conduction testing showed several abnormalities. Regarding the left lower extremity, moderate to marked decreased amplitude of the peroneal motor nerves and bilateral slowing of motor conduction velocities were shown. The provider indicated that there was evidence of generalized peripheral neuropathy and otherwise unexplained left great toe/foot pain and paresthesia. He noted the extensive treatment that the Veteran had undergone, to include chiropractic, physical therapy, and cortisone injections, that he not been provided a clear diagnosis, and no modality had proved to be of much benefit. The provider stated that from a neurological perspective, he could not explain the Veteran's complaints of left toe/foot pain and paresthesia and deferred the issues of causation and impairment to an orthopedist or podiatrist as there were no clear neurological factors. A March 2014 private treatment record notes that the provider reviewed a March 2014 bone scan of the Veteran's ankles and feet and noted it was unremarkable, with no evidence of occult fractures or vascular or other anomalies. He related that the case remained somewhat of a dilemma, and that review of the imaging and report, while helpful in excluding certain conditions, did not lead to a more definitive diagnosis. A May 2014 private treatment record notes that the Veteran worked full time and continued to have some burning and tingling in his left foot. An EMG showed generalized peripheral neuropathy. The provider opined that it was possible that there was an association with the Veteran's Gulf War service and his foot pain (if there was no other etiology). No history of multiple sclerosis, hypertension, thyroid disease, or malignancy was indicated. On March 2017 peripheral nerves examination, left foot neuropathy was diagnosed. The Veteran reported that in 2012 he sought treatment for his left toe pain and was informed that he had shingles. He related that his toe pain worsened, he saw two podiatrists, and he had received cortisone injections. He reported that a low back MRI showed a lumbar disc bulge and that he was going through workers' compensation for his back, and related that a nerve conduction study showed a left foot abnormality and that the chiropractic care that he received for his back had not improved his left foot pain. On March 2017 Gulf War examination, the Veteran reported that he was deployed to Saudi Arabia from August 1990 to September 1990, and was tasked to set up an air base. He related that his exposures were due to "anything from setting up the air base," and vaccinations, and he also indicated that he did not take anti-nerve agent pills. The provider opined that the Veteran's disability pattern related to left foot neuropathy was a diagnosable chronic multi-symptom illness with a partially explained etiology that was not at least as likely as not related to a specific exposure event during his service in SWA. She noted that the Veteran served for one month in Saudi Arabia in 1990 prior to the ground war, with no specific environmental exposure event documented. The examiner indicated that a thorough review of the STRs did not show any complaints regarding exposure to environmental hazards, and there was no documentation in the STRs for left foot injury. She noted that The Gulf War Illness and the Health of Gulf War Veterans - Scientific Findings and Recommendations by the Research Advisory Committee on Gulf War Veterans' Illnesses (medical publication) determined that the major causes of Gulf War Illness to Veterans came from front line exposure in 1990-1991, the use of pyridostigmine bromide tablets and the use of pesticides around the base camp areas. It was determined that there was little reliable evidence implicating vaccines as a risk factor for Gulf War Illness, and other wartime exposures, including depleted uranium, fuels, solvents, sand, and particulates, were found not likely to have caused Gulf War Illness for the majority of ill Veterans. In a March 2021 private medical statement (by a provider who first treated the Veteran in 2012), the provider indicated that he had reviewed the Veteran's records specifically in regard to his neurological condition. The provider opined that the Veteran was suffering from a chronic peripheral neuropathy that was at least as likely as not related to his military service, to include as a result of Persian Gulf syndrome. He explained that no other etiology could be determined as the cause of his left foot neuropathy and neuropathic symptoms, which consist primarily of persistent pain and numbness in his foot. The provider noted that several neurological tests and neurodiagnostic studies had already been performed, and these revealed significant abnormalities involving the sensory as well as motor nerves that support the presence of nerve damage. He indicated that other possible causes had been ruled out, and MRI studies did not reveal a spine or back disorder as a cause of the Veteran's symptoms. His medical history did not reveal any local trauma or lesion, and additional work-up did not reveal any signs or symptoms of autoimmune disease or other metabolic disorder. It was also noted that the Veteran had no history of diabetes and no known vascular disorder that could be affecting his nerves. There is VA and private opinion evidence for and against the Veteran's claim. The March 2017 VA opinion (against his claim) notes that the Veteran served for one month in Saudi Arabia in 1990 prior to the ground war, with no specific environmental exposure event documented and that a thorough review of the STRs did not show any complaints regarding exposure to environmental hazards or documentation of a left foot injury. She also cited medical literature indicating that the major causes of Gulf War Illness to Veterans came from front line exposure in 1990-1991, the use of pyridostigmine bromide tablets and the use of pesticides around the base camp areas (suggesting that the Veteran had no front-line exposure, no ingestion of pyridostigmine tablets, or exposure to pesticides around base camp areas). However, a more likely etiology for the left foot neuropathy was not provided, and even though the Veteran's STRs do not document environmental exposure, he did report that he had to help set up the air base, which suggests possible exposure to pesticides around base camp areas. In a March 2021 opinion (in support of the claim) the provider notes that the Veteran was suffering from a chronic peripheral neuropathy that was more likely than not related to his Persian Gulf service. He explained that no other etiology could be determined as the cause of his left foot neuropathy and neuropathic symptoms, that several neurological workups and neurodiagnostic studies were performed, and that other possible causes were ruled out. MRI studies did not reveal a spine or back disorder as a cause of the Veteran's symptoms, his medical history did not reveal any local trauma or lesion, and additional work-up did not reveal any signs or symptoms of autoimmune disease, metabolic disorder, diabetes, or vascular disorder that could be affecting his nerves. The VA and provide providers tend to agree that the Veteran's left foot disability is not a presumptive disability under 38 C.F.R. § 3.317. However, giving the Veteran the benefit of the doubt, and absent any more probative evidence to the contrary, the Board finds that the evidence of record supports a finding that the Veteran's left foot neuropathy was at least as likely as not caused by his service in SWA during the Persian Gulf War. The March 2021 private opinion (by a provider who had been treating the Veteran for several years and was familiar with the extensive testing he had undergone to attempt to determine the etiology of his left foot pain) indicates he reviewed the pertinent parts of the Veteran's record and provided an opinion that cites to the pertinent evidence of record and includes adequate rationale. Resolving remaining reasonable doubt in the Veteran's favor, as is required when the evidence is in equipoise (see 38 C.F.R.§ 3.102), the Board finds that service connection for left foot neuropathy is warranted. REASONS FOR REMAND 2. Entitlement to service connection for OSA. The Veteran contends he has sleep apnea that was incurred during his service in SWA during the Gulf War Era. His STRs are silent for complaints, treatment, or a diagnosis of, sleep apnea or a sleep disorder. A February 2014 sleep study notes that severe OSA was diagnosed. In a March 2021 statement, a member of the 940th Security Police Flight indicated that he deployed with the Veteran in August 1990 to Saudi Arabia and was his roommate throughout the deployment period. He related that the Veteran snored loud every night and complained in the morning and throughout the day that he was very tired. In an another March 2021 statement, a former servicemember indicated that he attended the Napa Valley Police Academy (on military orders) from July to December 1993 and was the Veteran's roommate during that time. He related that the Veteran snored excessively and would often wake up several times a night. He reported that he roomed with the Veteran after service from 2010 to 2014 and would hear him snoring down the hall each night. There is no medical opinion in the record that explains why the problems the Veteran reported with sleep in service were not early manifestations of the ultimately diagnosed OSA. Development for a medical opinion that addresses the matter is necessary. 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The matter is REMANDED for the following: 1. Arrange for the Veteran to be examined by an appropriate clinician to determine the likely etiology of his OSA. His claims file (particularly his statements describing his sleep problems while serving in Southwest Asia and the March 2021 buddy statement by a servicemember who roomed with him in Saudi Arabia in August 1990) must be reviewed by the examiner. The examiner should: (a) Confirm the diagnosis of OSA. (b) Identify the likely etiology for the OSA. Considering the Veteran's and friends' lay statements, is it at least as likely as not (a 50% or better probability) that the disability is etiologically related to his service, to include by virtue of onset therein? (c) If OSA is determined to be not be etiologically related to the Veteran's service, identify the etiology for the OSA that is considered to be more likely (and explain why that is so). All opinions must include rationale, with citation to supporting factual data, and medical principles, as deemed appropriate, and must reflect consideration of the lay supporting statements. GEORGE R. SENYK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Bayles, 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.