Citation Nr: 21069183 Decision Date: 11/17/21 Archive Date: 11/17/21 DOCKET NO. 17-25 026 DATE: November 17, 2021 REMANDED Entitlement to service connection for obstructive sleep apnea (OSA) is remanded. Entitlement to service connection for a respiratory disorder (other than OSA) is remanded. Preliminary Matters The Veteran served on active duty from August 1991 to February 2005. These matters are before the Board of Veterans' Appeals (Board) on appeal from February 2012 and September 2014 rating decisions. In February 2019, the Board reopened the claim of service connection for sleep apnea and remanded these matters for additional development. In December 2020, the Board denied the claims on appeal. The Veteran timely appealed the Board's decision to the U.S. Court of Veterans Appeal (Court), resulting in a September 2021 Joint Motion for Partial Remand (JMPR) by the Parties to the JMPR (the Veteran and the Secretary of Veterans Affairs). A Court Order remanded the matter for compliance with the instructions in the JMPR. The Board also notes that the December 2020 Board decision remanded the claims for service connection for a headache disability and service connection for a gastrointestinal (GI) disability. In a subsequent April 2021 decision, the Board denied the claims. In May 2021, the Veteran filed a Motion for Reconsideration of the claims denied in the April 2021 decision; the Motion for Reconsideration is currently pending and will be the subject of a separate Board decision. REASONS FOR REMAND As outlined in the September 2021 JMPR, additional development is necessary prior to adjudication of the claims on appeal. As it pertains to both claims, efforts should be made to obtain outstanding private treatment records from the Pensacola Lung Group and Dr. Hoang at Sacred Heart Medical Group. See 38 C.F.R. §3.159(c)(1). An August 2010 record from the Pensacola Lung Group reflects a test of the Veteran's pulmonary function and a May 2012 record from Pensacola Lung Group notes a diagnosis of sleep apnea. Such records include the address, phone number, and fax of Pensacola Lung Group. Similarly, Dr. Hoang authored a private opinion in which he stated that the Veteran was a patient of his and had complained of breathing problems. Dr. Hoang also stated that he worked at Sacred Heart Medical Group and listed the address of his practice. However, the record does not reflect any attempts by VA to obtain any outstanding treatment records from either Pensacola Lung Group or Sacred Heart Medical Group. Thus, remand is warranted. Next, remand is required in order to obtain a VA examination and medical opinion regarding whether the Veteran experienced a Medically Unexplained Chronic Multisymptom Illness (MUCMI) or undiagnosed illness for purposes of 38 C.F.R. 3.317(a). Personnel records confirm that the Veteran served in Qatar. Further, in an undated private opinion, Dr. Hoang outlined that the Veteran "complained about headaches, nausea, diarrhea, blisters, and breathing problems" and that "[h]e will continually be referred to [m]edical [s]pecialist who can better determine the nature of his multi-symptom illnesses." Dr. Hoang also stated that "medical tests are currently inconclusive concerning his illnesses" and that "military studies have already concluded that veterans who were exposed to environmental hazards in the Gulf War display similar symptoms as my patient." Accordingly, a remand is warranted in order to assist the Board in determining whether the Veteran experienced a MUCMI or undiagnosed illness. As it pertains to the claim for service connection for OSA, the Board finds that the 2019 VA medical opinion is inadequate as the examiner failed to adequately address the Veteran's competent lay statements. In this regard, the VA examiner concluded that the Veteran's OSA was not incurred in or caused by military service. In support of the opinion, the examiner relied, in part, on service treatment records and immediate post-service medical records being "silent for OSA and/or residuals" and that the Veteran was first diagnosed with OSA in 2012. However, the Veteran has stated that his sleeplessness started in service and that such condition was not treated at the time. The examiner did not explain how these lay statements factored into the opinion. Accordingly, remand is warranted for a new examination that adequately addresses the Veteran's lay statements. The matters are REMANDED for the following actions: 1. Ask the Veteran to complete and return VA Forms 21-4142, Authorization and Consent to Release Information, for the private medical treatment he received from the Pensacola Lung Group and Dr. Hoang at Sacred Heart Medical Group. After obtaining the completed VA Forms 21-4142, make reasonable efforts to obtain any outstanding private treatment records. Any records so obtained should be associated with the claims folder. 2. Schedule the Veteran for a VA examination to determine the nature and etiology of his asserted Gulf War symptomology. The examiner must review the entire claims file, to include a copy of this REMAND, in conjunction with conducting the examination. (a.) Indicate whether the Veteran has a diagnosed respiratory disorder (other than OSA). **The examiner is asked to address the notation of moderate restrictive lung defect and moderate decrease in diffusing capacity, as listed in the August 2010 VA examination. (b.) Further, opine as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran has a medically unexplained chronic multi-symptom illness (MUCMI) corresponding to his claimed breathing problems/respiratory disorders. **The examiner is informed that a MUCMI means a diagnosed illness without conclusive pathophysiology or etiology, characterized by certain overlapping symptoms and signs, and has features such as fatigue, pain, disability out of proportion to physical findings, and inconsistent demonstration of laboratory abnormalities. MUCMIs of partially understood etiology and pathophysiology will not be considered "medically unexplained." 38 C.F.R. § 3.317. (c.) IF the diagnosis is NOT considered a MUCMI, determine whether it is at least as likely as not (50 percent probability or higher) that the Veteran's breathing problems/respiratory disorders began during or is etiologically related to the Veteran's active-duty service, to include exposure to burn pits while stationed in the Middle East. (d.) If the answer to (b) is that there is NO diagnosed disability to explain the Veteran's subjective complaints of breathing problems/respiratory disorders during ANY point during the appeal period, determine whether it is at least as likely as not (50 percent probability or higher) that the Veteran's symptoms are due to an undiagnosed illness. (e.) A complete rationale for these opinions must be provided. 3. Obtain a supplemental medical opinion from the December 2019 VA examiner who rendered a medical opinion regarding the etiology of the Veteran's obstructive sleep apnea. If that examiner is not available, obtain an opinion from another appropriate VA examiner. The need for the Veteran to be re-examined is left to the designee's discretion. The VA examiner is asked to respond to the following: (a.) State whether it is at least as likely as not (50 percent probability or higher) that the Veteran's OSA first manifested in service, was incurred in service, or is etiologically related to the Veteran's active-duty service, to include exposure to burn pits while stationed in the Middle East. **The examiner must consider the Veteran's statements received by VA on November 8, 2007 (in which the Veteran stated that his symptoms of sleeplessness started when he was in Qatar); see also lay statement received by VA on July 12, 2010 (Veteran reported that his symptom of sleeplessness occurred "around 2001"); see July 2010 VA Form 21-526 (Veteran noted that his sleeplessness began in June 2001 and was not treated). (b.) A complete rationale for these opinions must be provided. 4. Then, readjudicate the claims on appeal. S. B. MAYS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Casadei, 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.