Citation Nr: 21071648 Decision Date: 12/01/21 Archive Date: 12/01/21 DOCKET NO. 19-00 312A DATE: December 1, 2021 REMANDED Entitlement to service connection for a sleep disorder, to include sleep apnea, is remanded. Entitlement to service connection for headaches is remanded. Entitlement to service connection for joint pain, to include fibromyalgia, is remanded. REASONS FOR REMAND The Veteran had active service from September 1999 to December 2003. These matters come before the Board of Veterans' Appeals (Board) on appeal of April 2017 and October 2018 rating decisions issued by a Regional Office (RO) of the Department of Veterans Affairs (VA). As a preliminary mattery, the Veteran's claim for service connection for pain was previously denied in a March 2016 rating decision. At the time, the claim was characterized as service connection for "any" musculoskeletal condition. After this denial, the Veteran was diagnosed with arthritis in both his back and left knee at VA examinations within one year of the March 2016 decision. However, the RO did not determine whether the new diagnoses were new and material. 38 C.F.R. § 3.156(b); Bond v. Shinseki, 659 F.3d 1362, 1367 (Fed. Cir. 2011); see also Buie v. Shinseki, 24 Vet. App. 242 (2010). The United States Court of Appeals for the Federal Circuit has held that VA has a statutory duty to determine the character of newly submitted evidence and that until such a determination is made, the claim does not become final. Beraud v. McDonald, 766 F.3d 1402, 1406-07 (Fed. Cir. 2014). Therefore, as VA did not fulfill its duty to determine whether the new diagnoses were new and material as to the claim for service connection for musculoskeletal pain, the March 2016 rating decision did not become final, and therefore, the claim has remained pending. Thus, a new and material analysis is not warranted. 1. Entitlement to service connection for a sleep disorder, to include sleep apnea is remanded. The VA received this claim for service connection in July 2018. The Veteran has advanced numerous theories of entitlement. He reports that he has had sleep disturbances since he returned from Kuwait and completed active duty in December 2003. He also reports that, since service, the issue has become much worse, particularly since he was diagnosed with sarcoidosis. Also, he reports that he has nightmares and sleep disturbances that are linked to his service-connected posttraumatic stress disorder (PTSD). Moreover, he reports that he has gained weight with medication associated with sarcoidosis. Weight gain, according to the Veteran, can cause or worsen sleep apnea. Also, he reports, that Veterans who have PTSD have also been shown to have much higher rates of sleep apnea. The Veteran has submitted a study indicating that Veterans with PTSD have higher incidences of sleep apnea. Consistent with the VA's duty to assist, under McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006), a VA medical examination must be provided when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the Secretary to make a decision on the claim. See 38 U.S.C. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4)(i). The Board finds that the duty to assist has been triggered, and a VA examination is required. There is evidence of a current sleep disorder and the Veteran's allegations that the sleep disorder is linked to a service connected disability and/or began during service. The evidence of record is insufficient to determine this claim. A VA examination is required to determine if the current sleep disorder is linked to active duty or to a service connected disability. As the Veteran alleges that his obesity has led to/ aggravated his sleep disorder and that his obesity is due to his service-connected disabilities, development on this theory of entitlement is also needed. See Walsh v. Wilkie, 32 Vet. App. 300 (2020) (obesity, although itself not a compensable disability, could constitute an intermediate step in demonstrating a service connection on a secondary basis, to include direct causation and/or aggravation). The Board notes the Veteran was enrolled in a weight control program during active duty which was prior to the time he was prescribed medication for his sarcoidosis. This discrepancy should be addressed. 2. Entitlement to service connection for headaches is remanded. The VA received this claim for service connection in November 2016. The Veteran contends, and testified at his Board hearing, that his headaches began in service and have been progressively become worse since then. His wife, also present at his hearing, stated that she remembered his headaches began during active duty service. The Veteran underwent a VA examination in March 2017. The VA examiner opined that the Veteran's headaches were at least at likely related to service. It was explained that the Veteran reported they began within months of leaving service. However, no rationale or explanation noting the Veteran's statements was given. The examiner did not address or refer to the objective medical evidence of record. A medical opinion must support the conclusions reached with an analysis that is adequate for the Board to consider and weigh against other evidence of record. See Stefl v. Nicholson, 21 Vet. App. 102, 124-25. Also, "[a] medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two." Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). Accordingly, an addendum opinion is needed for an adequate rationale for this conclusion. 3. Entitlement to service connection for joint pain, to include fibromyalgia, is remanded. The Board received this additional claim for service connection in November 2016. The Veteran underwent a VA examination for this claim in February 2015, where it was noted that he had a current disability of fibromyalgia. In the remarks section it was opined that the Veteran's service-connected sarcoidosis may be causing his migratory joint pain (arthralgias). The examiner noted that the Veteran stated he had been evaluated for Lyme's disease and other rheumatologic diseases, and the results were negative, but the VA examiner stated this data could not be located in the record. The examiner went on to say once this information is submitted, the opinion would be reassessed. The Veteran has reported that his private medical records document that he was tested for these diseases and they were negative. This evidence needs to be evaluated by the examiner as indicated above to see if it changes the opinion. The VA examination opinion is speculative currently as it indicates there may be a link between sarcoidosis and the joint pain. Accordingly, a remand is needed to determine whether or not the Veteran's joint pains are a diagnosed condition, to include fibromyalgia, and whether they are related to service or his service-connected sarcoidosis. Further, the Veteran has submitted private medical records which indicate his exposure to chemicals during his active duty service may be the cause of his pain disorder. The remand opinion should also address this evidence also. The matters are REMANDED for the following action: 1. In remanding this case, the Board makes no credibility determination, expressed or implied, at this juncture. 2. Request the Veteran to submit the private medical records which document his testing for Lyme's disease and other rheumatologic disorders. 3. Schedule the Veteran for an examination by a suitably qualified health care professional to determine whether the Veteran has a sleep disorder related to service or his service-connected disabilities. If the Veteran refuses to attend a VA examination for this claim, an opinion should be rendered based on the evidence of record. The claims file must be reviewed by the examiner. The examiner must address the following: (a.) Whether it is at least as likely as not (i.e., probability of 50 percent or higher) that the Veteran has a diagnosed sleep disorder that is related to service? In answering (a), the examiner should consider and discuss the Veteran's inservice complaints of wheezing in March 2002 and reports of asthma, or any breathing problems related to exercise, weather, pollens, etc, in September 2003. (b.) Whether it is at least as likely as not (i.e., probability of 50 percent or higher) that any sleep disorder, including sleep apnea, is proximately due to or the result of any service-connected disability? (c.) If the answer to (b) is negative, whether it at least as likely as not (i.e., probability of 50 percent or higher) that any sleep disorder is aggravated (i.e., permanently or temporarily worsened) by any of his service-connected disabilities? In addressing (b) and (c), the examiner should consider and discuss the 2006/2007 private medical records associated with the Veteran's treatment for his service-connected sarcoidosis where symptoms including: nighttime wheezing, snoring, daytime hypersomnolence, and waking "nonrefreshed" were noted. As it relates to the Veteran's PTSD, please address the August 2016 PTSD VA examination which indicates the Veteran experiences sleep disturbances due to his PTSD; and the submitted treatise that discusses how Veterans with PTSD have a higher occurrence of sleep apnea. (d.) Whether it is at least as likely as not (i.e., probability of 50 percent or greater) that the Veteran's obesity is caused by his service-connected sarcoidosis and/or PTSD disability, to include his medication for these disabilities and to include whether they are productive of an inability to limit caloric intake? (e.) If the answer to (d) is negative, whether it is at least as likely as not (i.e., probability of 50 percent or greater) that the Veteran's obesity is aggravated (i.e., permanently or temporarily worsened beyond the natural progress) by his service-connected sarcoidosis or PTSD, to include an opinion as to whether any service connected disability or disabilities affected the Veteran's ability to limit his caloric intake? The examiner should also address and correlate to the extent possible the Veteran's in service enrollment in a weight reduction program and whether this was during a time when sarcoidosis was present. (f.) If so, is it at least as likely as not that a sleep disorder is due to or caused by obesity? (g.) If not, is it at least as likely as not that a sleep disorder has been aggravated by obesity? Answer (f), or (f) and (g), only if the opinion(s) under (d) or (e) are favorable to the claim. If aggravation is found, the examiner should address the following medical issues: 1) the baseline manifestations of the disorder found prior to aggravation; and 2) the increased manifestations which, in the examiner's opinion, are proximately due to the service-connected disorder. The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a certain conclusion is so evenly divided that it is as medically sound to find in favor of such a conclusion as it is to find against it. The term "aggravation" means a permanent increase in the claimed disability; that is, an irreversible worsening of the condition beyond the natural clinical course and character of the condition due to the service-connected disability as contrasted to a temporary worsening of symptoms. If a negative opinion is offered based primarily on the absence of evidence inservice or after service, the examiner should explain the medical significance of this fact, i.e., why this is indicative that any current sleep disorder is not related to service. A complete medical rationale for all opinions expressed must be provided. If the examiner cannot provide an opinion without resort to speculation, he or she must provide an explanation as why that is so. In so doing, the examiner should explain whether the inability to provide a more definitive opinion is the result of the need for additional information, or whether he or she has exhausted the limits of current medical knowledge in providing an answer to a particular question. 4. Obtain an addendum opinion from the VA examiner, who rendered the March 2017 VA medical opinion, or another available VA examiner regarding the nature and etiology of the Veteran's headaches. The electronic claims file must be made available to the examiner. If the examiner determines that another VA examination is necessary, one should be scheduled. If the Veteran fails or refuses to attend, the examiner should provide the requested opinions based on the evidence of record. Based on a review of the record, and a new examination if conducted, the examiner must address the following: (a) Whether it is as least as likely as not (a 50 percent or greater probability) that the Veteran's headaches manifested during service or is otherwise related to service? In answering this inquiry, the examiner must address the Veteran's reports of continuous headaches since service. The examiner must also directly address these reports in his or her opinion. The examiner is advised that the Veteran is competent to report his medical history including symptoms and treatment. The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a certain conclusion is so evenly divided that it is as medically sound to find in favor of such a conclusion as it is to find against it. A complete rationale must be provided for all opinions presented. If the medical professional cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation for why an opinion cannot be rendered. In so doing, the medical professional shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). 5. Arrange for the claims file to be reviewed by a suitably qualified health care professional and request that they respond to the questions below. The need for another examination and/or telephonic or video interview of the Veteran is left to the discretion of the examiner(s) selected to offer the requested opinion. If the Veteran fails or refuses to report for an examination, the opinions requested below should be answered based on the evidence of record. After reviewing the record, the examiner is requested to provide the following opinions: (a.) Confirm whether the Veteran has a diagnosable disorder that is causing his pain, including fibromyalgia. (b.) Is it at least as likely as not (i.e., whether it is 50 percent or more probable) that the Veteran has a pain disorder that had its onset during, or is otherwise related to service, to include his service in Kuwait? As it relates to his service in Kuwait, the opinion must also discuss the May 13, 2015 private medical record stating the Veteran's pain may have resulted from chemical exposure during his service in Kuwait; and the May 2015 private respiratory DBQ that says the Veteran has chronic arthralgias related to his sarcoidosis. (c.) Is it at least as likely as not (i.e., probability of 50 percent or higher) that the pain disorder is proximately due to or the result of any service-connected disability, to include his sarcoidosis? (d.) If the answer to (c) is negative, is it at least as likely as not that the pain disorder is aggravated (i.e., permanently or temporarily worsened) by any of his service-connected disabilities? If aggravation is found, the examiner should address the following medical issues: 1) the baseline manifestations of the disorder found prior to aggravation; and 2) the increased manifestations which, in the examiner's opinion, are proximately due to the service-connected disorder. The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a certain conclusion is so evenly divided that it is as medically sound to find in favor of such a conclusion as it is to find against it. The term "aggravation" means a permanent increase in the claimed disability; that is, an irreversible worsening of the condition beyond the natural clinical course and character of the condition due to the service-connected disability as contrasted to a temporary worsening of symptoms. A complete medical rationale for all opinions expressed must be provided. If the examiner cannot provide an opinion without resort to speculation, he or she must provide an explanation as why that is so. In so doing, the examiner should explain whether the inability to provide a more definitive opinion is the result of the need for additional information, or whether he or she has exhausted the limits of current medical knowledge in providing an answer to a particular question. G. A. WASIK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Wade 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.