Citation Nr: 21075354 Decision Date: 12/20/21 Archive Date: 12/20/21 DOCKET NO. 19-12 351A DATE: December 20, 2021 REMANDED Service connection for a left shoulder disability is remanded. Service connection for sleep disturbance is remanded. REASONS FOR REMAND The Veteran served on active duty from June 2001 to May 2003, from August 2007 to October 2008, and from March 2009 to April 2011. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In August 2020, the Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ). A transcript of that hearing has been associated with the claims file. Left shoulder disability Sleep disturbance The Veteran's claims for service connection for a left shoulder disability and sleep disturbance were denied in part because a February 2019 VA examiner found that there was no evidence of these conditions in the Veteran's service treatment records. The Board finds this opinion inadequate, as it merely relied on the absence of evidence in the Veteran's service treatment records. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); Dalton v. Nicholson, 21 Vet. App. 23 (2007) (an examination was inadequate where the examiner did not comment on the Veteran's report of in-service injury and instead relied on the absence of evidence in the Veteran's service medical records to provide a negative opinion). Additionally, the Veteran testified to the onset of his left shoulder and sleep disorders at the August 2020 Board hearing. On remand, the Veteran should be afforded a new VA examination, which addresses his competent and credible statements regarding his claimed symptomatology. See Washington v. Nicholson, 19 Vet. App. 362 (2005) (holding that a veteran is competent to report what occurred during service because he is competent to testify as to factual matters of which he has first-hand knowledge); Barr, 21 Vet. App. at 307-08 (holding that lay testimony is competent to establish the presence of observable symptomatology); Layno v. Brown, 6 Vet. App. 465, 470 (1994); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). See also Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Smith v. Derwinski, 1 Vet. App. 235, 237-38 (1991) (credibility determinations are within the purview of the Board). The Board notes that the Veteran served in the Southwest Asia Theater of Operations after August 2, 1990 during the Persian Gulf War. See 38 C.F.R. § 3.2(i). Therefore, he is a Persian Gulf veteran. Service connection may be granted to a Persian Gulf veteran who exhibits objective indications of a chronic disability resulting from undiagnosed illness or a medically unexplained chronic multisymptom illness that became manifest either during active military 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, by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis. 38 C.F.R. § 3.317(a)(1)(i)-(ii). The Board finds a Gulf War examination is required to address the Veteran's claims of entitlement to service connection for a left shoulder disability and a sleep disturbance disorder. The matters are REMANDED for the following action: 1. Obtain updated VA treatment records. 2. Thereafter, arrange for the Veteran to undergo a VA Gulf War examination to determine the current nature and etiology of his left shoulder disability and sleeping disturbance disorder. 3. The examiner should note, and detail all reported left shoulder and sleep disturbances. The examiner should conduct a comprehensive examination, and provide details on the onset, frequency, duration, and severity of all symptoms of left shoulder symptoms and sleep disturbances. a) With respect to the complaint or symptoms of a left shoulder disability, the examiner should specifically state whether the Veteran's symptoms are attributable to a known diagnostic entity, to include tendonitis and joint instability. b) If there is a known diagnosis of a left shoulder disability that can be medically explained, the examiner should opine as to whether it is at least as likely as not (50 percent or greater probability) that the diagnosed disability had its clinical onset during active service or is related to any incident of service, to include his reported left shoulder dislocation during basic training in 2003. If a diagnosis for the Veteran's left shoulder cannot be determined, then the examiner must provide an opinion as to whether the Veteran's left shoulder disability is a sign or symptom of an undiagnosed illness or medically unexplained chronic multisymptom illness. Of note, a sign or symptom that may be a manifestation of an undiagnosed illness includes, but is not limited to, joint pain. See 38 C.F.R. § 3.317(b). 4) With respect to the complaint or symptoms of sleep disturbance, the examiner should specifically state whether the Veteran's symptoms are attributable to a known diagnostic entity, i.e., obstructive sleep apnea, etc. a) Is the Veteran's difficulty sleeping a symptom of his service-connected anxiety disorder, or a separate and distinct condition? b) If there is a known diagnosis of a sleep disorder that can be medically explained, the examiner should opine as to whether it is at least as likely as not (50 percent or greater probability) that the diagnosed disability had its clinical onset during active service or is related to any incident of service? If a diagnosis for the Veteran's complaint or symptoms of sleep disturbance cannot be determined, then the examiner must provide an opinion as to whether the Veteran's sleep disturbance is a sign or symptom of an undiagnosed illness or medically unexplained chronic multisymptom illness. Of note, a sign or symptom that may be a manifestation of an undiagnosed illness includes, but is not limited to, sleep disturbances. See 38 C.F.R. § 3.317(b). The examiner must provide a complete rationale for all opinions provided. If the examiner is unable to provide any opinion as requested, the examiner should fully explain the reason why such opinion could not be rendered. JOHN Z. JONES Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Hemphill 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.