Citation Nr: 21077401 Decision Date: 12/29/21 Archive Date: 12/29/21 DOCKET NO. 18-42 366 DATE: December 29, 2021 ORDER New and material evidence having been received, the petition to reopen the claim for service connection for obstructive sleep apnea (OSA) is granted. New and material evidence having been received, the petition to reopen the claim for service connection for a gastrointestinal disorder, to include gastroesophageal reflux disease (GERD) and acid reflux, is granted. REMANDED Entitlement to service connection for OSA, to include as due to exposure to environmental hazards in the Persian Gulf, is remanded. Entitlement to service connection for a gastrointestinal disorder, to include GERD and acid reflux, to include as due to exposure to environmental hazards in the Persian Gulf, is remanded. FINDINGS OF FACT 1. A May 2009 rating decision, in pertinent part, denied entitlement to service connection for acid reflux and sleep apnea. The Veteran was notified of that decision, initiated an appeal, and a subsequent statement of the case (SOC) was issued in February 2011. However, the Veteran did not perfect his appeals. 2. Some of the evidence received since May 2009, when considered by itself or in connection with evidence previously assembled, relates to unestablished facts necessary to substantiate the claims, and raises a reasonable possibility of substantiating the claims of service connection for OSA and a gastrointestinal disorder. CONCLUSIONS OF LAW 1. The May 2009 rating decision, which denied the Veteran's claims of entitlement to service connection for sleep apnea and acid reflux, is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 3.156, 20.201, 20.302, 20.1103. 2. The evidence received since the May 2009 rating decision is new and material, and the claims of entitlement to service connection for OSA and a gastrointestinal disorder are reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1988 to May 1988 and from February 2003 to July 2003, with additional service in the Illinois Air Force National Guard. These matters come before the Board of Veterans' Appeals (Board) on appeal from a December 2017 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In January 2021, the Veteran testified at a Board videoconference hearing before the undersigned. A copy of the transcript of that hearing has been associated with the claims file. The undersigned agreed to keep the record open for 30 days to allow the Veteran additional time to submit nexus evidence to support his claim. See January 2021 Correspondence, page 13. Additional lay evidence and private treatment records were received in February 2021 and April 2021. See February 2021 Correspondence; April 2021 Correspondence; April 2021 Medical Treatment Record Non-Government Facility. The Board further notes that the December 2017 rating decision reopened the claims of entitlement to service connection for sleep apnea and acid reflux, but denied both claims based on de novo review of the evidence. As a threshold matter, however, the Board must determine whether new and material evidence has been submitted to reopen a previously denied claim. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). Lastly, the Board has re-characterized the claim for entitlement to service connection for a gastrointestinal disorder. Clemons v. Shinseki, 23 Vet. App. 1 (2009) (The scope of a disability claim includes any disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record.). 1. New and material evidence having been received, the petition to reopen the claim for service connection for OSA is granted. 2. New and material evidence having been received, the petition to reopen the claim for service connection for a gastrointestinal disorder, to include GERD and acid reflux, is granted. In order to reopen a claim which has been denied by a final decision, the claimant must present new and material evidence. 38 U.S.C. § 5108. New evidence means existing evidence not previously submitted to VA. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. The language of 38 C.F.R. § 3.156(a) creates a low threshold for finding new and material evidence, and views the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening." Evidence "raises a reasonable possibility of substantiating the claim," if it would trigger VA's duty to provide an examination in adjudicating a non-final claim. Shade v. Shinseki, 24 Vet. App. 110 (2010). In May 2009, the RO denied the Veteran's claims for entitlement to service connection for sleep apnea and acid reflux. Specifically, the RO determined that, although private treatment records showed that the Veteran had been diagnosed with sleep apnea and acid reflux, his service treatment records did not indicate any complaints, symptoms, findings, or diagnoses of either disorder while he was serving on active duty. See May 2009 Rating Decision Narrative. Thereafter, the Veteran submitted a valid NOD in June 2009, and a SOC was issued in February 2011. See May 2009 NOD; February 2011 SOC. However, the Veteran did not submit a timely substantive appeal with respect to his claims for entitlement to service connection for sleep apnea or acid reflux, and as a result, the May 2009 rating decision is final. Evidence considered at the time of the May 2009 rating decision included service treatment records (STRs), service personnel records (SPRs), and private treatment records from Greenville Regional Hospital, Highlands Physicians LTD, Dr. Heffner, and Dr. Ravi, which show that the Veteran was diagnosed with sleep apnea in October 2007 and with acid reflux in September 2007. See May 2009 Rating Decision Narrative. The Veteran filed his claim to reopen in October 2017. See October 2017 VA Form 21-526EZ, Fully Developed Claim (Compensation). Since the final RO decision, VA treatment records, private treatment records, a January 2021 private medical opinion, lay statements, articles, and a January 2021 hearing transcript have been added to the claims file. During the January 2021 Board hearing, the Veteran testified that he began experiencing OSA and gastrointestinal symptoms after he was exposed to environmental hazards, to include burn pits, while he was stationed in Kuwait in 2001 and in Qatar in 2003. Specifically, he indicated that he went to the burn pits at least three of four times per day, for approximately 20 to 25 minutes per trip, to dispose of dining hall waste, to include plastics, chemicals, tires, and treated wood pallets, during both of his deployments. The Veteran also reported that he did not have access to personal protective equipment or a mask while he was stationed in the Persian Gulf region. See January 2021 Correspondence, pages 2-11. In support of his claim for entitlement to service connection for OSA, the Veteran submitted a private medical opinion from Dr. Robert F. Schaffer, dated in January 2021. Dr. Schaffer opined that the Veteran's diagnosed OSA had the possibility of being the direct result of his deployments to the Persian Gulf region and Afghanistan during service. See April 2021 Medical Treatment Record Non-Government Facility. This evidence is new and material because it was not of record at the time of the final RO decision in May 2009, and indicates that the Veteran currently has OSA and a gastrointestinal disorder which may be related to his active duty service. The Board finds this evidence would trigger VA's duty to provide an examination in adjudicating a non-final claim. Accordingly, the Board finds this new evidence raises a reasonable possibility of substantiating the Veteran's claims of entitlement to service connection for OSA and a gastrointestinal disorder, and as such, the claims are now reopened. See Shade, 24 Vet. App. at 110. REASONS FOR REMAND Entitlement to service connection for OSA, to include as due to exposure to environmental hazards in the Persian Gulf, is remanded. During the January 2021 Board hearing, the Veteran testified that his diagnosed obstructive sleep apnea was caused by exposure to environmental hazards in the Persian Gulf. Specifically, he indicated that he was responsible for transferring waste, to include plastics, chemicals, tires, and treated wood pallets, from the dining hall to burn pits while he was stationed in Kuwait in 2001 and in Qatar in 2003. To this end, he explained that he spent 20 to 25 minutes at the burn pits per trip to ensure all the waste materials were burned properly and noted that his deployment in Kuwait took place during monsoon season, which resulted in increased exposure to environmental hazards and sand. The Veteran further testified that he did not have access to personal protective equipment or gas masks during either deployment, which resulted in constant exposure to sand, toxins, and other airborne particulate matter. The Veteran also testified that his respiratory and OSA symptoms, to include sleep impairment, difficulty breathing during sleep, snoring, nighttime awakening, and unrestful sleep, manifested after his deployments and indicated that he has continued to experience such symptoms since that time. See January 2021 Correspondence, pages 2-11; see also April 2021 Correspondence. In addition, the Veteran reported that he did not seek treatment for or report his diagnosed OSA to the Air Force National Guard because he was told that OSA would disqualify him from worldwide service and result in a medical discharge. See, e.g., June 2013 Hearing Transcript, page 11; November 2015 Correspondence; August 2018 VA Form 9. In support of his claim, the Veteran submitted multiple articles that discuss environmental hazards, to include burn pits and particulate matter, in the Persian Gulf region. To this end, the Veteran submitted an article published by VA, titled Sand, Dust and Particulates, which indicates that veterans deployed in the Persian Gulf were often exposed to sand, dust, pollution, and other airborne particulates. The article further states that most studies relate particulate matter exposure data to respiratory and cardiopulmonary health effects in specifically susceptible groups. In addition, the Veteran submitted an article from the World Meteorological Organization, titled Sand and Dust Storms, which states that sand and dust storms are common meteorological hazards in arid and semi-arid regions, to include the Arabian Peninsula. The article further notes that smaller inhalable particles often get trapped in the nose, mouth, upper respiratory tract, and bloodstream and resulting in respiratory and cardiovascular disorders. The Veteran also submitted a Wikipedia article, titled Burn Pits, which indicates that the military used burn pits to dispose of waste, to include chemicals, paints, medical waste, human waste, electronic waste, food waste, metal and aluminum products, munitions, petroleum products, lubricants, plastics, rubber, and wood, in Kuwait and Qatar and throughout the Persian Gulf region. The article further notes that typical burn pits used jet fuel as an accelerant and that the burning of these materials created clouds of black smoke and pollutants, including dioxins, particulate matter, polycyclic aromatic hydrocarbons, volatile organic compounds, carbon monoxide, hexachlorobenzene, and ash. See April 2021 Correspondence. A review of the SPRs confirms that the Veteran was assigned to the 126th Air Refueling Wing from 1997 to 2005. In addition, the Veteran's DD-214s confirm that his Air Force Specialty Codes (AFSC) included Services Craftsman and that he served on active duty in support of Operation Noble Eagle, Operation Enduring Freedom, and Operation Iraqi Freedom. See June 2014 Military Personnel Record; February 2016 Certificate of Release or Discharge From Active Duty (e.g. DD 214, NOAA 56-16, PHS 1867). In October 2001, the Veteran was afforded a pre-deployment health assessment prior to a deployment to Kuwait during Operation Southern Watch. He also underwent a post-deployment health assessment in November 2003. The examiner noted that the Veteran had been deployed to Qatar from October 2003 to November 2003 for Operation Enduring Freedom. During the assessment, the Veteran stated that he was exposed to sand and dust during his deployment but denied exposure to smoke from oil fire or smoke from burning trash or feces. He further noted that he developed a chronic cough during his deployment and indicated that he continued to experience a chronic cough and a runny nose at the time of the assessment, but denied difficulty breathing and still feeling tired after sleep. See April 2014 STR Medical. A review of the post-service treatment records shows that the Veteran was diagnosed with snoring with excessive daytime sleepiness in April 2007. He underwent a nocturnal polysomnogram the following month and was subsequently diagnosed with OSA/hypopnea syndrome. See January 2020 Medical Treatment Record Non-Government Facility. A May 2008 special order shows that the Veteran was discharged from the Air Force National Guard in July 2008 without a separation examination. See January 2015 Military Personnel Record. A December 2009 private treatment record indicates that the Veteran gained 20 pounds due to his service-connected back disability. The assessment was OSA. See January 2020 Medical Treatment Record Non-Government Facility. Subsequent treatment records, to include primary care outpatient notes dated in September 2017 and July 2021, show that the Veteran has been diagnosed with obesity. See December 2017 CAPRI; July 2021 CAPRI. A December 2020 letter from Dr. Douglas W. Dothager indicates that the Veteran was diagnosed with OSA in May 2007 and that he served in the National Guard until 2008. In support of his claim, the Veteran submitted a private medical opinion from Dr. Robert F. Schaffer, dated in January 2021. Dr. Schaffer opined that the Veteran's diagnosed OSA had the possibility of being the direct result of his deployment in the Persian Gulf region and Afghanistan during service. See April 2021 Medical Treatment Record Non-Government Facility. Following a review of the evidence of record, the Board finds Dr. Schaffer's January 2021 private medical opinion to be inadequate as it is speculative in nature. The Board further notes that there is no other medical opinion of record as to whether the Veteran's OSA is etiologically related to his active duty service, to include as due to exposure to environmental hazards from burn pits and particulate matter in the Persian Gulf. As noted above, the post-service medical treatment records show that the Veteran has a current diagnosis of OSA. See, e.g., July 2021 CAPRI. Further, an October 2001 pre-deployment health assessment indicates that the Veteran was going to be deployed to Kuwait during Operation Southern Watch, and an October 2003 pre-deployment health assessment and a November 2003 post-deployment health assessment shows that the Veteran was deployed to Qatar during Operation Enduring Freedom. See April 2014 STR Medical. Accordingly, as the evidence of record shows a diagnosis for OSA, which the Veteran relates to exposure to environmental hazards, to include burn pits and particulate matter, in the Persian Gulf, the Board finds that a VA examination is necessary to determine the nature and etiology of the Veteran's disability. See McLendon, 20 Vet. App. at 81. The Board further notes that the medical evidence of record, to include primary care outpatient notes dated in September 2017 and July 2021, indicates that the Veteran was obese, and that a December 2009 private treatment record shows that the Veteran gained weight as a result of an inability to exercise due to his service-connected back disability. See December 2017 CAPRI; January 2020 Medical Treatment Record Non-Government Facility; July 2021 CAPRI. When raised by the record, the Board must consider whether obesity was caused or aggravated by a service-connected disability, consistent with 38 C.F.R. § 3.310(b). Thus, the Board finds that a remand is also warranted to obtain a medical opinion to address the effect, if any, of the Veteran's obesity on his diagnosed OSA. Entitlement to service connection for a gastrointestinal disorder, to include GERD and acid reflux, to include as due to exposure to environmental hazards in the Persian Gulf, is remanded. During the January 2021 Board hearing, the Veteran testified that his gastrointestinal disorders were caused by exposure to environmental hazards in the Persian Gulf. Specifically, he indicated that he was continuously exposed to sand, toxins, and other airborne particulate matter from burn pints while he was stationed in Kuwait in 2001 and in Qatar in 2003. The Veteran further testified that he did not have access to personal protective equipment or facemasks during either deployment, and stated that his digestive symptoms, to include severe acid reflux, manifested after his deployments. See January 2021 Correspondence, pages 2-11; see also April 2021 Correspondence. In support of his claim, the Veteran submitted multiple articles discussing environmental hazards, to include burn pits and particulate matter, in the Persian Gulf. As noted above, the articles indicate that veterans deployed in the Persian Gulf region were often exposed to sand, dust, pollution, airborne particulate matter, and pollutants, including dioxins, particulate matter, polycyclic aromatic hydrocarbons, volatile organic compounds, carbon monoxide, hexachlorobenzene, and ash. See April 2021 Correspondence. As noted above, the Veteran's SPRs confirm that he was assigned to the 126th Air Refueling Wing from 1997 to 2005, and his DD-214s indicate that his AFSCs included Services Craftsman and that he served on active duty during Operations Noble Eagle, Enduring Freedom, and Iraqi Freedom. See June 2014 Military Personnel Record; February 2016 Certificate of Release or Discharge From Active Duty (e.g. DD 214, NOAA 56-16, PHS 1867). A review of the STRs shows an October 1987 enlistment report of medical examination to the Air Force National Guard that is absent for findings pertaining to the Veteran's abdomen and viscera. In October 2001, the Veteran was afforded a pre-deployment health assessment prior to a deployment in Kuwait during Operation Southern Watch. He also underwent a pre-deployment health assessment in October 2003 prior to a deployment in Qatar during Operation Enduring Freedom and was afforded a post-deployment health assessment when he returned in November 2003. During the post-deployment health assessment, the Veteran stated that he was exposed to sand and dust in Qatar but indicated that he had not been exposed to smoke from oil fires or burning trash or feces. He also reported that his health worsened during his deployment but denied frequent indigestion and vomiting. Thereafter, a March 2004 medical record shows that the Veteran endorsed diarrhea, vomiting, and myalgias. On examination, the examiner noted moderate diffuse abdominal tenderness, and a stool culture revealed Clostridium difficile bacteria. The assessment was acute diarrhea. See July 2008 STR Medical Photocopy; April 2014 STR Medical. Private treatment records dated in January 2007 show that the Veteran's GERD symptoms had improved, and a February 2007 health history questions and interval history form indicates that the Veteran was taking Zegerid, a proton-pump inhibitor, for GERD. In addition, a subsequent September 2007 private treatment record shows that the Veteran had been diagnosed with acid reflux. See January 2009 Medical Treatment Record Non-Government Facility; October 2017 Medical Treatment Record Non-Government Facility; April 2014 STR Medical. A May 2008 special order shows that the Veteran was discharged from the Air Force National Guard in July 2008 without a separation examination. See January 2015 Military Personnel Record. Accordingly, as the evidence of record shows that the Veteran has been diagnosed with GERD and acid reflux, which he relates to exposure to environmental hazards, to include burn pits and particulate matter, in the Persian Gulf, the Board finds that a VA examination is necessary to determine the nature and etiology of the Veteran's diagnosed gastrointestinal disorders. See McLendon, 20 Vet. App. at 81. The Board further notes that the Veteran reported that his respiratory, OSA, and digestive symptoms initially manifested after he returned from Kuwait in 2001. See January 2021 Correspondence, pages 5-7. To this end, an October 2001 pre-deployment health assessment shows that the Veteran's health was assessed prior to a deployment in Kuwait during Operation Southern Watch. See July 2008 STR Medical Photocopy. The Board additionally notes that the claims file does not include any STRs or SPRs dated while the Veteran was stationed in Kuwait, a formal determination that such records do not exist or that further efforts to obtain such records would be futile, or any notification to the Veteran of such a finding, as required by governing regulation. Thus, the Board finds that a remand is also required to obtain any missing STRs and SPRs. Lastly, during his January 2021 hearing, the Veteran testified that he began experiencing severe GERD symptoms and sought treatment from a private physician after he returned from his deployment in Qatar in 2003. To this end, he stated that he underwent upper and lower gastrointestinal scopes for sinus problems with acid reflux and tried taking several medications before he was diagnosed with GERD. See January 2021 Correspondence, page 7. However, private medical records related to this testing have not been associated with the claims file. As such, the Board finds that a remand is also required to obtain these records. The matters are REMANDED for the following action: 1. With any necessary identification of sources by the Veteran, request all VA treatment records not already associated with the file from the Veteran's VA treatment facilities, and all private treatment records from the Veteran not already associated with the file, to include any identified private treatment records relating to upper and lower gastrointestinal scopes and to any other diagnostic testing and treatment for the Veteran's diagnosed gastrointestinal disorder. 2. Request the Veteran's complete service treatment records, to include all records dated in 2001. All requests and responses received from each contacted entity should be associated with the claims file. If the requested service treatment records are unavailable, issue a formal finding of unavailability and notify the Veteran and allow him the opportunity to submit any medical records in his possession. 3. Request the Veteran's complete service personnel records, to include all records dated in 2001. All requests and responses received from each contacted entity should be associated with the claims file. If the requested service personnel records are unavailable, issue a formal finding of unavailability and notify the Veteran and allow him the opportunity to submit any medical records in his possession. 4. After completion of the above development, schedule the Veteran for a VA examination by an appropriately qualified examiner to determine the nature and etiology of his diagnosed obstructive sleep apnea (OSA). The examiner should provide the following opinions: (a.) Is it at least as likely as not (50 percent or greater probability) that the Veteran's diagnosed OSA was caused by, or is otherwise etiologically related to, his active duty service, to include as due to exposure to environmental hazards, including burn pits and particulate matter, in the Persian Gulf? Please explain why or why not. The examiner should specifically address the January 2021 private medical opinion from Dr. Schaffer, the articles submitted by the Veteran, which indicate that veterans deployed in the Persian Gulf region were often exposed to sand, dust, pollution, airborne particulate matter, and pollutants that may be related to respiratory and cardiopulmonary health effects, and any other conflicting medical evidence of record, to include all other records identified in the body of this Remand. See April 2021 Correspondence; April 2021 Medical Treatment Record Non-Government Facility. (b.) Is it at least as likely as not (50 percent or greater probability) that the Veteran's service-connected disabilities, to include bilateral pes planus, right foot status-post excision of accessory bone of the right fifth metatarsal, degenerative changes with mild focal central disc protrusion of L5-S1, radiculopathy of the right lower extremity, radiculopathy of the left lower extremity, tender scars associated with bilateral pes planus, and linear scars associated with bilateral pes planus, caused the Veteran to become obese, to include as due to any lack of exercise resulting from his service-connected disabilities? Please explain why or why not. (c.) If the answer to (b) is "no," is it at least as likely as not (50 percent or greater probability) that the Veteran's service-connected disabilities, to include bilateral pes planus, right foot status-post excision of accessory bone of the right fifth metatarsal, degenerative changes with mild focal central disc protrusion of L5-S1, radiculopathy of the right lower extremity, radiculopathy of the left lower extremity, tender scars associated with bilateral pes planus, and linear scars associated with bilateral pes planus, aggravated his obesity, to include as due to any lack of exercise resulting from service-connected disabilities? Please explain why or why not. (d.) Is it at least as likely as not (50 percent or greater probability) that obesity (or the aggravation of obesity per question (c)) was a substantial factor in causing the Veteran's diagnosed OSA? Please explain why or why not. (e.) Is it at least as likely as not (50 percent or greater probability) that the Veteran would not have OSA if he were not obese (or but for obesity aggravated by service-connected disabilities per question (c))? Please explain why or why not. The Veteran's claims file, to include a copy of this remand, must be made available to and be reviewed by the examiner in conjunction with the examination. Reasons should be provided for any opinion rendered. If the examiner is unable to provide an opinion without resort to speculation, an explanation as to why this is so should be provided and any additional evidence that would be necessary before an opinion could be rendered should be identified. 5. After completion of the development in #1-3, schedule the Veteran for a VA examination by an appropriately qualified examiner to determine the nature and etiology his diagnosed gastrointestinal disorders, to include GERD and acid reflux. The examiner should provide the following opinion: Is it at least as likely as not (50 percent or greater probability) that the Veteran's diagnosed gastrointestinal disorders, to include GERD and acid reflux, were caused by, or are otherwise etiologically related to, his active duty service, to include as due to exposure to environmental hazards, including burn pits and particulate matter, in the Persian Gulf? Please explain why or why not. The Veteran's claims file, to include a copy of this remand, must be made available to and be reviewed by the examiner in conjunction with the examination. The examiner should specifically consider the articles submitted by the Veteran, which indicate that veterans deployed in the Persian Gulf region were often exposed to sand, dust, pollution, airborne particulate matter, and pollutants. See April 2021 Correspondence. Reasons should be provided for any opinion rendered. If the examiner is unable to provide an opinion without resort to speculation, an explanation as to why this is so should be provided and any additional evidence that would be necessary before an opinion could be rendered should be identified. S. HENEKS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Justis, 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.