Citation Nr: A21020284 Decision Date: 12/20/21 Archive Date: 12/20/21 DOCKET NO. 200331-67667 DATE: December 20, 2021 REMANDED Entitlement to service connection for obstructive sleep apnea (OSA) is remanded. REASONS FOR REMAND The Veteran served on active duty from June 2000 to February 2001, January 2003 to April 2004, and from January to February 2010, with service in Iraq during the Gulf War in his last period of active service. In February 2019, the agency of original jurisdiction (AOJ) issued a rating decision that denied entitlement to service connection for sleep apnea. In March 2019, the Veteran submitted a VA Form 20-0996, Decision Review Request: Higher-Level Review (HLR), and requested review of the February 2019 decision. In May 2019, the AOJ issued the HLR decision on appeal, which considered the evidence of record at the time of the prior February 2019 decision. In a March 2020 VA Form 10182, Decision Review Request: Board Appeal, the Veteran elected the Direct Review docket. Therefore, the Board may only consider the evidence of record at the time of the initial AOJ decision on appeal. 38 C.F.R. § 20.301. This appeal was previously before the Board in February 2021, at which time the Board denied entitlement to service connection for obstructive sleep apnea (OSA). The Veteran appealed the February 2021 decision to the United States Court of Appeals for Veterans Claims (Court). In August 2021, the Court granted a Joint Motion for Remand (JMR) wherein the parties agreed that the February 2021 decision should be vacated and the issue remanded to the Board for readjudication consistent with the JMR. As an initial matter, in the JMR, the parties observed that a January 2019 VA examination stated that the Veteran was having sleep disturbances due to back pain and that service connection had been awarded for a spine disability. The parties then stated that the Board did not address whether the January 2019 opinion reasonably raised the issue of secondary service connection; namely, whether the Veteran's sleep apnea is secondary to his service-connected back disability. The Board was directed to address whether the examination report reasonably raised a secondary service connection theory of entitlement. A plain reading of the January 2019 VA examination reveals that a secondary service connection theory of entitlement had not been raised. Instead, the report distinguishes between the difficulty sleeping the Veteran experiences because of his back pain and the "symptoms that could be attributed to sleep apnea" which began many years later. While the report indicates that the Veteran has sleep impairment due to the pain associated with his spine and also has sleep apnea, nothing in the report suggests that there is a relationship (causation or aggravation) between these two disabilities. As discussed below, the JMR identified an error with the January 2019 VA examination report that requires the appeal be remanded for additional evidentiary development. Under the modernized review system, the Board's ability to remand a claim for additional development is limited, in part, to duty to assist errors that occurred prior to the RO's decision. Because the Board has determined that a secondary service connection theory of entitlement was not raised by the January 2019 examination, it cannot direct that an examiner comment on this theory of entitlement. However, the Veteran is free to raise this theory on remand. The JMR noted that the January 2019 VA opinion was inadequate as to whether the Veteran's OSA is a qualifying chronic disability that became manifest during his service in the Gulf War. In this regard, the January 2019 VA examiner opined that the Veteran's OSA is a disease with a clear and specific etiology and diagnosis and noted that the medical literature does not support an etiologic link between OSA and exposure to fumes, dust, or smoke. However, as noted in the August 2021 JMR, the VA examiner did not determine the etiology or pathophysiology of the Veteran's OSA, as required by 38 C.F.R. § 3.317. In this context, a qualifying chronic disability includes medically unexplained chronic multi-symptom illnesses, such as chronic fatigue syndrome, fibromyalgia, irritable bowel syndrome, or any other illness the Secretary determines meets the following criteria for a medically unexplained chronic multi-symptom illness. See 38 U.S.C. § 1117; 38 C.F.R. § 3.317(a)(2). As relevant to this appeal, the Court has held that an illness is a medically unexplained chronic multisystem illness (MUCMI) where either the etiology or pathophysiology of the illness is inconclusive. See Stewart v. Wilkie, 30 Vet App. 383, 390. Therefore, while the January 2019 VA examiner stated that the Veteran's OSA is a disease with a clear and specific diagnosis, the examiner's failure to identify the etiology or pathophysiology of the Veteran's OSA raises the question as to whether either are inconclusive. As such, the January 2019 VA opinion is inadequate, which is a pre-decisional duty to assist error that requires a remand for an adequate opinion. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (once VA undertakes the effort to provide an examination for a service connection claim, even if not statutorily obligated to do so, it must provide an adequate one). The matter is REMANDED for the following action: 1. Request that an appropriate medical professional review the claims file and provide an addendum opinion regarding the Veteran's OSA. The need for an examination is left to the discretion of the examiner. The claims file must be reviewed, and the examination report must reflect that such review was accomplished. After reviewing the claims file, the examiner is requested to provide an opinion as to the following: (a) Is the Veteran's OSA (i) a diagnosable but medically unexplained chronic multisymptom illness; (ii) a diagnosable chronic multisymptom illness with a partially explained etiology and pathophysiology; or (iii) a disease with a clear and specific diagnosis, etiology, and pathophysiology? The term medically unexplained chronic multisymptom illness (MUCMI) 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. (b) The response to the foregoing question must include a discussion of the pathophysiology and etiology of the Veteran's OSA and/or reported symptomatology. Pathophysiology is defined as the physiology of abnormal states; specifically, the functional changes that accompany a particular syndrome or disease. Consideration of pathophysiology and etiology is a veteran-specific inquiry, as opposed to an inquiry regarding the general knowledge of the medical community. (c) If the Veteran's OSA is consistent with either (ii) a diagnosable chronic multisymptom illness with a partially explained etiology and pathophysiology, or (iii) a disease with a clear and specific diagnosis, etiology, and pathophysiology, opine as to whether it is at least as likely as not (a 50 percent or greater probability) that the OSA was occurred in or is otherwise related to service, to include the Veteran's exposure to burn pits and particulate matter while deployed in Iraq. The examiner must consider and address all lay and medical evidence of record with respect to the onset and progression of the Veteran's symptoms. A clear rationale must be provided for all opinions and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. M. Donohue Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Turnipseed, 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.