Citation Nr: 21008708 Decision Date: 02/17/21 Archive Date: 02/17/21 DOCKET NO. 15-39 742 DATE: February 17, 2021 REMANDED The issue of entitlement to service connection for chronic fatigue syndrome (CFS), or similar disability featuring fatigue, is remanded. The issue of entitlement to service connection for sleep apnea is remanded. The issue of entitlement to service connection for gastroesophageal reflux disease (GERD) is remanded. REASONS FOR REMAND The Veteran served on active duty from September 1988 to August 1992, with service in Southwest Asia during the Persian Gulf War. This matter is currently before the Board of Veterans’ Appeals (Board) on remand from the United States Court of Appeals for Veterans Claims (Court). This matter originally came to the Board on appeal from a June 2014 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran presented testimony at a Board hearing before the undersigned Veterans Law Judge in November 2018, and a transcript of the hearing is of record. In May 2019, the Board denied entitlement to service connection for CFS, sleep apnea, and GERD (while additionally dismissing other service connection claims that had been withdrawn). The Veteran appealed the May 2019 Board decision to the Court. In a July 2020 Joint Motion for Partial Remand (Joint Motion or JMPR), the Court vacated the Board’s May 2019 decision, in part, with regard to the denials of service connection. The Court expressly found that the appellant did not wish to pursue any appeal of the Board’s dismissal of the withdrawn service connection issues. The Court remanded the matters from the vacated portion of the May 2019 Board decision back to the Board to take action pursuant to the parties’ agreement in the July 2020 Joint Motion. The case has now returned to the Board for further appellate review. 1. The issue of entitlement to service connection for CFS, or similar disability featuring fatigue, is remanded. The July 2020 JMPR states: the Board erred when it failed to ensure that the Department of Veterans Affairs (VA) complied with its duty to assist under the requirements of 38 U.S.C. § 5103A and 38 C.F.R. § 3.159(c) to obtain an adequate medical opinion that addressed whether Appellant’s fatigue is related to his PTSD or if fatigue is a separate disability altogether. The July 2020 JMPR further explained: While the June 2014 examiner commented that he “suspect[ed] the fatigue to be at least in part due to his significant PTSD and depression,” … he did not equate fatigue to the sleep disturbances as noted in 2004 when service connection for PTSD was established. Accordingly, the Board’s finding that Appellant’s symptoms are being compensated by his rating for PTSD is not supported in the record. In this regard, the July 2020 JMPR concludes: “The parties agree that remand is required for the Board to obtain a medical opinion that addresses whether Appellant’s fatigue is related to his PTSD or if fatigue is a separate disability altogether.” The JMPR is unequivocal in stating that the Board must obtain a medical opinion for the purpose described. Accordingly, the Board shall remand this issue for development of the needed medical opinion. 2. The issue of entitlement to service connection for sleep apnea is remanded. The July 2020 JMPR states: “the Board erred when it failed to properly address statements made by Appellant’s fellow servicemembers regarding his snoring.” The July 2020 JMPR further explained: Appellant testified that in-service he ‘had several roommates complain of [his] snoring.’... Appellant’s testimony about in-service complaints of snoring was not offered as to ‘causation,’ as argued by the Board, but as to the existence of in-service symptoms indicative of sleep apnea. Accordingly, upon remand the Board should discuss Appellant’s testimony as to in-service complaints about his snoring under McLendon in order to determine if remand is warranted in order to obtain an examination…. If the Board determines that Appellant’s accounts of in-service snoring were not symptoms of sleep apnea, then it must provide an adequate statement of reasons or bases to support its finding. With attention to the directives of the July 2020 JMPR, the Board finds that the Veteran’s lay testimony indicating in-service snoring suggests potential symptomatology of sleep apnea during service. Accordingly, the Board shall remand this issue for development of a medical nexus opinion to inform appellate review. The Board makes no credibility findings at this time. 3. The issue of entitlement to service connection for GERD is remanded. The July 2020 JMPR states: “the Board impermissibly relied on an absence of evidence to find that there was affirmative evidence showing no gastrointestinal problems during military service.” The Board notes that the May 2019 Board decision did cite evidence, rather than rely upon “an absence of evidence,” when the Board discussed: “the Veteran denied pertinent symptomatology at the time of his August 1992 service discharge examination and (post-service) May 1993 reports of medical history, and his abdomen and viscera were noted to be clinically normal at those times.” The July 2020 JMPR further explained, citing a June 2014 VA examination report: “Appellant stated that he had symptoms indicative of GERD while in service: ‘He had some trouble with stomach acid while in the Marines, 1988-1994, but not bad and no med [sic] need then’, but those statements were not addressed by the Board.” The JMPR concluded that the Board must “address Appellant’s statements during his VA medical examination and provide an adequate statement of reasons or bases for any finding as to the presence of gastrointestinal problems during service.” The Board has carefully considered how to proceed with attention to the July 2020 JMPR’s directives pertaining to this issue. By finding the May 2019 Board decision to be inadequately supported by its cited bases, the JMPR suggests that the evidence cited in the May 2019 Board decision may not be sufficient to resolve the question “as to the presence of gastrointestinal problems during service.” The JMPR appears to have perhaps considered that the Veteran’s account of experiencing some acidic stomach symptoms during service that were of insufficient severity to prompt him to seek medical treatment may not be entirely inconsistent with the contemporaneous evidence of record showing that he did not report pertinent symptomatology or have a medically detected pertinent disability during service. Accordingly, to ensure compliance with the directives and intent of the July 2020 JMPR, and to afford the Veteran with every consideration in this matter, the Board shall now remand this issue for additional development of the evidentiary record featuring a medical nexus opinion addressing the Veteran’s lay testimony regarding potentially pertinent in-service signs / symptomatology. See Miller v. Wilkie, 32 Vet. App. 249, 260 (2020) (holding that the duty to assist requires that an examiner address the veteran’s lay statements to provide the Board with an adequate medical opinion ). The Board makes no credibility findings at this time. The matters are REMANDED for the following action: 1. Please secure for the record copies of complete updated clinical reports (any not already of record) of all VA and non-VA treatment the Veteran has received for the disabilities on appeal. Please ask the Veteran to provide the releases necessary for VA to secure any pertinent private treatment reports. 2. After the record is determined to be complete, please refer the claim to an appropriate clinician for an opinion as to the nature and etiology of the Veteran’s claimed CFS / fatigue disorder. The Veteran’s claims-file must be made available to and be reviewed by the clinician. The clinician is requested to opine as to the following: (a.) Is the Veteran’s fatigue symptomatology related to his posttraumatic stress disorder (PTSD), or does the Veteran’s fatigue symptomatology involve a separate disability altogether. (This question must be addressed to comply with the directives of the Court-endorsed July 2020 JMPR.) (b.) Please identify, by diagnosis and/or functional impairment, all disabilities associated with the Veteran’s claimed fatigue symptoms during the period on appeal (since August 2013). (c.) For each disability / impairment diagnosed in responding to the above, the examiner is requested to offer an opinion as to whether it is at least as likely as not (a 50% or greater probability) that such disability was incurred in or had onset during active duty service. (d.) The examiner must offer an opinion as to whether the examination findings or other evidence objectively demonstrate signs or symptoms of (i) an undiagnosed illness that includes objective signs and symptoms of complaints of fatigue that cannot be attributed to known medical diagnoses or (ii) a medically unexplained multisymptom illness. In answering this, please indicate whether there is evidence of any signs or symptoms of fatigue beyond what is explained by the medical diagnoses (or symptoms out of proportion to physical findings) found for this Veteran. Please specifically discuss, as necessary, all pertinent indications of disability or dysfunction involving fatigue. The clinician is advised that the Board has not made any credibility determinations with respect to the Veteran’s statements ONLY IF the clinician determines that an examination is necessary for the addendum opinion, the Veteran should be scheduled for an appropriate VA examination to determine the nature and etiology of the claimed fatigue or similar disorder. The clinician must explain the rationale for all opinions in detail, citing to supporting clinical data and/or medical literature, as appropriate. The clinician should take into consideration that the Veteran is competent to report in-service and post-service symptom experiences; other witnesses are competent to report observable symptoms. If the clinician cannot provide an opinion without resorting to speculation, the clinician should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. 3. After the record is determined to be complete, please refer the claim to an appropriate clinician for an opinion as to the nature and etiology of the Veteran’s sleep apnea. The Veteran’s claims-file must be made available to and be reviewed by the clinician. The clinician is requested to opine as to the following: (a.) Please identify, by diagnosis and/or functional impairment, all disabilities associated with the Veteran’s claimed sleep apnea symptoms during the period on appeal (since August 2013). (b.) For each disability identified, is it at least as likely as not (a 50 percent or greater probability) related / etiologically linked to service? In responding to question (b) above, the clinician is requested to consider and discuss as necessary: (c.) What types of symptoms would have been caused by in-service onset of the disability, relative to the Veteran’s account of potentially pertinent in-service signs? (The Veteran has described that he recalls in-service onset of snoring that was described to him at that time in the complaints of several roommates.) (d.) Is there any medical reason to accept or reject the proposition that, had the claimed in-service snoring occurred, such an event could have led to the current disorder or represented onset of the current disorder? (e.) Please explain whether the Veteran’s lay statements align with how the disorder is known to develop. The clinician must consider and address as appropriate lay evidence including: *The Veteran’s November 2018 Board hearing testimony included a description of history indicating: “in 1991 … right after [he] left the Gulf …. [he] had several roommates complain of [his] snoring and at least one roommate changed rooms…. [I]t was finally diagnosed approximately …. [e]arly 2000s.” The clinician is advised that the Board has not made any credibility determinations with respect to the Veteran’s statements, including with regard to in-service injury, symptomatology, and worsening symptoms since service. With respect to any post-service developments contributing to a disability, the clinician is advised that there is no legal requirement that an in-service event or injury must be the sole cause of the disorder claimed. ONLY IF the clinician determines that an examination is necessary for the addendum opinion, the Veteran should be scheduled for an appropriate VA examination to determine the nature and etiology of the claimed sleep apnea or similar disorder. The clinician must explain the rationale for all opinions in detail, citing to supporting clinical data and/or medical literature, as appropriate. The clinician should take into consideration that the Veteran is competent to report in-service and post-service symptom experiences; other witnesses are competent to report observable symptoms. If the clinician cannot provide an opinion without resorting to speculation, the clinician should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. 4. After the record is determined to be complete, please refer the claim to an appropriate clinician for an opinion as to the nature and etiology of the Veteran’s GERD. The Veteran’s claims-file must be made available to and be reviewed by the clinician. The clinician is requested to opine as to the following: (a.) Please identify, by diagnosis and/or functional impairment, all disabilities associated with the Veteran’s claimed GERD symptoms during the period on appeal (since August 2013). (b.) For each disability identified, is it at least as likely as not (a 50 percent or greater probability) related / etiologically linked to service? In responding to question (b) above, the clinician is requested to consider and discuss as necessary: (c.) What types of symptoms would have been caused by in-service onset of the disability, relative to the Veteran’s account of potentially pertinent in-service signs? (The Veteran has described that he recalls in-service onset of “some trouble with stomach acid while in the Marines, 1988-1994,” that was “not bad” and did not result in medical treatment.) (d.) Is there any medical reason to accept or reject the proposition that, had the claimed in-service “trouble with stomach acid” occurred, such an event could have led to the current disorder or represented onset of the current disorder? (e.) Please explain whether the Veteran’s lay statements align with how the disorder is known to develop. The clinician must consider and address as appropriate lay evidence including: *A June 2014 VA examination report shows that the Veteran describes a history of: “went to local dr in the early 2000s for stomach acid[.] [S]tates he had some trouble with stomach acid while in the Marines, 1988-1994, but not bad and no med needed then. [S]tates approx 2004-05 he told local dr about the problem with heartburn and reflux and zantac was started.” *The Veteran’s November 2018 Board hearing testimony included a description of history indicating: “the early 2000s is when it really started hitting me. That’s when I had to start taking TUMS. You know, I noticed before that sometimes if I’d eat spicy things, I’d get a little upset. But nothing bad, so I didn’t think anything of it. But probably 2004, 2005, it really hit me pretty hard.” *The Veteran’s November 2018 Board hearing testimony furthermore included a description of history indicating that “without going to the doctor from the time [he] left the Gulf [in-service] till the time [he] started having some diagnos[es],” he “coped with these issues” by taking “a lot of TUMS.” *The Veteran’s October 2015 written statement presents his recollection: “While serving [in] the Southwest Asia Theater of Operations I first noticed signs of abdominal stress.… The issues were, in the beginning, mild. While the first diagnosis by a doctor was in 2006 for GERD … these issues existed long before a diagnosis.” The clinician is advised that the Board has not made any credibility determinations with respect to the Veteran’s statements, including with regard to in-service injury, symptomatology, and worsening symptoms since service. With respect to any post-service developments contributing to a disability, the clinician is advised that there is no legal requirement that an in-service event or injury must be the sole cause of the disorder claimed. ONLY IF the clinician determines that an examination is necessary for the addendum opinion, the Veteran should be scheduled for an appropriate VA examination to determine the nature and etiology of the claimed GERD or similar disorder. The clinician must explain the rationale for all opinions in detail, citing to supporting clinical data and/or medical literature, as appropriate. The clinician should take into consideration that the Veteran is competent to report in-service and post-service symptom experiences; other witnesses are competent to report observable symptoms. If the clinician cannot provide an opinion without resorting to speculation, the clinician should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. M. C. GRAHAM Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Barone, 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.