Citation Nr: 21012249 Decision Date: 03/03/21 Archive Date: 03/03/21 DOCKET NO. 16-29 738 DATE: March 3, 2021 REMANDED Entitlement to service connection for sleeping disturbances including obstructive sleep apnea (OSA), to include as due to an undiagnosed Gulf War illness and exposure to burn pits and chemicals, is remanded. Entitlement to service connection for pulmonary disabilities including chronic obstructive pulmonary disease (COPD), to include as due to an undiagnosed Gulf War illness or exposure to burn pits and chemicals, is remanded. REASONS FOR REMAND The Veteran served on active duty in the U.S. Army from September 1990 to June 1991. These matters come before the Board of Veterans’ Appeals (Board) on appeal of a February 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In June 2019, the Veteran presented testimony before the undersigned Veterans Law Judge at a videoconference Board hearing. The hearing transcript has been associated with the Veteran’s electronic claims file. The Board remanded the case for further development in March 2020. The Board also remanded the issue of entitlement to service connection for leukemia, a bladder condition, joint pain to include a back condition, and muscle and joint pain to include a shoulder condition. Those claim were granted in a rating decision issued on September 21, 2020, and hence are no longer before the Board on appeal. However, the issues of the Veteran’s entitlement to service connection for OSA and COPD have been returned to the Board for appellate review. When these issues were last before the Board in March 2020, it was remanded to afford the Veteran a Gulf War examination. The March 2020 remand instructed the Agency of Original Jurisdiction (AOJ) to schedule the Veteran for a VA examination with a Gulf War examiner to determine the etiology of all symptoms and/or current diagnoses present during the period of the claim. The examiner was asked to opine whether each identified symptom and/or condition (a) originated during service, was related to any in-service incidents and/or environmental exposures, or was otherwise etiologically related to the Veteran’s service; or (b) was a manifestation of an undiagnosed illness that, by history, physical examination, and laboratory tests, cannot be attributed to any known clinical diagnosis; or (c) is part of a medically unexplained chronic multi-symptom illness defined by a cluster of signs or symptoms that, by history, physical examination, and laboratory tests, cannot be attributed to any known clinical diagnosis. The remand also instructed the examiner to address the article, Cancer, Chemical Exposure, and Middle East Veterans (Part One: Oil Well Fires) and the Veteran’s history of 26 years of smoking one pack per day as noted by the May 2016 examiner. A new examination was conducted in June 2020. The June 2020 examiner opined that it was less likely than not that the Veteran’s COPD and OSA were related to a specific exposure event experienced by the Veteran during service in Southwest Asia. As rationale, the examiner noted that the Veteran’s 26-year history of smoking a pack of cigarettes a day was a very significant risk factor for COPD. He stated that current research did not indicate any long-term health effects from exposure to burn pits. He did not elaborate on this or cite any research to support this conclusion. He also noted that the were no research studies which validated a causal relationship between development of sleep apnea and exposure to any environmental factors which the Veteran could have been exposed to in Southwest Asia. He did not elaborate on this or cite any research to support this conclusion. Additionally, the examiner did not discuss the article, Cancer, Chemical Exposure, and Middle East Veterans (Part One: Oil Well Fires). As the June 2020 VA examination failed to comply with the Board’s remand instructions, remand is warranted. See Stegall v. West, 11 Vet. App. 268 (1998). The matters are REMANDED for the following action: 1. Forward the Veteran’s claim file to a qualified Gulf War examiner to obtain an addendum opinion as to nature and etiology of the Veteran’s obstructive sleep apnea (OSA) and chronic obstructive pulmonary disease (COPD). All pertinent evidence of record must be made available to and reviewed by the examiner. If the examiner determines that an examination is necessary, one should be scheduled. 2. After reviewing the record, the examiner should state whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s OSA and COPD: (a.) Originated during service, is related to any in-service incidents and/or environmental exposures, such as burn pits, oil well fires, petro-chemicals of Kuwait, hydrogen sulfide, burning equipment, uranium in graveyards, within tank fuelers, the tanks, insecticides, and/or pest repellants, or is otherwise related to the Veteran’s military service; (b.) is a manifestation of an undiagnosed illness that, by history, physical examination, and laboratory tests, cannot be attributed to any known clinical diagnosis; or (c.) is part of a medically unexplained chronic multi-symptom illness defined by a cluster of signs or symptoms that, by history, physical examination, and laboratory tests, cannot be attributed to any known clinical diagnosis. In providing his or her opinion, the examiner should also address the October 1990 STR showing exposure to the “petro-chemicals of Kuwait oil well fires.” Additionally, the examiner should discuss the Veteran’s and the Veteran’s son’s testimony during the June 2019 Board hearing that at night the Veteran snored loudly, woke up tossing and turning after returning from the military and would stop breathing during sleep following his service in Desert Storm. The examiner should also address the article, Cancer, Chemical Exposure, and Middle East Veterans (Part One: Oil Well Fires) and the Veteran’s history of smoking one pack of cigarettes a day for 26 years as noted by the May 2016 VA examiner. It should be noted that the Veteran is competent to attest to factual matters of which he had or had first-hand knowledge. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. A full rationale must be provided for any opinion offered and a thorough explanation would be helpful for the Board. The Board recognizes the practical difficulties of scheduling an examination in view of the COVID-19 epidemic, and requests flexibility and understanding in affording the Veteran an opportunity for an examination if an examination is deemed necessary. If a VA examination proves not feasible for any reason, the claims file should still be reviewed by an appropriate professional for the purpose of providing the requested opinions. 3. After completing the above development, and any other development deemed necessary, readjudicate the issue on appeal. If any benefit sought on appeal remains denied, provide an additional supplemental statement of the case to the Veteran and his representative, and return the appeal to the Board for appellate review, after the Veteran and his representative have had an adequate opportunity to respond. ANTHONY C. SCIRÉ, JR Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Fairlie, 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.