Citation Nr: 21020811 Decision Date: 04/08/21 Archive Date: 04/08/21 DOCKET NO. 16-21 084 DATE: April 8, 2021 REMANDED Entitlement to service connection for chest pain, to include as due to exposure to smoke from burn pits and dust storms is remanded. Entitlement to service connection for low testosterone, to include as due to exposure to smoke from burn pits and dust storms is remanded. Entitlement to service connection for memory loss and night sweats, to include as due to exposure to smoke from burn pits and dust storms is remanded. Entitlement to service connection for skin rashes, to include as due to exposure to smoke from burn pits and dust storms is remanded. Entitlement to service connection for nausea and vertigo, to include as due to exposure to smoke from burn pits and dust storms is remanded. Entitlement to service connection for shortness of breath, to include as due to exposure to smoke from burn pits and dust storms is remanded. Entitlement to service connection for fatigue and restless leg syndrome, to include as due to exposure to smoke from burn pits and dust storms is remanded. Entitlement to service connection for back pain and body aches, to include as due to exposure to smoke from burn pits and dust storms is remanded. Entitlement to service connection for heartburn, to include as due to exposure to smoke from burn pits and dust storms is remanded. Entitlement to service connection for hypertension (HTN), to include as due to exposure to smoke from burn pits and dust storms is remanded. REASONS FOR REMAND The Veteran served active duty in the U.S. Army from May to September 1993 and from January to September 2003. This matter comes before the Board on appeal of a November 2013 rating decision. This case was previously before the Board in October 2018, where the issues on appeal were remanded for further evidentiary development. The Board finds that the remand directives were not substantially complied with and thus another remand is warranted. Stegall v. West, 11 Vet. App. 268, 271 (1998). Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran’s claim so that he is afforded every possible consideration. 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159 (2019). All Issues on Appeal The October 2018 Board decision remanded the claims on appeal and directed the Agency of Original Jurisdiction (AOJ) to obtain the Veteran’s missing STRs, from February 2003 to August 2003. The AOJ complied with this directive, as it was shown that the Veteran’s record from February 2003 to August 2003, were unavailable. However, the AOJ was also directed to schedule the Veteran for examinations in order to determine the nature and etiology of the his back pain with body aches, shortness of breath, fatigue and sleep disorder, chest pain and hypertension, heartburn, low testosterone, skin rashes, migraines, nausea, vertigo, memory loss and night sweats. Furthermore, the AOJ was directed to obtain a medical opinion from an appropriate clinician as to whether the Veteran’s claimed disabilities were caused or incurred in service, to include as due to exposure to smoke from burn pits and dust storms. Additionally, the examiners were asked to address the contention set out by the Veteran in his November 2013 statement and the arguments set out by his representative in November 2014 notice of disagreement (NOD) and May 2016 substantive appeal, to include a review of the Fact Sheets entitled “Burn Pits in Iraq, Afghanistan, and Djibouti on the Horn of Africa” and “Particulate Matter throughout Iraq, Afghanistan, and Djibouti.” However, the AOJ failed to provide the Veteran with VA examinations to address his claimed disabilities and did not obtain the requested medical opinions. The Board notes that the Veteran was afforded a lumbar spine examination, but the opinion provided did not fully comply with the Board’s remand instructions. As such, the Board finds that the remand directives were not substantially complied with; therefore, another remand is warranted. Stegall, 11. Vet. App. at 271. The matters are REMANDED for the following action: 1. Obtain all relevant outstanding VA and private treatment records. All records and/or responses received should be associated with the claims file. 2. After all outstanding treatment records have been associated with the claims file, obtain a VA addendum medical opinion to determine the nature and etiology of the Veteran’s back pain. (a.) The examiner must opine whether it is at least as likely as not that the back impairment had its onset during service or is otherwise causally related to any event or circumstance of the Veteran’s service, to include as due to exposure to smoke from burn pits and dust storms. The VA examiner should be provided with and review the Fact Sheets entitled “Burn Pits in Iraq, Afghanistan, and Djibouti on the Horn of Africa” and “Particulate Matter throughout Iraq, Afghanistan, and Djibouti.” The examiner must address the contentions set out by the Veteran in his November 2013 statement, and those set out by his representative in the November 2014 notice of disagreement and the May 2016 substantive appeal. 3. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of his shortness of breath. (a.) The examiner must determine whether the Veteran has a diagnosed disorder associated with his shortness of breath, and opine as to whether it is at least as likely as not his shortness of breath had its onset during service or is otherwise causally related to any event or circumstance of the Veteran’s service, to include as due to exposure to smoke from burn pits and dust storms The VA examiner should be provided with and review the Fact Sheets entitled “Burn Pits in Iraq, Afghanistan, and Djibouti on the Horn of Africa” and “Particulate Matter throughout Iraq, Afghanistan, and Djibouti.” The examiner must address the contentions set out by the Veteran in his November 2013 statement, and those set out by his representative in the November 2014 notice of disagreement and the May 2016 substantive appeal. 4. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of his fatigue and sleep disorder, to include sleep apnea and restless leg syndrome. (a.) The examiner must opine whether it is at least as likely as not his fatigue and sleep disorder, to include sleep apnea and restless leg syndrome(RLS), had it onset during service or is related to an in-service injury, event, or disease, to include as due to exposure to smoke from burn pits and dust storms. The VA examiner should be provided with and review the Fact Sheets entitled “Burn Pits in Iraq, Afghanistan, and Djibouti on the Horn of Africa” and “Particulate Matter throughout Iraq, Afghanistan, and Djibouti.” The examiner must address the Veteran’s contentions that RLS began during active duty and must also consider the contentions raised in his November 2013 statement, and those set out by his representative in the November 2014 notice of disagreement and the May 2016 substantive appeal. 5. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of the Veteran’s chest pain and hypertension (HTN). (a.) The examiner must determine whether the Veteran has a diagnosed disorder associated with his chest pain, and opine whether it is at least as likely as not chest pain or hypertension is related to an in-service injury, event, or disease, to include as due to exposure to smoke from burn pits and dust storms. The VA examiner should be provided with and review the Fact Sheets entitled “Burn Pits in Iraq, Afghanistan, and Djibouti on the Horn of Africa” and “Particulate Matter throughout Iraq, Afghanistan, and Djibouti.” The examiner must address the contentions set out by the Veteran in his November 2013 statement, and those set out by his representative in the November 2014 notice of disagreement and the May 2016 substantive appeal. 6. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of the Veteran’s heartburn. (a.) The examiner must opine whether it is at least as likely as not his heartburn is related to an in-service injury, event, or disease, to include as due to exposure to smoke from burn pits and dust storms. The VA examiner should be provided with and review the Fact Sheets entitled “Burn Pits in Iraq, Afghanistan, and Djibouti on the Horn of Africa” and “Particulate Matter throughout Iraq, Afghanistan, and Djibouti.” The examiner must address the contentions set out by the Veteran in his November 2013 statement, and those set out by his representative in the November 2014 notice of disagreement and the May 2016 substantive appeal. 7. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of the Veteran’s low testosterone. (a.) The examiner must opine whether it is at least as likely as not low testosterone is related to an in-service injury, event, or disease, to include as due to exposure to smoke from burn pits and dust storms. Moreover, the examiner should clarify whether low testosterone is a disability or merely a laboratory finding. In this regard, the examiner should list any symptoms and manifestations that may be expected as a result of low testosterone. The VA examiner should be provided with and review the Fact Sheets entitled “Burn Pits in Iraq, Afghanistan, and Djibouti on the Horn of Africa” and “Particulate Matter throughout Iraq, Afghanistan, and Djibouti.” The examiner must address the contentions set out by the Veteran in his November 2013 statement, and those set out by his representative in the November 2014 notice of disagreement and the May 2016 substantive appeal. 8. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of his skin rashes. (a.) The examiner must opine whether it is at least as likely as not the Veteran’s skin rashes are related to an in-service injury, event, or disease, to include as due to exposure to smoke from burn pits and dust storms. The VA examiner should be provided with and review the Fact Sheets entitled “Burn Pits in Iraq, Afghanistan, and Djibouti on the Horn of Africa” and “Particulate Matter throughout Iraq, Afghanistan, and Djibouti.” The examiner must address the Veteran’s contentions that his skin rashes began during active duty and the contentions set out by the Veteran in his November 2013 statement, and those set out by his representative in the November 2014 notice of disagreement and the May 2016 substantive appeal. 9. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of the claimed migraines, nausea, and vertigo. (a.) The examiner must opine whether it is at least as likely as not the Veteran’s migraines, nausea, and vertigo are related to an in-service injury, event, or disease, to include as due to exposure to smoke from burn pits and dust storms. The VA examiner should be provided with and review the Fact Sheets entitled “Burn Pits in Iraq, Afghanistan, and Djibouti on the Horn of Africa” and “Particulate Matter throughout Iraq, Afghanistan, and Djibouti.” The examiner must address the Veteran’s contentions that headaches began during service, that headaches are related to sleep apnea, and the contentions set out by the Veteran in his November 2013 statement, and those set out by his representative in the November 2014 notice of disagreement and the May 2016 substantive appeal. 10. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of the Veteran’s memory loss and night sweats. The examiner must opine whether it is at least as likely as not the Veteran’s memory loss and night sweats are related to an in-service injury, event, or disease, to include as due to exposure to smoke from burn pits and dust storms. The VA examiner should be provided with and review the Fact Sheets entitled “Burn Pits in Iraq, Afghanistan, and Djibouti on the Horn of Africa” and “Particulate Matter throughout Iraq, Afghanistan, and Djibouti.” The examiner must address the contentions set out by the Veteran in his November 2013 statement, and those set out by his representative in the November 2014 notice of disagreement and the May 2016 substantive appeal. The examiner(s) is reminded that the term “as likely as not” does not mean “within the realm of medical possibility,” but rather that the evidence of record is so evenly divided that, in the examiner’s expert opinion, it is as medically sound to find in favor of the proposition as against it. (Continued on the next page)   11. The examiner(s) should cite to the pertinent medical and competent lay evidence of record and explain the rationale for all opinions given. If after consideration of all pertinent factors it remains that the opinion sought cannot be given without resort to speculation, it should be so stated, and the provider must (to comply with governing legal guidelines) explain why the opinion sought cannot be offered without resort to speculation. 12. After undertaking any additional development deemed necessary, the AOJ must readjudicate the claims on appeal. If any claim remains denied, the Veteran and his representative should be furnished a supplemental statement of the case and afforded the requisite opportunity to respond before the case is returned to the Board. KRISTI L. GUNN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board I. Umo, 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.