Citation Nr: 21023698 Decision Date: 04/21/21 Archive Date: 04/21/21 DOCKET NO. 14-32 084A DATE: April 21, 2021 REMANDED The issue of entitlement to service connection for sleep apnea, to include as to include as a qualifying chronic disability and/or secondary to hypertension, is remanded. The issue of entitlement to service connection for gout, to include as a qualifying chronic disability, is remanded. REASONS FOR REMAND The Veteran had active military service from September 1981 to June 2005. The Veteran’s DD Form 214 shows that the Veteran received the Southwest Asia Service medal; therefore, he is considered a Persian Gulf War veteran. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) in which the RO, inter alia, denied service connection for sleep apnea and gout. The Veteran disagreed with that decision and subsequently perfected an appeal. The Board notes that a review of the record shows that the Veteran has raised several theories of entitlement to service connection for sleep apnea and gout. Accordingly, the issues on appeal have been characterized as set forth above. The instant matters were previously before the Board in April 2018 and July 2020, at which time they were remanded to the agency of original jurisdiction (AOJ) to attempt to obtain potentially outstanding post-service treatment records. No additional development was ordered. Unfortunately, the matters must again be remanded for further AOJ action on the claims on appeal even though such will, regrettably, further delay an appellate decision on these matters. A review of the record shows that in an August 2012 VA Form 21-4138 (Statement in Support of Claim), the Veteran stated that he was attaching medical records in support of his claims for service connection for sleep apnea and gout, in addition to providing notarized letters and medical billing statements. The record then contains two lay statements, a sleep lab appointment confirmation sheet, and medical billing statements pertaining to physical therapy appointments. No additional private treatment records are contained in the claims file. Notably, in the August 2013 rating decision on appeal, as to the Veteran’s claims for service connection for sleep apnea and gout, the AOJ stated: “We acknowledge receipt of your private medical opinion, which diagnosed your current disability. We received your medical evidence which discusses the symptoms of your medical condition.” Unfortunately, there is no such private medical opinion and/or medical evidence of record. Given the Veteran’s indication of having attached medical records in support of his claims to his August 2012 VA Form 21-4138, and in consideration of the AOJ’s reported review of such records, the Board can only assume that this evidence was either lost or inadvertently not scanned into the Veteran’s virtual claims file. As such, the Board finds it necessary to remand the claims on appeal for the AOJ to attempt to locate the private medical opinion and treatment records referred to in the August 2013 rating decision and/or to allow for the Veteran to resubmit any such evidence. The Board also notes that the Veteran has not been afforded a VA examination in connection with his claim for service connection for sleep apnea. A review of the available evidence shows that the Veteran has been diagnosed with sleep apnea. The record also shows that the Veteran reported that he served overseas during the Persian Gulf War and has noted that there may be an association between service in the Southwest Asia theater of operations during the Persian Gulf War and the development of sleep apnea. Also, in August 2014, the AOJ requested a VA examination and medical opinion regarding the etiology of the Veteran’s sleep apnea. Specially, the AOJ noted that medical opinion addressing whether sleep apnea falls under “sleep disturbances” or “respiratory symptoms” as a sign or symptoms of an undiagnosed illness and medically unexplained chronic multisymptom illness. See 38 U.S.C. § 1117(g); 38 C.F.R. § 3.317(b). The examination and opinion request was, however, then cancelled. The stated reason for cancellation was that it was an “incomplete request.” No additional attempts were thereafter made to schedule the Veteran for an examination/obtain a medical opinion in connection with his claim for service connection for sleep apnea. Here, because the AOJ previously determined that the medical examination was warranted in connection with the Veteran’s sleep apnea claim, but did not follow through with scheduling such an examination, the Board finds that the claim for service connection for sleep apnea must also be remanded to afford a VA examination. In this regard, the Board also notes that the Veteran has submitted evidence showing that he had symptoms potentially attributable to sleep apnea during active duty service. Specifically, the Veteran reported that he had always been informed by family and friends who stayed with him that he would snore loudly and stop breathing while sleeping. In support of this contention, the Veteran submitted two lay statements. In the first statement, C.S., who indicated that he had lived with the Veteran from 1985 to 1989, reported her observations of the Veteran snoring loudly and appearing to stop breathing while sleeping. In the second statement, M.L., who stated that she was living with the Veteran for a period in 1992, stated that on numerous occasions, she would wake the Veteran up because of his “out of control snoring which would cause him to stop breathing.” Based on this evidence, the Board has independently determined that the “low threshold” necessary to establish entitlement to a VA medical examination has been satisfied. See 38 U.S.C. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006); 38 C.F.R. § 3.159(c)(4). On remand, the Veteran should be scheduled for a VA examination to determine that etiology of his diagnosed sleep apnea and the etiology opinion obtained on remand should address all theories of entitlement, as set forth below. (Parenthetically, the Board notes that in his notice of disagreement, the Veteran asserted his belief that his sleep apnea may be secondary to hypertension; however, as the Veteran is not service-connected for hypertension and there is no currently pending claim for service connection for hypertension, the Board finds no reason, at this juncture, to conduct additional development regarding this theory of entitlement.) The Veteran has also not been afforded a VA examination in connection with his claim of service connection for gout. In this regard, the Board notes that the Veteran has a current diagnosis of gout. Although there is no indication of gout diagnosed in service, the Veteran’s service treatment records do contain some notations of foot and other joint pain. The Veteran’s post-service treatment records, to include the report of a VA joints examination, note complaints of foot, ankle, wrist, shoulder, and knee pain. Although the Veteran was afforded a VA joints examination in May 2008, the examination did not specifically consider whether the Veteran’s complained of joint pains were manifestations of gout. The Board additionally notes that “joint pain” may be a manifestation of a medically unexplained chronic multisymptom illness. 38 U.S.C. § 1117(g); 38 C.F.R. § 3.317(b). Given the current evidence of record, and in consideration of the fact that a previously submitted private medical opinion is unavailable for review by the Board, in an effort to avoid future remands of the claim for service connection for gout, the Board finds that on remand, the Veteran should also be scheduled for a VA examination in connection with his claim for service connection for gout. 38 U.S.C. § 5103A (VA’s duty to assist include providing a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on the claim). The matters are REMANDED for the following action: 1. Attempt to locate the private medical opinion referred to in the August 2013 rating decision, which opinion was presumably submitted by the Veteran along with his August 2012 VA Form 21-4138. If this opinion cannot be located, the Veteran should be notified of such and invited to submit a copy of the previously submitted private medical opinion, or afforded the opportunity to submit a new medical opinion in support of his claims. 2. After completion of above development, to include an appropriate time for response from the Veteran is necessary, schedule the Veteran for a VA examination to determine the nature and etiology of his claimed sleep apnea and gout. (If multiple examinations are necessary due to the nature of the Veteran’s claimed disabilities, the Veteran should be appropriately scheduled for separate examinations). The claims file must be provided to and reviewed by the examiner in conjunction with the examination. All necessary testing should be undertaken. Upon review of the claims file and examination of the Veteran, the examiner or examiners are requested to provide the following opinions: 1) Is it at least as likely as not (50 percent probability or more) that the Veteran’s diagnosed sleep apnea had its onset in or is otherwise related to the Veteran’s active duty service, including environmental exposures during service in Southwest Asia during the Persian Gulf War. In particular, the examiner should address the Veteran’s assertion that he developed symptoms of sleep apnea, as supported by the lay evidence of record, during active duty. 2) Is it at least as likely as not (50 percent probability or more) that the Veteran’s diagnosed gout had its onset in or is otherwise related to the Veteran’s active duty service, including environmental exposures during service in Southwest Asia during the Persian Gulf War. In particular, the examiner should address the Veteran’s assertion that he developed joint pain in service, which was later misdiagnosed as tendonitis. Specifically, the examiner should discuss whether any joint pain experienced in or after service was an early manifestation of gout. 3) If the Veteran’s diagnosed sleep apnea and gout cannot be attributed directly to service, is it at least as likely as not (50 percent probability or more) is the Veteran’s disability pattern consistent with: (1) a diagnosable but medically unexplained chronic multisymptom illness of unknown etiology, (2) a diagnosable chronic multisymptom illness with a partially explained etiology, or (3) a disease with a clear and specific etiology and diagnosis. (Continued on the next page)   4) If it is determined that the Veteran’s disability pattern is either a diagnosable chronic multi-symptom illness with a partially explained etiology, or a disease with a clear and specific etiology and diagnosis, is it at least as likely as not that it is related to a presumed environmental exposures experienced by the Veteran during service in Southwest Asia. A complete, clearly stated rationale for all opinions expressed must be provided. In addressing the above, the examiner(s) must consider and discuss all pertinent medical and other objective evidence of record, as well as all lay assertions, to include the Veteran’s competent assertions as to the nature, onset, and continuity of symptoms. K. Conner Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Neilson, 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.