Citation Nr: 21024506 Decision Date: 04/22/21 Archive Date: 04/22/21 DOCKET NO. 17-20 952 DATE: April 22, 2021 REMANDED Entitlement to service connection for a recurrent sleep disability to include obstructive sleep apnea, claimed as the result of exposure to Persian Gulf War environmental hazards, is remanded. Entitlement to service connection for a recurrent headache disability to include migraine headaches, claimed as the result of exposure to Persian Gulf War environmental hazards, is remanded. Entitlement to service connection for left ear hearing loss is remanded. REASONS FOR REMAND The Veteran had active service from June 1989 to August 1994. The Veteran served in Southwest Asia. The Veteran appeared at a December 2019 videoconference hearing before a Veterans Law Judge. A hearing transcript is of record. In March 2021, the Veteran was informed that the Veterans Law Judge who had conducted the December 2019 hearing had retired and he therefore had the right to an additional hearing before a different Veterans Law Judge. The Veteran did not respond to the Board’s notice. In February 2020, the Board of Veterans’ Appeals (Board) denied service connection for sleep apnea claimed as the result of exposure to Persian Gulf War environmental hazards, migraine headaches claimed as the result of exposure to Persian Gulf War environmental hazards, and left ear hearing loss. The Veteran subsequently appealed to the United States Court of Appeals for Veterans Claims (Court). In November 2020, the Court granted the Parties’ Joint Motion for Partial Remand; vacated that part of the February 2020 Board decision which denied service connection for sleep apnea claimed as the result of exposure to Persian Gulf War environmental hazards, migraine headaches claimed as the result of exposure to Persian Gulf War environmental hazards, and left ear hearing loss; and remanded those issues to the Board for additional action. 1. Entitlement to service connection for a recurrent sleep disability to include obstructive sleep apnea, claimed as the result of exposure to Persian Gulf War environmental hazards, is remanded. The Parties’ Joint Motion for Partial Remand directs that the Board did not request relevant service treatment records associated with the Veteran’s reported in service sleep apnea evaluations at Goodfellow Air Force Base, Texas and Fort Campbell, Kentucky for incorporation into the record. The Board has no discretion and must remand the appeal for compliance with the Court’s November 2020 Order granting the Joint Motion for Partial Remand. Stegall v. West, 11 Vet. App. 268 (1998); Forcier v. Nicholson, 19 Vet. App. 414 (2006) (duty to ensure compliance with United States Court of Appeals for Veterans Claims order extends to the terms of agreement struck by Parties that forms basis of Joint Motion for Remand). At the December 2019 Board hearing, the Veteran testified that he had been evaluated for sleep apnea at a military facility in Hawaii in addition to those at Goodfellow Air Force Base, Texas and Fort Campbell, Kentucky. The service personnel records indicate that the Veteran was stationed at Schofield Barracks, Hawaii. Clinical documentation of the cited in service sleep evaluations are not of record. When a veteran identifies clinical treatment associated with specific military facilities, the Department of Veterans Affairs (VA) has a duty to either undertake an exhaustive record search or explain why such action is not justified. Dixon v. Derwinski, 3 Vet. App. 261, 264 (1992). The report of a September 2016 VA sleep apnea examination diagnosed the Veteran with obstructive sleep apnea. The examiner concluded that “sleep apnea is secondary to morbid obesity and significant weight gain following separation from service.” The physician did not note or otherwise address the Veteran’s competent testimony and written statements that he experienced and was evaluated for obstructive sleep apnea during active service. Therefore, the Board finds that the examination report is of limited probative value. VA’s duty to assist includes, in appropriate cases, the duty to conduct a thorough and contemporaneous medical examination which is accurate and fully descriptive. McLendon v. Nicholson, 20 Vet. App. 79 (2006); Green v. Derwinski, 1 Vet. App. 121, 124 (1991). When VA undertakes to obtain an evaluation, it must ensure that the evaluation is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board concludes that further VA sleep apnea evaluation is necessary. 2. Entitlement to service connection for a recurrent headache disability to include migraine headaches, claimed as the result of exposure to Persian Gulf War environmental hazards, is remanded. The Parties’ Joint Motion for Partial Remand directs that the Board erred in finding that the Veteran did not have a recurrent headache disability as the clinical record did not reflect that a headache disability had been diagnosed. At the December 2019 Board hearing, the Veteran testified that he had initially experienced recurrent headaches after being struck in the head with a baseball bat during active service and the headaches had persisted to the present time. The service treatment records indicate that the Veteran sustained a head trauma. Clinical documentation dated in June 1990 and July 1990 states that the Veteran was involved in a fight; was struck two to three times in the face with a baseball bat; and sustained large lacerations to the lower lip, the upper lip, and the scalp. The report of a September 2016 VA headache examination states that the Veteran was not diagnosed with a headache disability. The examiner commented that “the history at exam is materially inconsistent with the documented medical record making this examination unreliable for rating purposes.” The physician did not note or otherwise address the in service head trauma and the relationship between such injury and the Veteran’s subjective history of headaches. Given the examiner’s comment and the cited deficiency, the Board finds that the examination report is of no probative value and further VA headache evaluation is necessary. Clinical documentation dated after September 2016 is not of record. VA should obtain all relevant VA and private treatment records which could potentially be helpful in resolving the Veteran’s claims. Murphy v. Derwinski, 1 Vet. App. 78 (1990); Bell v. Derwinski, 2 Vet. App. 611 (1992). 3. Entitlement to service connection for left ear hearing loss is remanded. The Parties’ Joint Motion for Partial Remand concludes that the report of a September 2016 VA audiological examination is inadequate for rating purposes as the examiner erroneously stated that the report of the Veteran’s physical examination for service entrance was not of record and directs that further VA evaluation is necessary. The matters are REMANDED for the following action: 1. Ask the Veteran to complete a VA Form 21-4142 for each private healthcare provider who has treated him for any sleep, headache, and hearing loss disabilities. Make two requests for the authorized records from all identified healthcare providers unless it is clear after the first request that a second request would be futile. 2. Obtain the Veteran’s VA clinical documentation not already of record, including treatment records dated after September 2016. 3. Contact the National Personnel Record Center and/or the appropriate service entity and request that a search be made of the records of the Goodfellow Air Force Base, Texas; Fort Campbell, Kentucky; and Schofield Barracks, Hawaii, military medical facilities pertaining to treatment and evaluation of the Veteran. If no relevant records are located, appropriate documentation to that effect should be incorporated into the record. 4. Schedule the Veteran for a VA examination conducted by the appropriate physician to ascertain the nature of any identified sleep disability and its relationship, if any, to active service. The examiner must review the record and should note that review in the report. The examiner should: (a) Identify all sleep disabilities found and specifically state whether sleep apnea is present. (b) Opine whether it is at least as likely as not (50 percent or greater probability) that any identified sleep disability, to include sleep apnea, had its onset during active service or is related to any incident of service, including the Veteran’s service in Southwest Asia and his subjective history of in service snoring. 5. Schedule the Veteran for a VA headache examination conducted by the appropriate physician to ascertain the nature of any identified recurrent headache disability and its relationship, if any, to active service. The examiner must review the record and should note that review in the report. The examiner should: (a) Identify all headache disabilities found. If no recurrent headache disability is identified, the examiner should specifically state that fact. (b) Opine whether it is at least as likely as not (50 percent or greater probability) that any identified headaches disability had its onset during active service or is related to any incident of service, including the documented in service head trauma and the Veteran’s service in Southwest Asia. 6. Schedule the Veteran for a VA audiology examination to assist in determining the nature and etiology of any identified left ear hearing loss disability and any relationship to active service. The examiner must review the record, including the report of the October 1988 physical examination for service entrance, and should note that review in the report. A rationale for all opinions should be provided. The examiner should: (Continued on the next page)   (a) Diagnose all left ear hearing loss disabilities found. (b) Opine whether it is at least as likely as not (50 percent probability or greater) that any identified left ear hearing loss disability had its onset during active service or is related to any incident of service, including the conceded military noise exposure. R. Costello Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. T. Hutcheson, 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.