Citation Nr: 21024519
Decision Date: 04/23/21	Archive Date: 04/23/21

DOCKET NO. 10-27 669
DATE: April 23, 2021

REMANDED

Entitlement to service connection for sleep apnea is remanded.

REASONS FOR REMAND

The Veteran served on active duty in the United States Army from May 1981 to September 1992.

This appeal the Board of Veterans’ Appeals (Board) originated from a May 2009 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO).

Entitlement to service connection for sleep apnea is again remanded.

In September 2017, the Board, in pertinent part, denied this claim for service connection for sleep apnea. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court), and in an August 2018 Order the Court granted a Joint Motion for Partial Remand (JMPR) that, in relevant part, vacated the Board’s decision denying this claim and remanded it back to the Board for further development and readjudication consistent with agreement in the JMPR. 

 

As agreed by the parties, the JMPR indicated that, in denying this claim for service connection for sleep apnea, the Board had misstated the provisions of the law addressing disability compensation for Persian Gulf War Veterans under 38 U.S.C. § 1117 and 38 C.F.R. § 3.317(a)(2)(ii). More specifically, the Board incorrectly had stated that a medically unexplained chronic multi-symptom illness (MUCMI) is defined as an “undiagnosed” illness and reasoned that service connection could not be granted “as the Veteran has a diagnosis.” See JMPR at 2. However, according to 38 C.F.R. § 3.317(a)(2)(ii), a MUCMI is defined as a “diagnosed” illness without conclusive pathophysiology or etiology. Id.

The Board accordingly remanded this claim back to the local Regional Office (RO) in February 2019 for a medical opinion addressing the nature and etiology of the Veteran’s sleep apnea.

Because, however, a subsequent September 2019 VA examiner’s opinion did not provide rationale considering the Veteran’s self-reported history of the condition, which is competent lay evidence of symptoms dating from the time of his service, the Board again remanded this claim in October 2020 to try and correct that failing.

But there still is not any medical opinion regarding whether the Veteran’s sleep apnea is the result of a MUCMI owing to his service in the Persian Gulf War.  Thus, still more medical comment is needed before readjudicating this claim.

Accordingly, this claim again is REMANDED for the following still additional development and consideration:

Obtain still more medical comment (another addendum opinion) from an appropriate clinician concerning the nature and etiology of the Veteran’s sleep apnea.

If the reviewer determines that additional examination of the Veteran is necessary to provide a reliable opinion, an examination should be scheduled.

After reviewing the relevant evidence in the claims file and examining the Veteran (if deemed necessary), the examiner is asked to provide an opinion on whether the Veteran’s sleep apnea is at least as likely as not (a 50 percent or greater probability) a “diagnosed” illness without conclusive pathophysiology or etiology such that it may be considered a MUCMI as defined in 38 C.F.R. § 3.317(a)(2)(ii) owing to his service during the Persian Gulf War.

The examiner is advised that the Veteran is competent to report his symptoms and history, and his reports of symptoms dating from the time of his service must be specifically acknowledged and considered in formulating responses. The opinion also must contain rationale for all findings and conclusions.

 

 

KEITH W. ALLEN

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	D. Baronofsky

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.