Citation Nr: 21026098 Decision Date: 04/29/21 Archive Date: 04/29/21 DOCKET NO. 11-31 926 DATE: April 29, 2021 REMANDED Entitlement to service connection for obstructive sleep apnea is remanded. Entitlement to service connection for fibromyalgia is remanded. Entitlement to service connection for generalized muscle weakness and aching, to include as due to an undiagnosed illness, is remanded. Entitlement to service connection for a respiratory disorder, to include as due to an undiagnosed illness, is remanded. Entitlement to service connection for body rashes, to include as due to an undiagnosed illness, is remanded. REASONS FOR REMAND The appellant served on active duty in the United States Army from February 1988 to February 1992. The claims for service connection for a respiratory disorder to include sleep apnea, body rashes, and generalized muscle weakness and aching come before the Board of Veterans’ Appeals (Board) on appeal from a January 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) which, in pertinent part, denied these claims. This decision was appealed in a notice of disagreement (NOD) received by VA in December 2009. A Statement of the Case (SOC) was issued by VA in November 2011. VA received the appellant’s Substantive Appeal (Form 9) in November 2011, perfecting the appeal and requesting a hearing before the Board. The claim for service connection for fibromyalgia comes before the Board on appeal from a May 2013 rating decision denying the claim. This decision was appealed in a NOD received in October 2013. An SOC was issued by VA in August 2015. VA received the appellant’s Form 9 in August 2015, perfecting the appeal and requesting a hearing before the Board. Supplemental Statements of the Case (SSOC) were issued by VA addressing both sets of claims in September 2017. The appellant appeared before the undersigned Veterans Law Judge at a live videoconference hearing in November 2017. A transcript of that hearing has been added to the record on appeal. The Board remanded these claims in an April 2018 decision for further development. After conducting additional development, an SSOC addressing all the issues on appeal was issued by VA in February 2020. More recently, the Board remanded these claims in a November 2020 decision for further development. In that decision, the Board split the issue of entitlement to service connection for sleep apnea from the more generalized issue of entitlement to a respiratory disability. See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009) (holding that VA must construe a claim for service connection to include any disability that may reasonably be encompassed by the claimant’s description of the claim, the symptoms the claimant describes, and the information the claimant submits or that the Secretary obtains in support of the claim). Another SSOC addressing all five issues on appeal was issued by VA in January 2021. 1. Entitlement to service connection for obstructive sleep apnea is remanded. The appellant contends that his diagnosed obstructive sleep apnea is related to his period of active service. He contends that he began to snore while on active service, prior to his deployment to Saudi Arabia, and that he continued to do so through the years following his separation, until his diagnosis of sleep apnea in 2008. After a review of the evidence of record, the Board finds that further development is necessary prior to adjudicating this claim. The appellant was diagnosed with sleep apnea in November 2008; however, at that time, it was not determined when the disability developed. The appellant testified at his November 2017 Board hearing that his snoring developed while he was stationed in Germany prior to his deployment to Saudi Arabia. He reported that his bunkmates complained frequently about his snoring while he was deployed in Saudi Arabia and he reported having daytime sleepiness while stationed there. He also submitted lay statements from his mother which indicate she noticed the appellant had not snored prior to his military service, but that he was snoring after he separated from active service. Additionally, the record contains VA treatment records from August 1998, wherein the appellant complained of frequent feelings of fatigue and daytime sleepiness that was not related to activity, even after getting between 6 and 8 hours of sleep. VA treatment record from October 1999 include complaints from the appellant that he was still feeling tired even after occasions during which he slept for 10 hours. The Board had previously remanded this claim in November 2020 because the November 2019 VA medical opinion was inadequate due to the examiner not providing an adequate rationale. In the Board’s most recent remand, a new medical examination and opinion were ordered. The Board ordered that the examiner discuss the appellant’s lay reports regarding developing symptoms of snoring and daytime sleepiness while on active duty, as well as the VA treatment records from August 1998 and October 1999 in which the appellant reported significant fatigue during the day, even after a full night of sleep. In a December 2020 medical opinion, the VA contract examiner stated that “a nexus has not been established” because there was no “objective evidence” to support the veteran had sleep apnea during service. The examiner explained that sleep apnea must be diagnosed through a sleep study, and not by “mere subjective complaints of snoring.” The examiner did not offer any opinion as to whether the appellant’s reports of experiencing snoring and daytime sleepiness in service were inconsistent with symptoms of sleep apnea, or whether it was improbable that the appellant’s sleep apnea developed in active service and remained untreated until the diagnosis of sleep apnea in 2008. After review, the Board finds the December 2020 VA medical opinion inadequate. The examiner relies on a lack of “objective evidence” without explaining why the subjective evidence is insufficient to diagnose the condition. The examiner’s rationale seems to rest solely on a finding that because the condition was not diagnosed during service, the appellant’s sleep apnea could not have begun while he was in active service. The Board finds this reasoning is inadequate. See Dalton v. Nicholson, 12 Vet. App. 23 (2007) (holding that the lack of documentary evidence during or after service cannot be the sole basis for an opinion against the claim); Buchannan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006); see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (addressing lay evidence as potentially competent to support presence of disability even when not corroborated by contemporaneous medical evidence). VA regulations allow that service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that which is pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The examiner does not address this possibility, relying solely on the lack of an in-service diagnosis. Additionally, the examiner does not address, as ordered by the Board in the prior remand, the appellant’s VA treatment records showing the appellant seeking treatment for complaints of daytime fatigue long before he was diagnosed with sleep apnea in 2008. As such, the Board’s prior remand instructions were not substantially complied with. See Stegall v. West, 11 Vet. App. 268, 271 (1998). On remand, the examiner must provide a medical opinion regarding whether the appellant’s sleep apnea, first diagnosed in 2008, had its onset during his period of active service. The examiner must address the appellant’s lay statements regarding his symptoms in service of snoring and daytime fatigue, and his reports of symptoms of daytime fatigue even after a full night sleep, as documented in his VA treatment records. The examiner’s rationale may not rely solely on the absence of a diagnosis of sleep apnea while the appellant was in active service. The examiner should be reminded that a diagnosis of sleep apnea in service is not required for an award of service connection. The examiner should opine as to whether there is any medical reason to accept or reject the lay evidence of record as inconsistent with the nature of the development of sleep apnea, or whether the appellant’s contention that sleep apnea developed in service, and went untreated or diagnosed is otherwise improbable. 2. Entitlement to service connection for fibromyalgia is remanded. The appellant contends that he has fibromyalgia which is at least as likely as not related to his service in Southwest Asia during the first Persian Gulf War. He contends that his private physician diagnosed him sometime around 2009 or 2010 and that he had been prescribed hydrocodone and muscle relaxers to treat the disability. The appellant has submitted lay statements from his mother and his ex-spouse corroborating his lay reports of these symptoms and the timeframe of their onset. After a review of the relevant evidence of record, the Board finds that further development is necessary prior to adjudicating this claim. The Board previously remanded this claim in April 2018 to obtain a medical opinion addressing the conflicting medical evidence regarding whether the appellant has a diagnosis of fibromyalgia. In its prior remand, the Board ordered that the examiner identify the criteria for diagnosing fibromyalgia and explain whether those criteria are met in the appellant’s case. Additionally, the Board ordered that the examiner discuss the private diagnosis of fibromyalgia and the lay contentions relevant to the claim. In its previous remand, the Board noted that the November 2019 examination did not comply with the Board’s previous remand instructions. As a result, the Board found that remand was necessary for a new examination. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board ordered that a new medical opinion be rendered which addressed the appellant’s lay testimony and the private diagnosis of fibromyalgia. The examiner was also ordered to address the August 1998 VA treatment record in which the health care provider indicated that the appellant may have some sort of undiagnosed illness related to his service in Southwest Asia during the First Persian Gulf War. The appellant underwent a VA ordered medical examination in December 2020. The examiner found that the appellant did not have a diagnosis of fibromyalgia because symptoms were by the appellant’s lay report only and because the available medical records were silent for a diagnosis of fibromyalgia. The examiner explained that fibromyalgia is a diagnosis of exclusion, meaning it is rendered when all other conditions have been ruled out. The examiner noted that the “objective exam is normal” and that symptoms were “subjective only.” After review, the Board finds that this opinion is also inadequate. Initially the Board notes that the December 2020 medical opinion is based on an inaccurate factual premise, that the appellant has never been diagnosed with fibromyalgia. A September 2013 letter from the appellant’s treating physician notes a diagnosis of fibromyalgia. The examiner did not provide any rationale for why that diagnosis should be set aside. Additionally, the Board notes that the examiner failed to address the concerns raised in the Board’s prior remands of this claim. Specifically, and most recently, the Board ordered that the examiner should provide an opinion as to whether the appellant’s reported symptoms warranted a diagnosis of fibromyalgia. The Board ordered that, in the event a diagnosis of fibromyalgia could not be rendered, the examiner “must explain which criteria are or are not met and why.” This inherently requires the examiner to compare the appellant’s reported symptoms with those required for a diagnosis of fibromyalgia and to explain how the diagnostic criteria are not met in light of the diagnosis made by the appellant’s private treating physician. The examiner offered nothing in the way of what the diagnostic criteria for fibromyalgia are, and what if any of the appellant’s symptoms meet that criteria. Further, the examiner dismissed the appellant’s lay reports of symptoms by saying they were “subjective” without offering any rationale for why the appellant’s reports of symptoms are unreliable or otherwise insufficient for rendering a diagnosis of fibromyalgia. Considering all this, the Board finds that the December 2020 medical opinion does not substantially comply with the Board’s prior November 2020 remand. As such, remand of the claim and a new medical opinion are required. See Stegall v. West, 11 Vet. App. 268, 271 (1998). On remand, the examiner must provide an opinion and rationale which is responsive to the Board’s instructions and questions, and which addresses the lay evidence of record. 3. Entitlement to service connection for generalized muscle weakness and aching, to include as due to an undiagnosed illness, is remanded. The appellant contends that he has symptoms of generalized muscle weakness and aching, which are manifestations of an undiagnosed illness, caused by his service in Saudi Arabia during the first Persian Gulf War. The appellant has reported progressively worse recurrent muscle aches and bone pain throughout the period on appeal. More recently at his December 2020 VA examination, he also reported symptoms of paresthesias. The appellant has submitted lay statements from his mother and his ex-spouse corroborating his lay reports of these symptoms and the timeframe of their onset. The Board previously remanded this claim in November 2020 to obtain a new medical opinion regarding whether the appellant’s reported symptoms are part of a known clinical diagnosis. Specifically, the Board ordered that the examiner identify any “objective indications” of a disability as observable from the evidence of record. The Board gave the following definition of “objective indications” in its remand instructions: “Objective indications” of a qualifying chronic disability include both objective evidence perceptible to an examining physician and other non-medical indicators that are capable of independent verification. 38 C.F.R. § 3.317(a)(3). Non-medical indicators include evidence such as time lost form work, the appellant having sought treatment for his symptoms, and change in the appellant’s appearance, physical abilities, and mental or emotional attitude. 60 Fed. Reg. 6661, 6663 (Feb. 3, 1995). The appellant is treated for chronic pain and for what has been diagnosed by a private physician as fibromyalgia. He complains of consistent and chronic pain, with symptoms of burning or numbness in his extremities. In a December 2020 VA examination, the examiner noted that the appellant reported symptoms of muscle pain, with burning and paresthesia since 2008. The examiner did not indicate where the pain or paresthesia occurred within the appellant’s body, or how often and for how long these symptoms occur. Additionally, it does not appear that the examiner performed any diagnostic testing with regards to these reported symptoms beyond muscle strength testing. In the accompanying medical opinion, the examiner opined that there was no diagnosable chronic disease related to muscle weakness or aching, although as noted above, the opinion against diagnosing fibromyalgia was inadequate in its rationale. The examiner noted that the “objective exam” was normal and that symptoms were “subjective only.” The examiner offered no rationale as to why the appellant’s reports of subjective symptoms of pain and paresthesia, both of which are inherently subjective and completely within the appellant’s competency to report, should be discounted in rendering an opinion on this issue. As such, the Board finds the opinion inadequate. If the examiner’s rationale was that there were no “objective indications” of a chronic disability as contemplated within 38 C.F.R. § 3.317(a)(3), the Board finds the rationale to be based on an inaccurate factual premise, as the appellant has repeatedly sought medical treatment for symptoms related to this claim, which is an “objective indication” within the definition of that term provided to the examiner in the Board’s prior remand. Additionally, looking at the questions posed of the examiner by the Board on remand, it appears that the examiner failed to answer question C, which asked whether the symptoms reported, which the examiner could not attribute to a known clinical diagnosis, could be attributed to an intervening cause by affirmative evidence from the record. As such, the Board finds the examiner’s rationale inadequate and unresponsive to the Board’s remand instructions. Service connection may be granted for a Persian Gulf veteran with objective indications of a qualifying chronic disability that manifested either during active service in the Southwest Asia theater of operations or to a degree of 10 percent or more not later than December 31, 2021. 38 U.S.C. § 1117(a)(1); 38 C.F.R. § 3.317(a)(1). “Objective indications” of a qualifying chronic disability include both objective evidence perceptible to an examining physician and other non-medical indicators that are capable of independent verification. 38 C.F.R. § 3.317(a)(3). Non-medical indicators include evidence such as time lost form work, the appellant having sought treatment for his symptoms, and change in the appellant’s appearance, physical abilities, and mental or emotional attitude. 60 Fed. Reg. 6661, 6663 (Feb. 3, 1995). A qualifying chronic disability is a chronic disability that may result from an undiagnosed illness or a medically unexplained chronic multisymptom illness (MUCMI). 38 C.F.R. § 3.317(a)(2)(i). An undiagnosed illness requires that the illness, by history, physical examination, and laboratory tests, cannot be attributed to any known clinical diagnosis. 38 C.F.R. § 3.317(a)(4). There is no burden on a veteran to demonstrate that a medical professional has eliminated all possible diagnoses before the veteran can be compensated for a disability stemming from an undiagnosed illness. Joyner v. McDonald, 766 F.3d 1393, 1395 (Fed. Cir. 2014). On remand, the examiner is instructed that the appellant’s history of having sought treatment for generalized muscle pain and paresthesia is an “objective indication” of a chronic disability within VA’s regulatory definition. 60 Fed. Reg. 6661, 6663 (Feb. 3, 1995). The examiner should also be instructed to answer the questions specifically posed by the Board. 4. Entitlement to service connection for a respiratory disorder, to include as due to an undiagnosed illness, is remanded. The appellant contends that he has developed symptoms of shortness of breath and dyspnea with activity which he believes are at least as likely as not part of an undiagnosed illness related to his service in Saudi Arabia during the first Persian Gulf War. After a review of the evidence of record, the Board finds that additional development is necessary prior to adjudicating this claim. A September 2008 Pulmonary Function Test (PFT) showed a moderate decrease in diffusion that was noted to potentially be a sign of early interstitial lung disease or pulmonary vascular disease. An opinion was not rendered as to the cause of this or as to whether this finding was related to the reports of shortness of breath and dyspnea with activity. DLCO results on the September PFT would qualify as at least 10 percent disabling under the General Rating Formula for Interstitial Lung Disease. See 38 C.F.R. § 4.97. The Board had previously remanded this claim because the November 2019 examination and medical opinion were found to be inadequate as the examiner had failed to address the results of the September 2008 PFT and had found no current respiratory illnesses based on a lay report from the appellant that he had not ever been diagnosed with respiratory condition. The examiner also failed to conduct any diagnostic testing which might have revealed a diagnosis of a respiratory illness based on the appellant’s reported symptoms. The November 2020 remand ordered the RO to obtain a new medical opinion regarding whether the appellant’s reported symptoms are due to a known clinical diagnosis. Specifically, the Board ordered that the examiner identify any “objective indications” of a disability as observable from the evidence of record. The Board gave the following definition of “objective indications” in its remand instructions: “Objective indications” of a qualifying chronic disability include both objective evidence perceptible to an examining physician and other non-medical indicators that are capable of independent verification. 38 C.F.R. § 3.317(a)(3). Non-medical indicators include evidence such as time lost form work, the appellant having sought treatment for his symptoms, and change in the appellant’s appearance, physical abilities, and mental or emotional attitude. 60 Fed. Reg. 6661, 6663 (Feb. 3, 1995). The appellant underwent an additional VA examination in December 2020. Again, the examiner, as in November 2019, failed to conduct any diagnostic testing, failing to conduct a PFT. The Board notes that on the examination report, the examiner did indicate that a PFT was not performed due to the COVID 19 pandemic; however, no further explanation was given. The disability benefits questionnaire has options to check as to why a PFT was not completed that largely revolve around actual incapacity to perform the test. The examiner did not indicate that the appellant as unable to perform the test, merely citing the ongoing pandemic. As clearly indicated by the disability benefits questionnaire itself, most respiratory conditions require PFT because PFT results represent “a major basis for their evaluation.” As such, the Board finds that failure to conduct this testing, without providing an adequate explanation for not doing so, renders the examination results and diagnosis of no current disability inadequate. This testing is essential to deciding a claim of this type, and as such, a rationale, as opposed to just a conclusory statement, should have been provided as to why a PFT was “contraindicated” at the time the examination was performed. Additional diagnostic testing should have been completed, or the realities of the COVID 19 pandemic should have warranted a delay in the rendering of an opinion until diagnostic testing could be safely accomplished. The Board notes that the December 2020 medical opinion is also inadequate. In the medical opinion, the examiner finds there is no prior diagnosis of a chronic respiratory condition based on a review of the evidence of record, but did not address or discuss the September 2008 PFT results which showed reduced functional capacity of the respiratory system, which would be considered a disability for VA purposes. See Saunders v. Wilkie, 886 F.3d 1356, 1367-69 (Fed. Cir. 2018) (holding that “pain alone, without an accompanying diagnosis of a present disease, can qualify as a disability” if it “reaches the level of a functional impairment of earning capacity.”). If the results of the September 2008 PFT were to be set aside by the examiner due to the gap in time between that testing and the present, the examiner should have given some explanation that this was the case. From the opinion rendered, it appears the examiner did not even consider the September 2008 PFT findings. Instead, the examiner noted that the “objective exam” was normal and that symptoms were “subjective only.” The examiner offered no rationale as to why the appellant’s reports of subjective symptoms of shortness of breath and dyspnea with activity, both of which are inherently subjective and completely within the appellant’s competency to report should be discounted in rendering an opinion on this issue. As such, the Board finds the opinion inadequate. If the examiner’s rationale was that there were no “objective indications” of a chronic disability as contemplated within 38 C.F.R. § 3.317(a)(3), the Board finds the rationale to be based on an inaccurate factual premise, as the appellant has previously sought medical treatment for symptoms related to this claim, which is an “objective indication” within the definition of that term provided to the examiner in the Board’s prior remand. Additionally, looking at the questions posed of the examiner by the Board on remand, it appears that the examiner failed to answer question C, which asked whether the symptoms reported, which the examiner could not attribute to a known clinical diagnosis, could be attributed to an intervening cause by affirmative evidence from the record. As such, the Board finds the examiner’s rationale inadequate and unresponsive to the Board’s remand instructions. Service connection may be granted for a Persian Gulf veteran with objective indications of a qualifying chronic disability that manifested either during active service in the Southwest Asia theater of operations or to a degree of 10 percent or more not later than December 31, 2021. 38 U.S.C. § 1117(a)(1); 38 C.F.R. § 3.317(a)(1). “Objective indications” of a qualifying chronic disability include both objective evidence perceptible to an examining physician and other non-medical indicators that are capable of independent verification. 38 C.F.R. § 3.317(a)(3). Non-medical indicators include evidence such as time lost form work, the appellant having sought treatment for his symptoms, and change in the appellant’s appearance, physical abilities, and mental or emotional attitude. 60 Fed. Reg. 6661, 6663 (Feb. 3, 1995). A qualifying chronic disability is a chronic disability that may result from an undiagnosed illness or a medically unexplained chronic multisymptom illness (MUCMI). 38 C.F.R. § 3.317(a)(2)(i). An undiagnosed illness requires that the illness, by history, physical examination, and laboratory tests, cannot be attributed to any known clinical diagnosis. 38 C.F.R. § 3.317(a)(4). There is no burden on a veteran to demonstrate that a medical professional has eliminated all possible diagnoses before the veteran can be compensated for a disability stemming from an undiagnosed illness. Joyner v. McDonald, 766 F.3d 1393, 1395 (Fed. Cir. 2014). On remand, the examiner is instructed that the appellant’s history of having sought treatment for shortness of breath and dyspnea with activity and his September 2008 PFT results showing reduced capacity in DCLO, are “objective indications” of a chronic disability within VA’s regulatory definition. 60 Fed. Reg. 6661, 6663 (Feb. 3, 1995). Diagnostic testing related to this claim must be completed. The examiner should also be instructed to answer the questions specifically posed by the Board. 5. Entitlement to service connection for body rashes, to include as due to an undiagnosed illness, is remanded. The appellant contends that he has intermittent body rash that develops on his chest and on his lower extremities that is due to an undiagnosed illness related to his service in Saudi Arabia during the first Persian Gulf War. The appellant’s former spouse, to whom the appellant was married from 1992 through 1996, provided a lay statement asserting that the appellant would develop unexplained rashes throughout their time living together. At a VA treatment appointment in October 1999, the appellant reported that he first noticed the rash in 1992 when he separated from service, and that the rashes had recurred intermittently since his separation from active service. The Board had previously remanded this claim because the opinion relied entirely on the lack of an in-service diagnosis of rash and did not consider whether the appellant’s reported body rash was related to an undiagnosed illness related to his service in Southwest Asia during the first Persian Gulf War. The November 2020 remand ordered the RO to obtain a new medical opinion regarding whether the appellant’s reported symptoms are part of a known clinical diagnosis. Specifically, the Board ordered that the examiner identify any “objective indications” of a disability as observable from the evidence of record. The Board gave the following definition of “objective indications” in its remand instructions: “Objective indications” of a qualifying chronic disability include both objective evidence perceptible to an examining physician and other non-medical indicators that are capable of independent verification. 38 C.F.R. § 3.317(a)(3). Non-medical indicators include evidence such as time lost form work, the appellant having sought treatment for his symptoms, and change in the appellant’s appearance, physical abilities, and mental or emotional attitude. 60 Fed. Reg. 6661, 6663 (Feb. 3, 1995). The appellant underwent a VA medical examination in December 2020. The examiner opined the appellant did not have a current skin condition because he did not have symptoms on the day of the examination. No consideration was given by the examiner to the years of complaints to VA of intermittent rash, or to the 2006 diagnosis of contact dermatitis. The appellant reported at the examination that he had symptoms only five days prior, but the examiner did not elicit any testimony as to how much of the appellant’s body was affected, for how long the appellant was affected, and whether he used any medications to treat any symptoms resulting from the rash. The examiner appears to have decided that the appellant did not have any diagnosable skin condition merely because he was not experiencing symptoms the day of his examination. No rationale was offered as to why the appellant’s reports of symptoms, along with his multiple reports of symptoms over many years, should be discounted. The Board notes that the appellant is competent to report having experienced a rash that recurs regularly, because a rash on the skin is observable to the veteran. Considering this, the Board finds the opinion inadequate, as the examiner did not address the appellant’s report of symptoms, which the Board notes were consistent with VA reports going back to at least 1998 of the same symptoms. The Board notes that the December 2020 medical opinion is also inadequate. In the medical opinion, the examiner finds there is no prior diagnosis of a chronic skin condition based on a review of the evidence of record, but did not discuss the history of reported symptoms in the 1990’s or the 2006 diagnosis of contact dermatitis. The examiner noted that the “objective exam” was normal and that symptoms were “subjective only.” The examiner offered no rationale as to why the appellant’s reports of subjective symptoms of intermittent rash, which is within the appellant’s competency to report should be discounted in rendering an opinion on this issue. As such, the Board finds the opinion inadequate. If the examiner’s rationale was that there were no “objective indications” as contemplated within 38 C.F.R. § 3.317(a)(3), the Board finds the rationale to be based on an inaccurate factual premise, as the appellant has previously sought medical treatment for symptoms related to this claim, which is an “objective indication” within the definition of that term provided to the examiner in the Board’s prior remand. Additionally, looking at the questions posed of the examiner by the Board on remand, it appears that the examiner failed to answer question C, which asked whether the symptoms reported, which the examiner could not attribute to a known clinical diagnosis, could be attributed to an intervening cause by affirmative evidence from the record. As such, the Board finds the examiner’s rationale inadequate and unresponsive to the Board’s remand instructions. Service connection may be granted for a Persian Gulf veteran with objective indications of a qualifying chronic disability that manifested either during active service in the Southwest Asia theater of operations or to a degree of 10 percent or more not later than December 31, 2021. 38 U.S.C. § 1117(a)(1); 38 C.F.R. § 3.317(a)(1). “Objective indications” of a qualifying chronic disability include both objective evidence perceptible to an examining physician and other non-medical indicators that are capable of independent verification. 38 C.F.R. § 3.317(a)(3). Non-medical indicators include evidence such as time lost form work, the appellant having sought treatment for his symptoms, and change in the appellant’s appearance, physical abilities, and mental or emotional attitude. 60 Fed. Reg. 6661, 6663 (Feb. 3, 1995). A qualifying chronic disability is a chronic disability that may result from an undiagnosed illness or a medically unexplained chronic multisymptom illness (MUCMI). 38 C.F.R. § 3.317(a)(2)(i). An undiagnosed illness requires that the illness, by history, physical examination, and laboratory tests, cannot be attributed to any known clinical diagnosis. 38 C.F.R. § 3.317(a)(4). There is no burden on a veteran to demonstrate that a medical professional has eliminated all possible diagnoses before the veteran can be compensated for a disability stemming from an undiagnosed illness. Joyner v. McDonald, 766 F.3d 1393, 1395 (Fed. Cir. 2014). On remand, the examiner is instructed that the appellant’s history of having sought treatment for intermittent rash is an “objective indication” of a chronic disability within VA’s regulatory definition. 60 Fed. Reg. 6661, 6663 (Feb. 3, 1995). The examiner should also be instructed to answer the questions specifically posed by the Board. The matters are REMANDED for the following action: 1. Obtain an addendum opinion from an appropriate clinician regarding whether the appellant’s obstructive sleep apnea at least as likely as not began while he was in active service, or is otherwise related to an event or injury during his active service. Provide a complete rationale for the requested opinion. In providing the requested opinion, consider the appellant’s description of his in-service symptoms as well as his post-service symptoms. If there is any medical reason to accept or reject the proposition that the appellant’s reported symptoms in service and thereafter represented the onset of his current disability, this should be noted. Stated another way, do the appellant’s reports about his symptoms align with how the currently diagnosed disability is known to develop or are the appellant’s reports generally inconsistent with medical knowledge or otherwise implausible? The appellant’s contention is that the sleep apnea disorder developed prior to his separation from service, as evidenced by his self-reports and reports of his family and fellow service members of heavy snoring and daytime sleepiness prior to his deployment to Saudi Arabia and that continued during his deployment, and continued untreated and undiagnosed until 2008. In rendering an opinion, the examiner must discuss the appellant’s lay reports of snoring and daytime tiredness while on active duty beginning sometime in 1990, and the lay statements of the appellant’s mother that he did not snore prior to active service, but had started before he separated from service. The examiner must also discuss the VA treatment records from August 1998 and October 1999 in which the appellant reported significant fatigue during the day even after a full night of sleep. The examiner is reminded that a diagnosis of sleep apnea during service is not required for an award of service connection. Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that which is pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). If the examiner opines against the appellant’s sleep apnea having developed in service, the examiner should explain why the appellant’s reported symptoms, which he is competent to report, are unrelated to the currently diagnosed sleep apnea. 2. Schedule the appellant for an examination to determine the nature and etiology of any current fibromyalgia. The examiner must review the entire claims file, including a copy of this remand. If the examiner determines that the criteria for a clinical diagnosis of fibromyalgia are not met, the examiner must explain which diagnostic criteria for fibromyalgia are or are not met and why. The examiner must address the private opinion of the appellant’s treating physician, received by VA in October 2013, which noted that the appellant is treated for fibromyalgia. A complete rationale must be provided for all opinions expressed. The examiner must address the lay statements of the appellant’s mother and his former spouse regarding the presence of symptoms of muscle pain and weakness and fatigue from 1992 through 1999. The examiner must also address the private diagnosis of fibromyalgia and the appellant’s reported treatment for fibromyalgia, for which he indicated he is prescribed hydrocodone and muscle relaxers. If there is any medical reason to accept or reject the proposition that the appellant’s reported symptoms are the result of fibromyalgia, this should be noted. Stated another way, do the appellant’s reports about his symptoms align with how the currently diagnosed disability is known to develop and how it is treated, or are the appellant’s reports generally inconsistent with medical knowledge or otherwise implausible? 3. Schedule the appellant for an appropriate examination to determine the nature and etiology of his reported symptoms of generalized muscle weakness and aching with paresthesia, shortness of breath and dyspnea with physical activity like climbing stairs, and intermittent body rash. The examiner must address the appellants prior treatment and complaints for all of the claimed conditions, particularly reports from prior to 2000 in which the appellant sought treatment for all of these symptoms. The examiner must address the opinion offered in August 1998, where it was posited by a VA treating physician that these symptoms may be related to an undiagnosed Gulf War related illness. See August 1998 VA treatment note. The examiner should also address the private medical reports of treatment for fibromyalgia symptoms, the September 2008 PFT results, and the 2006 diagnosis of contact dermatitis. The examiner must address the appellant’s lay reports of his symptoms. All symptoms reported in relation to these claims are entirely within the appellant’s competency to describe, as they are all readily observable or personally experienced by the appellant. The fact that these symptoms are “subjective” and not necessarily subject to objective confirmation is not a valid reason by itself to deny the claim. An adequate rationale should be provided addressing these symptoms reported by the appellant. If there is any medical reason to accept or reject the proposition that the appellant has experienced the reported symptoms, the examiner should explain what they are. Stated another way, are the appellant’s reports regarding his symptoms generally inconsistent with medical knowledge or implausible? The examiner should conduct all appropriate diagnostic testing. Testing for paresthesia and pulmonary function testing, in particular, should be performed unless medically contraindicated, as the appellant has reported symptoms of paresthesia and diminishing respiratory capacity. If any necessary diagnostic testing is not deemed appropriate due to circumstances related to the COVID 19 pandemic, the examiner should provide a rationale as to why and the examination should be postponed until testing can safely be conducted. The examiner should then record all noted signs and reported symptoms, document all clinical findings, and provide a diagnosis if possible. The examiner is asked to provide responses to the following: A) Identify the appellant’s objective indications of a disability. “Objective indications” of a qualifying chronic disability include both objective evidence perceptible to an examining physician and other non-medical indicators that are capable of independent verification. 38 C.F.R. § 3.317(a)(3). Non-medical indicators include evidence such as time lost from work, the veteran having sought treatment for his symptoms, and change in the veteran’s appearance, physical abilities, and mental or emotional attitude. 60 Fed. Reg. 6661, 6663 (Feb. 3, 1995). B) By history, physical examination, or laboratory testing, can the appellant’s objective indications, as defined in part A, of a disability be attributed to a known clinical diagnosis? If the signs and symptoms are not characteristic of a known clinical diagnosis, the examiner should so indicate. There is no requirement that the examiner provide a diagnosis of undiagnosed illness. C) If the appellant’s objective indications cannot be attributed to a known clinical diagnosis, is there affirmative evidence that the undiagnosed illness was not incurred during active service during the Persian Gulf War or that it was caused by a supervening condition or event that occurred since the appellant’s departure from service during the Persian Gulf War? The examiner should note that a positive response to this question requires affirmative evidence. The mere absence of evidence is not sufficient. D) If the appellant’s objective indications can be attributed to a known clinical diagnosis, is the etiology of the appellant’s condition (1) inconclusive, (2) partially understood, or (3) fully understood? This determination as to each must be based on the appellant’s specific case and cannot be based on the etiology of the disease or disability population as a whole. E) If the appellant’s objective indications can be attributed to a known clinical diagnosis, is the pathophysiology of the appellant’s condition (1) inconclusive, (2) partially understood, or (3) fully understood? This determination as to each must be based on the appellant’s specific case and cannot be based on the pathophysiology of the disease or disability population as a whole. (Continued on the next page)   F) If both the etiology and pathophysiology are partially understood or fully understood, then, is it at least as likely as not (a 50 percent or greater probability) that the Veteran’s diagnosed condition was incurred in, or is otherwise related to, his active service? A complete rationale must be provided for all opinions expressed. K. Conner Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Kleponis, 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.