Citation Nr: 21027078 Decision Date: 05/04/21 Archive Date: 05/04/21 DOCKET NO. 16-10 098 DATE: May 4, 2021 REMANDED Whether new and material evidence has been received to reopen the claim for entitlement to service connection for sleep apnea, to include as due to service-connected posttraumatic stress disorder (PTSD) and/or Gulf War syndrome and/or undiagnosed illness is remanded. Whether new and material evidence has been received to reopen the claim for entitlement to service connection for chronic fatigue syndrome to include as due to service-connected PTSD and/or Gulf War syndrome and/or undiagnosed illness is remanded. Whether new and material evidence has been received to reopen the claim for entitlement to service connection for acid reflux disease to include as due to service-connected PTSD and/or Gulf War syndrome and/or undiagnosed illness is remanded. Whether new and material evidence has been received to reopen the claim for entitlement to service connection for migraine headaches to include as due to service-connected chronic sinusitis and/or Gulf War syndrome and/or undiagnosed illness is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1989 to June 1992. These matters come before the Board of Veteran's Appeals (Board) on appeal from an August 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge in a May 2019 Board videoconference hearing. Unfortunately, due to audio malfunctions in the Digital Audio Recording System, a transcript of the proceeding was not able to be produced. The Veteran was notified of this in a November 2020 letter and was offered an opportunity to appear at a new hearing. He was informed that if he did not respond to the letter within 30 days, the Board would assume that he did not desire a new hearing. No response has been received to date. Thus, the Board is proceeding as the Veteran does not wish to appear at a new hearing. The undersigned notes that the Veteran and his representative indicated to her during the hearing that he wanted to withdraw the claims pertaining to sleep apnea and chronic fatigue syndrome; however, since such withdraw is not memorialized in a hearing transcript those claims remain on appeal. If the Veteran wishes to withdraw those claims from the appeal, he or his representative may submit written correspondence making such request. 1. Whether new and material evidence has been received to reopen the claim for entitlement to service connection for sleep apnea, to include as due to service-connected posttraumatic stress disorder (PTSD) and/or Gulf War syndrome and/or undiagnosed illness is remanded. 2. Whether new and material evidence has been received to reopen the claim for entitlement to service connection for chronic fatigue syndrome to include as due to service-connected PTSD and/or Gulf War syndrome and/or undiagnosed illness is remanded. 3. Whether new and material evidence has been received to reopen the claim for entitlement to service connection for acid reflux disease to include as due to service-connected PTSD and/or Gulf War syndrome and/or undiagnosed illness is remanded. 4. Whether new and material evidence has been received to reopen the claim for entitlement to service connection for migraine headaches to include as due to service-connected chronic sinusitis and/or Gulf War syndrome and/or undiagnosed illness is remanded. Initially, the Board notes that subsequent to the November 2016 supplemental statement of the case (SSOC), Social Security Administration records, a December 2016 VA Gulf War examination, and additional VA treatment records were associated with the claims file. However, the RO did not issue an updated SSOC as required by 38 C.F.R. §§ 19.31, 19.37. As such, the Board finds that remand is required for the RO to readjudicate the claim, with specific consideration of any additional evidence received since the November 2016 SSOC. Notwithstanding the need for an SSOC, the Board also finds that the Veteran's claims requires additional evidentiary development prior to appellate review. The Board finds that the Veteran has presented multiple statements regarding theories of entitlement based on secondary service connection that were not previously addressed on examinations. Once VA undertakes the effort to provide an examination when developing a service connection claim, even if not statutorily obligated to do so, it must provide one that is adequate for purposes of the determination being made. Barr v. Nicholson, 21Vet. App.303, 311 (2007). Consequently, VA is obligated to develop and consider all theories of entitlement that are raised by the record or by the claimant. See Robinson v. Mansfield, 21 Vet. App. 545 (2008). Therefore, the Veteran is now entitled to VA examinations and opinions addressing the theory of secondary service connection. The matters are REMANDED for the following action: 1. Obtain updated VA treatment records. 2. Thereafter, schedule the Veteran for a VA examination in order to determine the nature and etiology of the Veteran's sleep apnea and chronic fatigue syndrome. The claims file must be made available and reviewed by the examiner. Following consideration of the evidence of record (both lay and medical), the examiner is asked to address the following: A) Does the Veteran have a diagnosis of sleep apnea and/or chronic fatigue syndrome? B) If, and only if, the Veteran has a diagnosis of sleep apnea and/or chronic fatigue syndrome, is it at least as likely as not (a 50% or greater probability) that his sleep apnea and/or chronic fatigue syndrome had its onset during service, or is causally or etiologically related to service, to include exposure to environmental hazards, such as burn pits? C) If, and only if, the Veteran has a diagnosis of sleep apnea and/or chronic fatigue syndrome, is it at least as likely as not (a 50% or greater probability) that his disability was caused by his service-connected PTSD? D) If, and only if, the Veteran has a diagnosis of sleep apnea and/or chronic fatigue syndrome, is it at least as likely as not (a 50% or greater probability) that his disability was aggravated by his service-connected PTSD? E) If the Veteran has symptoms of fatigue that are not attributable to a known clinical diagnosis, then provide the following opinion: Does he have objective indications, as established by history, physical examination, and laboratory tests, of an undiagnosed illness or a medically unexplained chronic multi-symptom illness, manifested by that have existed for 6 months or more or exhibited intermittent episodes of improvement and worsening over a 6-month period? In providing all the above opinions, the examiner is requested to review all pertinent records associated with the claims file. A clear rationale for all opinions is requested and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 3. Schedule the Veteran for a VA examination in order to determine the nature and etiology of the Veteran's acid reflux. The claims file must be made available and reviewed by the examiner. The examiner must address the contentions raised in the June 2019 attorney's letter. Following consideration of the evidence of record (both lay and medical), the examiner is asked to address the following: A) Does the Veteran have a diagnosis of acid reflux disease? B) If, and only if, the Veteran has a diagnosis, is it at least as likely as not (a 50% or greater probability) that the Veteran's disability had its onset during service, or is causally or etiologically related to service, to include exposure to environmental hazards, such as burn pits? C) If, and only if, the Veteran has a diagnosis, is it at least as likely as not (a 50% or greater probability) that his disability was caused by his service-connected PTSD? D) If, and only if, the Veteran has a diagnosis, is it at least as likely as not (a 50% or greater probability) that his disability was aggravated by his service-connected PTSD? E) If the Veteran has symptoms of a gastrointestinal disorder that are not attributable to a known clinical diagnosis, then provide the following opinion: Does he have objective indications, as established by history, physical examination, and laboratory tests, of an undiagnosed illness or a medically unexplained chronic multi-symptom illness, manifested by that have existed for 6 months or more or exhibited intermittent episodes of improvement and worsening over a 6-month period? In providing all the above opinions, the examiner is requested to review all pertinent records associated with the claims file. A clear rationale for all opinions is requested and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 4. Schedule the Veteran for a VA examination in order to determine the nature and etiology of the Veteran's migraine headaches. The claims file must be made available and reviewed by the examiner. The examiner must address the contentions raised in the June 2019 attorney's letter. Following consideration of the evidence of record (both lay and medical), the examiner is asked to address the following: A) Does the Veteran have a separate and distinct headache disability, or are his headaches a symptom of his service-connected sinusitis? B) If, and only if, a separate and distinct headache disability is diagnosed, the examiner should provide an opinion as to whether it is it at least as likely as not (a 50% or greater probability) that the Veteran's disability had its onset during service, or is causally or etiologically related to service, to include exposure to environmental hazards, such as burn pits? C) If, and only if, the Veteran has a separate and distinct headache disability, is it at least as likely as not (a 50% or greater probability) that his disability was caused by his service-connected sinusitis? D) If, and only if, the Veteran has a separate and distinct headache disability, is it at least as likely as not (a 50% or greater probability) that his disability was aggravated by his service-connected sinusitis? (Continued on the next page) E) If the Veteran has symptoms of a headache disorder that are not attributable to a known clinical diagnosis, then provide the following opinion: Does he have objective indications, as established by history, physical examination, and laboratory tests, of an undiagnosed illness or a medically unexplained chronic multi-symptom illness, manifested by that have existed for 6 months or more or exhibited intermittent episodes of improvement and worsening over a 6-month period? A clear rationale for all opinions is requested and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. LESLEY A. REIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M.D. 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.