Citation Nr: 21027749 Decision Date: 05/06/21 Archive Date: 05/06/21 DOCKET NO. 16-32 187 DATE: May 6, 2021 REMANDED Entitlement to service connection for obstructive sleep apnea is remanded. Entitlement to an increased rating for irritable bowel syndrome (IBS) is remanded. REASONS FOR REMAND The Veteran served on active duty from July 1972 to May 1979 and from October 1980 to December 1993. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a December 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. In a June 2016 VA Form 9, Appeal to the Board of Veterans' Appeals, the Veteran requested a hearing before the Board. However, in a July 2016 correspondence, the Veteran withdrew the hearing request. Accordingly, the Board considers the request for a hearing to be withdrawn and will adjudicate the claims accordingly. 38 C.F.R. § 20.704(d), (e). In July 2019, the Board denied entitlement to service connection for obstructive sleep apnea and entitlement to a higher rating for irritable bowel syndrome, rated 10 percent effective January 4, 2010. The Veteran appealed to the United States Court of Appeals for Veterans Claims. In November 2020, the United States Court of Appeals for Veterans Claims granted a Joint Motion for Partial Remand and vacated the July 2019 decision of the Board to the extent that it denied entitlement to service connection for obstructive sleep apnea on the basis of presumptive service connection under 38 C.F.R. § 3.317, and an initial disability rating in excess of 10 percent for irritable bowel syndrome since January 4, 2013, and remanded those issues to the Board for additional action. 1. Entitlement to service connection for obstructive sleep apnea is remanded. Although the Board regrets the delay, additional development is needed prior to further disposition of the claim of entitlement to service connection for obstructive sleep apnea. In a November 2020 decision, the parties to the Joint Motion for Partial Remand agreed that the Veteran was a Gulf War Veteran who exhibited some of the symptoms enumerated in 38 U.S.C. § 3.317 required for entitlement to service connection for a disability due to either an undiagnosed illness or a medically unexplained chronic multi-symptom illness. However, that theory of entitlement was not properly addressed in the previous Board decision. To address the concerns of the Court and the parties of the Joint Motion, the Board finds that an examination is necessary for adjudication of the service connection claim to determine if the Veteran's sleep apnea is an undiagnosed illness, a medically unexplained chronic multi-symptom illness, or a separate illness on independent of Gulf War service. After all outstanding medical records are associated with the record, more contemporaneous examination is needed to determine the nature and etiology of the Veteran's obstructive sleep apnea. Allday v. Brown, 7 Vet. App. 517 (1995); Caffrey v. Brown, 6 Vet. App. 377 (1994); Snuffer v. Gober, 10 Vet. App. 400 (1997). 2. Entitlement to an increased rating for irritable bowel syndrome (IBS) is remanded. Although the Board regrets the delay, additional development is needed prior to further disposition of the claim of entitlement to an increased rating for irritable bowel syndrome. VA's statutory duty to assist the Veteran includes the duty to conduct a thorough examination so that the evaluation of the claimed disability will be a fully informed one. Green v. Derwinski, 1 Vet. App. 121 (1991); Snuffer v. Gober, 10 Vet. App. 400 (1997). Assistance by VA includes providing a medical examination or obtaining a medical opinion when an examination or opinion is necessary to make a decision on a claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). The record shows that the Veteran was most recently provided a VA IBS examination in December 2013, approximately eight years ago. The Board recognizes that, generally, the mere passage of time is not a sufficient basis for a new examination. Palczewski v. Nicholson, 21 Vet. App. 174 (2007). However, when available evidence is too old for an adequate evaluation of the current condition, VA's duty to assist includes providing a more current examination. Weggenmann v. Brown, 5 Vet. App. 281 (1993). The Board finds that not only is the most recent examination remote, but the examinations appear to no longer indicate the Veteran's current level of disability, as the Veteran has continuously asserted a worsening of the disabilities in numerous statements to VA during the duration of the appeal. Therefore, the Board finds that not only are the most recent examinations remote, but the examinations appears to no longer indicate the Veteran's current level of disability. The Board finds that updated examinations are warranted to access the current severity and manifestations of the service-connected disability. After all outstanding medical records are associated with the claims file, more contemporaneous examination is needed to rate the claim for an increased rating for IBS. Allday v. Brown, 7 Vet. App. 517 (1995); Caffrey v. Brown, 6 Vet. App. 377 (1994); Snuffer v. Gober, 10 Vet. App. 400 (1997). The Veteran is notified that it is his responsibility to report for any scheduled examination and to cooperate in the development of these claims. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. § 3.655. The matters are REMANDED for the following action: 1. Obtain all pertinent VA medical records, not yet associated with the claims file, and associate them with the claims file. 2. Then, schedule the Veteran for a VA examination, with a medical doctor who has not previously examined the Veteran, to determine the nature and etiology of any sleep apnea disability. The examiner must review the claims file, including this Remand, the November 2020 Joint Motion for Remand, and the lay evidence of record and should note that review in the examination report. After conducting a review of the claims files, the examiner must specify whether any sleep disability is an undiagnosed illness or medically unexplained chronic multi-symptom illness, including whether the condition has an understood etiology or a partially understood etiology and whether the condition has an understood pathophysiology or partially understood pathophysiology in the context of the Veteran's unique circumstances. If any sleep disability is not an undiagnosed illness or medically unexplained chronic multi-symptom illness, the examiner should opine whether it is at least as likely as not (50 percent or greater probability) that sleep apnea is etiologically related to active service or any event, disease, or injury during service, including whether sleep apnea (1) began during active service or is related to any event, injury, or disease during service, (2) is related to environmental hazard exposure in the Gulf War, (3) was caused by the service-connected disabilities or treatment for the service-connected disabilities, to include chronic fatigue syndrome, posttraumatic stress disorder, IBS, and a right ear injury, or (4) has been aggravated (increased in severity beyond the natural progress of the disorder) by the service-connected disabilities or treatment for any of the service-connected disabilities, to include to include chronic fatigue syndrome, posttraumatic stress disorder, IBS, and a right ear injury. The examiner should discuss the significance of the lay statements regarding the Veteran's sleeping patterns, snoring, and fatigue during and after service. The examiner must also discuss whether exposure to burn pits while serving in the Persian Gulf War caused or contributed to the Veteran's sleep apnea. A clearly stated rationale for each opinion offered should be provided and must not be based solely on the lack of an in-service record of the claimed disability. 3. Then, schedule the Veteran for a VA examination for IBS. The examiner must review the claims file and should note that review in the report. The examiner should address the lay statements of record regarding the disability and its current severity, to specifically include the June 2014 lay statement by the Veteran. The examiner is advised that the Veteran is competent to report symptoms and history and that those reports must be acknowledged and considered in formulating any opinion. If the Veteran's reports are discounted, the examiner should provide a reason for doing so. The examiner is asked to provide the current nature and severity of the service-connected IBS, to include a current diagnosis. A complete rationale for any opinion expressed should be included in the examination report. The examiner is requested to specifically opine upon the severity and results of IBS. To the extent possible, the examiner should identify any symptoms and functional impairment due to the disability and discuss the effect of the disability on occupational function and activities of daily living. Harvey P. Roberts Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Mondesir, Eric 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.