Citation Nr: 21030618 Decision Date: 05/19/21 Archive Date: 05/19/21 DOCKET NO. 16-31 265 DATE: May 19, 2021 REMANDED Entitlement to service connection for muscle and joint pain/fibromyalgia to include as due to an undiagnosed illness caused by Persian Gulf service, is remanded. Entitlement to service connection for chronic fatigue syndrome to include as due to an undiagnosed illness caused by Persian Gulf service, is remanded. Entitlement to service connection for obstructive sleep apnea, to include as due to an undiagnosed illness caused by Persian Gulf service, and secondary to service- connected PTSD is remanded. REASONS FOR REMAND The Veteran served on active duty from December 1990 to May 1991. This matter comes before the Board of Veterans' Appeals (Board), on appeal from a September 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Board previously considered this appeal in October 2018 and remanded this issue for further development including scheduling VA examinations. The case returned to the Board for further appellate review. After the Veteran filed his substantive appeal (VA Form 9), his appeal of entitlement to service connection for tension headaches and asthma were granted in a December 2018 and a May 2020 rating decision, respectively. Because those decisions represent full grants of the benefits sought, the issues are not before the Board. Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). 1. Entitlement to service connection for muscle and joint pain/fibromyalgia, to include as due to an undiagnosed illness caused by Persian Gulf service 2. Entitlement to service connection for chronic fatigue syndrome to include as due to an undiagnosed illness caused by Persian Gulf service The Veteran contends that he is entitled to service connection for current joint pains and chronic fatigue as being due to an undiagnosed illness caused by his service in the Persian Gulf. In February 2012 the Veteran was afforded a Gulf War general medical examination. The examiner noted headache, muscle pain, joint pain and sleep disturbances as signs or symptoms that may represent an "undiagnosed illness" or "diagnosed medically unexplained chronic multisymptom illness." The examiner remarked that "most of this [V]eteran's complaints seem to evolve around his sleep habits. This [V]eteran works at night so he can sleep during the day. He spends over 13 hours in bed every day. He wakes up every 2 hours for various reasons. He has been diagnosed with sleep apnea and is on C-PAP for rest which he takes off during sleep periods which causes him to awaken. He then leaves his mask off for the remainder of the period. Chronic fatigue syndrome is a disease of elimination and his fatigue probably comes from a lack of proper rest. Fatigue is well known to occur with sleep apnea. Insomnia has a direct correlation to sleep apnea. A high percentage of people with sleep apnea also are insomniacs. The various muscle joints and aches all can be attributed to or as a result of his inability to sleep and rest. In summary, this [V]eteran's disability pattern is a diagnosable chronic multisymptom illness with a partially explained etiology." In a February 2012 examination for chronic fatigue syndrome, the Veteran reported that he started becoming fatigued when he came home from the Gulf War in 1991. He stayed in bed constantly, still feels tired all the time, and seeks rest in dark places. The examiner did not render a diagnosis, however noted that the Veteran also suffers from OSA and insomnia and "classically, symptoms of these diseases include fatigue and daytime insomnolence." The examiner also noted that the Veteran's debilitating fatigue reduced daily activity level to less than 50 percent of pre-illness level for 6 months or longer. The examiner further noted that the Veteran has the following symptoms attributable to chronic fatigue symptoms: generalized muscle aches or weakness, headaches, sleep disturbance and forgetfulness. These symptoms restrict routine daily activities to less than 50% of the pre-illness level. The examiner noted the Veteran's chronic fatigue syndrome impact his ability to work and he described it as been so tired that he didn't go to work. The examiner remarked that the Veteran's fatigued is related to his sleep apnea. "If he could get good rest, he would not be fatigued." In November 2019, the Veteran was afforded VA examinations for fibromyalgia, shoulder and arm, knee and lower leg, hip and thighs and thoracolumbar spine. The VA examiner provided a negative opinion. However, the examiner mentioned treatment from the Veteran's chiropractor and stated that she did not have those records. The examiner also provided a negative nexus associating a complaint of severe fatigue to urinary tract infection and diabetes mellitus during June 2003. Additionally, VA treatment records show that the Veteran has been seen by a private chiropractor for his joint pain. It does not appear that those medical records have been associated with the claims file even though they are potentially relevant to the Veteran's claim. Any outstanding private treatment records should be requested on remand so that the adjudication of the Veteran's claim is a fully informed one. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159 (c). 3. Entitlement to service connection for obstructive sleep apnea, to include as due to an undiagnosed illness caused by Persian Gulf service and secondary to service-connected PTSD. The Veteran contends that he is entitled to service connection for his obstructive sleep apnea as being due to an undiagnosed illness caused by Persian Gulf Service and alternatively argues that his obstructive sleep apnea is the result of his service-connected PTSD. In the February 2012 examination for sleep apnea, the examiner noted a diagnosis of OSA since August 2008. The Veteran reported that he was diagnosed in 1998 but his earliest recorded diagnosis was in 2008. The February 2012 examiner rendered and opinion on the Veteran's claimed conditions of headaches, sleep apnea and fatigue. The examiner noted that the claimed conditions were at least as likely as not (50 percent or greater possibility incurred in or caused by the claimed in service injury, event or illness. The rationale provided was that the "Veteran's muscle and joint aches and pains, fatigue, and headaches are all linked to his sleep apnea. His sleep apnea is related to the nightmares that this Veteran has because of his PTSD. Therefore, they are related to a specific exposure event experienced in Southwest Asia, namely his work in the morgues." In a separate opinion for the Veteran's claimed shoulders, arms and back conditions, the examiner stated that "this [V]eteran's joint aches and pains, fatigue, insomnia and headaches are from a diagnosable chronic multi-symptom illness with a partially explained etiology, so they are not the Gulf War syndrome." In July 2012 the AOJ obtained an addendum opinion. The July 2012 examiner opined that the Veteran's diagnosable chronic multi-symptom illness with a partially explained etiology is less likely than not related to the Veteran's exposure to burn pits while in Iraq. The rationale provided was that "in late 2011, it was concluded that, after extensive investigation, burn pit exposure creates no illness except possibly limited pulmonary problems." Pursuant to the October 2018 Board remand, the Veteran was afforded another VA examination for sleep apnea. The examiner opined that the Veteran's obstructive sleep apnea was not related to his military service. The examiner's rationale is that there is limited information regarding Veteran having been seen for sleep apnea or any associated signs and symptoms while in service. The Veteran was also diagnosed with PTSD. Obstructive sleep apnea occurs when the muscles in the back of your throat relax too much to allow normal breathing. When the muscles relax, your airway narrows or closes as you breathe in and breathing may be inadequate which can lower the level of oxygen in your blood. This pathophysiology of OSA explains why PTSD (a mental health condition) will not cause OSA (structural pathology). The two conditions are not medically related. The claimed disorder is a separate entity entirely from the service-connected PTSD condition and unrelated to it. There is also no evidence of OSA being aggravated beyond natural progression like developing coronary artery disease, heart attack, heart failure and stroke. Therefore, it is my opinion that it is less likely than not that the Veteran's sleep apnea disorder resulted from or was aggravated beyond its natural progression by the Veteran's service-connected PTSD." In July 2020, the Veteran's representative submitted additional evidence in the form of several an article on sleep and mental health. The article has not yet been reviewed as part of an opinion on the etiology of the Veteran's OSA. As such, remand is necessary to obtain the appropriate opinions. The matters are REMANDED for the following action: 1. Ask the Veteran to identify any private treatment providers relevant to his stomach and sleep apnea conditions, and to provide authorizations to VA to request the records. Request any so identified records. 2. Associate any outstanding VA treatment records with the electronic claims file. 3. After completion of the above-specified development. Obtain an addendum opinion from an appropriate clinician regarding the following: (a.) whether the Veteran's sleep apnea is at least as likely as not (a 50 percent or greater probability) due to service. The examiner must comment on the lay testimony as to symptoms during service. (b.) whether the Veteran's sleep apnea is at least as likely as not (a 50 percent or greater probability) due to service (a) proximately due to or (b) aggravated beyond its natural progression by his service-connected PTSD. The examiner must discuss the article submitted by the Veteran, "Association of Psychiatric Disorders and Sleep Apnea in a Large Cohort" Amir Sharafkhaneh, MD as referenced in the July 2020 Appellant's Brief, as well as the Veteran, and Veteran's wife's statements. The examiner must provide a detailed rationale for any opinion expressed. H. SEESEL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Romero-Sanchez, 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.