Citation Nr: 21030622 Decision Date: 05/19/21 Archive Date: 05/19/21 DOCKET NO. 17-42 314 DATE: May 19, 2021 REMANDED Entitlement to an increased rating for a back disability (currently identified as degenerative arthritis of the spine and previously identified as right sciatica) is remanded. Entitlement to service connection for sleep apnea, including as a medically unexplained chronic multisymptom illness (MUCMI), is remanded. Entitlement to service connection for a neck disability, secondary to a service connected back disability, is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1987 to November 1987, from November 1990 to April 1991, and from February 2003 to January 2004. This matter is before the Board of Veterans' Appeals (Board) on appeal from July 2015, April 2017, and October 2018 rating decisions of a Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran testified at a hearing before the undersigned in February 2021. 1. Entitlement to an increased rating for a back disability (currently identified as degenerative arthritis of the spine and previously identified as right sciatica) is remanded. The Veteran seeks an increased rating for his back disability. In February 2021, he testified his condition has worsened since a March 2017 VA examination. As the service-connected back disability may have worsened since the prior VA examination, a new VA examination is warranted on remand. See Snuffer v. Gober, 10 Vet. App. 400 (1997). 2. Entitlement to service connection for sleep apnea, including as a medically unexplained chronic multisymptom illness (MUCMI), is remanded. VA has a duty to ensure any medical examination or opinion it provides is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (overruled on other grounds, Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013)). A medical opinion is adequate where it is based upon consideration of the full medical history and describes a disability in sufficient detail so that the Board's evaluation will be fully informed. Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). Service connection may be warranted for a Persian Gulf War veteran who exhibits objective indications of a qualifying chronic disability that became manifest during active military, naval or air service in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10 percent or more not later December 31, 2021. 38 C.F.R. § 3.317(a). For purposes of 38 C.F.R. § 3.317, there are three types of qualifying chronic disabilities: (1) an undiagnosed illness; (2) a medically unexplained chronic multisymptom illness (MUCMI); and (3) a diagnosed illness that the Secretary determines in regulations prescribed under 38 U.S.C. § 1117(d) warrants a presumption of service connection. In Stewart v. Wilkie, the Court of Appeals for Veterans Claims (Court) addressed the definition of a MUCMI under 38 C.F.R. § 3.317(a)(2)(ii) and held a diagnosed condition does not constitute a MUCMI, as defined under 38 C.F.R. § 3.317(a)(2)(ii), when both the etiology and the pathophysiology of the illness are at least partially understood in the context of the claimant's unique circumstances. 30 Vet. App. 383 (2018) (holding VA relied on an inadequate examination when it determined a claimant's asthma was not a MUCMI when an examiner failed to address both the etiology and pathophysiology of the condition in the context of the claimant's unique circumstances). In other words, if either the etiology or the pathophysiology of a diagnosed condition is not at least partially understood, the condition may constitute a MUCMI. The Veteran seeks service connection for sleep apnea. He submitted statements from A. P.,J. D., and E. B. These individuals observed the Veteran sleeping, including during his active service. Each statement described the Veteran snoring and having periods where he stopped breathing during his sleep. In a March 2015, the Veteran's wife, T. K., stated that following his return from Southwest Asia, the Veteran experienced worsening episodes where he stopped breathing in his sleep. A March 2015 statement from C. D., a fellow service member, described dust storms which occurred in Southwest Asia. In February 2021, the Veteran testified that he recalled having problems falling asleep prior to his active service, but he did not recall having any problems breathing while sleeping prior to his active service. In June 2015, a VA Gulf War examination and a VA sleep apnea examination were provided to evaluate the claim. The examiner noted a 2008 sleep study confirmed a diagnosis of obstructive sleep apnea. He documented the Veteran's report of long-standing sleep problems and the lay statements describing snoring and apneic episodes. He stated medical records prior to, and after, the Veteran's active service indicated sleep disturbances secondary to joint pain, but they did not mention snoring or apneic episodes. The examiner described sleep apnea as a disease with a clear and specific etiology with "no evidence to suggest it is due to environmental exposures in Southwest Asia." He opined sleep apnea was less likely than not due to "exposures during Southwest Asia service." Additionally, the examiner stated, "it is less likely than not that the Veteran's [sleep apnea] is related to sleep complaints before or after active duty service." The examiner's opinion as to direct service connection is not clearly stated, and the supporting rationale is not fully explained. It is inadequate to evaluate the claim. See Stefl, supra. Further, in light of the holding in Stewart, the June 2015 etiology opinion is also inadequate to evaluate whether sleep apnea represents a MUCMI under 38 C.F.R. § 3.317(a)(2)(ii). This etiology opinion did not discuss whether the etiology or pathophysiology of the Veteran's sleep apnea is fully or partially understood in the context of the Veteran's unique circumstances. See Stewart, supra. 3. Entitlement to service connection for a neck disability, secondary to a service connected back disability, is remanded. The Veteran seeks service connection for a cervical spine disability. He testified that he did not recall any neck injury during his active service. Rather, he claims his neck condition is secondary to his service connected back disability. He testified that his low back disability causes him to move awkwardly and this affects how he moves his neck. He explained that while working as a diesel technician he has to compensate for his back problem by twisting around to speak to others as he works. He also described holding his body in different positions due to pain associated with his back disability. A VA neck examination and etiology opinion was obtained in August 2018. The examiner diagnosed cervical degenerative arthritis and cervical multiple canal stenosis and impingement. She opined the cervical spine disability was less likely than not causally related to any in-service injury. The Veteran has not claimed any in-service neck injury and this opinion is not relevant to the issue at hand. It is inadequate to evaluate the claim. Id. An additional etiology opinion was provided in September 2018. This examiner opined the Veteran's neck condition was less likely than not proximately due to or the result of the service connected back disability because the conditions were not related. She stated the two portions of the Veteran's spine (neck and lower back) were also not related. The examiner did not discuss the Veteran's contentions that the back disability placed additional strain on his neck. The Veteran is competent to report his experience of symptoms in his back and he is competent to report how he moves his neck and body due to his back condition. The examiner did not provide any reason for dismissing these contentions. Thus, she has not considered the Veteran's full medical history in providing her opinion. It is inadequate to evaluate the claim. Id. Additionally, the examiner did not address whether the Veteran's neck condition was aggravated by his back condition. An opinion regarding secondary service connection is inadequate if it does not address both causation and aggravation of the nonservice-connected condition. See El-Amin v. Shinseki, 26 Vet. App. 136, 138 (2013). An additional VA neck conditions examination was provided in January 2020. The examiner diagnosed status post anterior cervical fusion of C4-C7 and cervical degenerative disc disease. She opined the Veteran's neck disability was less likely proximately due to his back condition because the conditions were not medically related, and the neck disability was more likely due to aging. The January 2020 examiner did not discuss the Veteran's contention that his back condition caused him to compensate and move in ways that stressed his neck. She did not provide any reason for dismissing these contentions. Additionally, the examiner did not provide any opinion as to whether the Veteran's neck condition was aggravated by his back condition. The January 2020 etiology opinion is also inadequate. Id. In April 2020, the Veteran's representative submitted statements challenging the competency of the VA examiners who evaluated the claim of entitlement to service connection for a neck disability in August 2018, September 2018, and January 2020. The representative requested copies of the examiner's CVs (curriculum vitae) and other documents demonstrating their qualifications for providing medical opinions. The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that a Veteran is required to raise a specific challenge to the competency of a VA examiner before VA is required to respond with information about the qualifications of the examiner. See Sickels v. Shinseki, 643 F.3d 1362 (Fed. Cir. 2011), and Francway v. Wilkie, 940 F.3d 1304 (Fed. Cir. 2019) (finding that a Veteran is required to challenge a VA examiner's competence in the first instance). As discussed above, the etiology opinions in question are inadequate to evaluate the Veteran's claim. The issue of the competency and qualifications of the VA examiners is moot. Accordingly, the Board will not address the sufficiency of the representative's request. The matters are REMANDED for the following action: 1. Obtain the Veteran's outstanding VA treatment records. 2. Ask the Veteran to complete a VA Form 21-4142 for any private treatment provider (including a chiropractor) who may have records relevant to his claims which are not yet associated with the claims file. Make two requests for the authorized records from any treatment provider identified, unless it is clear after the first request that a second request would be futile. 3. Schedule the Veteran for an examination by an appropriate clinician, who has not previously examined the Veteran or provided an etiology opinion in this claim, to determine the current severity of his service-connected back disability (currently identified as degenerative arthritis of the spine and previously identified as right sciatica). The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. In so doing, the examiner must test the Veteran's active motion, passive motion, and pain with weight-bearing and without weight-bearing. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). The examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran's statements. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). 4. Obtain an opinion on the etiology of the Veteran's sleep apnea from an appropriate clinician who has not previously examined the Veteran or provided an etiology opinion in this claim. The clinician must address both the etiology and pathophysiology of the Veteran's sleep apnea. The clinician must fully discuss whether the etiology and pathophysiology of the condition is understood or at least partially understood in the context of the Veteran's unique circumstances. Both etiology and pathophysiology must be addressed. If the both the etiology and pathophysiology of the Veteran's sleep apnea are at least partially understood in the context of the Veteran's unique circumstances, the clinician must opine whether the Veteran's sleep apnea is at least as likely as not related to an in-service injury, event, or disease, including exposure to dust and other environmental irritants while the in Southwest Asia. The clinician is advised the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinion. If the clinician rejects the Veteran's reports (or other lay reports), he or she must provide a reason for doing so. The lack of contemporaneous medical records documenting symptoms, by itself, is not a sufficient reason for rejecting the Veteran's assertions as to symptoms and conditions capable of lay observation. If the clinician determines an additional examination is required to provide the requested opinion, schedule an examination. 5. Obtain an opinion from an appropriate clinician who has not previously examined the Veteran or provided an etiology opinion in this claim, regarding whether the Veteran's neck disability is at least as likely as not proximately due to his service-connected back disability or aggravated beyond its natural progression by his service-connected back disability. The examiner must specifically discuss the Veteran's February 2021 testimony that his back disability causes him to move awkwardly and place additional stress on his neck. The examiner is advised that the Veteran is competent to describe his back pain and symptoms and any adjustments he makes in moving his neck and body. Aggravation and causation are distinct theories and must be addressed separately and independently of each other. If the clinician determines that an additional examination is required in order to provide the requested opinion, schedule an examination. M. HYLAND Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Jeanne Celtnieks 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.