Citation Nr: 21031749 Decision Date: 05/24/21 Archive Date: 05/24/21 DOCKET NO. 16-35 463A DATE: May 24, 2021 REMANDED Entitlement to service connection for a sleep disorder, to include sleep apnea, is remanded. Entitlement to service connection for musculoskeletal pain, to include as due to an undiagnosed illness or medical unexplained chronic multisymptom illness (MUCMI), is remanded. REASONS FOR REMAND The Veteran served on active duty from October 1984 to July 1987 and from December 1990 to April 1991, with service in the Persian Gulf War from January 1991 to April 1991. The Veteran is a Persian Gulf veteran as he had qualifying service in the Southwest Asia theater of operations during the Persian Gulf War. See 38 C.F.R. § 3.317(e). The Veteran also served in the Army Reserves until May 1999. These matters come before the Board of Veterans' Appeals (Board) on appeal from a rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In March 2019, the Veteran testified before a Veterans Law Judge (VLJ). A hearing transcript is associated with the record. The VLJ conducting the March 2019 hearing is no longer with the Board. A November 2020 Board letter notified the Veteran of this and afforded him the opportunity for new hearing before another VLJ. The Veteran responded that the did not desire to participate in another Board hearing. See Correspondence (November 24, 2020). Therefore, the Board will proceed in these matters. An October 2019 Board decision, among other things, remanded the above claims for additional development. Unfortunately, there has not been substantial compliance with the Board's previous remand directive and another remand is required. Stegall v. West, 11 Vet. App. 268, 271 (1998). Although examinations were provided in May 2020, for the reasons provided below, they are inadequate. 1. Entitlement to service connection for a sleep disorder, to include sleep apnea. The Veteran contends that his sleep apnea is caused by exposure to environmental hazards during his service in the Persian Gulf War. See Statement In Support of Claim (August 2014); Form 9 (July 2016). The Veteran specifically reports exposure to burn pits. See Statement In Support of Claim (December 2014); Hearing Transcript (March 2019). Here, the May 2020 VA medical opinion is inadequate as it indicates that the examiner's rationale relied on the absence of a diagnosis for sleep apnea during the Veteran's service as the basis for the negative opinion. The May 2020 VA examiner opined that the Veteran's sleep apnea is not caused by service as there is "no objective evidence during the time of service or up to a year after discharge that there was suspected or diagnosed sleep disorder." See C&P Exam (May 2020). However, an in-service diagnosis is not required to establish service connection. Cosman v. Principi, 3 Vet. App. 503 (1992); see also 38 C.F.R. § 3.303(d) (service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service). Additionally, the May 2020 VA medical opinion indicates that the Veteran's sleep apnea is aggravated by his medications for service-connected post-traumatic stress disorder (PTSD). The examiner opined that PTSD medications "play an aggravating factor, as they do depress the upper airways." See C&P Exam (May 2020). Although the opinion indicates that, generally, PTSD medications aggravate sleep apnea, the opinion provides no indication how the examiner determined that the Veteran's sleep apnea was aggravated by his PTSD medications. The examiner provided no facts specific to the Veteran, such as the onset date of his PTSD, when PTSD treatment with medication began, or when aggravation was evidenced. The medical opinion is inadequate because the examination report does not contain a clear conclusion with supporting data, nor a reasoned medical explanation connecting the two. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). Further, the examiner was unable to determine a baseline, and noted that "no symptoms or history suggestive of sleep apnea prior." See C&P Exam (May 2020). Although the examiner noted that mild sleep apnea was diagnosed in April 2014 and severe sleep apnea was diagnosed in April 2020, the examiner provided no reasoned medical explanation why a baseline severity could not be determined. The examiner also provided no reasoned medical explanation why the progression of the Veteran's sleep apnea from mild to severe, following his diagnosis and treatment for PTSD, did not indicate the onset of aggravation of his sleep apnea. Therefore, to ensure that VA has met its duty to assist, remand is required. 38 C.F.R. § 3.159(c)(4). Where VA provides an examination or obtains an opinion, it must be adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). A remand by the Board imposes upon the Secretary of VA a concomitant duty to ensure compliance with the terms of the remand. Where remand orders of the Board are not complied with, the Board errs in failing to ensure compliance. Stegall, 11 Vet. App. at 271. 2. Entitlement to service connection for muscle pains, to include as due to an undiagnosed illness or MUCMI. The Veteran contends that he experienced muscle pains during service, see Hearing Transcript, which have been continuous since his service. See Form 9 (July 2016). The Veteran further contends that his muscle pains are caused by exposure to environmental hazards during his service in the Persian Gulf War, see Statement In Support of Claim (August 2014), and from the circumstances of his service which included repetitive and strenuous lifting and carrying of equipment. See Statement In Support of Claim (December 2019). As an initial matter, the Board notes that the agency of original jurisdiction (AOJ) received additional pertinent evidence after the August 2020 Supplemental Statement of the Case (SSOC) was issued and before the appeal was certified to the Board and the appellate record was transferred to the Board. 38 C.F.R. § 19.31. Buddy statements describing observations of pain and physical limitations following the Veteran's service in the Persian Gulf War were submitted in September 2020. Although buddy statements were previously considered, such statements were vague and provided no details of what symptoms and impairment the Veteran was suffering. In contrast to the buddy statements previously considered, the September 2020 buddy statements show that the affiants witnessed the Veteran suffer from pain symptoms which prevented him from sitting, standing, or walking for long periods and prevented him from performing physical training following the Veteran's Persian Gulf War service. Given that the May 2020 VA medical opinion indicated that it was unclear when the Veteran's musculoskeletal disability could have started and that, since then, VA received additional relevant details pertaining to the Veteran's symptoms and activities, remand for an addendum medical opinion is necessary. Also, the VA medical opinions are inadequate to decide this matter. Barr, 21 Vet. App. 303. The February 2015 Gulf War examination shows that the Veteran reported that his pain symptoms began during his Persian Gulf War service, and that the examiner noted knee pain trigger points. The opinion reflects that the "etiology of his musculoskeletal pains is multifactorial to include uncontrolled DMII, sleep apnea, hip arthritis, and vitamin D deficiency." See C&P Exam (February 2015). However, the opinion provided no reasoned medical explanation as to why diabetes, sleep apnea, and vitamin D deficiency are the cause of the Veteran's musculoskeletal pain complaints. Nieves-Rodriguez, 22 Vet. App. at 301. The May 2020 VA muscle injuries examination shows that no diagnosis was provided as there were "no findings, signs and or symptoms to support a diagnosis." See C&P Exam (May 2020). However, the examination report does not explain why the Veteran's subjective complaints of pain and the objective notation of knee pain trigger points did not indicate pain from a muscular disability, to include an undiagnosed illness under 38 C.F.R. § 3.317. Nieves-Rodriguez, 22 Vet. App. at 301. A May 2020 VA medical opinion reflects that the Veteran's right hip osteoarthritis was not related to service as the service treatment records (STRs) "are silent about complaints of either hip... [and] no evidence of hip problems a decade after separation...." See C&P Exam (May 2020). However, an in-service diagnosis is not required to establish service connection. Cosman, 3 Vet. App. 503; 38 C.F.R. § 3.303(d). Although the opinion noted the Veteran's treatment with VA clinician FBC on March 21, 2019, the opinion does not reflect any meaningful consideration, as directed by the Board's prior remand. Therefore, to ensure that VA has met its duty to assist, remand is required. 38 C.F.R. § 3.159(c)(4). Where VA provides an examination or obtains an opinion, it must be adequate. Barr, supra. A remand by the Board imposes upon the Secretary of VA a concomitant duty to ensure compliance with the terms of the remand. Where remand orders of the Board are not complied with, the Board errs in failing to ensure compliance. Stegall, 11 Vet. App. at 271. The matters are REMANDED for the following action: 1. Obtain the Veteran's VA treatment records for the period from March 2021 to the Present. 2. Obtain an addendum opinion from an appropriate clinician on the etiology of the Veteran's sleep apnea. The entire claims file, to include a copy of this REMAND, should be made available to and reviewed by the clinician. Based on review of the record, detail the Veteran's reported symptoms, including the nature, onset, progression and severity of any symptoms consistent with his sleep apnea. The opinion should, among other things, include a discussion of the Veteran's documented history and assertions, and of the relevant medical evidence cited therein. The opinion should also identify and explain the relevance or significance, as appropriate, of any history, clinical findings, medical knowledge or literature, etc., relied upon in reaching the conclusion(s). NOTE (1): An adequate medical opinion may not be predicated solely on the absence of an in-service diagnosis or documented complaints. NOTE (2): An adequate medical opinion may not be predicated solely on the absence of medical studies or literature supporting causation or aggravation. The clinician must opine on: Direct Service Connection (a.) Whether the Veteran's sleep apnea at least as likely as not (1) began during active service or (2) is related to an in-service injury, event, or disease, to include exposure to environmental hazards during his service in the Persian Gulf War. Secondary Service Connection (b.) Whether the Veteran's sleep apnea is at least as likely as not (1) proximately due to service-connected PTSD, to include medication taken therefor; or (2) aggravated beyond its natural progression by service-connected PTSD, to include medication taken therefor. In determining aggravation, which requires determining a baseline severity, the clinician must consider and discuss the relevancy, if any, of (1) the finding of mild sleep apnea in April 2014, (2) the start of PTSD medication in August 2014, and (3) the finding of severe sleep apnea in April 2020. 3. Schedule the Veteran for an examination by an appropriate clinician to address the nature and etiology of the Veteran's claimed musculoskeletal pain. The entire claims file, to include a copy of this REMAND, should be made available to and reviewed by the clinician. Based on review of the record and interview of the Veteran, detail the Veteran's reported musculoskeletal symptoms, including the nature, onset, progression and severity of any symptoms. Conduct additional testing, if warranted, to confirm or rule out the presence of a diagnosable musculoskeletal disability. The opinion should, among other things, include a discussion of the Veteran's documented history and assertions, and of the relevant medical evidence cited therein, to include the positive nexus opinion provided on March 21, 2019 by VA clinician FBC. The opinion should also identify and explain the relevance or significance, as appropriate, of any history, clinical findings, medical knowledge or literature, etc., relied upon in reaching the conclusion(s). An adequate medical opinion may not be predicated solely on the absence of an in-service diagnosis or documented complaints. The clinician is asked to provide responses to the following: Presumptive Service Connection (a) Identify the Veteran's objective indications of a disability. Note: "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 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 Veteran's objective indications of a disability be attributed to a known clinical diagnosis? Note: 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 Veteran's objective indications cannot be attributed to a known clinical diagnosis, is there affirmative evidence that the undiagnosed illness is 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 Veteran's departure from service during the Persian Gulf War? Note: 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 Veteran's objective indications can be attributed to a known clinical diagnosis, is the etiology of the Veteran's condition (1) inconclusive, (2) partially understood, or (3) fully understood? Note: This determination as to each must be based on the Veteran's specific case and cannot be based on the etiology of the disease or disability population as a whole. (e) If the Veteran's objective indications can be attributed to a known clinical diagnosis, is the pathophysiology of the Veteran's condition (1) inconclusive, (2) partially understood, or (3) fully understood? Note: This determination as to each must be based on the Veteran's specific case and cannot be based on the pathophysiology of the disease or disability population as a whole. Direct Service Connection (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 has a musculoskeletal pain disability that was incurred in or is otherwise related to in-service injury or disease? Consider and expressly address whether his symptoms stem from service in the Persian Gulf, including exposure to contaminants, pollutants, and/or toxins. Explain. 4. Ensure that the VA medical opinions obtained include a complete rationale for the conclusions reached. The medical opinion must support the conclusions reached with an analysis that is adequate for the Board to consider and weigh against other evidence of record; medical opinion must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. If an opinion cannot be expressed without resort to speculation, ensure that the clinician so indicates and discusses why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. 5. Readjudicate. C.A. SKOW Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Thaddaeus J. Cox, 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.