Citation Nr: 21039808 Decision Date: 07/01/21 Archive Date: 07/01/21 DOCKET NO. 14-31 975A DATE: July 1, 2021 REMANDED Entitlement to an initial disability rating greater than 20 percent for service-connected fibromyalgia is remanded. Entitlement to service connection for a respiratory condition/sarcoidosis, including as due to Gulf War environmental hazard exposure is remanded. Entitlement to service connection for a gastrointestinal condition, including as due to Gulf War environmental hazard exposure is remanded. Entitlement to service connection for irritable bowel syndrome, including as due to Gulf War environmental hazard exposure is remanded. Entitlement to service connection for a sleep condition (including sleep apnea), to include as due to Gulf War environmental hazard exposure is remanded. Entitlement to service connection for kidney stones, to include as due to Gulf War environmental hazard exposure is remanded. REASONS FOR REMAND The Veteran served on active duty in the Army National Guard from November 1990 to May 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions of a Department of Veterans Affairs (VA) regional office (RO). The Veteran's representative appeared at a virtual Board hearing held before the undersigned Veterans Law Judge in April 2021. A transcript of the hearing is of record. The Veteran presently has additional appeals pending concerning entitlement to testicular cancer, a neck disability, memory loss, and varicose veins of the bilateral lower extremities. Those issues were the subject of both the April 2021 virtual hearing as well as an October 2015 video hearing held before a different Veterans Law Judge. Those appeals will be the subject of a separate decision. As an initial matter, at the April 2021 hearing, the Veteran's attorney challenged the competence of and requested a copy of the credentials for any examiner who conducted an examination and/or provided a medical opinion concerning the issues presently on appeal. The United States Court of Appeals for the Federal Circuit (Federal Circuit) recently issued a panel decision in Francway v. Wilkie, affirming the decision of the United States Court of Appeals for Veterans Claims (Court) which found that when a challenge to the competency of the medical examiner is raised, the Board must make a factual finding as to whether the medical examiner is competent. Francway v. Wilkie, 940 F.3d 1304, 1307-08 (Fed. Cir. 2019). A challenge raised under the above circumstances rebuts the presumption of competency and VA must satisfy its burden of persuasion as to the examiner's qualifications by providing the Veteran with information about the qualifications of the examiner. Furthermore, the Federal Circuit has observed that the question of whether an examiner is competent and whether he or she has rendered an adequate examination are two separate inquiries. Francway, 940 F.3d at 1309. "Once the request is made for information as to the competency of the examiner, the veteran has the right, absent unusual circumstances, to the curriculum vitae and other information about qualifications of a medical examiner. This is mandated by the VA's duty to assist." Francway, 940 F.3d at 1308 (citing 38 U.S.C. § 5103A; Harris v. Shinseki, 704 F.3d 946, 948 (Fed. Cir. 2013)). Accordingly, on remand VA must respond to the representative's request for the credentials of the VA examiners (including the February 2015 and July 2014 examiners), to the extent possible and as allowed by law. See Francway, 940 F.3d at 1308. 1. Entitlement to an initial disability rating greater than 20 percent for service-connected fibromyalgia is remanded. The Veteran contends that the severity of his fibromyalgia is more severe than reflected by his 20 percent disability rating. The most recent examination concerning the Veteran's fibromyalgia was conducted in July 2014. Considering the passage of time and the Veteran's lay statements concerning his symptoms, additional examination is found needed to assess the current severity and manifestations of his fibromyalgia. The most recent medical treatment record in the file is a VA primary care nursing note from October 2015. On remand, the Agency of Original Jurisdiction (AOJ) should obtain and associate any outstanding VA treatment records with the claims file. Additionally, as the matters are being remanded for other development, the Veteran should be contacted and asked to identify and provide any necessary authorization for VA to obtain any relevant private treatment records on his behalf. 2. Entitlement to service connection for sarcoidosis, including as due to environmental hazard exposure in Gulf War is remanded. The Veteran contends that he suffers from sarcoidosis as a result of his service in the Southwest Asia Theater of Operations during the Persian Gulf War. Such service is confirmed by his DD-214. The Veteran was most-recently provided with a VA examination for sarcoidosis in February 2015, where it was noted that the Veteran was diagnosed with sarcoidosis in 1994. The examination report states that the Veteran described getting shortness of breath with light physical exertion, but also states that the Veteran denied recurrent symptoms of lung problems or disease. The examiner stated an opinion that it is less likely as not that the Veteran's sarcoidosis was the result of his Gulf War exposures, reasoning that there were no residual respiratory conditions from that time that were present at the time of the examination. However, the Board notes that although the examiner recorded the Veteran's report of experiencing shortness of breath and pulmonary function testing at the time of the examination appears to show decreased pulmonary functioning, it was concluded that the Veteran's respiratory condition would not impact his ability to work. No further explanation was provided. The examination report appears to be internally inconsistent, and is found to be inadequate for adjudicatory purposes. On remand, an addendum medical opinion should be sought Additionally, the Board notes that the February 2015 examiner referenced medical literature indicating that sarcoidosis, generally, is a multisystem disorder of unknown etiology. Considering the Veteran's service in the Southwest Asia theater of operations, an additional opinion is needed to clarify whether the Veteran's sarcoidosis represents a medically unexplained chronic multisymptom illness or a chronic multisymptom illness of partially understood etiology and pathophysiology. 3. Entitlement to service connection for a gastrointestinal condition, including as due to environmental hazard exposure in Gulf War is remanded. The Veteran contends that he suffers from gastroesophageal reflux disease and peptic ulcers as a result of his Gulf War service. At the July 2014 VA examination, the examiner noted that the Veteran reported that he thought his flare-ups of the condition were stress-related, and that he would have stomach issues due to stressful times in his life. The Board notes that the Veteran is in receipt of a 100 percent disability rating for posttraumatic stress disorder. On remand, a medical opinion should be sought as to the likelihood that the Veteran's PTSD caused or aggravated a gastroesophageal condition. Additionally, an opinion should be provided as to whether the Veteran's gastroesophageal symptoms are attributable to any diagnosed condition. 4. Entitlement to service connection for irritable bowel syndrome, including as due to environmental hazard exposure in Gulf War is remanded. Review of the VA and private treatment records yet to be associated with the file is found needed prior to adjudication of this appeal. 5. Entitlement to service connection for a sleep condition (including sleep apnea), to include as due to environmental hazard exposure in Gulf War is remanded. The February 2015 VA examination indicated that there was no diagnosis of sleep apnea, but also notes that the Veteran reported undergoing a sleep study the week prior but not yet receiving the results. Review of the VA and private treatment records being requested on appeal is therefore found needed prior to adjudication or determining whether further development is warranted. 6. Entitlement to service connection for kidney stones, to include as due to environmental hazard exposure in Gulf War is remanded. Review of the VA and private treatment records yet to be associated with the file is found needed prior to adjudication of this appeal. The matters are REMANDED for the following action: 1. Obtain the Veteran's VA treatment records for the period from October 2015 to the Present and associate them with the claims file. 2. Ask the Veteran to adequately identify and complete a VA Form 21-4142 for any relevant private treatment records he wishes for VA to obtain on his behalf. Make two requests for the authorized records, unless it is clear after the first request that a second request would be futile. 3. After associating all records responsive to remand directives # 1 and 2 with the claims file, schedule the Veteran for an examination by an appropriate clinician to determine the current severity and manifestations of his service-connected fibromyalgia. 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. The examiner should clarify whether it is at least as likely as not (50 percent or greater probability) that the Veteran's described gastrointestinal symptoms, including but not limited to heartburn, dysphagia, diarrhea, gas, bloating, stool urgency, and "cycle of bowel irregularities," are any of the following: 1) manifestations of the Veteran's fibromyalgia; 2) caused by the Veteran's fibromyalgia; 3) aggravated by the Veteran's fibromyalgia. If the gastrointestinal symptoms are attributable to a known diagnosis with a known or partially known etiology, the examiner should so state and explain the basis for such conclusion. A clear rationale must be provided for any opinion or conclusion stated. 4. After completing the development requested in remand directives # 1 and 2, obtain an addendum opinion from an appropriate clinician regarding the Veteran's claimed respiratory disorder. If additional examination is found needed to respond to the below inquiries, such should be scheduled and the Veteran provided with adequate notice. The clinician is asked to address the following: a. Are the Veteran's described respiratory symptoms (shortness of breath with light physical exertion) and any abnormal PFT findings on past examination(s) attributable to a known diagnosis, to include sarcoidosis? b. What, if any, residuals or manifestations of sarcoidosis have been present at any point during the relevant appeal period (October 2014 to the Present)? If the Veteran has had active sarcoidosis and/or any residuals of sarcoidosis during the relevant appeal period, is sarcoidosis best categorized as 1) a disability with known pathophysiology or etiology, 2) a diagnosed illness without conclusive pathophysiology or etiology characterized by overlapping signs and symptoms, or 3) a chronic multisymptom illness of partially understood etiology and pathophysiology? A clear rationale must be provided for any opinion or conclusion stated. 5. After completing the development requested in remand directives # 1 and 2, obtain an addendum opinion from an appropriate clinician regarding whether the Veteran's gastrointestinal disorder(s)/symptoms are at least as likely as not related to his service-connected posttraumatic stress disorder: specifically, is it at least as likely as not that the Veteran's gastrointestinal disorder(s) is proximately due to or aggravated beyond its natural progression by his PTSD. The clinician's attention is directed to the Veteran's statement at the July 2014 Gulf War examination that he thinks his flare-ups of heartburn and stomach issues correspond to periods of high stress. If additional examination is found needed to respond to the aforementioned inquiry, such should be scheduled and the Veteran provided with notice. A clear rationale must be provided for any opinion or conclusion stated. 6. To the extent possible, provide the credentials of the July 2014 and February 2015 examiners, as well as any examiner and clinician evaluating the Veteran and/or providing opinions pursuant to this remand, as allowed by law, to the Veteran and his representative. Associate copies of the materials provided with the electronic claims file. Allow a reasonable amount of time for the Veteran or his representative to respond, and associate any response and related materials with the electronic claims file. (Continued on the next page) 7. After completing the above, and conducting any additional development deemed necessary in light of the expanded record, readjudicate the Veteran's claims of entitlement to an initial disability rating in excess of 20 percent for service-connected fibromyalgia, and entitlement to service connection for a respiratory condition/sarcoidosis, a gastrointestinal condition, irritable bowel syndrome, a sleep condition (including sleep apnea), and kidney stones. If any of the benefits are not granted to the Veteran's satisfaction, issue the Veteran and his representative a supplemental statement of the case and allow an appropriate time for response before returning the file to the Board, if in order. MICHAEL MARTIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Solomon, 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.