Citation Nr: 21040642 Decision Date: 07/06/21 Archive Date: 07/06/21 DOCKET NO. 17-48 231 DATE: July 6, 2021 REMANDED Entitlement to service connection for a low back disability is remanded. Entitlement to service connection for any upper respiratory disabilities to include allergies, rhinitis, sinusitis, and asthma is remanded. Entitlement to service connection for a chronic obstructive pulmonary disease (COPD) is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Marine Corps from December 1984 to December 1988. He also served in the Army National Guard with a period of active duty service from January 1991 to May 1991. These matters come before the Board of Veterans' Appeals (Board) on appeal from a February 2016 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In a June 2019 decision, the Board recharacterized the Veteran's service connection claims for allergies, rhinitis, sinusitis, and other upper respiratory ailments, and asthma as one for any separate and additional respiratory illness to include as due to an undiagnosed illness or MUCMI related to service in Southwest Asia. Based on the evidence, the Board denied the Veteran's service connection claims for a low back disability, any separate and additional respiratory illness to include an undiagnosed illness or a MUCMI related to service in Southwest Asia, and COPD. The Veteran appealed the June 2019 decision to the United States Court of Appeals for Veterans Claims (Court). In an October 2020 CAVC memorandum decision, the Court set aside the June 2019 Board decision and remanded the appeal for further development and readjudication. The Board will further discuss the CAVC memorandum decision with regards to the Veteran's claims below. As an initial matter, on February 2021, the Veteran was notified he could submit additional arguments or evidence within 90 days of the February 2021 Board letter. If additional arguments or evidence were submitted, the Veteran was to complete a waiver form enclosed in the Board letter. On March 2021, the Veteran completed the waiver form and selected option number two, which provides that he wants his case to be sent to the Agency of Original Jurisdiction for review of the additional evidence he is submitting in his appeal. He further waived any remaining time to submit additional evidence or arguments. The Board notes the Veteran submitted arguments with the March 2021 correspondence consistent with his appellate brief considered in the CAVC memorandum decision. However, the Board finds that no additional evidence has been submitted within 90 days since the February 2021 Board letter. As such, the Board finds the Veteran's election to have the AOJ readjudicate additional evidence is invalid. Nevertheless, a remand is required as discussed below to address other evidentiary issues. 1. Entitlement to service connection for a low back disability is remanded. 2. Entitlement to any separate and additional respiratory illness as due to undiagnosed illness or MUCMI is remanded. 3. Entitlement to service connection for a chronic obstructive pulmonary disease (COPD) is remanded. In the October 2020 CAVC Memorandum Decision, the Court found that the Board failed to address explicitly raised arguments by the Veteran regarding the adequacy of the February 2016 VA medical examination for his lumbar spine. It also noted that the VA examiner failed to review the Veteran's medical records including in-service treatment for his back pain and further failed to inquire as to functional loss experienced during flare-ups. With regards to his COPD and separate and additional respiratory illnesses to include any undiagnosed illness or medically unexplained chronic multisymptomatic illness (MUCMI) with unknown or partially explained etiology due to environmental exposures in SWA, the Court agreed with the parties that the February 2016 VA medical examination is inadequate for adjudication purposes. Specifically, the Court agreed with the parties that the February 2016 VA examination for his COPD and other respiratory disability is inadequate because the VA examiner failed to consider the Veteran's prior medical history showing multiple in service treatment for stuffy nose, cold with sinus congestion, and chest congestion. Additionally, the Court agreed that the February 2016 VA examination for his respiratory disabilities and COPD was inadequate to adjudicate presumptive service connection due to an undiagnosed illness or MUCMI with an unknown or partial etiology based on service in Southwest Asia. Specifically, the Court noted the VA examiner addressed whether the Veteran's conditions were considered to be an undiagnosed illness or a MUCMI with unknown or partially explained etiology but failed to address whether the pathophysiology of the Veteran's COPD and seasonal sinusitis were partial or conclusive. The Court notes that under Stewart, "an illness is a MUCMI where either the etiology or pathology of the illness is inconclusive." Stewart v. Wilkie, 30 Vet. App. 383 (2018). For this reason, the Court found that the Board erred in relying on that opinion to deny the Veteran's COPD and other respiratory disabilities under the presumption afforded to Persian Gulf War veterans who served in Southwest Asia. These matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment records and associate them with the claims file. Additionally, obtain prison treatment records from the Michigan Department of Corrections-Bureau of Health Care Services and Saginaw Correctional Facility that are related to the Veteran's low back disability, COPD, allergies, asthma, and any separate and additional respiratory disability. 2. Schedule the Veteran for an examination with a different examiner for a lumbar spine disability, to include an x-ray of the spine. The claims file, including a copy of this remand, should be made available to the examiner, who should review it in conjunction with the prior examination and should note that review in the report. The examiner is requested to provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran's low back disability is etiologically related to an in-service event, injury, or illness to include a July 1988 motorcycle accident or when a Humvee the Veteran was riding in ran over a foxhole? Why do you say so? 3. Schedule the Veteran for an examination for his COPD, allergies, asthma, or any other respiratory disabilities. The examiner is requested to do the following: a.) Identify all of the Veteran's currently diagnosed respiratory disabilities to include his COPD, seasonal allergies, and asthma. b.) If no current respiratory disability is diagnosed, is it at least as likely as not that the respiratory symptoms described by the Veteran are a manifestation of an undiagnosed illness or a MUCMI with unknown or partially explained etiology that may be associated with his service in Southwest Asia? c.) Is the etiology of the Veteran's COPD, seasonal allergies, or asthma any other respiratory disabilities partially understood or inconclusive? Explain why or why not. d.) Is it at least as likely as not (50 percent probability or greater) that the Veteran's COPD, seasonal allergies, or asthma etiologically related to an in-service event, injury, or illness, to include hazardous environmental exposure while serving in Southwest Asia? A complete and detailed rationale for these opinions should be provided for every opinion requested by the examiner. 4. After, readjudicate the claim. If the benefit sought on appeal remains denied, furnish the Veteran with a supplemental statement of the case (SSOC) and provide him with an appropriate opportunity to respond. M. Tenner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Xiong, 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.