Citation Nr: 22017268 Decision Date: 03/24/22 Archive Date: 03/24/22 DOCKET NO. 16-16 709 DATE: March 24, 2022 REMANDED Entitlement to service connection for sleep apnea is remanded. Entitlement to service connection for a disorder (initially claimed as "multiple joint pain") is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from August 1989 to December 1991, which includes verified service in the Southwest Asia theater of operations during the Persian Gulf War. These claims come before the Board of Veterans' Appeals (Board) on appeal of an April 2014 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). By way of background, the Veteran's claims were last remanded on December 28, 2018. Other issues listed in that Board decision are no longer in appellate status at this time. The Veteran was most recently issued a Supplemental Statement of the Case (SSOC) on December 16, 2021. Ultimately, while the Board sincerely regrets additional delay that may be incurred, the Board cannot escape the conclusion that it has no choice except to remand the claims once again. 1. Entitlement to service connection for sleep apnea is remanded. Effective August 5, 2021, VA revised 38 C.F.R. § 3.320. These revisions apply to all claims received by VA on or after August 5, 2021 or that were pending before VA, the United States Court of Appeals for Veterans Claims, or the United States Court of Appeals for the Federal Circuit on August 5, 2021. 86 Fed. Reg. 42724. As of August 5, 2021, under 38 C.F.R. § 3.320, if a veteran was exposed to particulate matter during active military service, certain chronic diseases, including asthma, shall be service-connected if it becomes manifest to any degree (including non-compensable) within 10 years from the date of separation from military service that includes a qualifying period of service as defined in 38 C.F.R. § 3.320(a)(4), except as provided in 38 C.F.R. § 3.320(b) or if there is affirmative evidence to establish that the veteran was not exposed to fine, particulate matter during that service. 38 C.F.R. § 3.320. In-service particulate matter exposure is presumed for veterans who served in Afghanistan, Syria, Djibouti, Uzbekistan, or the Southwest Asia theater of operations (Iraq, Kuwait, Saudi Arabia, the neutral zone between Iraq and Saudi Arabia, Bahrain, Qatar, the United Arab Emirates, Oman, the Gulf of Aden, the Gulf of Oman, the Persian Gulf, the Arabian Sea, the Red Sea, and the airspace above these locations) during the Persian Gulf War, August 2, 1990, through a date Presidential proclamation or law will prescribe. 38 C.F.R. §§ 3.2(i), 3.317(e)(2), 3.320(a)(4). Previous development has established that the Veteran is service connected for a psychiatric disorder with insomnia, but the Veteran is still proceeding with a claim for sleep apnea separate from this disorder. In light of the newly revised 38 C.F.R. § 3.320, the Board deems it proper to remand for an addendum opinion addressing the relevance, or lack thereof, of these changes as pertaining to the remaining claim for sleep apnea. 2. Entitlement to service connection for a disorder (initially claimed as "multiple joint pain") is remanded. An examination or opinion should be obtained when (1) there is evidence of a current disability, (2) evidence establishing an "in-service event, injury, or disease," or that a disease, manifested in accordance with presumptive service connection regulations, occurred which would support incurrence or aggravation, (3) an indication that the current disability may be related to the in-service event, and (4) insufficient evidence to decide the case. McClendon v. Nicholson, 20 Vet. App. 79 (2006). The Veteran's claim for "multiple joint pain" was remanded so that workers' compensation records about neck, shoulder, and back injuries could be associated with the claims file. As detailed in the SSOC, development has revealed that the Veteran has received workers' compensation from October 2014 to February 2020. However, the Board is unable to determine for which of the above three disorders the Veteran was awarded workers' compensation. The Board deems it necessary to remand for an addendum opinion that addresses whether it is at least 50 percent likely that these workplace injuries are progressions of injuries originally incurred in active duty service. Meanwhile, the Veteran claimed back pain upon separation from active duty. See Report of Medical History (Nov. 18, 1991), at Questions Nos. 8 and 11. While VA examinations appear to have been conducted in February 2016, see, e.g.: C&P Exam ( Feb. 5, 2016 ) (rec'd Feb. 11, 2016), and these confirm some disabilities at that time that appear pertinent to this claim, no etiological opinions were provided. As such, the Board is precluded from adjudicating the claim at this time for neck and/or shoulder and/or back pain, and this issue must be also be remanded. The matters are REMANDED for the following action: 1. Clarify from the Veteran the following: Among claims for joint pain in the neck (cervical spine), either shoulder, or the back (thoracolumbar spine), which ones is the Veteran seeking service connection? Additionally, for these disorders, for which ones has the Veteran ever pursued a claim for workers' compensation? If the Veteran has pursued multiple claims for workers compensation, then a statement clarifying which claims were for which injury would be of considerable assistance to the Board. 2. For all claimed disorders of the neck, either shoulder, or back, readjudicate the appeal for service connection. By way of background, VA examinations appear to have been administered in February 2016, but no etiological opinions are available. Whether or not updated VA examinations are required is left to the discretion of the Agency of Original Jurisdiction. Please supply opinions as to whether any diagnosed "joint pain" disorder in the neck, either shoulder, or back is at least 50 percent attributable to active duty service. Statements addressing the relevance or lack thereof of workers' compensation claims, i.e.: whether the workers' compensation claims are for injuries that originated in service but progressed and culminated in post-discharge injuries in civilian employment, would be of considerable assistance to the Board. 3. For the claimed sleep apnea, the examiner should provide an addendum opinion that addresses the relevance or lack thereof of 38 C.F.R. § 3.320, in light of the Veteran's diagnosis and verified service in the Southwest Asia theater of operations during the Persian Gulf War. Whether or not updated VA examinations are required is left to the discretion of the Agency of Original Jurisdiction. By way of background, the Veteran is prosecuting a claim for service connection for sleep apnea but separate from an already-service-connected psychiatric disorder with insomnia. A rationale should be provided for any opinion offered. If it is not possible to provide a specific opinion regarding the above questions, 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 medical opinion must support the conclusions reached with an analysis that is adequate to consider and weigh against other evidence of record; medical opinions 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. Christopher J. O'Donnell Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Michael B. Engle, 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.