Citation Nr: 22017315 Decision Date: 03/24/22 Archive Date: 03/24/22 DOCKET NO. 13-20 660 DATE: March 24, 2022 REMANDED Entitlement to service connection for obstructive sleep apnea (OSA) is remanded. Entitlement to service connection for chronic fatigue syndrome (CFS) is remanded. Entitlement to service connection for memory loss, claimed as an undiagnosed Gulf War illness, is remanded. REASONS FOR REMAND The Veteran served on active duty from March 1983 to March 1993. This matter is before the Board of Veterans' Appeals (Board) on appeal from a June 2012 rating decision by a Department of Veterans Affairs Regional Office (RO). By way of history, a November 2018 Board Decision denied the Veteran's service connection claims on appeal. The Veteran appealed the Board's decision to the U.S. Court of Appeals for Veterans Claims (Court). In a January 2020 Order, the Court vacated the Board's November 2018 Decision and remanded for readjudication in compliance with the Joint Motion for Remand (JMR). In pertinent part, the JMR found that the Board erred by not ensuring that a complete set of VA medical records were obtained. The JMR additionally found the Board erred by not ensuring that the May 2017 VA OSA examination and the September 2017 VA memory loss examination complied with April 2017 Remand directives. Thereafter, in July 2020, the Board remanded this case and instructed the Agency of Original Jurisdiction (AOJ) to obtain VA examinations. OSA and CFS As noted above, the Court found the Board erred by not ensuring that the May 2017 VA OSA examination complied with prior Remand directives. A review of the April 2017 Board Decision shows that the examiner was asked to "consider and address the Veteran's lay statements regarding the onset and continuity of his symptoms." In this regard, in a December 2011 VA Form 21-4138, Statement in Support of Claim, the Veteran asserted that since he returned from Desert Storm, he was always tired and chronically fatigued. His July 2013 VA Form 9, Substantive Appeal, shows that he reported ongoing symptoms of snoring the past 22 years. The Board also notes that during his June 2015 VA OSA examination, he reported that in the 1990's, his spouse observed symptoms of difficulty breathing and jerking during sleep. Following the April 2017 Board Decision, a VA examination was obtained in May 2017. The examiner provided a negative nexus opinion based on a finding that the Veteran was diagnosed with OSA 26 years after his in-service complaints of difficulty sleeping. As noted by the Court, the examiner did not address lay statements as to continuity of symptoms since service. Following the July 2020 Board Decision, the Veteran underwent a VA OSA examination in June 2021. The examiner noted a diagnosis for OSA confirmed by a sleep study. The Veteran reported the onset of OSA in the 1990s. His symptoms consisted of persistent daytime hypersomnolence. The examiner opined that the OSA was "less likely than not (less than 50 percent probability)" etiologically related to service. In support of this opinion, the examiner stated that there was no objective evidence of OSA during service, and that the condition was diagnosed approximately 18 years after service. In addition, the examiner noted that during service, the Veteran reported difficultly sleeping, but not any other OSA related symptoms such as fatigue, apneas or not feeling rested in the morning. Accordingly, the examiner stated that she was unable to determine the cause of the Veteran's OSA without mere speculation and that a nexus had not been established. A June 2021 VA CFS examination determined that the Veteran did not meet the criteria for CFS, and that his symptoms were likely due to OSA. The Board finds the June 2021 OSA examination inadequate. Specifically, the examiner did not address lay statements as to continuity of symptoms since service. As noted above, the Veteran has reported symptoms of apneas and snoring since he returned from his deployment, including symptoms observed by his spouse. Despite such lay evidence, the examiner stated that there was no evidence of symptoms such as apneas during service. Accordingly, the June 2021 examiner provided a similar rationale for the negative nexus opinion which the Court previously found inadequate on the basis that the examiner failed to address lay statements as directed by the April 2017 Board Decision. Accordingly, a Remand is warranted to obtain a VA examination that complies with the prior Board Remand directives. Memory Loss This matter was remanded in July 2020 to obtain a VA examination to determine whether the Veteran had a diagnosable condition. The Board also requested a VA neurological examination for memory loss. Thereafter, the Veteran underwent a VA mental disorder examination in April 2021. The examiner determined that the Veteran did not have a diagnosed mental disorder. However, the examiner stated that neurological and neuropsychological assessments were recommended to more accurately determine the cause and severity of his memory impairment. A review of the record shows that in November 2021, the AOJ sent the Veteran a letter informing him that he would be scheduled for a VA examination, and that he would be notified of the date, time and place. There is no indication that he has been scheduled or notified of any scheduled examination. Instead, a review of the December 2021 supplemental statement of the case (SSOC) noted that he failed to report for a scheduled VA cranial nerve examination. However, approximately two weeks later, a January 2022 VA Examination Scheduling Request Modification form shows that a neurological cranial nerve examination was currently being scheduled. Accordingly, per the claims file, this issue is still being developed. Therefore, any action on this claim as this point would be premature, and a Remand is necessary to obtain the yet to be scheduled VA examination. Additionally, the Board notes that contrary to the April 2021 VA examiner's suggestion that neurological and neuropsychological assessment examinations were necessary to properly adjudicate this issue on appeal, the record shows that only a neurological examination was being scheduled. Therefore, efforts should be made to obtain a VA neuropsychological examination as well. The matters are REMANDED for the following action: 1. With any necessary identification of sources by the Veteran, request all VA treatment records not already associated with the file from his VA treatment facilities, and all private treatment records not already associated with the file. 2. Then, obtain an addendum to the June 2021 VA examination by an appropriate examiner to determine the nature and etiology of any diagnosed sleep disorder, to include OSA and fatigue (or telehealth interview, review of the record, etc., if an in-person examination is not feasible). The examiner should provide the following opinions: (a) Is it at least as likely as not (50 percent or greater probability) that the Veteran's diagnosed OSA is etiologically related to his period of service? Please explain why or why not. (b) Is it at least as likely as not (50 percent or greater probability) that the Veteran's symptoms of fatigue are etiologically related to his period of service? Please explain why or why not. The examiner should consider and address the Veteran's lay statements regarding the onset and continuity of his symptoms. Specifically, the examiner is asked to consider statements provided in the December 2011 Statement in Support of Claim that he had been tired and chronically fatigued since his deployment, statements provided in the July 2013 VA Form 9 that he had experienced snoring for 22 years, and statements provided during his June 2015 VA examination that his spouse had observed difficulty breathing during sleep since the 1990s. The examiner should review pertinent documents in the Veteran's claims file. All indicated studies should be completed. Reasons should be provided for any opinion rendered. If the examiner is unable to provide an opinion without resort to speculation, an explanation as to why this is so should be provided and any additional evidence that would be necessary before an opinion could be rendered should be identified. 3. Then, schedule the Veteran for an examination, to include neurological and neuropsychological examinations, by an appropriate examiner to determine the nature and etiology of any diagnosed memory loss (or telehealth interview, review of the record, etc., if an in-person examination is not feasible). If either examination is determined unnecessary, an explanation should be provided. The examiner must determine whether there is a diagnosable disability to account for the Veteran's reported memory loss. If a distinct diagnosable condition is appropriate, the examiner should also explain why this is so. (a) If a diagnosable condition (known clinical diagnosis) is identified for memory loss, the examiner must provide an opinion as to whether it is at least as likely as not (a 50 percent probability or greater) that any such diagnosed memory loss is etiologically related to the Veteran's military service, to specifically include as due his service in Operation Desert Shield/Storm? (b) If a diagnosable condition is not appropriate to account for any of the distinct groupings of symptoms detailed by the Veteran, please note whether the Veteran has a medically unexplained chronic multi-symptom illness corresponding to each distinct grouping of symptoms for which there is no diagnosable condition that accounts for that symptomatology (c) Furthermore, please describe whether any of the symptoms of memory loss were chronic in nature since service and thus would constitute a qualifying chronic disability under 38C.F.R. § 3.317(a)(2)(i)(B). If this question is answered in the negative, an explanation for this determination is needed. If this question is answered in the positive, for each grouping of symptoms, please address the possible etiologies of such chronic disability. If a chronic disability is found to be attributable to a supervening condition or event that occurred between the Veteran's departure from active duty in Operation Desert Shield/Storm, the examiner should so state The examiner should review pertinent documents in the Veteran's claims file. All indicated studies should be completed. Reasons should be provided for any opinion rendered. If the examiner is unable to provide an opinion without resort to speculation, an explanation as to why this is so should be provided and any additional evidence that would be necessary before an opinion could be rendered should be identified. S. HENEKS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Lamb, 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.