Citation Nr: 23057166 Decision Date: 10/20/23 Archive Date: 10/20/23 DOCKET NO. 20-11 511 DATE: October 20, 2023 REMANDED Entitlement to service connection for Guillain-Barre Syndrome (GBS), to include as due to environmental exposures, an undiagnosed illness, or a medically unexplained chronic multisymptom illness (MUCMI), is remanded. Entitlement to service connection for bilateral tinnitus is remanded. Entitlement to service connection for a throat disability, to include as secondary to a service-connected sleep apnea disability, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Navy from May 1992 through May 1996, with service in the Southwest Asia Theater of Operations. This matter comes before the Board of Veterans' Appeals (Board) from a May 2018 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO), which denied reopening of the claims for service connection for posttraumatic stress disorder (PTSD), bilateral tinnitus, and GBS and service connection for a throat disability secondary to sleep apnea. In February 2021, the Board granted a petition to reopen the claims for service connection for GBS and bilateral tinnitus and remanded the claims for GBS and bilateral tinnitus for additional development. The Board also remanded the claim for service connection for a throat disability, to include as secondary to sleep apnea. A remand by the Board confers upon the claimant a legal right to substantial compliance with the remand order; thus, when the Board's remand directives are not satisfied, the Board errs as a matter of law if it fails to ensure substantial compliance with such directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). As will be discussed below, substantial compliance with the Board's February 2021 remand directives has not occurred, thus, the Veteran's claims must once again be remanded for further development. See id. Although the Board regrets the additional delay, another remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. 1. Service connection for GBS, to include as due to environmental exposures, an undiagnosed illness, or a MUCMI The Veteran seeks service connection for his diagnosed GBS. See March 2018 Application for Disability Compensation and Related Compensation Benefits; May 2019 Notice of Disagreement. In his March 2018 claim, he asserted that he developed GBS due to environmental hazards. In his December 2020 appellate brief, he also asserted that he developed GBS due to Gulf War exposures and was also claiming GBS as an undiagnosed illness or a MUCMI. A remand is necessary for an adequate medical opinion, addressing Toxic Exposure (TERA). See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). In September 2015, the Veteran had a Gulf War general examination. In the accompanying September 2015 peripheral nerves VA examination, the examiner described the onset of the Veteran's GBS in 2001 and a physical examination found hypoactive deep tendon reflexes in the left ankle and knee and the right ankle. There was also decreased sensation in the left foot and toes (L5), with mild incomplete sciatic nerve paralysis in the left lower extremity. The Veteran reported that his symptoms had mostly resolved but he had right leg shaking for about a week once every three to four months. The examiner opined that GBS was not an undiagnosed illness and was not a MUCMI and did not have a partially explained etiology. The examiner ultimately opined that it was a disease with a clear and specific etiology and diagnosis, and it was not related to a specific exposure event in service because it presented five years after service shortly after an upper respiratory infection. The examiner cited to May Clinic literature which stated that the exact cause of GBS was not known, but it usually appears days or weeks after a respiratory or digestive tract infection, and that there were a number of risk factors, including being a man or an older adult. However, the examiner did not address whether GBS had a partially explained pathophysiology and did not consider the cumulative effect of the Veteran's exposures during service. Further, it is unclear how GBS could be a disease with a clear and specific etiology when the May Clinic literature cited stated that the exact cause of GBS was not known. In May 2021, the Veteran had an autoimmune examination. The examiner found the congenital cyst in the left parietal area of the brain that was found in 2001, at the same time that GBS was diagnosed, was unrelated to GBS. The examiner opined that the GBS was less likely than not incurred in or caused by service. The rationale was that the Veteran did not have symptoms of GBS during service and he did not have symptoms until 2001, five years after separating from service, three weeks after he had an upper respiratory infection. The examiner cited to general medical knowledge and literature from the National Institutes of Health stating that the exact cause of GBS syndrome is not known, but that most cases of GBS occur within days or weeks of a respiratory or viral gastrointestinal infection. The examiner did not address whether GBS has a partially explained etiology or partially explained pathophysiology and did not consider whether it could be the result of the Veteran's cumulative exposures during service. See Stewart v. Wilkie, 30 Vet. App. 383, 392 (2018). Further, in December 2022, VA issued a TERA Memorandum, indicating the Veteran participated in a TERA during service. However, VA did not request a TERA examination or a new TERA related VA medical opinion regarding his GBS. On remand, the RO should obtain a TERA examination and a medical opinion, addressing whether GBS has a partially explained etiology or partially explained pathophysiology and whether it is related to his cumulative TERA. 2. Service connection for bilateral tinnitus The Veteran contends that his bilateral tinnitus is related to service. See March 2018 Application for Disability Compensation and Related Compensation Benefits; May 2019 Notice of Disagreement. Specifically, he asserts that he worked with aircraft engines in service and since then, he has had constant tinnitus that makes it hard to communicate. See September 2020 Statement; December 2020 Appellate Brief; May 2021 VA Examination. A remand is required for an adequate VA examination. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The Veteran underwent a VA Gulf War examination in September 2015. The examiner noted that the Veteran's military occupational specialty (MOS) had a high probability for hazardous noise exposure but opined that his tinnitus was less likely than not related to service. The rationale was that there was no report of tinnitus in service records and the Veteran reported a sudden onset of tinnitus in 2003-2004. However, the examiner also opined that there was no "clear and convincing evidence" that the tinnitus was incurred in service. Because the examiner appeared to use the incorrect evidentiary standard, the opinion provided is inadequate. The Veteran underwent a VA examination in May 2021. The examiner opined that it is less likely than not (less than 50 percent probability) the Veteran's tinnitus was caused by or a result of military noise exposure. The rationale was that service records showed normal hearing without significant threshold shifts that would evidence auditory damage. Further, the Veteran did not report tinnitus until 2015, and when he reported it, he stated that it began intermittently in 2003-2005. The examiner cited to a study indicating that when there are no changes in hearing from a specific episode or period of exposure it is less likely that tinnitus is due to that exposure; however, the examiner did not provide the name of the study, simply the first author's name. The examiner also relied on an Institute of Medicine (IOM) Study from 2006 to find that there was not sufficient evidence to determine that permanent noise-induced tinnitus can develop much later in one's lifetime. However, the examiner did not discuss the contradictions presented in the study. See McCray v. Wilkie, 31 Vet. App. 243, 258 (2019). On remand, the RO should obtain an adequate VA medical opinion. 3. Service connection for a throat disability, to include as secondary to service-connected sleep apnea The Veteran contends that he has a throat disability that began in service that his related to his current symptoms of enlarged tonsils with disruption during sleep and sore throat and burning sensation when swallowing. See March 2018 Application for Disability Compensation and Related Compensation Benefits; July 2021 VA Examination. Alternatively, he contends that he has a throat disability that is related to his service-connected sleep apnea disability. See May 2019 Notice of Disagreement. A remand is required for an adequate VA medical opinion. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The Veteran was provided with a VA examination and corresponding medical opinion in July 2021. The examiner checked a box indicating that the Veteran had a larynx or pharynx condition; however, in the corresponding examination parts, the examiner then checked boxes finding that the Veteran had no larynx or pharynx condition. The examiner stated the Veteran had only subjective symptoms and there was no record of chronic treatment or care for a throat disorder since discharge from service. The examiner also noted that a 2003 Gulf War Registry examination found he had a normal throat. The examiner did not provide an adequate medical explanation for why the Veteran's reported symptoms of episodes of a sore throat with burning sensation when swallowing once every three to four months did not amount of a throat condition or disability, or residuals of his tonsillectomy in service. Service treatment records show that in February 1994 the Veteran reported five episodes of tonsillitis over the past two years, four of which occurred since April 1993, and that he was asymptomatic between episodes. He had an elective tonsillectomy in 1994 but continued to complain of a sore throat with swollen glands and in February 1996 was again diagnosed with tonsillitis. The Board finds a remand is necessary to reconcile the contradictory findings of the July 2021 medical examiner. See Stefl v. Nicholson, 21 Vet. App. 120 (2007). The matters are REMANDED for the following action: 1. Ask the Veteran to identify, and provide appropriate releases for, any care providers who may possess new or additional evidence pertinent to the issues on appeal. If he provides the necessary releases, assist him in obtaining the records identified, following the procedures set forth in 38 C.F.R. § 3.159. Any new or additional (i.e., non-duplicative) evidence received should be associated with the record. If any of the records sought are not available, the record should be annotated to reflect that fact, and the Veteran should be notified. 2. Obtain copies of records pertaining to any VA treatment the Veteran has received since the time that such records were last procured, following the procedures set forth in 38 C.F.R. § 3.159. The evidence obtained, if any, should be associated with the record. 3. Schedule the Veteran for a TERA examination that also addresses Guillain-Barre Syndrome, tinnitus, and any throat disability. The examiner should review the claims file, including a copy of this remand, and answer the following: Guillain-Barre Syndrome (a) Is the Veteran's Guillain-Barre Syndrome (1) an undiagnosed illness, (2) a diagnosable but medically unexplained chronic multisymptom illness (MUCMI) of unknown etiology or pathophysiology, (3) a diagnosable chronic multisymptom illness with a partially explained etiology and partially explained pathophysiology, or (4) a disease with a clear and specific etiology and diagnosis and pathophysiology. The examiner should discuss both the pathophysiology and the etiology of the condition in answering the above. (b) If the examiner determines it is either (3) or (4) above that is, a diagnosable chronic multi-symptom illness with a partially explained etiology and pathophysiology, OR a disease with a clear and specific etiology and diagnosis and pathophysiology, the examiner should opine whether it is at least as likely as not (likelihood in approximate balance, if not greater) related to the Veteran's active service. The examiner should address the Veteran's (1) total potential toxic exposure through all applicable military deployments; and (2) the synergistic, combined effect of all toxic exposure risk activities. Tinnitus (a) Whether it is at least as likely as not (likelihood in approximate balance, if not higher) that the Veteran's tinnitus began in service, within a year of separation from service or is otherwise related to service? The examiner must consider the Veteran's MOS of Aviation Electrician's Mate with a high probability of noise exposure and that in-service hazardous noise exposure has been conceded. If the examiner relies upon the 2006 IOM report regarding delayed onset hearing loss, the examiner should address the seemingly contradictory or qualifying statements in that report. McCray v. Wilkie, 31 Vet. App. 243, 258 (2019). The examiner should also address the Veteran's (1) total potential toxic exposure through all applicable military deployments; and (2) the synergistic, combined effect of all toxic exposure risk activities. Throat Disability (a) Clarify whether the Veteran has had a throat disability at any point since filing his March 2018 claim. If a diagnosis cannot be provided but the Veteran's condition manifests in pain that results in functional impairment, then the examiner should consider them a "disability" for the purpose of providing the requested opinions below. (b) For any disability diagnosed, is it at least as likely as not (likelihood in approximate balance, if not higher) related to service, to include symptoms of sore throat and swelling with a tonsillectomy? The examiner should also address the Veteran's (1) total potential toxic exposure through all applicable military deployments; and (2) the synergistic, combined effect of all toxic exposure risk activities. (c) For any disability diagnosed, is it at least as likely as not (likelihood in approximate balance, if not higher) caused by service-connected disability, or functionally worsened by the service-connected disability, to include as due to an inability to treat it? In other words, would the throat disability not have developed or been aggravated but for the service-connected disabilities? The examiner must address the Veteran's contention that he has a throat disability due to his service-connected sleep apnea. The examiner should provide a complete rationale and detailed medical explanation. If speculation is required, the examiner should explain why. Marissa Caylor Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Michel-Rossi 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.