Citation Nr: 23025762 Decision Date: 05/04/23 Archive Date: 05/04/23 DOCKET NO. 14-06 926 DATE: May 4, 2023 REMANDED Entitlement to service connection for right side pain is remanded. Entitlement to service connection for fatigue is remanded. Entitlement to service connection for a lung condition is remanded. Entitlement to service connection for shortness of breath is remanded. REASONS FOR REMAND The Veteran served on active duty from January 2002 to May 2002 and October 2003 to April 2005, with subsequent service in the Army National Guard. The appeal has been before the Board several times, most recently in August 2022. There has not been substantial compliance with the remand and another remand is required. Stegall v. West, 11 Vet. App. 268 (1998). 1. Entitlement to service connection for right side pain is remanded. 2. Entitlement to service connection for fatigue is remanded. 3. Entitlement to service connection for lung condition is remanded. 4. Entitlement to service connection for shortness of breath is remanded. The Veteran's representative argued that the September 2022 VA opinion obtain on remand is inadequate. See April 2023 written brief. The Board agrees and the claims must be remanded again to obtain an opinion that is responsive. The VA examiner opined, "I find no affirmative evidence that Veteran's complaints [] did not incur during his time in the Persian Gulf...[h]e developed a spontaneous pneumothorax June 2008 post Persian Gulf service...[c]hest X-ray dated August 17th, 2007, was negative...[i]t appears that his complaints per available documentation began after said pneumothorax." This opinion is inconsistent. The examiner was not able to cite any affirmative evidence that the Veteran's claimed disabilities were not incurred during active duty yet appears to conclude that the 2008 pneumothorax was the more likely source because the Veteran's complaints were not documented prior to that point. Additionally, although the examiner cites the pneumothorax, no opinion was offered as to whether the pneumothorax was etiologically related to active-duty service, to include environmental exposures in Southwest Asia. Therefore, further remand is necessary. Additional medical records were associated with the record after the October 2022 supplemental statement of the case (SSOC). As the appeal is being remanded, the Agency of Original Jurisdiction (AOJ) can review those records. The matters are REMANDED for the following action: 1. Obtain a medical opinion from an appropriate clinician on the nature and likely etiology of the Veteran's right-side pain, fatigue, lung condition, and shortness of breath. Specifically, whether these represent undiagnosed illnesses related to his Gulf War active-duty service. Copies of all pertinent records must be made available to the examiner for review. If the examiner determines that an opinion cannot be provided without an examination, one should be scheduled. Based on a review of the record, and examination if deemed necessary, the examiner should answer the following: (a) Is there affirmative evidence that the undiagnosed illness is not incurred during active service during the Persian Gulf War or that it was caused by a supervening condition or event that occurred since the Veteran's departure from service during the Persian Gulf War? The examiner should note that a positive response to this question requires affirmative evidence. The mere absence of evidence is not sufficient. (b) Is it at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that the Veteran's pneumothorax is etiologically related to his environmental exposure during the Persian Gulf War? In providing these opinions the examiner must address the conflicting opinions provided in the September 2022 VA medical opinions. 2. The AOJ must review the record and ensure that the foregoing development action has been completed in full. If any development is incomplete, appropriate corrective action must be taken. If any report does not include adequate responses to the specific opinions requested, it must be returned to the providing examiner for corrective action. Then readjudicate the claims, with specific consideration of all evidence added since the October 2022 SSOC. M.E. Larkin Veterans Law Judge Board of Veterans' Appeals Attorney for the Board P.S. McLeod 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.