TINNITUS

MICHAEL T. OSBORNE · 2025 · Case ID: 25000200

MIXED

Summary

The veteran, who served in the U.S. Navy from August 1989 to January 1993 as a molder, appeals the denial of service connection for fibromyalgia and the reopening of a previously denied claim for Gulf War Syndrome. The veteran also appeals the denial of service connection for tinnitus and obstructive sleep apnea (OSA). The Board granted service connection for tinnitus, finding the veteran's MOS as a molder conceded in-service acoustic trauma, and his lay statements regarding continuous ringing since the early 1990s and noise exposure were competent and credible. The Board also granted service connection for OSA, finding the veteran's consistent reports of sleep disturbances since the early 1990s, including being told he stopped breathing during sleep, and his diagnosis of OSA after service, coupled with his lay testimony about these symptoms in service, were competent and credible. The Board denied service connection for fibromyalgia, noting the absence of a diagnosis in service treatment records, VA treatment records, or the October 2015 VA examination, and finding the examiner's opinion that the condition was less likely than not related to service persuasive. The Board also denied reopening the Gulf War Syndrome claim, finding no new and material evidence had been received since the December 2010 final denial. The case is remanded for further development regarding autoimmune disorder and colon cancer claims, including appropriate examinations addressing toxic exposure risk activities (TERAs) in light of the PACT Act.

Rationale

Competent and credible lay evidence of in-service noise exposure; Continuity of symptomatology established; Benefit of the doubt resolved in Veteran's favor

Service Branch

NAVY

Special Benefit

NO SPECIAL BENEFIT

Docket No.

19-26 326A

Full Decision Text

Citation Nr: 25000200
Decision Date: 01/08/25 Archive Date: 01/08/25

DOCKET NO. 19-26 326A
DATE: January 8, 2025

ORDER

Entitlement to service connection for tinnitus is granted.

Entitlement to service connection for obstructive sleep apnea (OSA) is granted.

Entitlement to service connection for fibromyalgia is denied.

As new and material evidence has not been received, the previously denied claim of service connection for a disability characterized as Gulf War Syndrome is not reopened.

REMANDED

Entitlement to service connection for an autoimmune disorder, including as due to in-service participation in a toxic exposure risk activity (TERA), is remanded.

Entitlement to service connection for colon cancer, to include gastrointestinal issues, including as due to in-service participation in a TERA, is remanded.

FINDINGS OF FACT

1. The record evidence shows that the Veteran's military occupational specialty (MOS) was molder; thus, his in-service exposure to acoustic trauma is conceded.

2. Resolving any reasonable doubt in the Veteran's favor, the record evidence supports finding that his tinnitus is related to active service due to his conceded in-service exposure to acoustic trauma.

3. The record evidence shows that the Veteran consistently has reported frequent trouble sleeping and being told that he stopped breathing during his sleep.

4. The record evidence shows that the Veteran has been diagnosed as having OSA since his service separation.

5. Resolving any reasonable doubt in the Veteran's favor, the record evidence supports finding that his OSA is related to active service.

6. The record evidence persuasively weighs against finding that the Veteran experienced fibromyalgia at any time during the appeal period.

7. The record evidence shows that, in a rating decision dated on February 15, 2010, and issued to the Veteran and his former service representative on February 17, 2010, the Agency of Original Jurisdiction (AOJ) (in this case, the RO) denied the Veteran's request to reopen a previously denied claim of service connection for a disability characterized as Gulf War Syndrome; this decision was not appealed and became final.

8. The evidence received since December 2010 either is cumulative or redundant of evidence previously submitted in support of the claim of service connection for a disability characterized as Gulf War Syndrome.

CONCLUSIONS OF LAW

1. The criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.309.

2. The criteria for service connection for obstructive sleep apnea (OSA) have been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.303.

3. The criteria for service connection for fibromyalgia have not been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.303. 3.317.

4. The rating decision dated on February 15, 2010, and issued to the Veteran and his former service representative on February 17, 2010, which denied a request to reopen a previously denied claim of service connection for a disability characterized as Gulf War Syndrome, is final. 38 U.S.C. § 7104; 38 C.F.R. §§ 20.302, 20.1103.

5. Evidence received since the December 2010 rating decision in support of the request to reopen previously denied claim of service connection for a disability characterized as Gulf War Syndrome is not new and material; thus, this claim is not reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran had active U.S. Navy service from August 1989 to January 1993.

This appeal has a long procedural history. It comes before the Board of Veterans' Appeals (Board) on appeal from a November 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Acting Veterans Law Judge during an April 2022 virtual hearing. A transcript of the hearing is associated with the Veteran's claim file.

The Board observes that, in a December 2010 rating decision, the RO denied the Veteran's request to reopen a previously
.F.R. § 3.156.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran had active U.S. Navy service from August 1989 to January 1993.

The Board observes that, in a December 2010 rating decision, the RO denied the Veteran's request to reopen a previously denied claim of service connection for a disability characterized as Gulf War Syndrome (which was characterized as Gulf War Syndrome (also claimed as exposed to all kinds of hazards during the Gulf War, unknown exposure)). The Veteran did not appeal this decision and it became final. See 38 U.S.C. § 7104. He also did not submit any relevant evidence or argument within 1 year of the December 2010 rating decision which would render it non-final for VA adjudication purposes. See Buie v Shinseki, 24 Vet. App. 242, 251-52 (2011).

The Board does not have jurisdiction to consider a claim that has been adjudicated previously unless new and material evidence is presented. See Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). Therefore, the issue of whether new and material evidence has been received to reopen a claim of service connection for a disability characterized as Gulf War Syndrome is as stated above. Regardless of the RO's actions, the Board must make its own determination as to whether new and material evidence has been received to reopen this claim. That is, the Board has a jurisdictional responsibility to consider whether a claim should be reopened. See Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). Having reviewed the record evidence, the Board finds that the claims on appeal should be characterized as stated above.

Neither the Veteran nor his attorney has raised any other issues nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that Board not required to address issues unless specifically raised by claimant or reasonably raised by record evidence).

1. Entitlement to service connection for tinnitus

The Veteran contends that his tinnitus had an onset during his military service as he was exposed to loud noise and acoustic trauma due to his MOS of molder.

Turning to the first element of service connection, the Veteran reported on VA outpatient treatment in August 2014 that he has tinnitus. Tinnitus is a type of disorder capable of lay observation and description. Charles v. Principi, 16 Vet. App. 370, 374 (2002). He testified at the April 2022 Board hearing that he has had continuous ringing in his ears since the early 1990s. See April 2022 Board Hearing Transcript at pg. 6. Thus, the first element of service connection is met.

Regarding an in-service event, the Veteran's service treatment records (STRs) are silent as to any complaints or treatment for tinnitus. The Veteran stated in April 2015 correspondence that he had repeated high frequency noise levels due to his job in the military as a molder and that he has ear pain in the form of ringing in his ears. He reiterated during the April 2022 Board hearing that he was exposed to very loud high frequency continuous noise as he used a high frequency inductor thermal furnace and other equipment in the foundry to melt steel, brass, bronze. His DD Form 214 confirms that his MOS was a molder (ML). Based on this information, the Board acknowledges that the Veteran was exposed to loud noise in service. The Board also finds that the Veteran's assertions regarding his in-service noise exposure and the onset, nature, and progression of his tinnitus are considered competent and credible lay evidence of such exposure. Thus, the second element of service connection is met.

Lastly, regarding the nexus or link between the current disability and the in-service disease or injury, the Board acknowledges that, to date, the Veteran has not been afforded a VA examination and medical opinion. Nonetheless, he credibly reports that his tinnitus started during active service due to noise exposure while in service. He also reported credibly that he experienced tinnitus since service. As such, the Board finds that a continuity of symptomatology for tinnitus has been established based on the Veteran's statements which meets the remaining element of service connection.
regarding his in-service noise exposure and the onset, nature, and progression of his tinnitus are considered competent and credible lay evidence of such exposure. Thus, the second element of service connection is met.

Lastly, regarding the nexus or link between the current disability and the in-service disease or injury, the Board acknowledges that, to date, the Veteran has not been afforded a VA examination and medical opinion. Nonetheless, he credibly reports that his tinnitus started during active service due to noise exposure while in service. He also reported credibly that he experienced tinnitus since service. As such, the Board finds that a continuity of symptomatology for tinnitus has been established based on the Veteran's statements which meets the remaining element of service connection. In summary, and after resolving any reasonable doubt in the Veteran's favor, the Board finds that service connection for tinnitus is warranted.

2. Entitlement to service connection for sleep apnea

The Veteran next asserts that his sleep apnea is related to his military service.

He has a diagnosis of obstructive sleep apnea as documented in a March 2005 sleep study. It was recommended that, due to the moderate degree of his sleep apnea, nasal CPAP would generally be the most effective form of treatment. Additionally, an August 2014 VA treatment record documents that he had a home sleep study which was positive for obstructive sleep apnea. Therapy with auto-adjusting CPAP was suggested. Thus, he meets the current disability requirement.

STRs do not show that the Veteran reported frequent trouble sleeping during military service. He testified at the April 2022 Board hearing that he struggled with difficulty sleeping since the early '90s. He next testified that he remembered a time in the berthing area during service where other sailors said that there were going to have to kickstart him because he sounded like he had stopped breathing. He also testified that he did not have any of these issues when he was younger. See April 2022 Board Hearing Transcript at pg. 10. The Board finds that the Veteran's statements, including his testimony, regarding his in-service and post-service symptoms of trouble sleeping and stopping breathing while asleep to be competent and credible. Thus, the in-service disease or injury requirement is met.

As for an etiological relationship between OSA and military service, the Board notes that, to date, the Veteran has not been afforded a VA examination and opinion regarding this claim. Thus, the Board is left with competent lay evidence of symptoms in service which are the same as those which formed the basis of the more recent diagnosis of OSA. To the extent that a grant of service connection is based on lay evidence, the Board notes that OSA is the type of disability for which lay evidence may be sufficient to establish service connection. Maples v. Wilkie, No. 18-2016, 2019 U.S. App. Vet. Claims LEXIS 199 (Feb. 11, 2019) (mem dec) (Falvey, J.) (lay evidence can be sufficient to support a claim for service connection for sleep apnea); Bethea v. Derwinski, 2 Vet. App. 252, 254 (1992) (single judge decisions may be relied upon for any persuasiveness or reasoning they contain). Having reviewed the record evidence, the Board concludes that it is sufficient to adjudicate the currently appealed claim and a remand is not warranted. See also Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (holding that remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the claimant are to be avoided). The record evidence clearly shows the Veteran had sleep-related symptoms in service which later formed the basis for a formal diagnosis of sleep apnea and he continued to have these symptoms after service. In summary, and after resolving any reasonable doubt in the Veteran's favor, the Board finds that service connection for OSA is warranted.

3. Entitlement to service connection for fibromyalgia

The Veteran next asserts that service connection for fibromyalgia is warranted due to his service in Southwest Asia.

VA will pay compensation to a Persian Gulf Veteran who exhibits objective indications of a qualifying chronic disability, provided that such disability: (i) became manifest either during active military, naval, or air service in the Southwest Asia theater of operations, or to a degree of 10 percent or more not later than December 31, 2026, and (ii) by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis. 38 C.F.R. § 3.317(a)(1). The Board notes here that the Sergeant First Class Heath Robinson Honoring our Promise to Address Comprehensive Toxins Act of 2022 ("PACT Act") eliminated the manifestation period and the degree to which a qualifying chronic disability must manifest. See Pub. L. No. 117-168 (August 10, 2022). Therefore, an undiagnosed illness or medically unexplained chronic multi-symptom illness (MUCMI) may now manifest at any time to any degree, including noncompensable. 38 U.S.C. § 1117. A qualifying chronic disability is either an undiagnosed illness or a MUCMI that is defined by a cluster of signs and symptoms, such as fibromyalgia, chronic fatigue syndrome, or functional gastrointestinal disorders (excluding structural gastrointestinal diseases). 38 C.F.R. § 3.317(a)(2)(i). A MUCMI is defined as a diagnosed illness without conclusive pathophysiology or etiology, that is characterized by overlapping symptoms and signs and has features such as fatigue, pain, disability out of proportion to physical findings, and inconsistent demonstration of laboratory abnormalities. 38 C.F.R. § 3.317(a)(2)(ii).

It is undisputed that the Veteran served in the Southwest Asia theater of operations during the presumptive period. The crux of this appeal centers on whether he has a diagnosis of fibromyalgia which can be attributed to active service.

The Veteran's STRs are silent for any treatment or complaints for fibromyalgia. The Board notes that the absence of contemporaneous records does not preclude granting service connection for a claimed disability. See, for example, Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (no authority prohibits the Board's sensible inference that there should be some corroborative record of an injury officially reported or medical treatment actually received); Barr v. Nicholson, 21 Vet. App. 303 (2007) ("Board may not reject as not credible any uncorroborated statements merely because the contemporaneous medical evidence is silent as to complaints or treatment for the relevant condition or symptoms"); see also 38 C.F.R. § 3.303(d) ("Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.")

A diagnosis of fibromyalgia also is not found in the VA and private post-service treatment records. Although VA and private treatment records acknowledge that the Veteran had muscle and joint pain, there is no confirmed diagnosis of fibromyalgia found in the treatment records.

The Veteran was afforded a VA examination in October 2015 but there was no diagnosis of fibromyalgia. The VA examiner stated that there are notes regarding joint pain but no definitive diagnosis and the Veteran did not meet the guidelines for fibromyalgia. This examiner also stated that the Veteran's symptoms do not impact his ability to work. The Veteran reported that he began to have aching in his core muscles and feeling stiff in 2003 and 2004. He had to quit working due to stiffness but later he confirmed that he actually had a shoulder injury that prevented him from working. The VA examiner opined that the claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The rationale for this opinion was that, even though the Veteran has some pain in hands, feet, and occasionally in other joints, he describes them as mostly stiff and achy. The VA examiner explained that, on physical examination, the Veteran has mild complaints of pain/tenderness of feet and stiffness of the hands and mild tenderness of bilateral ankles and feet. He had mild arthritis of the feet and only feet pain in the military. The VA examiner concluded that there is no concrete diagnosis of fibromyalgia and medication is Tramadol only as needed. Furthermore, the VA examiner noted that there is no functional impact of additional signs and/or symptoms that may represent an "undiagnosed illness" or "diagnosed medically explained chronic multi-symptom illness." This examiner opined that it is less likely as not that the complaints of fibromyalgia
joints, he describes them as mostly stiff and achy. The VA examiner explained that, on physical examination, the Veteran has mild complaints of pain/tenderness of feet and stiffness of the hands and mild tenderness of bilateral ankles and feet. He had mild arthritis of the feet and only feet pain in the military. The VA examiner concluded that there is no concrete diagnosis of fibromyalgia and medication is Tramadol only as needed. Furthermore, the VA examiner noted that there is no functional impact of additional signs and/or symptoms that may represent an "undiagnosed illness" or "diagnosed medically explained chronic multi-symptom illness." This examiner opined that it is less likely as not that the complaints of fibromyalgia are related to a specific exposure event experienced by the Veteran during service in Southwest Asia. This examiner confirmed that, after review of the Veteran's claim file and completing patient history and physical and current labs, there is no diagnosis of fibromyalgia.

The Board recognizes that the Veteran believes that he has fibromyalgia. Nevertheless, a diagnosis of fibromyalgia is medically complex and is beyond the realm of knowledge of the Veteran as a lay person. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). As the Veteran does not have the medical training or expertise to diagnose fibromyalgia, his lay statements, alone, are not competent medical evidence to establish a current disability. The Board assigns higher probative value to the October 2015 VA examination report, private treatment records, and VA treatment records which show no diagnosis of fibromyalgia.

The Veteran's reported complaints of pain in multiple joints also do not result in functional impairment such that service connection is warranted even under the low threshold of Saunders. See Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018) (finding that service connection is warranted for complaints of pain which result in functional impairment). He has not made any specific contentions regarding how his reported symptoms related to his claimed fibromyalgia resulted in specific functional impairment of earning capacity. Id. And there is no evidence that any symptoms related to the claimed fibromyalgia resulted in functional impairment in earning capacity. Critically, the October 2015 VA examiner stated that the Veteran's reported symptoms do not impact his ability to work and there is no functional impact of additional signs and/or symptoms that may represent an "undiagnosed illness" or "diagnosed medically explained chronic multi-symptom illness." Thus, the Board finds that service connection for fibromyalgia is not warranted even under the low threshold of Saunders. Id.

Having reviewed the record evidence, the Board concludes that the Veteran did not have fibromyalgia at any time during the pendency of the claims or at any time contemporaneous to the filing of the currently appealed claim. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). The presence of a current disability is the cornerstone of any service connection claim. Service connection is not warranted when there is no current disability. Brammer v. Derwinski, 3 Vet. App. 223 (1992). In this case, the Board is not required to discuss the in-service incident or nexus elements of a service connection claim because the evidence does not establish a current disability. The evidence persuasively weighs against the claim. Therefore, the benefit of the doubt rule does not apply. Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (en banc). In summary, the Board finds that service connection for fibromyalgia is not warranted.

4. Whether new and material evidence has been received to reopen the previously denied claim of service connection for a disability characterized as Gulf War Syndrome

The Veteran finally contends that new and material evidence has been received sufficient to reopen the previously denied service connection claim for a disability characterized as Gulf War Syndrome.

Having reviewed the record evidence, the Board is not persuaded that it supports granting the Veteran's request to reopen the previously denied claim of service connection for a disability characterized as Gulf War Syndrome. The Board notes initially that claims of service connection may be reopened if new and material evidence is received. See Manio v. Derwinski, 1 Vet. App. 140 (1991). The RO initially denied service connection for a disability characterized as Gulf War Syndrome in a December 2008 rating decision. The Veteran requested that this claim be reopened in VA Form 21 526b dated on July 29, 2010, and date stamped as received electronically by VA on August 4, 2010. The RO subsequently denied the Veteran's request to reopen the previously denied service connection claim for a disability characterized as Gulf War Syndrome in a December 2010 rating decision. Neither the December 2008 nor the December 2010 rating decision was appealed; thus, both of these decisions are now final. 38 U.S.C. § 7104; 38 C.F.R. §§ 20.302, 20.1103. New and material evidence is defined by regulation. See 38 C.F.R. § 3.156(a). In determining whether evidence is new and material, the credibility of the new evidence is to be presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992).

With respect to the Veteran's application to reopen the previously denied service connection claim for a disability characterized as Gulf War Syndrome, he did not submit any additional evidence in conjunction with this claim in August 2010. The RO confirmed and continued the denial for service connection for a disability characterized as Gulf War Syndrome in a December 2010 rating decision. It found that the Veteran did not submit any evidence to support his claim. Therefore, the claim was not reopened.

The newly received evidence since the December 2010 rating decision consists of the Veteran's lay statements and additional VA and private outpatient treatment records. This evidence still does not show that the Veteran has clinical findings of a disease process which has been shown to be related to a disability characterized as Gulf War Syndrome. In other words, although new, this evidence is not material to the question of whether service connection for a disability characterized as Gulf War Syndrome is warranted.

The Board notes that the Court held in Shade v. Shinseki, 24 Vet. App. 110 (2010), that the phrase "raises a reasonable possibility of substantiating the claim" found in the post-VCAA version of 38 C.F.R. § 3.156(a) must be viewed as "enabling" reopening of a previously denied claim rather than "precluding" it. The Board also notes again that all of the newly received evidence is presumed credible solely for the limited purpose of reopening the previously denied claim. See Justus, 3 Vet. App. at 513. Despite the lay assertions to the contrary, the fact remains that the newly received evidence still does not support finding that the Veteran has clinical findings of a disease process which is related to a disability characterized as Gulf War Syndrome. In other words, the Board finds that there is no reasonable possibility that the newly received evidence would enable rather than preclude reopening this claim. Unlike in Shade, there is no new evidence in this case either previously considered in the December 2010 rating decision or received since that decision became final which demonstrates that the Veteran has clinical findings of a disease process which is related to a disability characterized as Gulf War Syndrome. Thus, the analysis of new and material evidence claims that the Court discussed in Shade is not applicable to the request to reopen the previously denied service connection claim for a disability characterized as Gulf War Syndrome. In summary, as new and material evidence has not been received, the previously denied claim of service connection for a disability characterized as Gulf War Syndrome is not reopened.

REASONS FOR REMAND

Entitlement to service connection for an autoimmune disorder and for colon cancer, to include gastrointestinal issues, each including as due to in-service participation in a TERA, is remanded.

The Board acknowledges here that this appeal has been pending for several years. Unfortunately, although the Board regrets the additional delay which may be caused, a remand is necessary in order to ensure that due process is followed and there is a complete record upon which to decide the currently appealed claims so that the Veteran is afforded every possible consideration. The Board notes that the PACT Act became law during the appeal period and impacts adjudication of the claims being remanded here.

The Veteran contends that he has an autoimmune disorder and colon cancer, to include gastrointestinal issues, which are due to active service, specifically his deployment to Southwest Asia during the Gulf War. He reported participating in the following TERAs during active service: chemical exposures and exposure from oil fire smoke. Although the Veteran asserted that in-service vaccinations administered to him during and after his Southwest Asia deployment constituted an in-service TERA, VA does not recognize this type of exposure as a TERA.

With respect to the service connection claim for autoimmune disorder, a review of the Veteran's private treatment records from Dr. R.B. shows that, in October 2009, the Veteran was diagnosed with Desert Storm layer autoimmune disorder and started methotrexate 2.5 mg 5 tablets per week. A July 2010 private treatment record from Dr. R.B. assessed the Veteran with "Desert Storm overlay autoimmune."

The Veteran was afforded a VA Gulf War General Medical examination in October 2015. The examiner indicated that there was no current diagnosis related to an autoimmune condition. The examiner opined that the condition claimed was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. As rationale, the examiner stated that the Veteran's claims files included a note that the Veteran has exhibited a cyclic autoimmune disorder due to recurrent chemical exposure at work. The Veteran's treating physician, Dr. R.B., named this exposure product as a polymer plastic cross linker which was used in the Veteran's last job as a civilian where he worked with this adhesive glue product and left this job in 2010 due to shoulder injury. The VA examiner explained that the Veteran has other exposures to many chemicals. She stated that his complaints are all noted post military. Critically, this examiner opined that it is less likely as not that the autoimmune disorder is related to a specific exposure event experienced by the Veteran during service in Southwest Asia. She concluded that after review of the records and completing the patient history and physical and current labs, there is no diagnosis of an autoimmune disorder.

The Board notes that, although the October 2015 VA examiner addressed the cyclic autoimmune disorder, she did not discuss the autoimmune disorder with respect to in-service participation in a TERA. This examination occurred approximately 7 years prior to the enactment of the PACT Act. Under the PACT Act, VA is required to provide a Veteran with an examination or medical nexus opinion when there is evidence of in-service participation in a TERA and current disability. Therefore, the Board finds that, on remand, the Veteran should be scheduled for appropriate examination which addresses this matter.

With respect to the service connection claim for colon cancer, to include gastrointestinal issues, the Veteran contends that his colon cancer and/or gastrointestinal (GI) issues are related to his Gulf War service. An October 2015 VA Gulf War General Medical examination documented that the Veteran had colon cancer in 2011 and had surgery with no residuals. Nonetheless, the Veteran stated that he experienced GI issues prior to his colon cancer. A review of the claims file shows that he complained of abdominal pain, nausea, and vomiting in a September 2017 VA treatment record. A private treatment record from November 2019 also shows complaints for abdominal pain.

To date, the Veteran has not received a VA examination for his colon cancer, to include gastrointestinal issues. The Board notes that VA's duty to assist includes providing an examination or medical nexus opinion where necessary and the threshold for providing an examination or opinion is low. See McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). Under the PACT Act, VA is required to provide a Veteran with an examination or medical nexus opinion when there is evidence of in-service participation in a TERA and current disability. Having reviewed the record evidence, the Board finds that, on remand, the Veteran should be provided with an examination which addresses this matter.

The matters are REMANDED for the following action:

1. Conduct any appropriate development to obtain the Veteran's updated treatment records.

2. Forward the claims file and a copy of this REMAND to an appropriate clinician for an opinion concerning the nature and etiology of the Veteran's autoimmune disorder. The decision on whether the Veteran should report for examination is left to the discretion of the clinician asked to provide the requested opinion(s).

Based
is required to provide a Veteran with an examination or medical nexus opinion when there is evidence of in-service participation in a TERA and current disability. Having reviewed the record evidence, the Board finds that, on remand, the Veteran should be provided with an examination which addresses this matter.

The matters are REMANDED for the following action:

1. Conduct any appropriate development to obtain the Veteran's updated treatment records.

Based on a review of the claims file and the results of the Veteran's examination (if held), the clinician is asked to state whether it is at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that an autoimmune disorder, if diagnosed, had its onset in active service or otherwise is related directly to service, including as due to in-service participation in a toxic exposure risk activity (TERA). In providing this opinion, the clinician should determine and consider the total potential exposure through all applicable military deployments and service as well as the synergistic and combined effect of all TERAs. A rationale must be provided for any opinion(s) expressed.

The clinician is advised that the Veteran participated in the following TERAs during active service: chemical exposures and exposure from oil fire smoke. The clinician also is advised that the lack of contemporaneous records documenting complaints of or treatment for an autoimmune disorder, alone, is insufficient rationale for a medical nexus opinion.

3. Forward the claims file and a copy of this REMAND to an appropriate clinician for an opinion concerning the nature and etiology of the Veteran's colon cancer, to include gastrointestinal issues. The decision on whether the Veteran should report for examination is left to the discretion of the clinician asked to provide the requested opinion(s).

Based on a review of the claims file and the results of the Veteran's examination (if held), the clinician is asked to state whether it is at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that colon cancer, to include gastrointestinal issues, if diagnosed, had its onset in active service or otherwise is related directly to service, including as due to in-service participation in a toxic exposure risk activity (TERA). In providing this opinion, the clinician should determine and consider the total potential exposure through all applicable military deployments and service as well as the synergistic and combined effect of all TERAs. A rationale must be provided for any opinion(s) expressed.

The clinician is advised that the Veteran participated in the following TERAs during active service: chemical exposures and exposure from oil fire smoke. The clinician also is advised that the lack of contemporaneous records documenting complaints of or treatment for colon cancer, to include gastrointestinal issues, alone, is insufficient rationale for a medical nexus opinion.

4. Thereafter, readjudicate the appeal.

MICHAEL T. OSBORNE

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board E. Kim, 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.

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