Citation Nr: 1237340 Decision Date: 10/31/12 Archive Date: 11/09/12 DOCKET NO. 07-06 617 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to service connection for sleep apnea, to include as secondary to diabetes mellitus, type II. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD S. Pflugner, Counsel INTRODUCTION The Veteran served on active duty from November 1965 to August 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. The appeal is remanded to the RO via the Appeals Management Center in Washington, DC. REMAND In January 2010, the Board remanded the Veteran's above-captioned claim to afford the Veteran a VA examination. Therein, the Board directed the RO to request that the VA examiner opine as to whether any of the Veteran's service-connected disabilities, or the medication used to treat those disabilities, aggravated the Veteran's sleep apnea. Specifically, the examiner was to ascertain whether the Veteran sleep apnea was etiologically related to his service-connected diabetes mellitus, type II. In July 2011, the Veteran underwent a VA examination. After reviewing the Veterans claims file, reviewing the Veteran's relevant medical history, and administering a clinical examination, the examiner opined that the Veteran's sleep apnea was "not caused by or a result of" his service-connected diabetes mellitus, type II. The examiner also opined that that the Veteran's sleep apnea was "less likely as not (less than 50/50 probability) permanently aggravated by service-connected disabilities, or medications." In support of these opinions, the examiner provided the following rationale: [The Veteran's] obesity contributed to progression of [diabetes mellitus, type II]. Family history of [diabetes mellitus, type II] not known. [The Veteran] has multiple health conditions that may impact sleep apnea events, but his obesity would be the [sic] considered a major factor. Current literature indicates [weight] loss is a primary factor in controlling [diabetes mellitus, type II]. [Diabetes mellitus, type II] control can be achieved through dietary [management] alone, if no exercise is possible. VA records indicate [the Veteran] [h]as not controlled his body weight, which has led to poor [diabetes mellitus, type II] control. [The Veteran] take[s] muscle relaxer and pain med[ications] that can impact his self protection of airway during sleep [if] he does not take them as directed by his primary [health care] providers. If taken as prescribed, this should not be a factor in sleep apnea. He has had [a]nterior approach to cervical surgery, that he feels may have contributed to his choking events, if in fact there is an association in the way of a nerve impairment, there could be a connection with his airway control. This would not be considered as relative to [service connection]. Other unidentified oral pharangeal [sic] conditions may be contributory as well. In an August 2011 letter, S.P., M.D., stated that he had examined the Veteran and noted that the Veteran had diabetes mellitus, type II. Dr. S.P. then opined, "Clinical evidence shows strong association between diabetes and sleep apnea." In August 2011, the Veteran submitted several medical articles concerning the relationship between diabetes mellitus, type II, and sleep apnea. In September 2011, the RO continued the denial of the Veteran's claim in a supplemental statement of the case. The RO then remitted the Veteran's claim to the Board for further appellate review. Although the July 2011 VA examiner provided an opinion addressing the salient questions presented by the Veteran's claim, the underlying rationale was inadequate. In essence, the examiner opined that the Veteran's sleep apnea was not etiologically related to his service-connected disabilities, including diabetes mellitus, type II, only to provided a rationale that addressed the general relationship between obesity and diabetes mellitus, type II; the relationship between Veteran's obesity and multiple, unnamed medical conditions and his sleep apnea; and the general relationship between weight loss and diabetes mellitus, type II. The examiner then provided a conditional opinion as to the relationship between the Veteran's prescribed medications and his sleep apnea. Significantly, the examiner did not elaborate as to how or on what basis he concluded that the Veteran's sleep apnea was not etiologically related to his service-connected diabetes mellitus, type II. In order for a VA examination to be considered adequate, the articulated reasoning must demonstrate that a medical expert has applied valid medical analysis to the significant facts of the particular case in order to reach the conclusion submitted in the medical opinion. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Board finds that this standard was not met by the July 2011 VA examiner and, thus, the July 2011 VA examination is inadequate for purposes of determining service connection. "Once VA undertakes the effort to provide an examination, it must provide an adequate one or, at a minimum, notify the veteran why one will not or cannot be provided." Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Consequently, in order to satisfy VA's duty to assist, the Board finds that a remand is necessary in order to afford the Veteran another VA examination. 38 U.S.C.A. §§ 5107(a), 5103A (West 2002 & Supp. 2012); 38 C.F.R. § 3.159 (2012). Additionally, by failing to ensure that the Veteran was afforded an adequate examination, the RO did not substantially comply with the Board's January 2010 remand directives. RO compliance with remand directives is not optional or discretionary, and the Board errs as a matter of law when it fails to ensure compliance. See Stegall v. West, 11 Vet. App. 268, 271 (1998). As such, a remand for corrective action is required. Id. With respect to Dr. S.P.'s August 2011 opinion, it was unclear to the Board whether he found that clinical evidence specific to the Veteran showed a "strong association" between his diabetes mellitus, type II, and his sleep apnea; or, if there was a general understanding in the medical community that diabetes mellitus, type II, and sleep apnea are etiologically related. If the former, Dr. S.P. did not provide a rationale for his conclusion and, thus, the opinion is inadequate. See Nieves-Rodriguez, 22 Vet. App. at 304. If the latter, the opinion is not probative because it did not address the Veteran's unique situation. Id. As such, the Board finds that a remand is also warranted in order to provide the Veteran the opportunity to obtain clarification from Dr. S.P. 38 C.F.R. § 19.9 (2012); Tyrues v. Shinseki, 23 Vet. App. 166, 182 (2009)(holding that VA's duty to assist includes undertaking reasonable efforts to obtain clarification of unclear evidence, which applies to medical examination reports of all kinds). Accordingly, the case is remanded for the following action: 1. The RO must provide the Veteran an opportunity to obtain from Dr. S.P. clarification of the August 2011 opinion. Specifically, this clarification must address whether Dr. S.P. was asserting that there is a general etiologically association between sleep apnea and diabetes mellitus, type II, or if he determined that based on clinical findings obtained through an examination of the Veteran, that the Veteran's sleep apnea was etiologically related to his service-connected diabetes mellitus, type II. If the latter, the Veteran must also attempt to obtain from Dr. S.P. the nature of the etiologically relationship, the underlying rationale for the opinion reached, and any supportive clinical findings. Any additional evidence received must be associated with the record. 2. The RO must then afford the Veteran a comprehensive examination to determine whether his current sleep apnea was incurred in or due to his active duty service. Further, the examiner must ascertain the etiological relationship, if any, between the Veteran's current sleep apnea and any service-connected disorder, to include diabetes mellitus, type II, to include on the basis of aggravation. Moreover, the examiner must opine as to whether any of the Veteran's service-connected disabilities, or medications prescribed to treat those disabilities, aggravate his current sleep apnea beyond the natural course of the disorder. In so doing, the examiner must specifically comment upon Dr. S.P.'s August 2011 opinion and any clarification opinion obtained from him. The examiner must also specifically comment upon the medical articles submitted by the Veteran wherein the relationship between sleep and apnea and diabetes mellitus, type II, is discussed. The claims file and all records on Virtual VA must be made available to the examiner, and the examiner must specify in the examination report that the claims file and Virtual VA records have been reviewed. The examiner must specify the dates encompassed by the Virtual VA records that were reviewed. Any indicated diagnostic tests and studies must be accomplished. All pertinent symptomatology and findings must be reported in detail. All rendered opinions must be accompanied by a thorough rationale. If the examiner cannot render a requested opinion without resorting to speculation, the examiner must provide the reasoning for that determination. The examiner must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the examiner must indicate whether the opinion could not be rendered due to limitations of knowledge in the medical community at large or those of the particular examiner. The report prepared must be typed. 3. The RO must notify the Veteran that it is his responsibility to report for the examination and to cooperate in the development of his claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2012). In the event that the Veteran does not report for the examination, documentation must be obtained that shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. 4. Once the above actions have been completed, the RO must re-adjudicate the Veteran's claim on appeal, taking into consideration any newly acquired evidence. If any benefit remains denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran has had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. No action is required by the Veteran until he receives further notice; however, the Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). _________________________________________________ JOY A. MCDONALD Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2012).