Citation Nr: 1307220 Decision Date: 03/04/13 Archive Date: 03/11/13 DOCKET NO. 10-43 589 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for type II diabetes mellitus. 2. Entitlement to service connection for obstructive sleep apnea. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD D. Rogers, Associate Counsel INTRODUCTION The Veteran served in the Army Reserves with active duty service from September 1991 to April 1992, January 1997 to September 1997, and from March 2003 to February 2004. She also had periods of active duty for training purposes (ACDUTRA) dating from September 1980 through 2005, however, the exact dates are unclear. These matters come before the Board of Veterans' Appeals (Board) on appeal from a February 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Veteran's Virtual VA electronic claims file is negative for any additional information or evidence pertinent to the claims on appeal. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND A remand is required in this case. Although the Board regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claims. The Veteran contends that the claimed disabilities had their onset during or are related to her military service. At the outset, the Board notes that a waiver of military pay dated in June 2006 shows that the Veteran had 65 training days in 2005. The Veteran has reported that she retired from reserve service in September 2005. Service treatment records currently associated with the claims file date through January 2004. Thus, any ongoing reserve service treatment records and examination reports should be sought. Similarly, although the Veteran's service personnel records have been obtained, the exact dates of any period of active duty for training purposes (ACDUTRA) remain unclear. As service connection may be warranted for a disease or injury incurred in or aggravated by ACDUTRA service, additional development is necessary to determine the dates of any periods ACDUTRA and active service dating since 2002 (the year elevated blood glucose levels were first shown). The RO/AMC should create and associated with the claims file a memorandum for review by the physician who issues the etiological opinion requested herein that outlines the precise dates of any period of ACDUTRA and active service since 2000. The Veteran was formally diagnosed with type II diabetes mellitus in June 2008 due to elevated blood glucose and A1C findings dated in February 2008. She asserts that elevated blood glucose readings noted during service in November 2002 and May 2003 represent the onset of her currently diagnosed type II diabetes mellitus. She further asserts she is aware that she was exposed to unspecified "environmental issues and agents" that may have caused diabetes while stationed in Saudi Arabia from September 1991 to March 1992 and Bosnia from January to September 1997. The Veteran's reserve and active service treatment records show that her blood glucose was read as "high" in November 2002 (111, fasting) and in May 2003 (127). Elevated protein (100 mg/dl) and microalbumin (46.1) levels were also noted in May 2003. There is no indication whether the May 2003 results are fasting or non fasting. During a January 2004 separation examination from the Veteran's last period of active service, she was instructed to follow-up with VA due to "slightly elevated blood sugar." Post service VA treatment records and examination reports show that the Veteran indicated that both of her parents died due, at least in part, to diabetes mellitus. In February 2008, the Veteran had a blood glucose level of 124 and an A1C level of 7.6 in February 2008. Based on those findings, a June 2008 treatment note shows a diagnosis of new onset type II diabetes mellitus. As to her obstructive sleep apnea, the Veteran asserts that she experienced symptoms during service that were diagnosed as obstructive sleep apnea in October 2008. She was reportedly unaware of the significance and cause of her symptoms during service. She has indicated that interrupted sleep patterns during service due to long overnight and daytime work hours have persisted continuously since discharge and may have caused her currently diagnosed obstructive sleep apnea. The Veteran's service treatment records are negative for any complaints, findings or diagnosis of obstructive sleep apnea during active service. Following her service in Saudi Arabia, March 1992 demobilization medical evaluation shows that she denied any trouble sleeping and any reason to believe that she was exposed to chemical or germ warfare during deployment. During a November 1996 tuberculosis screening, she denied ever having experiencing shortness of breath. During a periodic reserve physical examination in November 2002, she endorsed a history of nervous trouble (anxiety or panic attacks). She experienced "normal anxiety secondary to work." During a January 2004 separation examination during her last period of active service, the Veteran indicated that her health had become worse since a November 2002 service examination. A high level of stress and illness and injury reportedly had caused her to miss duty. She reported that she suffered from illness or injury during her last period of active service for which she did not seek medical treatment. During an August 2004 VA general medical examination the Veteran reported that she was not sleeping well. She had a lot of thoughts on her mind and busy thoughts. She felt tired and depressed. She denied any paroxysmal nocturnal dyspnea or orthopnea. In an August 2005 statement, the Veteran indicated that since her return from the Gulf, she had not slept well due to feelings of anxiousness and panic. She was often disoriented during her commute to work and would not remember stopping along the way or whether she had taken her medication for sleep difficulty and mood. During a November 2005 VA examination, the Veteran reported a "few year" history of depression with symptoms of fatigue, falling asleep when seated, and sleeping for long periods on the weekends. She was reported to be a loud snorer and was not sure if she held her breath during sleep. In addition to a depressive disorder not otherwise specified and a problem with alcohol abuse that interfered with daily functioning at times, the examiner stated that the Veteran had a significant sleep disorder or problem with wakefulness during the night that had not been investigated and may be attributable to physical causes. Prior to undergoing a sleep study in October 2008, which showed snoring associated with moderate sleep apnea and hypopnea syndrome, the Veteran indicated that she developed a sleep condition a few years prior that had worsened each year. The Board finds that the evidence above indicates that the claimed disabilities may have had their onset during, been aggravated by, or be related to the Veteran's active and/or ACDUTRA service, however, a medical etiological opinion has not been obtained pertaining to either of the claimed disabilities. In this regard, service connection is currently in effect for depressive disorder not otherwise specified, hypertension, and mild tricuspid and mitral valve regurgitation. Thus, the Board finds that a medical opinion is necessary to determine the nature and etiology of the claimed disabilities, to include whether they may be proximately due to or aggravated by the Veteran's service-connected disabilities. VA's duty to assist includes a duty to provide a medical examination or obtain a medical opinion only when it is deemed necessary to make a decision on the claim. 38 U.S.C.A. § 5103A (d) (West 2002); 38 C.F.R. § 3.159(c) (4) (2012). See also Robinette v. Brown, 8 Vet. App. 69, 76 (1995). As noted above, the Veteran has asserted that the claimed disabilities may be related to exposures to environmental issues and contaminants during service in Saudi Arabia and Bosnia, however, she has not identified the alleged environmental issues and contaminants to which she claims to have been exposed. Thus, she should be asked to provide a statement of clarification as to her claimed environmental exposures during service for consideration by the physician who provides the requested etiological opinions. Finally, the only VA treatment records currently associated with the claims file are dated from June 2008 to March 2009. A June 2008 primary care note references lab results dated in February 2008. It also shows that the Veteran was followed by an "outside provider" in addition to VA. There is no indication that any records from the Veteran's outside provider dating since 2002 have been requested or obtained or that VA treatment records dating prior to June 2008 have been requested. Also, VA treatment records were most recently obtained in March 2009. Any private treatment records identified by the Veteran and VA treatment records not previously obtained that pertain to the Veteran's service-connected and claimed disabilities dating since 2002 should be requested and obtained. Accordingly, the case is REMANDED for the following action: 1. Request any reserve service treatment records and examination reports dating since January 2004 from the appropriate records repository, to include the NPRC, RMC, and the reserve unit to which the Veteran was most recently assigned. All requests and responses received should be documented in the claims file. 2. Perform any necessary development to determine the precise dates of any period of ACDUTRA and active service dating since 2002. If necessary, contact the Defense Finance and Accounting Service, Military Pay, to determine whether the Veteran was receiving any type of military pay dating since 2000. If so, the types, amount, dates of payment, and the basis for such payment must be determined. Thereafter, the exact dates of any period of ACDUTRA should be determined and outline in documentation placed in the claims file for review by the examiner who provides the medical opinion requested herein. 3. If the RO/AMC cannot locate service treatment records and examination reports dating since January 2004 and/or the pay records, the RO/AMC must specifically document the attempts that were made to locate them, and explain in writing why further attempts to locate or obtain any government records would be futile. The RO/AMC must then: (a) notify the claimant of the specific records that it is unable to obtain; (b) explain the efforts VA has made to obtain that evidence; and (c) describe any further action it will take with respect to the claims. The claimant must then be given an opportunity to respond. 4. Contact the Veteran and request that she clarify exactly what "agents" she claims to have been exposed to during her deployments to Bosnia and Saudi Arabia that she asserts may have caused her claimed disabilities as alluded to in her statements of record. Also request that she identify any additional medical treatment that she has received for her service-connected and claimed disabilities, VA and non VA, dating since 2002. She should specifically identify the "outside provider" alluded to in a June 2008 VA primary care note. Regardless of the Veteran's response, VA treatment records, if any, should be obtained from the Miami VAMC and Broward County Outpatient clinic dating from 2002 to June 2008 and since March 2009. The RO/AMC should take appropriate steps to secure authorization necessary to obtain copies of any such treatment reports identified that are not currently of record and advise the Veteran that she may submit these records herself. If the RO/AMC is unable to obtain any records identified, the Veteran and her representative should be notified in order to allow them to submit those records for review. 5. Thereafter, refer the claims file to an appropriate examiner to obtain a medical opinion as to the nature and etiology of the Veteran's type II diabetes mellitus and obstructive sleep apnea. The claims folder, to include any relevant records contained in Virtual VA, must be provided to and reviewed by the examiner. Following a review of the claims file and the Veteran's contentions of record, the examiner should estimate the date of onset of the Veteran's currently diagnosed type II diabetes mellitus and obstructive sleep apnea. As to each disability, he/she should opine whether the Veteran's currently diagnosed diabetes and/or obstructive sleep apnea: a) clearly and unmistakably (i.e. it is undebatable) preexisted any period of ACDUTRA or active service, and if so, whether it clearly and unmistakably(i.e. it is undebatable) was not aggravated (permanently worsened beyond normal progression) by any subsequent period of ACDUTRA or active service. b.) at least as likely as not (50 percent probability or greater) that it had its onset during or is etiologically related to event or injury during any period of ACDUTRA or active service, to include the Veteran's claimed environmental exposures during service in Saudi Arabia and Bosnia. c) at least as likely as not (50 percent probability or better) is proximately due to or aggravated by (permanently worsened beyond normal progression) the Veteran's service-connected depressive disorder, hypertension, and/or mild tricuspid and mitral valve regurgitation. The examiner should take into consideration the elevated blood glucose levels noted during the November 2002 periodic service examination (111 fasting) and during active service in May 2003 (127), as well as the elevated protein (100 mg/dl) and microalbumin(46.1) levels in May 2003. The examiner should acknowledge the Veteran's contentions of record as to the nature, etiology, and date of onset of both claimed disabilities. The examiner should provide a rationale for any opinion rendered and should attempt to reconcile any contradictory evidence of record. If the examiner is unable to offer any of the requested opinions, it is essential that he/she offer a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. See Jones v. Shinseki, 23 Vet. App. 382 (2011). 6. After the development requested has been completed, review the opinion to ensure that it is in complete compliance with the directives of this REMAND. If the report is deficient in any manner, the RO/AMC must implement corrective procedures at once. 7. Thereafter, readjudicate the issues on appeal. If the benefits sought on appeal are not granted, issue a supplemental statement of the case and afford the Veteran and her representative an opportunity to respond. Thereafter, the case should be returned to the Board, if in order. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). _________________________________________________ DAVID L. WIGHT 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).