Citation Nr: 1315232 Decision Date: 05/08/13 Archive Date: 05/15/13 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 Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. D. Deane, 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 A review of the claims file reveals that further development on the matter of entitlement to service connection for sleep apnea, to include as secondary to service-connected diabetes mellitus, type II is warranted. In January 2010, the Board remanded the Veteran's claim to afford the Veteran a VA examination, directing 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 a July 2011 VA examination report, the examiner, after reviewing Veteran's the claims file as well as his relevant medical history and administering a clinical examination, 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. The examiner initially indicated that the Veteran's obesity contributed to progression of his diabetes mellitus, that a family history of diabetes mellitus was not known, and that the Veteran had multiple health conditions that may impact sleep apnea events, but his obesity would be considered a major factor. Current literature was noted to reveal that weight loss was a primary factor in controlling diabetes mellitus. The examiner further commented that diabetes mellitus control could be achieved through dietary management alone, if no exercise was possible. The examiner also detailed that VA records indicated that the Veteran had not controlled his body weight, which had led to poor diabetes mellitus control. The Veteran was noted to take muscle relaxer and pain medications that could impact his self protection of airway during sleep if he did not take them as directed by his primary providers. If taken as prescribed, this should not be a factor in sleep apnea. The examiner highlighted the Veteran's assertion that having anterior approach to cervical surgery may have contributed to his choking events. However, the examiner indicated that if in fact there is an association in the way of a nerve impairment, there could be a connection with his airway control but that it would not be considered as relative to the claim on appeal. The examiner further noted that other unidentified oral "pharangeal" 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 that clinical evidence showed strong association between diabetes and sleep apnea. During that same month, the Veteran submitted several medical articles concerning the relationship between diabetes mellitus, type II, and sleep apnea. Thereafter, in September 2011, the RO continued the denial of the Veteran's claim in a supplemental statement of the case then remitted it to the Board for further appellate review. In October 2012, the Board again remanded the Veteran's claim, determining that 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 Board found that the July 2011 VA 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 Board found that 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. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Board found that the July 2011 VA examination was 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). In order to satisfy VA's duty to assist, the Board again remanded the appeal 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). Pursuant to the October 2012 remand, the RO was instructed to afford the Veteran a comprehensive examination to determine whether his current sleep apnea was incurred in or due to his active duty service. It was requested that the examiner 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 was asked to opine as to whether any of the Veteran's service-connected disabilities, or medications prescribed to treat those disabilities, aggravated his current sleep apnea beyond the natural course of the disorder. In so doing, the examiner was clearly instructed to specifically comment upon Dr. S.P.'s August 2011 opinion, and any clarification opinion obtained from him, as well as upon the medical articles submitted by the Veteran wherein the relationship between sleep and apnea and diabetes mellitus was discussed. In a January 2013 VA examination, the examiner, a VA certified physician's assistant (PA-C), diagnosed obstructive sleep apnea. After reviewing the claims file and examining the Veteran, the 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 examiner's stated rationale was that sleep apnea was not caused by or a result of service-connected diabetes mellitus but due to the Veteran's age/obesity. The examiner further opined that sleep apnea was "less likely as not (less than 50/50 probability)" permanently aggravated by service-connected disabilities, or medications. The cited rationale was that the Veteran's obesity contributed to progression of diabetes mellitus, that family history of diabetes mellitus was not known, and that the Veteran had multiple health conditions that may impact sleep apnea events, but his obesity would be considered a major factor. Current literature was noted to indicate that weight loss was a primary factor in controlling diabetes mellitus. The examiner further commented that diabetes mellitus control could be achieved through dietary management alone, if no exercise was possible. The examiner also detailed that VA records indicated that the Veteran had not controlled his body weight, which had led to poor diabetes mellitus control. After reviewing the January 2013 VA examination report, the Board finds that the RO did not substantially comply with the October 2012 Remand directives. The January 2013 VA examiner essentially regurgitated the same rationale from the July 2011 VA examination report also deemed inadequate by the Board. In addition, the examiner did not specifically comment upon Dr. S. P.'s August 2011 opinion, and any clarification opinion obtained from him, as well as upon the medical articles submitted by the Veteran, wherein the relationship between sleep and apnea and diabetes mellitus was discussed, as instructed in the October 2012 Board Remand. 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). Consequently, the Board finds that another remand is required for corrective action. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The RO should arrange for an additional VA medical opinion to clarify the etiology of the Veteran's claimed sleep apnea on appeal and to properly address the Board's Remand instructions. The claims file also reflects that the Veteran has received VA medical treatment for his claimed sleep apnea from the VA Community Based Outpatient Clinic (CBOC) in Mount Vernon, Missouri; however, as the evidence of record only included searches for treatment records dated up to January 2009, any additional records from that facility should be obtained. The Board emphasizes that records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). All outstanding VA records should be obtained and associated with the claims file. Accordingly, the case is remanded for the following actions: 1. The RO must contact the Veteran and afford him the opportunity to identify or submit any additional pertinent evidence in support of his claim for entitlement to service connection for sleep apnea. Regardless of the Veteran's response, the RO must obtain and associate with the claims file all of the Veteran's pertinent VA treatment records, to include all treatment records from the Mount Vernon CBOC dated from January 2009 to the present. If, after making reasonable efforts to obtain this information the RO is unable to secure any of the identified records, the RO must notify the Veteran and his representative and (a) identify the information the RO is unable to obtain; (b) briefly explain the efforts that the RO made to obtain that information; (c) describe any further action to be taken by the RO with respect to the claim; and (d) that the Veteran is ultimately responsible for providing information. The Veteran and his representative must then be given an opportunity to respond. 2. The RO must obtain a VA medical opinion from an appropriate physician to clarify the etiology of the Veteran's claimed sleep apnea. The claims file and all records on Virtual VA must be made available to the examiner for review in conjunction with the opinion, and the examiner must indicate in his or her report that the claims folder and any pertinent Virtual VA records were so reviewed. The examiner must be requested to provide an opinion as to whether the Veteran's 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. A complete rationale for all opinions given must be provided. In so doing, the examiner must specifically comment upon Dr. S.P.'s August 2011 opinion as well as upon the medical articles submitted by the Veteran wherein the relationship between sleep apnea and diabetes mellitus is discussed. If the examiner cannot provide the requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. 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 any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. The report prepared must be typed. Another examination of the Veteran must only be performed if deemed necessary by the person providing the opinion. 3. The RO must notify the Veteran that it is his responsibility to report for any examination scheduled, and to cooperate in the development of the claim. The consequences for failure to report for any 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 any scheduled examination, documentation must be obtained and associated with the Veteran's claims file that shows that notice scheduling the examination was sent to his last known address. Documentation must be also be obtained and associated with the Veteran's claims file demonstrating any notice that was sent was returned as undeliverable. 4. After the development requested has been completed, the RO must review any medical opinion and/or examination report to ensure that it is in complete compliance with the directives of this Remand. If the opinion and/or report is deficient in any manner, the RO must implement corrective procedures at once. 5. Once the above actions have been completed, and any other development as may be indicated by any response received as a consequence of the actions taken above, the RO must re-adjudicate the Veteran's claim on appeal. If the benefit remains denied, a supplemental statement of the case must be provided to the Veteran and his representative. After he has had an adequate opportunity to respond, the appeal must be returned to the Board for further appellate review. No action is required by the Veteran until he receives further notice; however, he may present additional evidence or argument while the case is in remand status at the RO. 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).