Citation Nr: 1759991 Decision Date: 12/22/17 Archive Date: 01/02/18 DOCKET NO. 12-28 945 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to service connection, to include on a secondary basis, for diabetes mellitus, type II (DM). 2. Entitlement to service connection for a disability manifested by bilateral hand tremors, to include due to an undiagnosed illness. 3. Entitlement to service connection, to include on a secondary basis, for obstructive sleep apnea (OSA). REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD S. Kalolwala, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1989 to December 1994, including service in the Southwest Asia theater of operations from August 1990 to April 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. These matters were remanded by the Board in November 2015 and again in July 2017 for additional development. The matters have been returned to the Board for appellate consideration. The issues of entitlement to service connection for disability manifested by bilateral hand tremors and OSA, respectively, are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT The Veteran's DM is not caused by or otherwise etiologically related to military service; nor is it is it proximately due or aggravated by his service-connected disabilities. CONCLUSION OF LAW The criteria for service connection, to include on a secondary basis, for DM have not been met. 38 U.S.C. § 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duty to Notify and Assist VA's duty to notify was satisfied by a letters dated in September 2011 and November 2011. See 38 U.S.C. § 5103 (2012); 38 C.F.R. § 3.159 (2017). The duty to assist the Veteran has also been satisfied in this case. Additionally, the Board notes that pursuant to its July 2017 remand, the AOJ obtained an addendum opinion regarding the nature and etiology of the issue decided herein, and issued a supplemental statement of the case (SSOC). Based on the foregoing actions, the Board finds that there has been substantial compliance with the Board's prior remand with respect to these issues. See Stegall v. West, 11 Vet. App. 268 (1998). Accordingly, the Board finds that no prejudice to the Veteran will result from the adjudication of his claim in this Board decision. II. Service connection Legal Principles Establishing service connection generally requires (1) evidence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 281 F.3d 1163, 1167 (Fed. Cir. 2004). The current disability requirement is satisfied when a veteran "has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim," McClain v. Nicholson, 21 Vet. App. 319, 321 (2007), or "when the record contains a recent diagnosis of disability prior to . . . filing a claim for benefits based on that disability," Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013). Service connection may also 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. 38 C.F.R. § 3.303(d) (2017). Alternatively, service connection may be proven on a secondary basis. 38 C.F.R. § 3.310(a). In this instance, the evidence must demonstrate that a non-service-connected disability is aggravated by a service-connected disability. Id. Factual Background The relevant evidence of record consists of the Veteran's service treatment records (STRs), post-service VA and private treatment records, and lay statements by the Veteran and other sources. STRs are negative for any complaints of and/or treatment for DM or associated symptomatology. Collectively, VA and private medical treatment records dated between June 1999 and July 2017 reflect a history of DM requiring insulin and restricted diet. For instance, records dated in March 2000 reflect a diagnosis of DM. Subsequent records reflect a strong family history of DM. A record dated in October 2001 reflects a notation that despite the Veteran's inability to exercise, the Veteran's DM was controlled. The records also indicate that the Veteran underwent multiple surgical procedures of his bilateral knees-right knee arthroscopy in 1994 and 2001 and left knee arthroscopy in 2011. In a statement dated in May 2012, the Veteran reported that his DM is aggravated by his service-connected orthopedic disabilities to the extent that he is unable to exercise and control his DM due to those conditions. Report of the March 2013 VA diabetes examination reflects, in pertinent part, a diagnosis of DM requiring insulin, a restricted diet, and regulation of activities. In particular, the examiner noted that the Veteran must regulate his activities by avoiding strenuous physical activity to avoid hypoglycemic episodes. No medical opinion or rationale was provided. Report of the February 2016 VA examination reflects a diagnosis of diabetes mellitus, type II, requiring insulin, a restricted diet, and regulation of activities. The examiner opined that it is less likely than not (less than 50% probability) proximately due to or the result of the Veteran's orthopedic conditions. The examiner indicated that medical literature does not support an association between orthopedic disabilities and the development of DM. Pursuant to the Board's July 2017 remand, an addendum opinion was obtained in July 2017. At that time, the examiner opined that it is less likely than not (less than 50% probability) that the Veteran's DM is aggravated (permanently worsened beyond natural progression) by his orthopedic disabilities. In doing so, the examiner recognized the Veteran's statements regarding lack of exercise; however, noted that exercise is only one component of diabetes management, along with diet and medical management, i.e., insulin or oral hypoglycemic agent. Analysis Based on a review of the record, the Board finds that service connection is not warranted for the Veteran's claimed DM on a direct basis. In making this finding, the Board notes that STRs are negative for any complaints and/or treatment for or diagnosis of DM or associated symptomatology. The Board further notes that the Veteran first exhibited symptoms of DM in or around 2000, i.e., several years after service. Treatment records also reflect a strong family history of DM. The Veteran has not contended (nor does the medical evidence otherwise reflect) that the Veteran's DM is directly caused by or a result of his military service. Rather, the Veteran has consistently claimed his DM is secondary to his service-connected orthopedic disabilities. Based on a review of the foregoing evidence, and the applicable laws and regulations, the Board finds that the preponderance of the evidence is against the Veteran's claim of service connection for DM on a direct basis. Next, the Board turns to whether entitlement to service connection is warranted on a secondary basis. Based on a review of the record, the Board finds that service connection is not warranted for the Veteran's claimed DM on a secondary basis because the evidence of record does not demonstrate that the Veteran's DM was proximately due to or aggravated by his service-connected disabilities. In making this finding, the Board accords significant probative weight to the February 2016 VA diabetes examination, in conjunction with the July 2017 addendum opinion. The examination and/or opinions reflect the examiner reviewed the Veteran's pertinent medical history, and rendered findings consistent with the remainder of the evidence. In particular, the February 2016 VA examination reflects a diagnosis of diabetes mellitus, type II, requiring insulin, a restricted diet, and regulation of activities. The examiner opined that it is less likely than not (less than 50% probability) proximately due to or the result of the Veteran's orthopedic conditions. In examiner explained that medical literature does not support an association between orthopedic disabilities and the development of DM. In the July 2017 addendum opinion, the examiner reiterated that it is less likely than not (less than 50% probability) that the Veteran's DM is aggravated (permanently worsened beyond natural progression) by his orthopedic disabilities. In doing so, the examiner implicitly recognized the Veteran's statements and indicated that exercise is only one component of diabetes management, which in and of itself would not aggravate his DM. Notably, treatment records dated in October 2001 reflect that despite the Veteran's inability to exercise, the Veteran's DM was controlled. Parenthetically, the Board also notes that to the extent the Veteran would appreciate exercising, the March 2013 VA examiner noted that the Veteran must regulate his activities by avoiding strenuous physical activity to avoid hypoglycemic episodes. The Board has considered the Veteran's statements that his DM is aggravated by his inability to exercise due to his orthopedic conditions. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, questions of medical causation and/or aggravation fall outside the realm of common knowledge of a lay person. See Jandreau, supra (lay persons not competent to diagnose cancer). In this case, the cause or aggravation of the Veteran's DM is a matter suited to the realm of medical expertise. As such, to the extent the Veteran is addressing questions of medical causation and/or aggravation of the DM, the Board finds his statements are not competent lay evidence. Notwithstanding, the probative medical evidence outweighs the lay statements. Based on a review of the foregoing evidence, and the applicable laws and regulations, the Board finds that the preponderance of the evidence is against the Veteran's claim of service connection for DM. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, as the preponderance of the evidence is against the Veteran's claim for service connection, that doctrine is not helpful to the Veteran. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Entitlement to service connection, to include on a secondary basis, for DM is denied. REMAND Regrettably, review of the record reveals that the claims must again be remanded for additional development prior to appellate consideration. First, the Board turns to the Veteran's claim of entitlement to service connection for a disability manifested by hand tremors. In its July 2017 remand, the Board instructed the examiner to provide an opinion as to whether the Veteran has a disability manifested by bilateral hand tremors, and if so, whether such disability was caused by or otherwise etiologically related to service. Report of the July 2017 addendum opinion noted, in pertinent part, a self-reported history of tremors occurring 2-3 times per month. The examiner indicated, however, that there is no objective medical evidence found of a specific diagnosis or etiology for this report. In particular, the examiner noted there was no objective medical evidence found recording the presence of hand tremors as reported by the Veteran. The examiner opined the claimed condition was less likely than not caused by, or otherwise etiologically related to service. First, it appears the July 2017 medical opinion may be based on an inaccurate factual premise. See generally Monzingo v. Shinseki, 26 Vet. App. 97, 107 (2012) ("If the opinion is based on an inaccurate factual premise, then it is correct to discount it entirely" (citations omitted)). In particular, the examiner stated that there was no objective medical evidence found recording the presence of hand tremors. This is inconsistent with the evidence of record. For instance, report of the February 1997 VA examination reflects, in pertinent part, the Veteran was noted as having a fine motor tremor of the bilateral upper extremities upon physical examination. A statement in support dated in August 1996 reflects the Veteran was observed experiencing constant muscular twitches and shakes in his hands. Similarly, another statement dated in September 1996 reflects the Veteran was observed experiencing hand tremors. In a statement dated in May 2012, the Veteran reported experiencing ongoing intermittent bilateral hand tremors since service in the Persian Gulf. It is not clear whether this evidence would change the examiner's opinion, but given he apparently did not consider it, the Board finds a remand is necessary. See generally Dalton v. Nicholson, 21 Vet. App. 23, 39 (2007). Additionally, in its July 2017 remand, the Board directed the AOJ to, in pertinent part, readudicate the issues on appeal, to include consideration of 38 C.F.R. § 3.317 (disabilities occurring in Persian Gulf veterans) with respect to the Veteran's bilateral hand tremors. The record shows, however, that the developmental actions taken by the AOJ have not fully complied with the remand directives. In particular, the most recent SSOC issued by the AOJ does not reflect consideration of the Veteran's claim under the provisions of 38 C.F.R. § 3.317 for an undiagnosed illness. See Stegall, supra. The Board also notes that in a statement dated in April 2013, the Veteran sought to supplement his claim with a new theory of entitlement. Specifically, the Veteran claimed entitlement to hand tremors, as due to his service-connected back strain. Developmental actions on this issue have not yet been taken. As such, a remand is also necessary to address this theory of entitlement. Next, the Board turns to the Veteran's claimed entitlement to service connection for OSA. In its July 2017 remand, the Board directed the examiner to provide an addendum opinion regarding the nature and etiology of such disability. In particular, the examiner was directed to provide an opinion regarding whether the Veteran's OSA is caused by, or otherwise etiologically related to military service, and that any opinion rendered must consider the statements by the Veteran and other sources suggesting continuity of symptomatology, i.e., sleep disturbance, since service, and comment on whether such symptoms indicate an early manifestation of a current disability. The Board highlighted lay statements dated in August and September 1996, respectively. Collectively, these lay statements reported complaints of restlessness, difficultly sleeping, and daytime somnolence since service. A statement dated in August 2012 further reflected involuntary cessation of breathing at night. Report of the March 2013 VA examination reflects the Veteran reported difficulty breathing, which is worse at night. Report of the February 2016 VA examination reflects the Veteran's statements regarding a long history of snoring and waking up at night short of breath since service. Additionally, the examiner was directed, in pertinent part, to provide an opinion regarding whether the Veteran's OSA is aggravated by the Veteran's service-connected COPD. Importantly, the examiner was specifically directed to discuss the significance, if any, of the medical treatise submitted in October 2013 discussing the correlation between OSA and COPD, and that patients with both "develop more pronounced nocturnal oxygen desaturation than COPD or OSA alone." Here, report of the July 2017 addendum opinion reflects, in pertinent part, the examiner's opinion that it is less likely than not that the Veteran's OSA is caused by, or otherwise etiologically related to military service. In doing so, the examiner explained that STRs are negative for any signs or symptoms consistent with OSA in service. Additionally, the examiner opined that it is less likely than not that OSA was aggravated by the Veteran's service-connected PTSD and COPD, respectively. In doing so, the examiner noted that there is no medical evidence to show PTSD or COPD can produce and/or aggravate a recurrent collapse of the velopharyngeal and/or nasopharyngeal airways during sleep. No further opinion or rationale was provided. First, the Board finds that a remand is necessary in order to ensure substantial compliance with the July 2017 Board remand and obtain the opinion initially requested by the Board. See Stegall, supra. Additionally, the Board notes that the July 2017 examiner's statement that STRs are negative for any signs or symptoms consistent with OSA in service is seemingly inconsistent with the evidence of record. In particular, the February 2016 VA examiner noted a history of sleep disturbance in service but that it was "not clearly distinguishable from [the Veteran's] COPD." Consequently, without the requested clarification, the Board lacks the medical expertise to determine the etiology of the Veteran's OSA. See generally Bolton v. Brown, 8 Vet. App. 185, 191 (1995) (emphasizing the Board's duty to return an inadequate examination report "if further evidence or clarification of the evidence . . . is essential for a proper appellate decision"). Accordingly, the case is REMANDED for the following action: 1. Arrange for the examiner who prepared the July 2017 VA medical opinion, if available, to prepare an addendum opinion as to the nature and etiology of the Veteran's diagnosed OSA, and if deemed necessary, conduct new examination of the Veteran. The electronic claims file must be made accessible to the examiner for review, and such review should be noted in the examination report. Following a review of the claims file and medical history, the VA examiner must offer an opinion as to the following: a. Whether it is as likely as not (i.e., a 50 percent or better probability) that the Veteran's OSA is caused by, or otherwise etiologically related to military service. Any opinion must reflect consideration of the statements by the Veteran and other sources suggesting continuity of symptomatology, i.e., snoring and sleep disturbance, since service, and comment on whether they indicate an early manifestation of a current disability. b. Whether it is as likely as not (i.e., a 50 percent or better probability) that the Veteran's OSA is aggravated by the Veteran's service-connected PTSD. In rendering any opinion, the examiner should consider the Veteran's statements suggesting that his symptoms of PTSD, e.g., nightmares with related sleep disturbance, aggravate his OSA. c. Whether it is as likely as not (i.e., a 50 percent or better probability) that the Veteran's OSA is aggravated by the Veteran's service-connected COPD. In rendering any opinion, the examiner should comment on the significance, if any, of the medical treatise submitted in October 2013 discussing the correlation between OSA and COPD, and that patients with both "develop more pronounced nocturnal oxygen desaturation than COPD or OSA alone." The examiner must provide a rationale for all opinions provided. If an opinion cannot be made without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. 2. Schedule the Veteran for VA Gulf War examination by an appropriate medical professional to prepare an opinion with respect to the nature and etiology of any claimed disability manifesting with bilateral hand tremors. The electronic claims file must be made accessible to the examiner for review, and such review should be noted in the examination report. Following a review of the claims file and medical history, the VA examiner should offer an opinion as to the following: a. Does the Veteran have tremors of the hands? If so, the examiner should identify whether is attributable to a known clinical diagnosis, e.g., a nerve condition. b. If so, the examiner should opine whether it is as likely as not (i.e., a 50 percent or better probability) that such disorder is caused by, or otherwise etiologically related to military service. c. Whether it is as likely as not (i.e., a 50 percent or greater probability) that any disability manifesting with bilateral hand tremors is proximately due to the Veteran's service-connected back disability. d. If not, the examiner should opine whether such symptomatology, i.e., bilateral hand tremors, represents an objective indication of a chronic disability resulting from an undiagnosed illness related to the Veteran's service in the Persian Gulf. If yes, the examiner should describe the extent to which such symptomatology has manifested, i.e., severity and frequency. Any opinion rendered must (i) reflect consideration of the lay statements of record reflecting ongoing symptomatology since service and the February 1997 VA notation of fine hand tremors upon examination, (ii) discuss the significance of the prior diagnoses of essentitial and/or idiopathic tremors of the hands, and (iii) discuss the comments by the September 1997 VA examiner, which indicate the Veteran's reported symptoms could occur in a patient with Gulf War Syndrome. The examiner must provide a rationale for all opinions provided. If an opinion cannot be made without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. 3. Thereafter, readjudicate the claims on appeal, to include consideration of 38 U.S.C.A. § 1117 and 38 C.F.R. § 3.317 with respect to the hand tremors. If any appeal remains denied, issue the Veteran and any representative a supplemental statement of the case and return the case to the Board. The Veteran has the right to submit additional evidence and argument on the 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. §§ 5109B, 7112 (2012). ______________________________________________ Thomas H. O'Shay Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs