Citation Nr: 18142653 Decision Date: 10/16/18 Archive Date: 10/16/18 DOCKET NO. 18-27 231 DATE: October 16, 2018 ORDER The application to reopen the claim of service connection for bladder cancer is granted. Entitlement to service connection for bladder cancer with radical cystoprostatectomy and urostomy, secondary to service-connected adenocarcinoma of the prostate, is granted. Entitlement to service connection for tinnitus is denied. Restoration of a 100 percent rating for adenocarcinoma of the prostate, from December 1, 2015, is granted, subject to controlling regulations governing the payment of monetary awards. Entitlement to special monthly compensation (SMC) pursuant to 38 U.S.C. § 1114(s), from December 1, 2015 through December 20, 2015, is granted, subject to controlling regulations governing the payment of monetary awards. REMANDED Entitlement to service connection for sleep apnea is remanded. Entitlement to a rating in excess of 60 percent for type II diabetes mellitus is remanded. FINDINGS OF FACT 1. The Veteran’s claim of service connection for bladder cancer was originally denied in an August 2010 rating decision on the basis that the disability did not have its onset in service or within a year of his discharge from service, and was not otherwise incurred in service; the Veteran did not appeal this decision within one year of its issuance and new and material evidence was not received within that year. 2. Evidence received since the August 2010 agency of original jurisdiction (AOJ) decision includes information that was not previously considered and which relates to an unestablished fact necessary to substantiate the claim of service connection for bladder cancer, the absence of which was the basis of the previous denial. 3. The Veteran’s bladder cancer with radical cystoprostatectomy and urostomy is caused by his service-connected adenocarcinoma of the prostate. 4. The Veteran’s tinnitus did not have its onset in service or manifest to a compensable degree within one year of service; continuity of symptomatology is not established; and tinnitus is not otherwise etiologically related to an in-service injury, event, or disease. 5. At the time the 100 percent rating for adenocarcinoma of the prostate was reduced, the evidence showed possible localized recurrence. 6. During the period from December 1, 2015 through December 20, 2015, the Veteran now has a service-connected disability rated as total and additional service-connected disability ratable at 60 percent or more. CONCLUSIONS OF LAW 1. The AOJ’s August 2010 rating decision that denied the claim of service connection for bladder cancer is final. 38 U.S.C. § 7105 (d)(3); 38 C.F.R. §§ 3.104, 3.156(a)-(b), 20.302, 20.1103. 2. The evidence received since the August 2010 AOJ decision is new and material and sufficient to reopen the claim of service connection for bladder cancer. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a). 3. The criteria for secondary service connection for bladder cancer with radical cystoprostatectomy and urostomy are met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.310(a). 4. The criteria for service connection for tinnitus are not met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.307, 3.309(a). 5. The reduction of the disability rating for adenocarcinoma of the prostate from 100 percent to 40 percent was improper. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.105, 3.343(a), 4.115b, Diagnostic Code (DC) 7528. 6. During the period from December 1, 2015 through December 20, 2015, the criteria for SMC pursuant to 38 U.S.C. § 1114 (s) are met. 38 U.S.C. § 1114 (s). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1963 to June 1966, which includes service in the Republic of Vietnam. His awards include the Combat Infantryman Badge. These matters come before the Board of Veterans’ Appeals (Board) from September 2015 and April 2016 rating decisions. As for characterization of the issues on appeal, the AOJ characterized the prostate cancer and SMC issues on appeal as “evaluation of adenocarcinoma of the prostate, currently evaluated as 40 percent disabling” and “continued entitlement to special monthly compensation.” The Board points out that these issues originate from the September 2015 rating decision, in which the AOJ reduced the disability rating for adenocarcinoma of the prostate from 100 percent to 40 percent and discontinued SMC pursuant to 38 U.S.C. § 1114(s), both from December 1, 2015. The Veteran expressed his disagreement with the rating reduction. Hence, the Board has recharacterized the prostate cancer issue on appeal as whether the reduction in the disability rating for adenocarcinoma of the prostate was proper. As for the SMC issue on appeal, a Decision Review Officer (DRO) awarded an increased (100 percent) rating for the Veteran’s service-connected posttraumatic stress disorder (PTSD), from December 21, 2015, in an April 2018 decision. In light of this decision, the DRO also awarded SMC pursuant to 38 U.S.C. § 1114(s), from December 21, 2015. Thus, the only remaining SMC issue on appeal is whether SMC is warranted during the period from December 1, 2015 through December 20, 2015. Lastly, in June 2017, the Board granted an effective date of December 10, 2009 for the award of a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities. The issue of entitlement to a TDIU prior to December 10, 2009, on an extraschedular basis, was remanded to the AOJ for further development. This matter has not yet been returned to the Board for further adjudication and will not be addressed at this time. I. Application to Reopen Generally, an AOJ decision denying a claim which has become final may not thereafter be reopened and allowed. 38 U.S.C. § 7105 (d)(3). The exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. 38 U.S.C. § 5108. New evidence is defined as existing evidence not previously submitted to VA, and material evidence is defined as existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (a). The newly presented evidence is presumed to be credible for purposes of determining whether it is new and material. Justus v. Principi, 3 Vet. App. 510, 512-513 (1992). When evaluating the materiality of newly submitted evidence, the focus must not be solely on whether the evidence remedies the principal reason for denial in the last prior decision; rather the determination of materiality should focus on whether the evidence, taken together, could at least trigger the duty to assist or consideration of a new theory of entitlement. See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). For the purpose of determining whether new and material evidence has been presented to reopen a claim, the evidence for consideration is that which has been presented or secured since the last time the claim was finally disallowed on any basis. Evans v. Brown, 9 Vet. App. 273, 285 (1996). The application to reopen the claim of service connection for bladder cancer The AOJ initially denied the Veteran’s claim of service connection for bladder cancer by way of an August 2010 rating decision on the basis that the disability did not have its onset in service or within a year of his discharge from service, and was not otherwise incurred in service. Specifically, the AOJ explained that there was no evidence of bladder cancer in the Veteran’s service treatment records, that the disability did not have its onset within one year of his discharge from service, and that there was no other evidence that the disability was incurred in service. The Veteran was notified of the AOJ’s August 2010 decision, he did not appeal the decision within one year of its issuance, and new and material evidence was not received within that year. Therefore, the August 2010 decision became final. See 38 U.S.C. § 7105(d)(3); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); 38 C.F.R. §§ 3.104, 3.156(a)-(b), 20.302, 20.1103. Pertinent new evidence received since the August 2010 denial includes the report of a February 2017 VA urinary tract examination. This additional evidence includes a diagnosis of bladder cancer and a medical opinion that the bladder cancer is likely proximately due to the Veteran’s service-connected prostate cancer. Hence, the additional evidence pertains to an element of the claim that was previously found to be lacking and raises a reasonable possibility of substantiating the claim by indicating that the Veteran’s claimed bladder cancer is caused by a service-connected disability. The evidence is, therefore, new and material, and the claim of service connection for bladder cancer is reopened. See Shade, 24 Vet. App. at 110. II. Service Connection Service connection will be granted if the evidence demonstrates that current disability resulted from a disease or injury incurred in active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service incurrence of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first 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). Certain chronic diseases (including organic diseases of the nervous system (e.g., tinnitus)) will be presumed related to service if they were noted as chronic in service; or, if they manifested to a compensable degree within a presumptive period (one year for organic diseases of the nervous system) following separation from service; or, if continuity of the same symptomatology has existed since service, with no intervening cause. 38 U.S.C. §§ 1101, 1112, 1113, 1137; Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2012); Fountain v. McDonald, 27 Vet. App. 258 (2015); 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a). Service connection is also provided for a disability which is proximately due to, the result of, or aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439 (1995); 38 C.F.R. § 3.310. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 1. Entitlement to service connection for bladder cancer with radical cystoprostatectomy and urostomy, secondary to service-connected adenocarcinoma of the prostate The Board finds, for the following reasons, that the Veteran has been diagnosed as having bladder cancer with radical cystoprostatectomy and urostomy and that this disability is proximately due to his service-connected adenocarcinoma of the prostate. The February 2017 VA urinary tract examination report shows the Veteran has a current diagnosis of bladder cancer with radical cystoprostatectomy and urostomy. The examiner who conducted the examination opined that this disability was likely (“at least as likely as not”/“50 percent or greater probability”) proximately due to or the result of the Veteran’s service-connected prostate cancer. The examiner explained that the Veteran experienced invasive bladder cancer in March 2011 and underwent a radical cystoprostatectomy for prostate and bladder cancer. Although the February 2017 examiner did not provide a detailed rationale for her opinion, she nonetheless concluded based upon an examination of the Veteran, a review of his medical records, and consideration of his reported history that his current bladder cancer with radical cystoprostatectomy and urostomy was due to his service-connected prostate cancer. The February 2017 opinion is therefore entitled to some probative weight. See Monzingo v. Shinseki, 26 Vet. App. 97, 106 (2012) (the fact that the rationale provided by an examiner “did not explicitly lay out the examiner’s journey from the facts to a conclusion,” did not render the examination inadequate); Acevedo v. Shinseki, 25 Vet. App. 286, 294 (2012) (medical reports must be read as a whole and in the context of the evidence of record). There are no medical opinions contrary to that of the February 2017 opinion with respect to whether the Veteran’s claimed bladder cancer was caused by his prostate cancer. Therefore, the evidence indicates that the Veteran’s current bladder cancer with radical cystoprostatectomy and urostomy is the result of his service-connected prostate cancer. There are no medical opinions contrary to this conclusion. Hence, service connection for bladder cancer with radical cystoprostatectomy and urostomy, secondary to service-connected adenocarcinoma of the prostate, is granted. 2. Entitlement to service connection for tinnitus The question for the Board is whether the Veteran has current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. For the following reasons, the Board concludes that, while there is evidence that the Veteran has current tinnitus, and while tinnitus is a chronic disease under 38 C.F.R. § 3.309(a) (i.e., an organic disease of the nervous system), the claimed tinnitus has not been shown to have had its onset in service or to have manifested within the year following service, continuity of symptomatology is not established, and the Veteran’s claimed disability is not otherwise related to a disease or injury in service. The Veteran has not reported, and the evidence does not otherwise reflect, that he has experienced a continuity of tinnitus symptomatology in the years since service. In this regard, there is no evidence of any complaints of or treatment for tinnitus in the Veteran’s service treatment records and his June 1966 separation examination was normal. Also, the evidence indicates that the current tinnitus did not manifest until many years after service. The first evidence of tinnitus is an August 2010 VA environmental examination report which indicates that the Veteran experienced tinnitus. He reported during a February 2017 VA audiological examination that he had been experiencing tinnitus “for the past five years.” There is no earlier evidence of any tinnitus. The absence of any evidence of tinnitus for over four decades after the Veteran’s separation from active service in June 1966 is one factor weighing against a finding that his current tinnitus was present in service or in the year or years immediately after service. See Maxson v. West, 12 Vet. App. 453, 459 (1999), aff’d sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000); see also Forshey v. Principi, 284 F.3d 1335, 1358 (Fed. Cir. 2002) (en banc) (the Board may consider in its assessment of a service connection claim the passage of a lengthy period of time wherein the veteran has not complained of the malady at issue). Hence, neither the clinical record nor the lay statements of record establish a continuity of symptomatology with respect to the claimed tinnitus. If a chronic disease, such as an organic disease of the nervous system (e.g., tinnitus), is shown in service and at any time thereafter, service connection will be conceded. 38 C.F.R. § 3.303 (b). There must, however, be sufficient observations in service to identify the disease entity. Id. In the present case, however, there is no evidence showing any tinnitus in service and the Veteran has not contended that tinnitus existed in service. Hence, service connection cannot be granted on this basis here. The audiologist who conducted the February 2017 VA audiological examination opined that the Veteran’s tinnitus was not likely (“less likely than not”/“less than 50 percent probability”) caused by or a result of military noise exposure. She reasoned that the Veteran experienced a bilateral mild sloping to severe hearing loss with tinnitus at the time of the February 2017 examination, but that he had normal hearing both at his entrance into service and at his separation from service. He reported being exposed to aircraft in service and was also exposed to hazardous noise while working in a sheet metal factory following service. Loud noise exposure causes inner ear damage, hearing loss, and tinnitus. The Veteran reported that his hearing loss and tinnitus started to occur approximately 5 years prior to the February 2017 examination. Hence, his hearing loss and tinnitus could not be tied to his military service because his hearing levels stayed stable during service and he was exposed to noise both during and outside of service. His tinnitus was likely linked to his decreasing hearing levels and noise exposure over the years. The February 2017 opinion is based upon an examination of the Veteran, a review of his medical records, and consideration of his reported history, and it is accompanied by a specific rationale which is consistent with the evidence of record. Hence, this opinion is entitled to substantial probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning; threshold considerations are whether the person opining is suitably qualified and sufficiently informed). To the extent that the Veteran is attempting to establish nexus through his own opinion, the Board acknowledges that lay evidence may be competent on a variety of matters concerning the nature and cause of disability. However, the question presented in this case (i.e., whether any relationship exists between the Veteran’s claimed tinnitus and his military service) is a question as to internal medical processes which extend beyond an immediately observable cause-and-effect relationship that is of the type that the courts have found to be beyond the competence of lay witnesses. See Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). An opinion as to the link between the Veteran’s claimed tinnitus and service, where there is no evidence of tinnitus for decades after service, is one requiring specialized knowledge and testing to understand the complex nature of the body systems. The Veteran has not indicated that he has such experience. His opinion on the question of nexus is therefore not competent evidence in this instance. There is no other evidence of a relationship between the Veteran’s claimed tinnitus and service, and neither he nor his representative has alluded to the existence of any such evidence. Thus, the preponderance of the evidence is against a finding that the Veteran’s claimed tinnitus had its onset in service, manifested within a year of his separation from service, or is otherwise related to service. As the preponderance of the evidence is against the Veteran’s claim, the benefit-of-the-doubt doctrine is not for application, and the claim of service connection for tinnitus must be denied. III. Rating Reduction Where a reduction in evaluation of a service-connected disability is considered warranted and the lower evaluation would result in a reduction or discontinuance of compensation payments currently being made, a rating proposing the reduction or discontinuance will be prepared setting forth all material facts and reasons. The beneficiary will be notified at his or her latest address of record of the contemplated action and furnished detailed reasons therefor. Additionally, the beneficiary must be given notice that he has (1) 60 days to present additional evidence to show that compensation payments should be continued at the present level, and (2) 30 days to request a predetermination hearing. 38 C.F.R. § 3.105 (e), (i). If a timely request for a predetermination hearing is received, VA will notify the beneficiary in writing of the time and place of the hearing at least 10 days in advance of the scheduled hearing date. The hearing will be conducted by VA personnel who did not participate in the proposed adverse action and who will bear the decision-making responsibility. Also, if a predetermination hearing is timely requested, benefit payments shall be continued at the previously established level pending a final determination concerning the proposed action. See 38 C.F.R. § 3.105 (i)(1). If a predetermination hearing is conducted, the final action will be based on evidence and testimony adduced at the hearing as well as the other evidence of record, including any additional evidence obtained following the hearing pursuant to necessary development. If a reduction is then found warranted, the effective date of such reduction shall be the last day of the month in which a 60-day period from the date of notice to the beneficiary of the final action expires. 38 C.F.R. § 3.105. A schedular 100 percent rating will not be reduced without examination showing material improvement. 38 C.F.R. § 3.343 (a). The circumstances under which a disability rating may be reduced are specifically limited and carefully circumscribed by regulations promulgated by VA. See Dofflemeyer v. Derwinski, 2 Vet. App. 277, 280 (1992). Where VA has reduced a veteran’s rating without observing applicable laws and regulations, such a rating is void ab initio and the Court will set it aside as not in accordance with the law. Kitchens v. Brown, 7 Vet. App. 320, 325 (1995). Where a rating reduction was made without observance of law, the reduction must be vacated and the prior rating restored. Schafrath v. Derwinski, supra at 595. Whether the reduction in the disability rating for adenocarcinoma of the prostate from 100 percent to 40 percent was proper The Veteran’s adenocarcinoma of the prostate is rated under 38 C.F.R. § 4.115b, DC 7528 as malignant neoplasms of the genitourinary system. Under DC 7528, following the cessation of surgical, X-ray, antineoplastic chemotherapy or other therapeutic procedure, the rating of 100 percent shall continue with a mandatory VA examination at the expiration of 6 months. Any change in evaluation based upon that or any subsequent examination, shall be subject to the provisions of 38 C.F.R. § 3.105 (e). If there has been no local reoccurrence or metastasis, rate on residuals as voiding dysfunction or renal dysfunction, whichever is predominant. 38 C.F.R. § 4.115b, DC 7528. The provisions of DC 7528 require an examination, not a reduction, six months after the assignment of total benefits. If the claimant remains totally disabled, the 100 percent rating will continue without interruption. A total rating will extend indefinitely after treatment is discontinued, with a required VA examination six months thereafter. If the results of this or any subsequent examination warrant a reduction in rating, the reduction will be implemented under the provisions of 38 C.F.R. § 3.105 (e). There can be no reduction at the end of six months since any proposed reduction would be based on the examination and the notification process can begin only after the examination is reviewed. This method also has the advantage of offering a veteran more contemporary notice of any proposed action and, under the provisions of 38 C.F.R. § 3.105 (e), expanding the opportunity to present evidence showing that the proposed action should not be taken. 59 Fed. Reg. 2525-6 (Jan. 18, 1994). The Board finds, for the following reasons, that the reduction in the disability rating for adenocarcinoma of the prostate from 100 percent to 40 percent was not proper and that, therefore, the 100 percent rating must be restored. The rating reduction for the Veteran’s adenocarcinoma of the prostate was proposed in a July 2012 rating decision and implemented in the September 2015 rating decision, effective from December 1, 2015. In the July 2012 rating decision, the AOJ proposed to reduce the disability rating for adenocarcinoma of the prostate from 100 percent to 10 percent. At that time, the AOJ noted the report of an April 2012 VA prostate cancer examination and an April 2012 addendum. This evidence revealed that the Veteran had undergone a radical prostatectomy in May 2011 following a diagnosis of prostate cancer and that he did not receive any chemotherapy for his prostate cancer. He reported urinary residuals of prostate cancer, but there were no other prostate cancer residuals. Thus, a 10 percent rating was warranted based on the severity of the Veteran’s urinary residuals. A July 2012 letter that accompanied the July 2012 rating decision notified the Veteran that he had 60 days to present additional evidence to show that the reduction should not have been made and 30 days to request a predetermination hearing. Initially, the Board finds that the AOJ complied with the notice requirements of 38 C.F.R. § 3.105 (e) by issuing the July 2012 rating decision and July 2012 letter which proposed the rating reduction for the Veteran’s prostate cancer. Thus, as the notice requirements of 38 C.F.R. § 3.105 (e) have been met, no further discussion in this regard is necessary. In an August 2012 statement (VA Form 21-4138), the Veteran requested a predetermination hearing concerning the proposed reduction for his prostate cancer. A January 2015 statement from the Veteran (VA Form 21-4138) indicates that an informal conference was conducted earlier that month in lieu of a formal hearing. During the hearing, the Veteran agreed to provide a Disability Benefits Questionnaire (DBQ) completed by his physician within 30 days, and the hearing officer agreed to postpone a decision on the proposed rating reduction until receipt of the DBQ or expiration of the 30-day period. In February 2015, the Veteran submitted a February 2015 prostate cancer DBQ completed by a physician. The DBQ includes diagnoses of prostate cancer and bladder cancer, notes that the status of the disease was active, and indicates that the Veteran had undergone a radical prostatectomy and experienced urinary residuals. In the September 2015 rating decision, the AOJ reduced the disability rating for adenocarcinoma of the prostate from 100 percent to 40 percent, effective from December 1, 2015. The reduction was based on a finding that the Veteran only experienced residual urinary symptoms which warranted a 40 percent rating under DC 7528 based on voiding dysfunction (i.e., urinary frequency). The Board points out that following the receipt of the February 2015 DBQ, the AOJ contacted the physician who completed the DBQ later in February 2015 to clarify certain information documented on the DBQ. Regardless, the AOJ never sought any specific clarification as to the status of the Veteran’s prostate cancer (i.e., active versus in remission) prior to the September 2015 rating decision. Moreover, the September 2015 rating decision does not at all discuss the notation on the February 2015 DBQ that the Veteran’s cancer was active. Given the evidence of possible recurrence of active prostate cancer at the time of the rating reduction and the fact that the AOJ did not seek any clarification as to the status of the Veteran’s prostate cancer following receipt of the February 2015 DBQ, the Board finds that the evidence did not show material improvement of the disability at the time of the reduction. Hence, the reduction in the disability rating for adenocarcinoma of the prostate from 100 percent to 40 percent was not in accordance with applicable laws and regulations. The reduction was void ab initio, and the 100 percent disability rating is restored, from December 1, 2015. IV. SMC Entitlement to SMC pursuant to 38 U.S.C. § 1114(s), from December 1, 2015 through December 20, 2015 Pursuant to 38 U.S.C. § 1114 (s), when a veteran has a service-connected disability rated as total and has additional service-connected disability independently ratable at 60 percent or more, he is entitled to SMC. 38 U.S.C. § 1114 (s)(1). The United States Court of Appeals for Veterans Claims has held that VA has a “well-established” duty to maximize a claimant’s benefits. See Buie v. Shinseki, 24 Vet. App. 242, 250 (2011); AB v. Brown, 6 Vet. App. 35 (1993); see also Bradley v. Peake, 22 Vet. App. 280 (2008). This duty to maximize benefits requires VA to assess all of a claimant’s disabilities to determine whether any combination of disabilities establishes entitlement to SMC under 38 U.S.C. § 1114. See Bradley, 22 Vet. App. at 280 (finding that SMC “benefits are to be accorded when a Veteran becomes eligible without need for a separate claim”). In the decision above, the Board has restored the 100 percent rating for adenocarcinoma of the prostate, from December 1, 2015. As the Veteran now has a service-connected disability rated as total and additional service-connected disability ratable at 60 percent or more during the entire period from December 1, 2015 through December 20, 2015, he meets the statutory criteria for SMC pursuant to 38 U.S.C. § 1114 (s) during this period. Accordingly, entitlement to SMC is granted during the period from December 1, 2015 through December 20, 2015. REASONS FOR REMAND 1. Entitlement to service connection for sleep apnea is remanded. An October 2017 VA preanesthesia summary note reflects that the Veteran was diagnosed as having suspected sleep apnea. Moreover, his medical records reveal that sleep impairment has been noted as a problem associated with his service-connected PTSD. The Board cannot make a fully-informed decision on the issue of entitlement to service connection for sleep apnea because no VA examiner has determined whether the Veteran has current sleep apnea or opined whether any such disability was incurred in service or is caused or aggravated by the Veteran’s service-connected PTSD. Hence, an appropriate VA examination should be conducted upon remand. See 38 U.S.C. § 5103A (d); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Also, the evidence indicates that there may be outstanding relevant VA treatment records. The most recent VA treatment records in the claims file are contained in the Biloxi Vista electronic records system and are dated to April 2018. Any VA treatment records are within VA’s constructive possession, and are considered potentially relevant to the remaining issues on appeal. A remand is required to allow VA to obtain them. 2. Entitlement to a rating in excess of 60 percent for type II diabetes mellitus is remanded. In an August 2011 rating decision, a 60 percent rating was assigned for the Veteran’s diabetes mellitus and this was partly based on the fact that he experienced uncontrolled diabetes which required insulin, a restricted diet, and regulation of activities. The only VA diabetes examination that was conducted during the current claim period was conducted in February 2017. The examination report and the Veteran’s treatment records reflect that his diabetes was still uncontrolled, that he had been hospitalized multiple times for diabetes during the previous year, and that the diabetes interfered with his ability to work. Nevertheless, the examination report indicates that the Veteran’s diabetes did not require regulation of activities. Moreover, there is also evidence that the Veteran’s diabetes may have worsened since the February 2017 examination. For example, the February 2017 examination report indicates that he had not experienced any progressive unintentional weight loss attributable to diabetes. A June 2017 VA orthotics prosthetics note, however, reflects that he had recent weight loss. In light of the evidence of potential worsening of the Veteran’s diabetes since the February 2017 examination and the fact that it is unclear whether or not his diabetes has actually required regulation of activities during the claim period, the Board finds that the Veteran should be provided an opportunity to report for a new VA examination to ascertain the current severity and manifestations of his diabetes. Also, all outstanding VA treatment records should be secured upon remand. The matters are REMANDED for the following action: 1. Ask the Veteran to identify the location and name of any VA or private medical facility where he has received treatment for sleep apnea and diabetes, to include the dates of any such treatment. Ask the Veteran to complete a VA Form 21-4142 for all records of his treatment for sleep apnea and diabetes from any sufficiently identified private treatment provider from whom records have not already been obtained. Make two requests for any authorized records, unless it is clear after the first request that a second request would be futile. 2. Obtain the Veteran’s VA treatment records contained in the Biloxi Vista electronic records system for the period since April 2018; and all such relevant records from any other sufficiently identified VA facility. 3. After all efforts have been exhausted to obtain and associate with the claims file any additional treatment records, schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any current sleep apnea. The examiner must opine whether any sleep apnea that has been experienced by the Veteran since approximately December 2015 at least as likely (1) began during active service; (2) is related to an in-service injury or disease; (3) was caused by service-connected PTSD; or (4) was aggravated by service-connected PTSD. The examiner must provide reasons for each opinion given. 4. After all efforts have been exhausted to obtain and associate with the claims file any additional treatment records, schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected diabetes mellitus. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. To the extent possible, the examiner should identify any symptoms and functional impairments due to diabetes alone and discuss the effect of the Veteran’s disability on any occupational functioning and activities of daily living. The examiner must provide reasons for any opinion given. Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD B. Elwood, Counsel