Citation Nr: 21000016 Decision Date: 01/04/21 Archive Date: 01/04/21 DOCKET NO. 15-18 621 DATE: January 4, 2021 ORDER Entitlement to service connection for diabetes mellitus, type II is granted. REMANDED Entitlement to service connection for restless leg syndrome, to include as due to exposure to herbicide agents and as secondary to service-connected posttraumatic stress disorder (PTSD) or diabetes mellitus, type II, is remanded. Entitlement to service connection for obstructive sleep apnea, to include as due to exposure to herbicide agents and as secondary to service-connected PTSD or diabetes mellitus, type II, is remanded. FINDING OF FACT The Veteran’s currently diagnosed diabetes mellitus, type II, is presumed to be the result of in-service exposure to herbicide agents. CONCLUSION OF LAW The criteria for service connection for diabetes mellitus, type II, have been met. 38 U.S.C. §§ 1110, 1112, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1964 to March 1968. This matter is before the Board of Veterans’ Appeals (Board) on appeal of a January 2015 rating decision of the Salt Lake City, Utah, Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran appeared at a hearing before the undersigned Veterans Law Judge in June 2018. In September 2018, the Board remanded these claims for additional development. 1. Entitlement to service connection for diabetes mellitus, type II Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110; 38 C.F.R. § 3.303. Establishing service connection generally requires evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). If a claimant was exposed to an herbicide agent during active military, naval, or air service, conditions such as diabetes mellitus, type II, shall be presumed to be service connected even though there is no record of such disease during service. 38 U.S.C. § 1116; 38 C.F.R. § 3.309(e). Medical records associated with the claims file confirm the Veteran has been diagnosed with diabetes mellitus, type II. A February 2020 VA Memorandum concedes the Veteran’s exposure to herbicide agents during his active service in the offshore eligible waters as defined in the Blue Water Navy Vietnam Veteran’s Act of 2019. See 38 U.S.C. § 1116A. Service connection for diabetes mellitus is warranted. 38 U.S.C. § 1116, 1116A; 38 C.F.R. § 3.309(e). REASONS FOR REMAND A remand by the Board confers on a Veteran, as a matter of law, a right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. If the Board proceeds with final disposition of an appeal, and the remand orders have not been complied with, the Board itself errs in failing to ensure compliance. Stegall v. West, 11 Vet. App. 268, 271 (1998). VA has a duty to ensure any medical examination or opinion it provides is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (overruled on other grounds, Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013)). A medical opinion is adequate where it is based upon consideration of the full medical history and describes a disability in sufficient detail so that the Board’s evaluation will be fully informed. Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). 1. Entitlement to service connection for restless leg syndrome, to include as due to exposure to herbicide agents and secondary to service-connected PTSD and/or diabetes mellitus, type II, is remanded. The Veteran seeks service connection for restless leg syndrome. He claims this condition is causally related to his conceded in-service exposure to herbicide agents or secondary to his service-connected PTSD or diabetes mellitus, type II. In March 2015, he submitted a statement from Dr. S. R., his VA physician. Dr. S. R. opined that the Veteran’s service-connected PTSD “undoubtedly affected his ability to control his . . . restless leg syndrome successfully.” In April 2015, a VA clinician opined restless leg syndrome was not caused by or aggravated by PTSD. She supported her opinion with only the general observation that “the preponderance of the medical evidence does not support this claim.” She did not refer to any specific medical literature or discuss the specific nature of the Veteran’s condition. In addition, the VA clinician dismissed Dr. S. R.’s opinion as “mere speculation because he had only treated the Veteran for one year prior to providing his opinion and he had not reviewed prior medical records.” In September 2018, the Board observed the April 2015 VA etiology opinion was insufficient because there was insufficient supporting rationale as to causation and it did not address aggravation. The Board remanded the claim so that an addendum opinion could be obtained. The Board directed a full discussion of causation and aggravation, and detailed consideration of Dr. S. R.’s statement. The evaluation was required to include a discussion of the facts and medical principles involved in the Veteran’s specific case and generalized statements were to be considered inadequate. A VA addendum opinion was obtained in March 2019. The VA clinician generally opined that PTSD does not cause or aggravate restless leg syndrome. No discussion or supporting rationale was included. She discussed Dr. S. R.’s opinion that PTSD affected the Veteran’s ability to control his diabetes as the condition might make it more difficult for the Veteran to follow a diet and she implied this might be related to obesity. However, the clinician did not provide any explanation as to how difficulty following a diet or resulting weight gain would interact with the Veteran’s restless leg syndrome. Accordingly, the March 2019 VA etiology opinion did not provide the analysis required by the Board’s remand and it is insufficient to evaluate the claim. See Stefl, supra, see also Stegall, supra. An additional addendum etiology opinion must be obtained. In November 2020, the Veteran’s representative submitted an informal hearing presentation asserting the restless leg condition may be secondary to neuropathy associated with diabetes or secondary to sleep disturbances associated with PTSD. This presentation included an internet link to the National Institute of Neurological Disorders and Stroke “Restless Legs Syndrome Fact Sheet,” which lists neuropathy as a condition associated with restless leg syndrome. It also included an internet link a National Center for Biotechnology Information’s article entitled “Diagnosis and Management of Sleep Disorders in Posttraumatic Stress Disorder: A Review of the Literature,” which described links between sleep disturbances, including periodic leg movements, and PTSD. This scientific literature must be considered by a VA clinician in providing a new etiology opinion. 2. Entitlement to service connection for obstructive sleep apnea, to include as due to exposure to herbicide agents and secondary to service-connected PTSD and/or diabetes mellitus, type II, is remanded. The longstanding policy of the Department of Veterans Affairs (VA) is that obesity, per se, is not a disease or injury for purposes of 38 U.S.C. §§ 1110 and 1131 and therefore may not be service connected on a direct basis, consistent with title 38, United States Code. Nevertheless, obesity may be an “intermediate step” between a service-connected disability and a current disability that may be service connected on a secondary basis pursuant to 38 C.F.R. § 3.310. See VAOPGCPREC 1-2017. The Veteran seeks service connection for obstructive sleep apnea. He claims this condition is causally related to his active service, including his conceded in-service exposure to herbicide agents, or secondary to his service-connected PTSD or diabetes mellitus, type II. His VA medical records include a January 2020 notation of “truncal obesity.” In March 2015, the Veteran submitted a statement from Dr. S. R., his VA physician. Dr. S. R. opined that the Veteran’s service-connected PTSD “undoubtedly affected his ability to control his . . . sleep apnea . . . successfully.” In April 2015, a VA clinician opined sleep apnea was not caused by PTSD. She supported her opinion with the general observation that “the preponderance of the medical evidence does not support this claim.” She noted the condition was more likely caused by or aggravated by the Veteran’s obesity and tobacco use because those were more common causes of sleep apnea according to medical literature. The examiner did not refer to any specific medical literature. In addition, the VA clinician dismissed Dr. S. R.’s opinion as “mere speculation because he had only treated the Veteran for one year prior to providing his opinion and he had not reviewed prior medical records. In September 2018, the Board observed the April 2015 VA etiology opinion was insufficient because it did not address aggravation and there was insufficient supporting rationale as to causation. The Board remanded the claim so that an addendum opinion as to whether the Veteran’s sleep apnea was secondary to his PTSD could be obtained. The Board required to address causation and aggravation, and to include consideration of Dr. S. R.’s statement. The VA clinician providing the addendum opinion was directed to discuss of the facts and medical principles involved in the Veteran’s specific case and generalized statements were to be considered inadequate. An VA addendum opinion was obtained in March 2019. The VA clinician generally opined that PTSD does not cause or aggravate obstructive sleep apnea. She noted that medical studies had been undertaken to establish a causal link between these conditions, but the studies had not proven that PTSD caused sleep apnea. No specific medical literature was discussed. She stated obesity was the main cause of sleep apnea, but obesity was not caused by PTSD. The Board notes, in discussing the Veteran’s diabetes mellitus, type II disability, this VA clinician conceded that PTSD could make it more difficult for the Veteran to “follow a diet.” She did not include any discussion of overeating, due to PTSD, in addressing whether sleep apnea was caused or aggravated by PTSD. She noted Dr. S. R.’s opinion that PTSD interfered with the Veteran’s ability to control his sleep apnea. She stated, without explanation, that the interaction between PTSD and sleep apnea would not result in aggravation beyond the natural progression of the sleep apnea condition. No evaluation of the natural progress of the Veteran’s sleep apnea condition was provided. Accordingly, the March 2019 VA etiology opinion did not provide the analysis required by the Board’s remand and it is insufficient to evaluate the claim. See Stefl, supra, see also Stegall, supra. An additional VA etiology opinion must be obtained. In November 2020, the Veteran’s representative submitted an informal hearing presentation. The representative asserts sleep apnea may be associated with neuropathy affecting the lungs. In addition, this presentation included links to multiple websites with scientific literature pertinent to the Veteran’s claim. These links documented research noting a high incidence of obstructive sleep apnea in service members (National Center for Biotechnology Information and Health.mil websites) and articles reporting a high incidence of sleep apnea in Veteran’s with PTSD (Chest Physician article entitled “Sleep apnea found in 57% of veterans with PTSD” and American Academy of Sleep Medicine article entitled “Study find high risk of sleep apnea in young veterans with PTSD”). The presentation also noted an article on the VA PTSD website entitled “Negative Coping and PTSD” which includes a warning that “[e]ating to relieve stress . . . can be dangerous if you gain too much weight.” This scientific literature must be considered by a VA clinician in providing a new etiology opinion. The matters are REMANDED for the following action: 1. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran’s restless leg syndrome is at least as likely as not the result of his active duty service, including conceded exposure to herbicide agents. The clinician must also opine whether restless leg syndrome is proximately due to or aggravated beyond its natural progression by service-connected diabetes mellitus, type II (including any neuropathy associated with diabetes) and whether restless leg syndrome is proximately due to or aggravated beyond its natural progression by service-connected PTSD (including sleep disruptions associated with PTSD). In providing these opinions, the examiner must specifically address the relevant medical literature referenced in the November 2020 informal hearing presentation associated with the claims file and the March 2015 letter from Dr. S. R. The rationale must go beyond a generalized statement that a review of medical literature does not support the Veteran’s claims. There must be some discussion of the facts and the medical principles involved in the Veteran’s specific case for the opinion to be deemed adequate. The secondary service connection opinion must explicitly address both causation and aggravation to be deemed adequate. The examiner is advised aggravation means an increase in the severity of the underlying disability beyond its natural progression. If aggravation is found, the examiner should attempt to quantify the degree of additional disability resulting from the aggravation. If the VA clinician determines that an additional examination is necessary to provide the requested opinions, schedule an examination. If feasible, schedule a telehealth examination. 2. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran’s obstructive sleep apnea is at least as likely as not the result of his active duty service, including conceded exposure to herbicide agents. The clinician must also opine whether obstructive sleep apnea is proximately due to or aggravated beyond its natural progression by service-connected diabetes mellitus, type II (including any neuropathy associated with diabetes) and whether obstructive sleep apnea is proximately due to or aggravated beyond its natural progression by service-connected PTSD (including sleep disruptions associated with PTSD). The clinician must provide an opinion as to whether or not the Veteran’s service-connected PTSD or other service-connected disabilities caused him to become obese. If the examiner determines the Veteran’s obesity is the result of one or more service-connected disabilities, he or she must provide an opinion as to whether or not the obesity caused by the service-connected disability was a substantial factor in causing sleep apnea. If the examiner determines both that obesity was caused by a service connected disability or disabilities and that sleep apnea was caused by the obesity, he or she must provide an opinion as to whether or not the claimed condition would not have occurred but for the obesity caused by the service-connected disability or disabilities. In providing these opinions, the examiner must specifically address the relevant medical literature referenced in the November 2020 informal hearing presentation associated with the claims file and the March 2015 letter from Dr. S. R. The rationale must go beyond a generalized statement that a review of medical literature does not support the Veteran’s claims. There must be some discussion of the facts and the medical principles involved in the Veteran’s specific case for the opinion to be deemed adequate. (Continued on the next page)   The secondary service connection opinion must explicitly address both causation and aggravation to be deemed adequate. The examiner is advised aggravation means an increase in the severity of the underlying disability beyond its natural progression. If aggravation is found, the examiner should attempt to quantify the degree of additional disability resulting from the aggravation. If the VA clinician determines that an additional examination is necessary to provide the requested opinions, schedule an examination. If feasible, schedule a telehealth examination. M. HYLAND Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Jeanne Celtnieks The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.