Citation Nr: 21003108 Decision Date: 01/19/21 Archive Date: 01/19/21 DOCKET NO. 18-02 384 DATE: January 19, 2021 ORDER Service connection for diabetes mellitus, type II (DMII), as secondary to the service-connected sleep apnea (SA) with asthma, is granted. REMANDED Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) is remanded. FINDING OF FACT Affording the Veteran the benefit of the doubt, his DMII is caused, or aggravated, by his service-connected SA with asthma. CONCLUSION OF LAW The criteria for service connection for DMII as secondary to the service-connected SA with asthma are met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had multiple periods of active service, to include from May 1987 to September 2001 and from December 2001 to December 2002. In October 2019, the Veteran appeared and provided testimony at a hearing before the undersigned Veterans Law Judge (VLJ). At the Board of Veterans’ Appeals (Board) hearing, the Veteran clarified that he wished to limit the appeal for service connection for diabetes mellitus as secondary to sleep apnea only. He did not wish for it to be considered on a direct basis. Accordingly, the Board has recharacterized the issue on appeal as above to better reflect the Veteran’s contentions. Service Connection For DMII As Secondary To SA With Asthma Service connection may also be established on a secondary basis for a disability which is proximately due to, or the result of, a service-connected disability. 38 C.F.R. § 3.310(a). Secondary service connection may also be established for a disability which is aggravated by a service-connected disability. In order to prevail on the issue of secondary service connection, the record must show (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical nexus evidence establishing a connection between the service-connected disability and the current disability. Wallin v. West, 11 Vet. App. 509 (1998). The Veteran seeks service connection for DMII as secondary to his service-connected SA with asthma. His January 2014 and December 2017 VA diabetes mellitus examinations show that he has a current diagnosis of DMII. Further, he has been service-connected for SA with asthma throughout the period on appeal. In light of the above, the only issue left to discuss in the Veteran’s claim for service connection for a diabetes is that of a medical nexus linking his current DMII to his service-connected SA with asthma. As reasonable doubt is to be resolved in the Veteran’s favor, the Board finds that such a nexus has been shown in this case. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran submitted a letter from his internal medicine physician, Dr. W.K., MD, dated in July 2013, and another identical version of the same later dated in April 2014. Therein, Dr. W.K. wrote that, for several years, there has been mounting evidence and published medical reports of an association between obstructive SA and DM. He opined, after reviewing such literature, that the Veteran’s DMII was at least as likely as not related to, and/or caused by, his SA. The Veteran underwent a VA diabetes mellitus examination in January 2014. The examiner opined that the Veteran’s DMII was less likely than not proximately due to, or the result of, his sleep apnea. He said that there was no medical literature which supported such an association and that a review of the Veteran’s medical records provided no evidence to support sleep apnea having caused his DMII. The examiner did not address the medical literature referenced by Dr. W.K. in discussing an association between the Veteran’s DMII and his SA. The Veteran submitted medical articles which he contends support an association between DMII and SA. These medical articles are shown as having been associated with the claims file in July 2013, although the documents, themselves, appear to have been printed in August 2014. The Veteran underwent another VA diabetes mellitus examination in December 2017. This examiner also opined against the Veteran’s diabetes mellitus being due to, or aggravated by, his sleep apnea. The examiner’s rationale was based on his opinion that obesity was more likely to be the primary cause of the Veteran’s diabetes mellitus. He further stated that there was no compelling or medically accepted rationale to suggest that SA is causative in the Veteran’s development of, or plays an etiological role in causing or contributing to his—or any individuals—DMII. Significantly, neither of the negative VA examiner’s nexus opinions sufficiently explained why the medical literature which Dr. W.K. found to be compelling constituted “no medical literature supporting such an association” (as stated by the January 2014 examiner) or why, despite their existence, they were not “compelling or medically accepted rationale” in favor of such an association (as stated by the December 2017 VA examiner). The VA examiners’ opinions are further flawed, in that the 2014 examiner stated there was “no” medical literature on the issue, when clearly some relevant medical literature exists, and the 2017 examiner’s opinion relied upon an unexplained contention that there could not be more than one causative or aggravating condition (i.e., sleep apnea) of the Veteran’s DMII. As such, the evidence presented as to the medical nexus aspect between the Veteran’s DMII and SA is at least in equipoise, and the benefit of the doubt will be afforded to him. Accordingly, the Board finds that the medical nexus element of the Veteran’s claim has been met and that service connection for DMII as secondary to the service-connected SA with asthma is warranted. REASONS FOR REMAND Entitlement to a TDIU The Veteran also seeks a TDIU. He is service-connected for DMII; sleep apnea with asthma; right total knee arthroplasty; status post left ankle fracture; degenerative changes of the cervical spine with degenerative disc disease; left superficial peroneal nerve neuroma; tinnitus; right knee scars; a left ankle scar; and bilateral hearing loss. He has submitted an opinion from his treating physician and a functional capacity evaluation (FCE) which purport to support a finding that his service-connected disabilities render him unable to secure or follow a substantially gainful occupation. However, both the opinion and the FCE findings were based on disabilities which included ones for which the Veteran is not service-connected (mainly, lumbar and thoracic spine conditions). Further, his Board testimony on the issue only stated that he had chronic pain from his neck down, but it is not clear that he was only referring to pain from service-connected disabilities. As the claims file does not contain evidence which shows a clear picture of how only the Veteran’s service-connected conditions, altogether, impact his functional capacity, a functional capacity evaluation which considers only his service-connected disabilities is needed before the Board can decide this claim. Accordingly, this matter is REMANDED for the following action: Schedule the Veteran for an appropriate examination to assess the functional limitations caused by his service-connected disabilities: diabetes mellitus, type II; sleep apnea with asthma; right total knee arthroplasty; status post left ankle fracture; degenerative changes of the cervical spine with degenerative disc disease; left superficial peroneal nerve neuroma; tinnitus; right knee scars; a left ankle scar; and bilateral hearing loss. The examiner is asked to identify what overall functional limitations on employment that the totality of his service-connected disabilities cause, when combined. In rendering this opinion, the examiner is advised that the Veteran is competent to report his symptoms/history and that such reports must be acknowledged and considered in formulating any opinion. If his reports are discounted, the examiner should provide a reason for doing so. A rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. No action is required of the Veteran until he is notified by VA. However, he is advised of his obligation to cooperate in ensuring the duty to assist is satisfied. Kowalski v. Nicholson, 19 Vet. App. 171 (2005). His failure to report for a VA medical examination may impact the determination made. 38 C.F.R. § 3.655. The Veteran also is advised that he has the right to submit additional evidence and argument with respect to this matter. Kutscherousky v. West, 12 Vet. App. 369 (1999). This appeal must be afforded prompt treatment. THERESA M. CATINO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Davidoski, Associate Counsel 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.