Citation Nr: 21064950 Decision Date: 10/22/21 Archive Date: 10/22/21 DOCKET NO. 17-32 676 DATE: October 22, 2021 REMANDED Entitlement to service connection for sleep apnea is remanded. Entitlement to service connection for diabetes mellitus type II is remanded. REASONS FOR REMAND The Veteran, who is the appellant in this case, served on active duty from May 1988 to August 1988 and from October 1995 to May 2002. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In June 2021, the Veteran testified at a virtual hearing before the undersigned Veterans Law Judge. A copy of the hearing transcript is of record and has been reviewed. During the June 2021 Board hearing and in a June 2021 Statement in Support of Claim, the Veteran waived initial RO consideration of the lay and medical evidence he submitted. The Board observes that additional VA treatment records were received since the RO's adjudication in a May 2017 Statement of the Case (SOC), without a waiver of initial RO consideration. See Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012, Public Law No. 112-154, 126 Stat. 1165 (amending 38 U.S.C. § 7105 to provide that if new evidence is submitted with or after a substantive appeal received on or after February 2, 2013, then it is subject to initial review by the Board unless the Veteran explicitly requests agency of original jurisdiction (AOJ) consideration). Nonetheless, since the Board is remanding the claims for further development and the entire claims file is to be reviewed by the VA examiner prior to rendering any opinions, there is no prejudice to the Veteran. 1. Entitlement to service connection for sleep apnea is remanded. The Veteran asserts he is entitled to service connection for sleep apnea. The Board finds that additional development is necessary prior to appellate review of this claim. A February 2013 private sleep study report reflects that the Veteran was diagnosed with severe obstructive sleep apnea. During the June 2021 Board hearing, the Veteran testified that his symptoms of loud snoring, breathing difficulties, and daytime sleepiness onset during his active service. The onset and nature of the Veteran's sleep disturbances are corroborated in July 2016 lay statements provided by his ex-spouse and fellow servicemember. In a June 2021 VA outpatient interdisciplinary note, the Veteran's treatment provider informed him that "he could have had undiagnosed obstructive sleep apnea around September of 1996 based on his symptoms. Patient was informed that there was not as much awareness of obstructive sleep apnea and testing for it around 1996 as there is today." To date, VA has not obtained a competent medical examination and opinion addressing this claim. Given the Veteran's current diagnosis of severe obstructive sleep apnea, the competent lay reports that his sleep disturbances onset during active service, and the VA treatment provider's opinion that the Veteran could have had undiagnosed sleep apnea during his service, a VA examination should be afforded to him. McClendon v. Nicholson, 20 Vet. App. 79 (2006). 2. Entitlement to service connection for diabetes mellitus type II is remanded. The Veteran asserts he is entitled to service connection for diabetes mellitus type II. The Board finds that additional development is necessary prior to appellate review of this claim. In December 2015, a VA medical opinion was obtained as to whether the Veteran's current diabetes mellitus type II was caused by his exposure to heavy metals during service. However, no adequate opinion has been obtained as to whether the Veteran's diabetes mellitus type II was incurred in service or is secondary to his claimed sleep apnea. Notably, in a June 2021 VA outpatient interdisciplinary note, the Veteran's treatment provider indicated that the Veteran was "noted to have some occasional elevated blood sugars during his time in the military" and that, in the provider's opinion, the Veteran's obstructive sleep apnea "could have played a part in his development of hypertension and type 2 diabetes mellitus." On remand, the Board finds that additional medical opinions should be obtained which adequately address the theories of direct and secondary service connection. Accordingly, the matters are REMANDED for the following action: 1. Provide the Veteran a VA examination, if possible, to determine the nature and likely etiology of his claimed sleep apnea. The claims file, including a copy of this Remand, must be made available to, and be reviewed by, the examiner. ** IF an in-person examination is not feasible given the circumstances surrounding the recent pandemic, refer the case to an appropriate examiner for a thorough review of the record, possible telephone/virtual interview with the Veteran, and medical opinion. After a thorough review of the claims file and examination of the Veteran (if possible), the examiner is asked to: (a) Elicit from the Veteran and the record the history of his sleep disturbance symptoms. (b) Provide an opinion as to whether the Veteran's current sleep apnea at least as likely as not (50 percent probability or greater) had its onset during or is otherwise related to the Veteran's active service. * Specifically, consider the following evidence: ** July 2016 lay statement from Veteran's ex-spouse ("This is to confirm that while married to [the Veteran] during the period of 1998-2012 he indeed had snoring issues. The snoring could be so severely loud that it would wake me up from sleep."). ** July 2016 lay statement from Veteran's fellow servicemember, J.G. ("I have known [the Veteran] since December of 1995 when I was stationed at Camp Carroll Korea 16th Med Log Bn. While I was stationed there[,] I had the pleasure of spending time socializing with [the Veteran]. While socializing, myself and other fellow soldiers would notice [the Veteran] snoring while sleeping on his side of the room. The snoring would be so loud at times it was hard not to laugh or make fun of [the Veteran] as he would wake himself. On a more serious note at times we would notice [the Veteran] taking longer pauses between snores and would gasp for air. At the time we had no idea this could possibly be a serious medical condition, and as young adults do, we would just make fun of the whole situation. I was stationed at Camp Carroll for a year however [the Veteran] left country shortly before me. I was able to be stationed with [the Veteran] once again at Ft. Huachuca, AZ MEDDAC December 1996. For the next year [the Veteran] and I would commute from Tucson AZ to Sierra Vista AZ every morning before formation to work at the MEDDAC hospital. [The Veteran] and I would take turns driving in the early morning hours while the other slept. It was once again that I noticed [the Veteran] snoring and gasping for air as he slept. [The Veteran] and I would laugh it off as we did in the past and did not consider it a major issue. I believe that [the Veteran] may have shown early signs/symptoms of sleep apnea while on active duty with me while in the US Army.") ** June 2021 VA outpatient interdisciplinary note (Veteran's treatment provider informed him that "he could have had undiagnosed obstructive sleep apnea around September of 1996 based on his symptoms. Patient was informed that there was not as much awareness of obstructive sleep apnea and testing for it around 1996 as there is today."). ** June 2021 Board hearing (Veteran testified that his symptoms of loud snoring, breathing difficulties, and daytime sleepiness onset during his active service). 2. Obtain an addendum VA medical opinion regarding the nature and likely etiology of the Veteran's diabetes mellitus type II. The claims file, including a copy of this Remand, must be made available to, and be reviewed by, the examiner. If another examination is indicated, one should be provided to the Veteran. After a review of the entire claims file, the examiner is asked to provide opinions as to the following: (a) Whether the Veteran's diabetes mellitus type II at least as likely as not (50 percent probability or greater) had its onset during active service or is otherwise related to it. * Specifically, consider the following evidence: ** January 1998 laboratory testing results revealing a blood glucose reading of 109. ** June 2021 VA outpatient interdisciplinary note in which the Veteran's treatment provider wrote that the Veteran was "noted to have some occasional elevated blood sugars during his time in the military." (b) Whether the Veteran's diabetes mellitus type II is at least as likely as not (50 percent probability or greater) proximately due to OR aggravated by his service-connected hypertension or claimed sleep apnea. * Specifically, consider the June 2021 VA outpatient interdisciplinary note in which the Veteran's treatment provider opined that the Veteran's obstructive sleep apnea "could have played a part in his development of hypertension and type 2 diabetes mellitus." * Any amount of aggravation is sufficient to establish secondary service connection; permanent aggravation/worsening of a non- service-connected disability is not required. See Ward & Neal v. Wilkie, 31 Vet. App. 233 (2019). (Continued on the next page) 3. Thereafter, readjudicate the remanded claims. In so doing, ensure that all applicable theories of entitlement are addressed. S. B. MAYS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. M. Gill, 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.