Citation Nr: 21065632 Decision Date: 10/26/21 Archive Date: 10/26/21 DOCKET NO. 20-12 234 DATE: October 26, 2021 REMANDED Entitlement to service connection for sleep apnea, to include as secondary to service-connected type II diabetes mellitus, diabetic neuropathy and diabetic nephropathy is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from January 1955 to August 1975. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2019 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In that rating decision, the RO found that the new and material evidence had not been received to reopen a claim of service connection for sleep apnea and denied service connection for sleep apnea as secondary to type II diabetes mellitus. In an April 2020 decision, the Board reopened and denied the claim for service connection for sleep apnea. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In January 2021, the Veteran's representative and VA's Office of General Counsel, representing the Secretary of VA, filed a Joint Motion for Partial Remand (Joint Motion) requesting that the Board vacate the Board's decision and remand the matter for readjudication in compliance with the directives specified. The Court issued an Order in February 2021 granting the Joint Motion and returned the case to the Board. The Board notes that the Veteran's claims for entitlement to a disability rating in excess of 20 percent for peripheral neuropathy of the lower extremities was recently returned to the Board from the U.S. Court of Appeals for Veterans Claims (Court). See July 2021 CAVC Decision. However, the Board notes that this claim will be addressed in a separate decision, after the time period afforded to the Veteran to submit additional evidence and argument has elapsed and all due process requirements have been completed. Entitlement to service connection for sleep apnea, to include as secondary to service-connected type II diabetes mellitus, diabetic neuropathy and diabetic nephropathy is remanded. The Board previously remanded the claim to obtain VA examination and opinions. However, the VA examiner in the July 2021 opinion opined on the direct service connection and secondary service connection causation but did not adequately address aggravation, specifically the Veteran's assertion that the medications that he takes for his service-connected type II diabetes mellitus and kidney disabilities interfered with his sleep apnea. As previously noted, in a December 2018 statement, the Veteran listed a number of medications that he was prescribed for diabetes and a kidney disability and asserted that the medications had been "changed and adjusted many times in an attempt to improve [his] sleeping condition." The July 2021 VA examiner acknowledged that a variety of substance and medications, including alcohol, benzodiazepines, narcotics, and possibly gabapentinoids may exacerbate obstructive sleep apnea, a causative link is unproven. However, no rationale was provided regarding whether the Veteran's medication that he takes for his service-connected type II diabetes mellitus or associated neuropathy and kidney disabilities aggravated his sleep apnea. Additionally, in a September 2018 statement the Veteran claimed that his sleep apnea is related to exposure to Agent Orange during his service in the Republic of Vietnam. While the July 2021 VA examiner opined that the Veteran's sleep apnea was less likely than not manifested in or otherwise etiologically related to military service, the rationale was based on the fact that there is no evidence of such in the Veteran's service treatment records or until the 2008 diagnosis. Therefore, a remand is necessary to obtain a VA opinion which adequately addresses the direct and secondary theories for service connection. The matters are REMANDED for the following action: Refer the Veteran's claims file to a suitably qualified VA examiner for a clarifying opinion as to the nature and etiology of the Veteran's sleep apnea. An additional physical examination should be performed only if deemed necessary by the VA examiner. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and assertions. It should be noted that the Veteran is competent to attest to factual matters of which he has first-hand knowledge. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should state this with a fully reasoned explanation. The examiner should provide an opinion as to whether it is at least as likely as not that the Veteran's sleep apnea manifested in or is otherwise causally or etiologically related to his military service, to include Agent Orange exposure. The examiner is advised that service connection for a disease can be established on a direct basis as related to Agent Orange and is not precluded solely because the disease is not listed as a presumptive condition associated with herbicide exposure. The examiner should also provide an opinion as to whether it is at least as likely as not that the Veteran's sleep apnea was either caused by or aggravated by his service-connected type II diabetes mellitus, diabetic neuropathy and/or diabetic nephropathy, to include any medications prescribed to treat these disabilities. Aggravation means an increase in disability any additional impairment of earning capacity of the nonservice-connected disability. If aggravation is found, the examiner must attempt to establish a baseline level of severity of the diagnosed disability prior to aggravation by the service-connected disability. (The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of conclusion as it is to find against it.) A clear rationale for all opinions must be provided and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Cynthia M. Bruce Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Williams, 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.