Citation Nr: 21069078 Decision Date: 11/17/21 Archive Date: 11/17/21 DOCKET NO. 19-00 710 DATE: November 17, 2021 ORDER Service connection for diabetes mellitus, type II (diabetes) is granted. Service connection for peripheral neuropathy of the left lower extremity is granted. Service connection for peripheral neuropathy of the right lower extremity is granted. REMANDED Service connection for sleep apnea is remanded. FINDINGS OF FACT 1. The Veteran is presumed to have been exposed to herbicides while serving in the Republic of Vietnam (Vietnam) during the Vietnam War; and, as a result of his in-service exposure to herbicide agents, his diagnosed Type II diabetes mellitus is presumed to be etiologically related to his active service. 2. Peripheral neuropathy of the left lower extremity is etiologically related to the Veteran's service-connected diabetes. 3. Peripheral neuropathy of the right lower extremity is etiologically related to the Veteran's service-connected diabetes. CONCLUSIONS OF LAW 1. The criteria for service connection for Type II diabetes mellitus have been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.307, 3.309. 2. The criteria for service connection for peripheral neuropathy of the left lower extremity have been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.307, 3.309, 3.310. 3. The criteria for service connection for peripheral neuropathy of the right lower extremity have been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1969 to June 1970 and from June 1970 to September 1990, including service in the Republic of Vietnam (Vietnam) during the Vietnam War. This matter comes before the Board of Veterans' Appeals (Board) on appeal from two rating decisions of the Agency of Original Jurisdiction (AOJ). An August 2017 rating decision denied service connection for diabetes and peripheral neuropathy of the lower extremities. A November 2017 rating decision denied service connection for sleep apnea. The Veteran participated in a videoconference hearing before the undersigned Veterans Law Judge in June 2021, and a transcript of this hearing has been associated with the record. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). A veteran who had active military service in Vietnam during the Vietnam War is presumed to have been exposed to an herbicide agent during such service, unless there is affirmative evidence to establish that the veteran was not so exposed. See 38 U.S.C. § 1116; 38 C.F.R. § 3.307(a)(6)(iii). If such exposure occurred, the veteran is entitled to a presumption of service connection for certain disorders, including Type II diabetes mellitus. See 38 C.F.R. § 3.309(e). Service connection may be granted on a secondary basis for a disability that is proximately due to or the result of a service connected disease or injury. 38 C.F.R. § 3.310(a); Harder v. Brown, 5 Vet. App. 183 (1993). To establish service connection on a secondary basis, there must be evidence of a current disability, a service connected disability, and medical evidence of a nexus between the service connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509 (1998). The Veteran is presumed to have been exposed to herbicide agents (Agent Orange) while serving in Vietnam during the Vietnam War. VA clinicians, for example in June 2018 and December 2019, have diagnosed the Veteran with Type II diabetes mellitus. The Veteran's diagnosed Type II diabetes mellitus is presumed to be etiologically related to his active service. Service connection for Type II diabetes mellitus is granted. In June 2017, an examiner diagnosed the Veteran with peripheral neuropathy of the bilateral lower extremities and related such disabilities to the Veteran's Type II diabetes mellitus. Having granted service connection for diabetes, the Board additionally grants service connection for peripheral neuropathy of the bilateral lower extremities secondary to Type II diabetes mellitus. REASONS FOR REMAND The Veteran has been diagnosed with sleep apnea, which he contends is either the direct result of his service or the secondary result of his service connected disabilities. In November 2017, a VA examiner opined that it was less likely than not that the Veteran's sleep apnea related either to his service connected gastroesophageal reflux disease (GERD) or to his service connected heart disease. With that said, the examiner's opinion relied, in part, on the relationship between obesity and sleep apnea, with the examiner noting the Veteran's 55 pound weight gain between the time of his separation from service and his 2009 diagnosis with sleep apnea. With respect to a direct connection between sleep apnea and the Veteran's service, during his June 2021 hearing, the Veteran alleged that he began to experience sleep problems during his active duty service, which he attributed to being symptoms of sleep apnea. The Veteran additionally noted that he had continued to experience sleep apnea symptoms despite having lost a significant amount of weight since his diagnosis with sleep apnea. With respect to a secondary connection between sleep apnea and the Veteran's service connected disabilities, during his June 2021 hearing, the Veteran alleged that his sleep apnea was caused or aggravated by his service connected heart disease and GERD. The Veteran has otherwise submitted treatise evidence linking sleep apnea to diabetes, which is now service connected. The record thus shows a current sleep apnea disability and a possible connection between such disability and either the Veteran's in-service experiences or his service connected disabilities, which now include diabetes. Given both the Veteran's statements regarding his sleep apnea continuing despite significant weight loss and his now service connected diabetes, the AOJ should schedule the Veteran to undergo an additional examination addressing the nature and etiology of his sleep apnea. This matter is REMANDED for the following actions: Schedule the Veteran for a VA examination to determine the nature and etiology of his sleep apnea. After a physical examination of the Veteran, a review of the Veteran's claims file, and consideration of the lay statements of record, the examiner should address the following: (a.) Is it at least as likely as not (that is, a 50 percent likelihood or greater) that the Veteran's sleep apnea had its initial onset during his active service, or that his sleep apnea is otherwise related to any incident of his active duty service? When rendering this opinion, the examiner should discuss the Veteran's allegations that he first began to experience symptoms of sleep apnea during service. The examiner should additionally discuss the Veteran's statement that he has continued to experience sleep apnea despite having lost a significant amount of weight since the time of his diagnosis. (b.) Is it at least as likely as not (that is, a 50 percent likelihood or greater) that the Veteran's sleep apnea is proximately due to any of his service connected disabilities, to include heart disease, GERD, hypertension, diabetes, or the medications used to treat those disabilities? When rendering this opinion, the examiner should discuss the treatise evidence that the Veteran submitted in December 2018 linking sleep apnea to diabetes. (c.) Is it at least as likely as not (that is, a 50 percent likelihood or greater) that the Veteran's sleep apnea underwent an incremental increase in disability, regardless of its permanence, due to any of his service connected disabilities, to include heart disease, GERD, hypertension, diabetes, or the medications used to treat those disabilities? The term "incremental increase in disability" means an additional impairment of earning capacity. Objective measurement, or numerical quantification, is not required to ascertain an increase in disability. Moreover, any "incremental increase in disability" need not be permanent. When rendering this opinion, the examiner should discuss the treatise evidence that the Veteran submitted in December 2018 linking sleep apnea to diabetes. MICHAEL A. HERMAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J.A. Flynn, 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.