Citation Nr: 21069227 Decision Date: 11/17/21 Archive Date: 11/17/21 DOCKET NO. 20-01 284 DATE: November 17, 2021 REMANDED Entitlement to service connection for a respiratory disorder (claimed as obstructive sleep apnea [OSA]), to include as secondary to service-connected diabetes mellitus, as secondary to service-connected posttraumatic stress disorder (PTSD), and as due to herbicide agent exposure, is remanded. REASONS FOR REMAND The Veteran had qualifying service from June 1970 to December 1971, including in the Republic of Vietnam. In November 2021, the Veteran testified at a Board Virtual Hearing before the undersigned Veterans Law Judge. 1. Entitlement to service connection for a respiratory disorder (claimed as OSA) Establishing service connection for purposes of entitlement to VA disability compensation generally requires medical or, in certain circumstances, lay evidence of: (1) a current disability; (2) incurrence or aggravation of a disease or injury in service; and (3) a nexus between the claimed in-service injury or disease and the current disability. 38 U.S.C. § 1110; 38 C.F.R. § 3.303; Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Secondary service connection may be granted for disabilities which were proximately due to, the result of, or aggravated beyond natural progression by a service-connected disability. 38 C.F.R. § 3.310(a). On June 14, 2019, the Court issued the precedential decision in Ward v. Wilkie, 17-1204, holding that a "permanent worsening" of a non-service-connected disability is not required to establish secondary service connection on the basis of aggravation (i.e., aggravation may include temporary worsening of a disability). When VA undertakes to provide a VA examination or obtain a VA medical opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 310-11 (2007). The Veteran generally contends that his OSA was at least as likely as not: (a) caused or aggravated by his service, including his herbicide agent exposure in the Republic of Vietnam; (b) proximately due to or aggravated (temporarily or permanently) by his service-connected diabetes mellitus; and (c) proximately due to or aggravated (temporarily or permanently) by his service-connected PTSD. See March 2018 VA Form 21-526EZ (the Veteran contended his OSA was secondary to his diabetes mellitus); March 2018 private opinion by Dr. JRV (provider suggested the OSA was caused by in-service herbicide agent exposure); July 2018 VA sleep apnea examination (the Veteran contended his OSA was secondary to his diabetes mellitus and/or his PTSD); July 2018 Codesheet (service-connected conditions include PTSD and diabetes mellitus with erectile dysfunction and diabetic nephropathy). A March 2018 private opinion by Dr. JRV indicated that: (a) the OSA was at least as likely as not caused by in-service herbicide agent exposure; and (b) there was data "suggesting" that diabetes mellitus type II "may" lead to sleep apnea. JRV did not provide rationale to support his opinion regarding herbicide agent exposure; JRV also did not provide rationale to support his opinion regarding diabetes mellitus except for providing citations for, without discussion of, two articles ("Obstructive sleep apnea and type 2 diabetes" from European Journal of Medical Research and "Obstructive Sleep Apnea and Type 2 Diabetes in Older Adults" from Clinics in geriatric medicine). During a July 2018 VA sleep apnea examination, the Veteran reported that he believed his OSA was etiologically related to his PTSD and diabetes mellitus. The VA examiner opined that the OSA was not medically related to the service-connected diabetes mellitus type II because the OSA was a separate entity entirely from the diabetes mellitus type II and because the medical literature did not support a medical relationship between the two. The examiner did not address the potentially-favorable medical literature cited by JRV. The examiner also failed to render opinions regarding direct service connection for herbicide agent exposure and secondary service connection for PTSD. An August 2018 private opinion by Dr. JRV clarified that, in the March 2018 opinion, he did not intend to indicate a relationship between the OSA and herbicide agent exposure but was instead trying to convey a relationship between the OSA and the diabetes mellitus type II. JRV opined that the diabetes mellitus was at least as likely as not "related to" the OSA because there was data "suggesting" that diabetes mellitus type II "may" lead to sleep apnea. Again, JRV did not provide rationale to support his opinion except for providing citations for, without discussion of, the same two articles ("Obstructive sleep apnea and type 2 diabetes" from European Journal of Medical Research and "Obstructive Sleep Apnea and Type 2 Diabetes in Older Adults" from Clinics in geriatric medicine). Crucially, remand is warranted for an addendum etiological opinion. The March 2018 and August 2018 private opinions by JRV as well as the July 2018 VA opinion are inadequate because of the deficiencies described above. Barr, supra. Further, the evidence does not indicate that the Veteran has the medical background necessary to render etiological opinions (requiring pathophysiological analysis). Layno v. Brown, 6 Vet. App. 465 (1994); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Although the Board has carefully considered whether another remand could be avoided, there are currently no adequate etiological opinions of record. Thus, further medical analysis is required. The matters are REMANDED for the following action: 1. Obtain an addendum etiological opinion regarding whether the Veteran's OSA was at least as likely as not: (a) caused or aggravated by his service, including his herbicide agent exposure in the Republic of Vietnam; (b) proximately due to or aggravated (temporarily or permanently) by his service-connected diabetes mellitus; and (c) proximately due to or aggravated (temporarily or permanently) by his service-connected PTSD. The examiner is asked to address, but is not limited to, the two articles cited by Dr. JRV in his March 2018 and August 2018 private opinions ("Obstructive sleep apnea and type 2 diabetes" from European Journal of Medical Research and "Obstructive Sleep Apnea and Type 2 Diabetes in Older Adults" from Clinics in geriatric medicine). The Board defers to the examiner's discretion to determine whether in-person examination is required to render the requested opinion. R. FEINBERG Veterans Law Judge Board of Veterans' Appeals Attorney for the Board H. Daus, 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.