Citation Nr: 21072177 Decision Date: 12/02/21 Archive Date: 12/02/21 DOCKET NO. 12-05 489 DATE: December 2, 2021 REMANDED Entitlement to service connection for type II diabetes mellitus, to include as due to herbicide exposure, is remanded. Entitlement to service connection for peripheral neuropathy of the upper and lower extremities, to include as secondary to type II diabetes mellitus, is remanded. Entitlement to service connection for a bilateral ankle disorder, to include as secondary to a service-connected foot disability, is remanded. Entitlement to service connection for a right knee disorder, to include as secondary to a bilateral ankle disorder and a service-connected foot disability, is remanded. Entitlement to service connection for sleep apnea, to include as secondary to service-connected coronary artery disease and hypertension, is remanded. REASONS FOR REMAND The Veteran served on active duty from June 1966 to September 1986. This case comes before the Board of Veterans' Appeals (Board) on appeal from May 2009 and September 2013 rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO), which is the Agency of Original Jurisdiction (AOJ). In March 2016, the Veteran testified at a hearing before the undersigned Veterans Law Judge at the RO. A transcript of the hearing has been associated with the record. In August 2017, the Board remanded the case to the AOJ for further development. That development was completed, and the case has since been returned to the Board for appellate review. The Board had noted in its prior remand that the RO finalized a September 2013 provisional rating decision granting service connection for that disability in a January 2015 rating decision. The record shows that the Veteran submitted a timely notice of disagreement (NOD) to the January 2015 rating decision, challenging the initial evaluation assigned for this disability. See March 2015 notice of disagreement. Therefore, the Board remanded the issue for the AOJ to issue a statement of the case (SOC). See 38C.F.R. §19.9(c); Manlincon v. West, 12 Vet. App. 238 (1999). However, in a January 2018 rating decision, the AOJ increased the initial evaluation for a depressive disorder from 50 percent to 70 percent disabling, effective from January 26, 2012. The Veteran had indicated in his March 2015 NOD that he was seeking a 70 percent evaluation for the disability. Therefore, the AOJ found that the benefit sought on appeal had been granted in full. The Veteran has not contended otherwise. Therefore, a SOC is no longer needed for that issue. Upon review, the Board finds that further development is needed prior to adjudication of the issues on appeal. At the outset, the Board notes that the Veteran's main contention throughout the appeal is that he has type II diabetes mellitus as a result of herbicide exposure while stationed in Thailand at U-Tapao RTAFB or on temporary duty (TDY) orders to Vietnam to recover a downed B-52 and that his peripheral neuropathy is secondary to that disorder. However, during the March 2016 hearing, the Veteran and his representative indicated that they sought service connection on a direct basis as well. A review of the record shows that the Veteran has contended that he developed diabetes mellitus as a result of exposure to chemicals that he used to rebuild generators during service, to include PD680, MEK solvent, trychloral ethane, and JP4. See December 2008 statement; June 2009 notice of disagreement. The Veteran has not been provided a VA examination to determine the nature and etiology of his diabetes mellitus or peripheral neuropathy. As such, a remand is necessary to obtain a VA medical opinion. The Veteran was afforded VA examinations for his claims for service connection for a bilateral ankle disorder and a right knee disorder in August 2020. The VA examiner opined that the proximate cause of the Veteran's bilateral ankle disorder was more likely Charcot arthropathy, diabetes mellitus, and peripheral neuropathy. The examiner explained that Charcot foot is a severe complication of diabetes mellitus and is caused by peripheral neuropathy. Therefore, the Board finds that the claims for service connection for a bilateral ankle disorder and a right knee disorder are inextricably intertwined with the claims for service connection for diabetes mellitus and peripheral neuropathy. The appropriate remedy where a pending claim is inextricably intertwined with a claim currently on appeal is to remand the claim on appeal pending the adjudication of the inextricably intertwined claim. Harris v. Derwinski, 1 Vet. App. 180 (1991). See also Gurley v. Peake, 528 F.3d 1322 (Fed. Cir. 2008) (remand of inextricably intertwined claims was warranted for reasons of judicial economy even in absence of administrative error). The Veteran has also contended that his in-service snoring was an early manifestation of his sleep apnea that was diagnosed after service in the 1990s, or in the alternative, that his sleep apnea is related to his service-connected hypertension and coronary artery disease. See Bd. Hrg. Tr. at 11-16; see also, e.g., June 2009 notice of disagreement, May 2010 statement, and June 2016 statement from the Veteran's daughter. In an August 2020 VA examination report, the examiner noted that the Veteran has an elevated body mass index, which is a clear risk factor for obstructive sleep apnea. The examiner also indicated that the Veteran has numerous musculoskeletal and back complaints producing pain along with diabetes mellitus, which are clear factors for weight gain. The Board notes that obesity cannot qualify as a disease or injury or as an in-service event to warrant service connection; however, obesity can be considered as an intermediate step between a service-connected disability and a current disability that may be service-connected under a secondary basis under 38 C.F.R. § 3.310(a). See Marcelino v. Shulkin, 29 Vet. App. 155 (2018); VAOPGCPREC 1-2017 (Jan. 6, 2017). Therefore, on remand, an additional VA medical opinion should be obtained to address the contention that service-connected physical disabilities caused the Veteran's weight gain and development of sleep apnea. The matters are REMANDED for the following action: 1. The AOJ should request that the Veteran provide the names and addresses of any and all health care providers who have provided treatment for diabetes mellitus, peripheral neuropathy of the bilateral upper and lower extremities, and obstructive sleep apnea. After acquiring this information and obtaining any necessary authorization, the AOJ should obtain and associate these records with the claims file. The AOJ should also secure any outstanding VA treatment records. 2. After the foregoing development has been completed, the Veteran should be afforded a VA examination to determine the nature and etiology of his type II diabetes mellitus and peripheral neuropathy. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. 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, lay assertions, and March 2016 hearing testimony. The examiner should note 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 type II diabetes mellitus or peripheral neuropathy manifested during active service or is otherwise causally or etiologically related to the Veteran's military service, to include any chemical exposure therein. The Veteran has claimed that he developed diabetes mellitus as a result of exposure to chemicals that he used to rebuild generators during service, to include PD680, MEK solvent, trychloral ethane, and JP4. See December 2008 statement; June 2009 notice of disagreement. The examiner should also provide an opinion as to whether it is at least as likely as not that any peripheral neuropathy was either caused by or aggravated by his diabetes mellitus. (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 would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 2. After completing the foregoing development, the Veteran should be afforded a VA examination to determine the nature and etiology of his sleep apnea. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. 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 lay assertions. The examiner should note that the Veteran is competent to attest to factual matters of which he has first-hand knowledge, including observable symptomatology. 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 state whether it is at least as likely as not that the Veteran's sleep apnea manifested in service or is otherwise causally or etiologically related to the Veteran's military service, to include any symptomatology therein. The examiner should also opine as to whether the Veteran's sleep apnea is either caused by or aggravated by his service-connected hypertension, coronary artery disease, or foot disabilities. In so doing, the examiner should state whether it is at least as likely as not that the Veteran's service-connected disabilities caused him to become obese or gain weight. If so, the examiner should provide an opinion as to whether the obesity was a substantial factor in causing the Veteran's sleep apnea. He or she should also provide an opinion as to whether the Veteran's sleep apnea would not have occurred or worsened but for any weight gain caused by his service-connected disabilities. (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 the conclusion as it is to find against it.) A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 3. After completing the foregoing development, the AOJ should conduct any other development as may be indicated. J.W. ZISSIMOS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Osegueda, 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.