Citation Nr: 21020914 Decision Date: 04/08/21 Archive Date: 04/08/21 DOCKET NO. 19-25 494 DATE: April 8, 2021 REMANDED Entitlement to service connection for sleep apnea, to include as secondary to service-connected posttraumatic stress disorder (PTSD), is remanded. Entitlement to service connection for diabetes mellitus is remanded. REASONS FOR REMAND The Veteran served on active duty from April 1976 to January 1983 and from December 1990 to May 1991, which includes service in Southwest Asia. His awards include the Army Commendation Medal. These matters initially came before the Board of Veterans’ Appeals (Board) from December 2017 and March 2018 rating decisions. In February 2020, the Board denied the claims of service connection for sleep apnea and diabetes mellitus. The Veteran appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (Court). In November 2020, the Court set aside the Board’s February 2020 decision, in part, and remanded to the Board the issues of entitlement to service connection for sleep apnea and diabetes mellitus for readjudication in compliance with directives specified in a November 2020 Joint Motion filed by counsel for the Veteran and VA. 1. Entitlement to service connection for sleep apnea, to include as secondary to service-connected PTSD, is remanded. The Veteran contends that he has sleep apnea that is either directly related to service or is associated with his service-connected PTSD. A VA sleep apnea examination was conducted in February 2018 and the Veteran was diagnosed as having obstructive sleep apnea. The physician who conducted the examination opined that the Veteran’s sleep apnea was not likely due to a specific exposure in Southwest Asia. The only rationale for this opinion was that obstructive sleep apnea is found not uncommonly in the general population in individuals who did not service in Southwest Asia. The parties to the Joint Motion explained that the February 2018 opinion is insufficient because the examiner’s rationale does not provide sufficient etiological information as to why the Veteran’s sleep apnea is not likely related to his service in Southwest Asia. The Board also notes that the opinion does not address whether the Veteran’s sleep apnea had its onset in service. In this regard, the Veteran’s spouse reported in a January 2018 statement that she witnessed the Veteran experience excessive snoring, gasping for air, and interrupted breathing while sleeping shortly following his separation from service in 1991. Moreover, no opinion has been provided as to whether the Veteran’s sleep apnea is caused or aggravated by his service-connected PTSD. In light of the inadequacies of the February 2018 opinion, a remand is necessary to obtain a new medical opinion as to whether the Veteran’s sleep apnea is related to service or is caused or aggravated by his service-connected PTSD. Also, the evidence indicates that there may be outstanding relevant VA treatment records. The most recent VA treatment records in the claims file are from the Washington Vista electronic records system and are dated to July 2020. Any VA treatment records are within VA’s constructive possession, and must be obtained regardless of their relevance as long as they are sufficiently identified. Sullivan v. McDonald, 815 F.3d 786, 793 (Fed. Cir. 2016) (VA has a duty to assist in obtaining sufficiently identified VA medical records regardless of their relevance). See also Jones v. Wilkie, 918 F.3d 922 (Fed. Cir. 2019) (confirming the holding in Sullivan). A remand is required to allow VA to obtain them. 2. Entitlement to service connection for diabetes mellitus is remanded. As explained by the parties to the Joint Motion, the Veteran’s treatment records reflect that he has been diagnosed as having diabetes mellitus, that he experiences chronic sweats which may be related to poor blood sugar control, and that he has reported that such chronic sweats have occurred ever since service (see a VA primary care letter and a VA primary care treatment note, both dated in July 2009). Overall, there is evidence that the Veteran has current diabetes mellitus and that this disability may be related to service. However, no medical opinion has been obtained as to whether the Veteran’s diabetes mellitus is related to service. Therefore, a remand is warranted to obtain an appropriate medical opinion. See 38 U.S.C. § 5103A (d); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Also, all outstanding VA treatment records should be secured upon remand. The matters are REMANDED for the following action: 1. Ask the Veteran to identify the location and name of any VA or private medical facility where he has received treatment for sleep apnea and diabetes, to include the dates of any such treatment. Ask the Veteran to complete a VA Form 21-4142 for all records of his treatment for sleep apnea and diabetes from any sufficiently identified private treatment provider from whom records have not already been obtained. Make two requests for any authorized records, unless it is clear after the first request that a second request would be futile. 2. Obtain the Veteran’s outstanding VA treatment records from the Washington Vista electronic records system for the period since July 2020; and all such relevant records from any other sufficiently identified VA facility. 3. After all efforts have been exhausted to obtain and associate with the claims file any additional treatment records, obtain an opinion from an appropriate clinician regarding whether any sleep apnea experienced by the Veteran since approximately January 2018 at least as likely as not (1) began during active service; (2) is related to an injury or disease during service, including environmental exposures in Southwest Asia during the Persian Gulf War; (3) is caused by service-connected PTSD; OR (4) is aggravated by service-connected PTSD. For purposes of the above opinion, the clinician shall presume that the Veteran’s reports of any sleep symptoms in service are accurate. The clinician must provide reasons for each opinion given. In this regard, the clinician should consider the January 2018 statement from the Veteran’s spouse, in which she reported that she witnessed the Veteran experience excessive snoring, gasping for air, and interrupted breathing while sleeping shortly following his separation from service in 1991. 4. After all efforts have been exhausted to obtain and associate with the claims file any additional treatment records, obtain an opinion from an appropriate clinician regarding whether any diabetes experienced by the Veteran since approximately May 2014 at least as likely as not (1) began during active service; (2) manifested within one year after separation from active service; OR (3) is related to an injury or disease during service, including environmental exposures in Southwest Asia during the Persian Gulf War. For purposes of the above opinion, the clinician shall presume that the Veteran’s reports of any symptoms in service, including chronic sweats, are accurate. The clinician must provide reasons for each opinion given. In this regard, the clinician should consider the evidence in the Veteran’s treatment records that he has experienced chronic sweats in the years since service and that this may be a symptom associated with his diabetes mellitus (see a VA primary care letter and a VA primary care treatment note, both dated in July 2009). Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Elwood, 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.