Citation Nr: 21023253 Decision Date: 04/20/21 Archive Date: 04/20/21 DOCKET NO. 15-21 321 DATE: April 20, 2021 REMANDED Entitlement to service connection for sleep apnea, to include as secondary to service-connected disabilities, is remanded. Entitlement to service connection for diabetes mellitus, to include as secondary to service-connected disabilities, is remanded. Entitlement to service connection for hypertension, to include as secondary to service-connected disabilities, is remanded. Entitlement to a total disability evaluation based on individual unemployability (TDIU) due to service-connected disabilities is remanded. REASONS FOR REMAND The Veteran served on active duty from June 1981 to March 1986. Evidence associated with the claims file also indicates that the Veteran served in the Reserve. This matter again comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. The Board previously remanded this matter in July 2018 and January 2020. 1. Sleep Apnea 2. Diabetes Mellitus 3. Hypertension As a preliminary matter, the Board acknowledges that the Veteran’s record reflects that he reenlisted in the military in 1987. The Veteran’s service medical records reflect examination dates outside of his active duty service. Though there are service treatment records and service personnel records associated with the claims file reflecting the Veteran’s education, performance, assignments, points, and awards, the precise dates of all periods of active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA) are not available. On remand, the RO should confirm the Veteran’s periods of ACDUTRA and INACDUTRA. Furthermore, as the Board acknowledges the possibility that the Veteran’s above-listed conditions manifested during said periods of ACDUTRA and/or INACDUTRA, the Veteran’s service treatment records affiliated with his Reserve service should also be obtained and associated with the claims file. Additionally, an opinion should be obtained as to whether the Veteran’s sleep apnea, diabetes mellitus, and/or hypertension is/are etiologically related to his periods of ACDUTRA and/or INACDUTRA. In April 2019, the Veteran was evaluated to determine the cause of his sleep apnea, diabetes mellitus, and hypertension. Even though the examiner provided negative opinions, the Board finds these opinions to be inadequate. Concerning the claim for sleep apnea, the examiner found that sleep apnea can be caused by sleep disturbance from anxiety or stress disorders, but that there was not enough medical evidence to support the Veteran’s assertion that his sleep apnea was caused by his hearing voices during active duty service. Moreover, in the diabetes mellitus opinion, the examiner relied on lack of medical evidence to support the Veteran’s claim that his condition was related to his psychiatric disorder and/or active duty service. An examiner cannot rely on lack of documentation to formulate an opinion. See Fountain v. McDonald, 27 Vet. App. 258 (2015) (citing Horn v. Shinseki, 25 Vet. App. 231 (2012)). Furthermore, the April 2019 examiner only considered one in-service blood pressure reading when opining as to the etiology of the Veteran’s hypertension. Because the examiner did not consider all of the Veteran’s in-service blood pressure readings, the Board finds that the examiner did not consider and address all relevant pertinent evidence of record and therefore the opinion is inadequate. When the Veteran was evaluated again in September 2020, the examiner was asked to provide an opinion as to whether it is at least as likely as not that the Veteran’s conditions were caused and/or aggravated by his newly service-connected psychiatric condition. The examiner, in all opinions regarding sleep apnea, diabetes mellitus, and hypertension, found that these conditions “clearly and unmistakably existed prior to service.” However, this is not the correct standard in determining aggravation for secondary service connection. See Ward v. Wilkie, 31 Vet. App. 233 (2019). Because the examiner applied the incorrect standard, the Board finds that a new opinion regarding secondary service connection should also be obtained on remand. 4. TDIU As previously noted in the Board’s July 2018 and January 2020 decisions, the issue of TDIU is inextricably intertwined with the issues of service connection for sleep apnea, diabetes mellitus, and hypertension. See July 2018 Board Decision; January 2020 Board Decision; Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are “inextricably intertwined” when they are so closely tied together that a final Board decision cannot be rendered unless both issues have been considered). Therefore, because the issues of entitlement to service connection must be remanded, so too must the issue of entitlement to TDIU. The matters are REMANDED for the following action: 1. The RO should determine the specific dates of when the Veteran served on ACDUTRA and/or INACDUTRA. In this regard, a report detailing the Veteran’s award of reserve retirement points will NOT represent compliance with this instruction. Rather, each and every date of ACDUTRA and INACDUTRA must be identified. Then, issue a memorandum for inclusion in the claims file detailing each period of verified active military service, whether on active duty, ACDUTRA, or INACDUTRA. Any and all outstanding service treatment records from the Veteran’s reserve service should also be obtained and associated with the claims file. 2. Forward the claims file to an appropriate clinician to determine the nature and etiology of the Veteran’s sleep apnea. The entire claims file, including a copy of this remand, must be made available to the clinician, who must note its review. If the clinician determines that a new examination (or telehealth interview, etc., if an in-person examination is not feasible) would be beneficial, one is to be provided. (a) The clinician should opine as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s sleep apnea manifested during, or is the result of, his active duty service and/or ACDUTRA or INACDUTRA (meaning this disability occurred in the line of duty during ACDUTRA or INACDUTRA). (b) The clinician should opine as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s sleep apnea was either (i) caused or (ii) aggravated by his service-connected psychiatric disability. NOTE: With respect to the question concerning aggravation, the clinician is advised that aggravation under 38 C.F.R. § 3.310(b) does not require “permanent worsening” of the nonservice-connected disability. If aggravation is found, the clinician should attempt to identify the baseline level of severity of disability prior to such aggravation. In formulating his or her opinions, the clinician should consider and address the competent medical and lay evidence of record, including but not limited to: (i) The Veteran’s service treatment records; (ii) The Veteran’s post-service VA medical records; (iii) The Veteran’s post-service private medical records; and (iv) The Veteran’s competent lay statements regarding the onset and continuity of his symptomatology. If the clinician determines that the Veteran’s sleep apnea is less likely than not due to his active duty service and/or ACDUTRA/INACDUTRA and/or that it is less likely than not caused and/or aggravated by his service-connected psychiatric condition, the clinician should discuss what other factor(s) caused the disorder. In other words, the clinician should determine the most likely etiology of the Veteran’s sleep apnea. The clinician must provide a comprehensive report that includes a complete rationale for all opinions and conclusions reached. 3. Forward the claims file to an appropriate clinician to determine the nature and etiology of the Veteran’s diabetes mellitus. The entire claims file, including a copy of this remand, must be made available to the clinician, who must note its review. If the clinician determines that a new examination (or telehealth interview, etc., if an in-person examination is not feasible) would be beneficial, one is to be provided. (a) The clinician should opine as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s diabetes mellitus manifested during, or is the result of, his active duty service and/or ACDUTRA or INACDUTRA (meaning this disability occurred in the line of duty during ACDUTRA OR INACDUTRA.) (b) The clinician should opine as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s diabetes mellitus was either (i) caused or (ii) aggravated by the Veteran’s service-connected psychiatric disability. NOTE: With respect to the question concerning aggravation, the clinician is advised that aggravation under 38 C.F.R. § 3.310(b) does not require “permanent worsening” of the nonservice-connected disability. If aggravation is found, the clinician should attempt to identify the baseline level of severity of disability prior to such aggravation. In formulating his or her opinions, the clinician should consider and address the competent medical and lay evidence of record, including but not limited to: (i) The Veteran’s service treatment records; (ii) The Veteran’s post-service VA medical records; (iii) The Veteran’s post-service private medical records; and (iv) The Veteran’s competent lay statements regarding the onset and continuity of his symptomatology. If the clinician determines that the Veteran’s diabetes mellitus is less likely than not due to his active duty service and/or ACDUTRA/INACDUTRA, and/or that it is less likely than not caused and/or aggravated by his service-connected psychiatric disability, the clinician should discuss what other factor(s) caused the disorder. In other words, the clinician should determine the most likely etiology of the Veteran’s diabetes mellitus. The clinician must provide a comprehensive report that includes a complete rationale for all opinions and conclusions reached. 4. Forward the claims file to an appropriate clinician to determine the nature and etiology of the Veteran’s hypertension. The entire claims file, including a copy of this remand, must be made available to the clinician, who must note its review. If the clinician determines that a new examination (or telehealth interview, etc., if an in-person examination is not feasible) would be beneficial, one is to be provided. (a) The examiner should opine as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s hypertension manifested during, or is the result of, his active duty service, ACDUTRA, and/or INACDUTRA (meaning incurred in the line of duty). (b) The examiner should opine as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s hypertension was either (i) caused or (ii) aggravated by his service-connected psychiatric disability. NOTE: With respect to the question concerning aggravation, the clinician is advised that aggravation under 38 C.F.R. § 3.310(b) does not require “permanent worsening” of the nonservice-connected disability. If aggravation is found, the clinician should attempt to identify the baseline level of severity of disability prior to such aggravation. In formulating his or her opinions, the examiner should consider and address the competent medical and lay evidence of record, including but not limited to: (i) The Veteran’s service treatment records, to include all in-service blood pressure readings; (ii) The Veteran’s post-service VA medical records; (iii) The Veteran’s post-service private medical records; and (iv) The Veteran’s competent lay statements regarding the onset and continuity of his symptomatology. If the clinician determines that the Veteran’s hypertension is less likely than not due to his active duty service, ACDUTRA, and/or INACDUTRA and/or that it is less likely than not caused and/or aggravated by his service-connected psychiatric disability, the clinician should discuss what other factor(s) caused the disorder. In other words, the clinician should determine the most likely etiology of the Veteran’s hypertension. The clinician must provide a comprehensive report that includes a complete rationale for all opinions and conclusions reached. 5. After completing the foregoing development, and conducting any additional development as deemed necessary by the RO, readjudicate the issue of entitlement to a TDIU. R. Erdheim Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Seserman 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.