Citation Nr: 21024507 Decision Date: 04/22/21 Archive Date: 04/22/21 DOCKET NO. 10-18 622 DATE: April 22, 2021 REMANDED Service connection for diabetes mellitus, type 2, including as secondary to service-connected bilateral knee and back disabilities is remanded. Service connection for obstructive sleep apnea, including as secondary to a service-connected bilateral knee and back disabilities and hypertension is remanded. REASONS FOR REMAND The Veteran served on active duty in the U.S. Army from August 1980 to September 1992. This appeal arises from October 2009 and April 2014 rating decisions, denying service connection for diabetes mellitus and sleep apnea. The Veteran testified at a Board videoconference hearing in March 2015, before a Veterans Law Judge (VLJ) who is no longer employed with the Board. A transcript is of record. The Veteran was afforded the opportunity to appear at another hearing in a June 2018 letter, but responded in July 2018 that he did not want another hearing. In June 2016 the Board issued a decision denying the claim of entitlement to service connection for diabetes mellitus, to include secondary to service-connected conditions. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (CAVC/Court). In a January 2018 Order, the Court set aside the Board’s denial of service connection for diabetes and remanded the issue to the Board for further development and readjudication, specified in that order. In July 2018 and again in September 2020, the Board remanded the case to the AOJ for additional development and consideration. The Board also remanded in September 2020 the issue of entitlement to a total disability rating based on individual unemployability (TDIU). On remand, in a November 2020 rating decision, the AOJ awarded a TDIU. As this determination constitutes a full grant of the benefits sought as to that claim, it is no longer in appellate status. See Grantham v. Brown, 114 F.3d. 1156 (Fed. Cir. 1997). The file is again before the Board for further appellate review. 1. Service connection for diabetes mellitus, type 2, including as secondary to a service-connected bilateral knee and back disabilities. 2. Service connection for obstructive sleep apnea, including as secondary to a service-connected bilateral knee and back disabilities and hypertension. The Veteran contends that owing to his service-connected bilateral knee disabilities and his back disability he is not able to exercise and this has resulted in the increase in body mass, and that his excess weight then developed into sleep apnea and diabetes. See March 2021 representative’s informal hearing presentation. The Veteran has also asserted that he has had a long history of poor sleep patterns, tiredness during the day, and loud snoring disturbing his wife since service. See Veteran’s September 2014 notice of disagreement (NOD). In an October 2020 statement, the Veteran has also raised the issue of whether his sleep apnea is secondary to his service-connected hypertension. The Veteran is currently diagnosed with diabetes mellitus, type 2, per the July 2015 VA examination. The Veteran is also currently diagnosed with obstructive sleep apnea, per the October 2020 VA examination. Service connection may be granted for a disability that is proximately due to, or aggravated by, service-connected disease or injury. 38 C.F.R. § 3.310. As an initial matter, the Veteran cannot obtain direct service connection for obesity. Per a 2017 VA General Counsel (G.C.) precedential opinion, it is the longstanding policy of VA is that obesity per se is not a disease or injury for purposes of 38 U.S.C. §§ 1110 and 1131 and therefore may not be service connected on a direct basis. See VAOPGCPREC 01-17 (Jan. 6, 2017), at 1-2. However, obesity may be an “intermediate step” between a service-connected disability and a current disability that may be service connected on a secondary basis under 38 C.F.R. § 3.310 (a). See VAOPGCPREC 01-17 (Jan. 6, 2017), at 2-3. By history, a January 2018 CAVC Order indicated the July 2015 VA examiner provided an inadequate negative medical opinion on the possibility of secondary service connection for diabetes, particularly as it lacks adequate rationale as to whether the Veteran’s service-connected knee disabilities aggravated his current diabetes mellitus and does not adequately address obesity as an intermediate step (discussed below). Inadequate medical examinations include examinations that contain only data and conclusions, do not provide an etiological opinion, are not based upon a review of medical records, or provide unsupported conclusions. Nieves- Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Similarly, as noted by the Board’s prior remand in September 2020, the August 2019 VA addendum opinion is also inadequate. The August 2019 VA examiner provided a negative opinion against the possibility that diabetes was caused or aggravated by an inability to exercise or medication utilized to treat his service-connected conditions. As noted by the Board’s prior remand, the August 2019 VA examiner failed to address whether a lack of exercise due to service-connected conditions worsened the Veteran’s diabetes. Accordingly, the Board remanded the diabetes claim in September 2020 to obtain a VA medical opinion to address whether a lack of exercise due to service-connected conditions worsened the Veteran’s diabetes. A remand is necessary for the AOJ to obtain an addendum medical opinion to address the possibility of direct and secondary service connection, to include the possibility of obesity as an intermediate step. The November 2020 VA examiner found that the Veteran’s obesity was a contributing factor to his diabetes, but further found that his obesity is not caused by his service-connected conditions. That is, the examiner opined that it is less likely as not the Veteran’s obesity acted as an intermediate step between his service-connected back and knee disabilities and his diabetes. The examiner’s rationale included that, “Obesity is a significant risk factor for Back and Knee conditions. Although back and knee conditions can result in decreased exercise and obesity, the VA medical records demonstrate that the Veteran was obese prior to his back and knee conditions. Additionally, the Veteran has a family history of obesity; therefore, back and knee are less likely than not (less than 50 percent probability) the cause of the Veteran’s obesity.” However, in Walsh v. Wilkie, 32 Vet. App. 300, 306 (2020), the Court found, “In short, there is no permissible basis in the relevant regulation for concluding that obesity may be an “intermediate step” in a secondary-service-connection analysis when service-connected disability causes it, but not when service-connected disability aggravates it.” The Court noted that the 2017 G.C. opinion does not purport to prohibit inquiry into whether a service-connected disability aggravates a veteran’s obesity. Walsh, 32Vet. App.at 307. The Court held that the Board must consider aggravation of obesity by a service-connected disability under § 3.310 (b), in the context of obesity as an intermediate step, when explicitly raised by a veteran or reasonably raised by the record. Id. The Board observes the November 2020 VA addendum medical opinions on diabetes and sleep apnea did not appear to adequately address the possibility of obesity as an intermediate step, particularly whether any or all of the Veteran’s service-connected disabilities aggravated his obesity. When VA undertakes to examine a Veteran, VA is obligated to ensure that that examination is adequate. See Barr v. Nicholson, 21. Vet. App. 303 (2007). Inadequate medical examinations include examinations that contain only data and conclusions, do not provide an etiological opinion, are not based upon a review of medical records, or provide unsupported conclusions. Nieves- Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Further, the November 2020 VA medical opinion found his diabetes is less likely as not proximately due to or the result of or aggravated by his service-connected orthopedic disabilities. The examiner’s rationale included that, “…. Additionally, the Veteran has a family history of obesity; therefore, diabetes mellitus is less likely than not (less than 50 percent probability) aggravated beyond its natural progression by the veteran’s service connected disabilities.” However, in Ward v. Wilkie, 31 Vet. App. 233, 240 (2019), the Court held that service connection on a secondary basis is warranted for “any incremental increase in disability—any additional impairment of earning capacity—in non-service-connected disabilities resulting from service-connected conditions…regardless of its permanence.” Thus, the opinion is further inadequate in this respect. Lastly, the November 2020 VA examiner’s negative nexus opinion on sleep apnea indicated a non-speculative opinion could not be provided on the possibility of direct service connection, but it lacked an adequate rationale. When an examiner states that he or she cannot offer an opinion without resort to speculation, that opinion is adequate only when it is clear that it is predicated on a lack of knowledge among the medical community at large and not the insufficient knowledge of the specific examiner. See generally Sharp v. Shulkin, 29 Vet. App. 26, 36 (2017) (quoting Jones v. Shinseki, 23 Vet. App. 382, 390 (2009) (stating that a speculative medical opinion may be offered only after determining such opinion is not based on an absence of procurable information); see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295, (2008). Another VA medical nexus opinion, from a different VA clinician, is needed to clarify the etiology of the Veteran’s diabetes and obstructive sleep apnea. A remand by the Board confers on a Veteran the right to substantial compliance with the remand orders. Stegall v. West, 11 Vet. App. 268 (1998); D’Aries v. Peake, 22 Vet. App. 97 (2008). The matters are REMANDED for the following action: 1. Obtain an addendum medical opinion from an appropriate VA clinician, different from a previous VA examiner, to determine the nature and etiology of the Veteran’s diabetes mellitus, type 2. If the examiner determines that another in-person examination of the Veteran is required to provide the below-requested information, then such an examination should be scheduled. On review of the record, the examiner should provide an opinion addressing the following: (A) Whether it is at least as likely as not (50 percent or greater) that any diagnosed Type 2 diabetes mellitus was either incurred in or in any way related to service? (B) Whether it is at least as likely as not (50 percent or greater) that any diagnosed Type 2 diabetes mellitus was caused by a service-connected bilateral knee and/or back disability? (C) Whether it is at least as likely as not (50 percent or greater) that any diagnosed Type 2 diabetes mellitus was aggravated by a service-connected bilateral knee and/or back disability? (D) Whether it is at least as likely as not (50 percent or greater) that the Veteran’s service-connected bilateral knee and/or back disability caused or aggravated his obesity, and if so, is it at least as likely as not that the Veteran’s obesity caused or aggravated the diagnosed Type 2 diabetes mellitus? In this regard, the examiner should reconcile the June 2009 and June 2013 opinions of VA treating physician, Dr. N.B., that the lack of regular exercise hinders the ability to control diabetes and exacerbate his condition. A complete rationale should be provided for all opinions 2. Obtain an addendum medical opinion from an appropriate VA clinician, different from a previous VA examiner, to determine the nature and etiology of the Veteran’s obstructive sleep apnea. If the examiner determines that another in-person examination of the Veteran is required to provide the below-requested information, then such an examination should be scheduled. On review of the record, the examiner should provide an opinion addressing the following: (A) Whether it is at least as likely as not (50 percent or greater) that any diagnosed obstructive sleep apnea was either incurred in or in any way related to service? (B) Whether it is at least as likely as not (50 percent or greater) that any diagnosed obstructive sleep apnea was caused by a service-connected disability, including his back disability, bilateral knee disabilities and/or hypertension? (C) Whether it is at least as likely as not (50 percent or greater) that any diagnosed obstructive sleep apnea was aggravated by a service-connected disability, including his back disability, bilateral knee disabilities and/or hypertension? (D) Whether it is at least as likely as not (50 percent or greater) that a service-connected disability (e.g., back disability, bilateral knee disabilities and/or hypertension) caused or aggravated his obesity, and if so, is it at least as likely as not that the Veteran’s obesity caused or aggravated the diagnosed obstructive sleep apnea disability? The examiner should reconcile the Veteran’s contention that due to his service-connected bilateral knee disabilities and his back disability he is not able to exercise and this has resulted in the increase in body mass, and that his excess weight then developed into sleep apnea. See March 2021 Veteran’s representative’s correspondence. Rationale must be provided for all opinions proffered. Also reconcile any competent lay statements by the Veteran on the history of his claimed disability during service and symptoms (e.g., erratic sleep patterns, daytime tiredness, loud snoring, etc.) following service. The examiner should provide a complete explanation for all opinions. If the examiner cannot provide an opinion without resorting to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. C. CRAWFORD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Biswajit Chatterjee, 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.