Citation Nr: 21025591
Decision Date: 04/28/21	Archive Date: 04/28/21

DOCKET NO. 17-23 055
DATE: April 28, 2021

REMANDED

Entitlement to service connection for sleep apnea/chronic sleep disturbance disability, to include as due to herbicide exposure or as secondary to service-connected diabetes mellitus type II, is remanded.

Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU), to exclude the period from March 8, 2018, to June 1, 2018, to include based on a single service-connected disability from Apri 2, 2019, is remanded.

REASONS FOR REMAND

These matters were most recently before the Board in September 2020 and remanded for further development.  Unfortunately, there has not been substantial compliance with the Board’s previous remand directives and another remand is required.  Stegall v. West, 11 Vet. App. 268, 271 (1998).

In September 2020, in pertinent part, the Board sought an etiology opinion regarding whether the Veteran’s claimed sleep apnea was secondary to his service-connected diabetes mellitus. The requested opinion was rendered in September 2020.  The examiner opined, 

“it [is] less likely than not (less than 50 percent) that the Veteran has a sleep apnea/chronic sleep disturbance disability that had its clinical onset during active service or is etiologically related to any in-service disease, event, or injury, including the presumed exposure to Agent Orange.  It [is] less likely than not that the Veteran’s sleep apnea was caused by or etiologically link to the Veterna’s presumed or direct exposure to herbicide exposure.”  

The examiner did not indicate the likelihood of whether sleep apnea was caused or aggravated by the service-connected diabetes mellitus.  Instead, the examiner discussed UpToDate articles in response to the “Veteran’s contention of a medical link between diabetes and sleep apnea” and concluded that the “medical literature shows NO cause and effect relationship between diabetes and obstructive sleep apnea.”  Consequently, an addendum opinion must be sought. 

Finally, because a decision on the remanded issue of service connection for sleep apnea could significantly impact a decision on the issue TDIU, the issues are inextricably intertwined and a remand of the claim is also required.

The matters are REMANDED for the following action:

1. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran’s sleep apnea/chronic sleep disturbance disability is at least as likely as not proximately due to or aggravated beyond its natural progression by the service-connected diabetes mellitus.  In rendering this opinion, the examiner must review and discuss the September 2020 VA opinion.  The complete rationale must be provided for any opinions expressed. 

2. If upon completion of the above action the issues remain denied, the matters must be returned to the Board after compliance with appellate procedures. 

 

 

E. I. VELEZ

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	K. L. Wallin, 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.