Citation Nr: 21027139 Decision Date: 05/04/21 Archive Date: 05/04/21 DOCKET NO. 16-24 284 DATE: May 4, 2021 ORDER Service connection for sleep apnea is granted. REMANDED Service connection for type II diabetes mellitus (DM). FINDINGS OF FACT 1. The Veteran had active service from September 1979 to September 1983. 2. Resolving reasonable doubt in the Veteran's favor, sleep apnea is medically related to a service-connected acquired psychiatric disorder. CONCLUSION OF LAW Resolving reasonable doubt in the Veteran's favor, sleep apnea was caused or aggravated by a service-connected disability. 38 U.S.C. § 1101, 1131, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303(a), 3.310 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSION As an initial matter, the Board remanded the claims on appeal in December 2019 for additional development. The case has now been returned to the Board for further appellate action. Turning to the relevant laws and regulations, service connection may be granted on a direct basis as a result of disease or injury incurred in service based on nexus using a three-element test: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred in or aggravated by service. See 38 C.F.R. §§ 3.303(a), (d); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). Service connection may be granted on a secondary basis for a disability which is aggravated by, proximately due to, or the result of a service-connected disease or injury under 38 C.F.R. § 3.310. Allen v. Brown, 7 Vet. App. 439 (1995). In order to establish service connection on a secondary basis, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical evidence establishing a link between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). The Veteran contends that his sleep apnea is related to his service-connected acquired psychiatric disorder. Therefore, the Board will address secondary service connection. In this regard, the Veteran has been diagnosed with sleep apnea. Specifically, a September 2020 VA examination diagnosed obstructive sleep apnea. Therefore, a current disorder has been shown and the first element of service connection has been met. Further, the Veteran has been service connected for an acquired psychiatric disorder since May 2020. Therefore, the second element of secondary service connection has been met. Next, the record is in conflict as to whether a link exists between the Veteran's sleep apnea and his service connected acquired psychiatric disorder. In a September 2016 disability benefits questionnaire (DBQ), a private clinician diagnosed obstructive sleep apnea and opined that it was more likely than not that the disorder was caused or permanently aggravated by his psychological impairments. The clinician remarked that medical treatment notes documented the Veteran experiencing trouble sleeping as a result of his mental health symptoms, diagnosed psychiatric conditions including a dysthymic disorder, and noted that sleep apnea was an aggravating factor of his dysthymia. The clinician further explained that it was well known medically that sleep apnea could be commonly caused or permanently aggravated by psychological impairments. This evidence weighs in favor of the claim. In subsequent September 2019 and January 2021 lay statements, the Veteran described the evolution of his psychological impairment, saying that it resulted in symptoms that included overeating, weight gain and difficulty sleeping. This evidence also weighs in favor of the claim. More recently in January 2021, a private clinician opined that it was at least as likely as not that the Veteran's sleep apnea was the product of his service-connected acquired psychiatric disorder, medications used to treat his psychiatric disorder, and his service-connected coronary artery disease. The clinician documented that medical research found that more than 21 percent of veterans with sleep apnea had comorbid depression, that patients with sleep apnea had a higher prevalence of depression than the general population, and that medical literature found a colinear relationship between sleep apnea and major depressive disorder. The clinician further observed that a medication prescribed to treat the Veteran's mental health symptoms was classified as an antipsychotic and that, according to medical research, the use of such medications increased the risk of sleep apnea. The clinician finally asserted that sleep apnea was a common disorder associated with cardiovascular disease. This evidence also weighs in favor of the claim. On the other hand, a September 2020 VA examiner offered that it was less likely than not that sleep apnea was proximately due to a service-connected condition. The examiner acknowledged that medical literature supported a causal relationship between sleep apnea and depression but found that the Veteran was diagnosed with sleep apnea 14 years after his separation from service and that his depression existed prior to enlistment. This evidence weighs against the claim. Subsequently, an October 2020 VA examiner reinforced the September 2020 examiner's opinion, explaining that developmental disorders and anxiety disorders were not established primary etiologies of obstructive sleep apnea in medical literature. Rather, the examiner opined that it was more likely that his sleep apnea was the product of the Veteran's morbid obesity, explaining that while mental health conditions occasionally were risk factors for weight gain, obesity was multifactorial and could be prevented by factors uninfluenced by mental health conditions, including dietary discretion and exercise. The examiner further offered that it was less likely than not that his sleep apnea was aggravated beyond its natural progression by his service connected acquired psychiatric disorder, explaining that data in a September 2012 sleep study and a September 2020 DBQ both fell within the projected natural history of his sleep apnea. This evidence also weighs against the claim. Nonetheless, as there is evidence weighing both for and against the claim, it places the evidence at least in equipoise on the question of whether the Veteran's sleep apnea is caused or aggravated by his service-connected acquired psychiatric disorder. For this reason, after resolving reasonable doubt in his favor, service connection for sleep apnea is warranted and the appeal is granted. Because the Board is granting service connection on a secondary basis, all other theories of service connection are rendered moot. Finally, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record for the Board's consideration. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). REASONS FOR REMAND As noted above, in December 2019, the Board remanded the Veteran's claim of service connection for DM for further development, to include a new VA examination addressing whether DM was proximately caused or aggravated by a service-connected disorder, to include sleep apnea. In October 2020, a VA examiner opined that it was less likely than not that the Veteran's DM was proximately caused or aggravated by his sleep apnea. The examiner remarked that there was "no association whatsoever between DM and obstructive sleep apnea in the medical literature." However, the examiner did not address medical articles submitted in September 2016 that described links between sleep apnea and insulin resistance, sleep apnea and DM, and snoring and DM, respectively. Accordingly, further development is required to determine the nature and etiology of his DM. The matter is REMANDED for the following action: 1. Identify and obtain any pertinent, outstanding VA and private treatment records not already of record and associate them with the claims file. 2. Direct the claims file to an appropriate clinician to determine the nature and etiology of the Veteran's DM. Based on a review of the record, the clinician is asked to provide an opinion as to the following: whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran's DM is caused or aggravated by service-connected sleep apnea. In forming the opinion, the examiner must address whether the medical articles submitted by the Veteran detailing links between DM and obstructive sleep apnea, insulin resistance and sleep apnea, and snoring and DM, respectively, establish an association between DM and sleep apnea. The examiner must also consider the August 2016 private medical opinion finding that it was at least as likely as not that his DM stemmed from his now-service connected sleep apnea. The rationale for all opinions must be provided. 3. If the clinician determines that an examination is necessary in order to provide the requested opinion, then one should be scheduled. Saudiee Brown Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Spigelman, Associate 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.