Citation Nr: 21028871 Decision Date: 05/12/21 Archive Date: 05/12/21 DOCKET NO. 14-23 418 DATE: May 12, 2021 REMANDED Entitlement to service connection for chronic obstructive pulmonary disease (COPD) is remanded. Entitlement to service connection for obstructive sleep apnea (OSA), to include secondary to service-connected posttraumatic stress disorder (PTSD), is remanded. Entitlement to service connection for diabetes mellitus type II, to include secondary to service-connected PTSD, is remanded. REASONS FOR REMAND The Veteran served on active duty from April 1978 to January 1987. These matters come before the Board of Veterans' Appeals (Board) on appeal from a November 2012 rating decision issued by the Department of Veterans Affairs (VA) regional office. In August 2018 and January 2021, the Board remanded these issues for further adjudication. Entitlement to service connection for COPD, OSA, and diabetes mellitus are remanded. As to all the issues on appeal, the Board finds that a Remand is required because the negative etiology opinion provided by the August 2020 VA examiners are not adequate because the sole rationale for the negative opinions was the absence of records of treatment in service and/or shortly after. See Dalton v. Nicholson, 12 Vet. App. 23 (2007) (holding that the lack of documentary evidence during or after service cannot be the sole basis for an opinion against the claim). Accordingly, another remand to obtain adequate etiology opinions is required. See 38U.S.C.§5103A(d); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate); Stegall v. West, 11 Vet. App. 268 (1998). As to the claims of service connection for OSA and diabetes mellitus, when providing the etiology opinions the VA examiners should be mindful of the fact that since the appeal was last before the Board the United States Court of Appeals for Veterans Claims (Court) in Ward v. Wilkie, 31 Vet. App. 233 (2019) provided a new definition of aggravation which now includes a temporary worsening of a disability. While the appeal is in remand status, any outstanding VA and private treatment records should be obtained and associated with the record on appeal. See 38U.S.C.§5103A(b). The appeal is REMANDED for the following actions: 1. Contact the Veteran and ask him to identify whether there are any outstanding and pertinent private medical records. If such records are identified, then obtain those records and associate them with the electronic claims file. 2. Associate with the claims file any outstanding VA medical records. 3. In order to comply with the earlier remand, obtain medical opinions to determine the nature and etiology of the Veteran's COPD, OSA, and diabetes mellitus. The claims file should be made available and reviewed by the examiner. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. Following consideration of the evidence of record (both lay and medical), the examiner is asked to address the following: a. Provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that COPD, OSA, and/or diabetes mellitus is due to a disease or injury while on active duty. b. Provide an opinion as to whether diabetes mellitus manifested in the first post-service year. c. Provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's OSA and/or diabetes mellitus was caused by his service-connected PTSD including due to any medical he takes to treat this service-connected disability with any associated weight gain. d. Provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's OSA and/or diabetes mellitus was aggravated by his service-connected PTSD including due to any medical he takes to treat this service-connected disability with any associated weight gain. In providing answers to the above question the examiner should consider and discuss the service treatment records. In providing answers to the above question the examiner should consider and discuss the Veteran's competent lay claims regarding observable symptomatology. In providing answers to the above question the examiner should consider the Veteran's statements that he was exposed to gas, diesel, solvents, and other types of chemicals and that he worked in a shop with poor ventilation. In providing answers to the above question the examiner should consider the Veteran's statement that his weight gain was an adverse effect of antipsychotic medications he was prescribed for his service-connected disability, which is also documented in his medical record. In providing answers to the above question the examiner may NOT rely on the absence of a medical record or evidence of medical treatment as the sole rationale for any negative medical nexus opinion. In providing answers to the above questions, the examiner is also advised that the term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of conclusion as it is to find against it. In providing the aggravation opinion the examiner should specifically consider and discuss the Court in Ward, supra, new definition of aggravation which now includes temporary worsening of a disability. In providing answers to all the above questions the examiner is also advised that the term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of conclusion as it is to find against it. In answering all the questions please articulate the reasoning underpinning your conclusions. That is, (1) identify what facts and information--whether found in the record or outside the record--support your opinion, and (2) explain how that evidence justifies your opinion. (Continued on the next page) If the examiner cannot respond to an inquiry without resort to speculation as to any of the above claims he or she should so state, and must further explain why it is not feasible to provide a medical opinion, indicating whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or in the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). NEIL T. WERNER Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Jarman, 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.