Citation Nr: 21029122 Decision Date: 05/12/21 Archive Date: 05/12/21 DOCKET NO. 16-02 798 DATE: May 12, 2021 REMANDED Entitlement to service connection for diabetes mellitus type II is remanded. Entitlement to service connection for obstructive sleep apnea, to include as secondary to service-connected insomnia, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Air Force from July 1982 to May 1992. This matter is before the Board of Veterans' Appeals (Board) on appeal from a January 2015 rating decision. By way of history, in December 2015, the Board remanded the claim for service connection for diabetes mellitus type II for additional development, and remanded, in pertinent part, the claim to reopen service connection for sleep apnea for the issuance of a statement of the case. Manlincon v. West, 12 Vet. App. 238 (1999). A statement of the case denying service connection for diabetes mellitus type II and sleep apnea was issued in December 2015, and the Veteran filed a substantive appeal later that month appealing the denial of service connection for diabetes and sleep apnea. 38 C.F.R. § 19.22. The Board remanded this case in April 2019 and October 2020 for additional development. Unfortunately, the Board is not satisfied that there was substantial compliance with its prior remand instructions; therefore, the appeal must once again be remanded. See Stegall v. West, 11 Vet. App. 268, 271 (1998); D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). 1. Entitlement to service connection for diabetes mellitus type II is remanded. The Veteran seeks entitlement to service connection for diabetes mellitus type II, which he contends had its initial onset during service. Service treatment records show that in February 1987, while hospitalized for treatment for a stomach ulcer, the Veteran's glucose reading was a 54 which the treating physician noted to be abnormal. In the October 2020 remand, the Board directed the RO to schedule the Veteran for a VA examination and to obtain a medical opinion from a qualified VA examiner to assess the nature and etiology of the Veteran's diabetes mellitus. Specifically, the Board requested that the VA examiner discuss the relevance, if any, of the Veteran's abnormal glucose levels noted while hospitalized for treatment for an ulcer. The Veteran underwent a VA examination in December 2020. The VA examiner opined that the Veteran's diabetes mellitus was less likely than not incurred in or caused by service. In making this finding, the examiner noted that the Veteran reported that he was hospitalized with hypoglycemia during service in 1987, however medical records indicate hospitalization for gastrointestinal bleed due to ulcer and that there was no evidence of diabetes or hypoglycemia found in these records. The Board finds this opinion to be inadequate because the examiner did not fully address the Board's remand directives to discuss whether a relationship exists between the abnormal glucose reading noted in February 1987 and the development of diabetes mellitus. VA opinions based on an incomplete or inaccurate review of pertinent STRs, they are inadequate. Reonal v. Brown, 5 Vet. App. 458, 460 (1993) (medical opinions based on an incomplete or inaccurate factual premise are not probative). Moreover, the opinion did not apply the correct legal standard of "at least as likely as not," with regard to the etiology of the Veteran's currently-diagnosed diabetes mellitus. Finally, the opinion did not provide an adequate medical rationale to support the finding that the Veteran's diabetes mellitus is not related to military service. In light of the above, the Board finds that the record does not contain a medical opinion that is sufficient to fairly decide the Veteran's claim. Therefore, the claim must be remanded once again because the RO did not comply with the Board's prior remand directive to obtain an adequate medical opinion on the Veteran's behalf. See Stegall, 11 Vet. App. at 268. On remand, an addendum medical opinion must be obtained that is adequate for the Board to make an informed decision on the Veteran's claim. See Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007); Douglas v. Shinseki, 23 Vet. App. 19, 26 (2009). 2. Entitlement to service connection for obstructive sleep apnea, to include as secondary to service-connected insomnia, is remanded. The Veteran contends that his obstructive sleep apnea is related to his service, specifically relating to the Veteran's work on the relief shift as a security technician during service that required a nontraditional sleep schedule. According to the Veteran, he had difficulty staying awake and would often catch himself dozing off during the day while driving or while at a stop light. He would wake up during the night and often felt fatigued and irritable. The Veteran was diagnosed with obstructive sleep apnea in April 2012 and was prescribed a CPAP machine for sleep, though he is unable to use it due to a sinus condition. In November 2014, the Veteran underwent an examination to determine the nature and etiology of his sleep apnea. Therein, the VA examiner stated that there was no diagnosis of sleep apnea. However, the Veteran submitted the April 2012 private sleep study in February 2015 in which he was diagnosed with sleep apnea. In December 2020, the Veteran was afforded another VA examination. The VA examiner provided a negative nexus opinion, stating only that the Veteran's service treatment records do not show complaint or treatment for sleep apnea during service. The Board finds this medical opinion to be inadequate. It does not appear that the examiner considered the Veteran's lay statements regarding the in-service onset of symptoms of sleep apnea and continuous symptoms since service. Instead, she based her negative opinion solely on the lack of an in-service diagnosis of sleep apnea. An opinion based on a lack of in-service treatment or diagnosis without consideration of a veteran's competent reports is inadequate. See Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007); see also Smith v. Derwinski, 2 Vet. App. 137, 140 (1992). Once VA undertakes the effort to provide an examination or opinion when developing a service connection claim, it must provide one that is adequate for the purposes of the determination being made. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Therefore, remand is required to afford the Veteran a new VA examination and medical opinion before the Board can render an informed decision on the Veteran's claims. See Douglas v. Shinseki, 23 Vet. App. 19, 26 (2009). Furthermore, in several statements of record, the Veteran has suggested that his sleep disorder may be caused by or secondary to his now service-connected insomnia. When a theory of entitlement is raised by the record, the Board must consider it. See Szemraj v. Principi, 357 F.3d 1370, 1375-76 (Fed. Cir. 2004). Therefore, the Board has recharacterized the Veteran's service connection claim for sleep apnea accordingly and the issue must be remanded for an addendum opinion concerning secondary service connection. In addition, VA has not yet notified the Veteran as to the elements of substantiating a claim for service connection on a secondary basis under 38 C.F.R. § 3.310. On remand, proper notice must be given to the Veteran and he should be afforded the opportunity to submit any additional evidence in support of his claim. The matters are REMANDED for the following action: Diabetes Mellitus Type II 1. Obtain an addendum medical opinion from a VA examiner (M.D.) of appropriate expertise discussing the nature and etiology of the Veteran's diabetes mellitus. An in-person examination should not be scheduled unless it is deemed necessary by the examiner or otherwise required by the evidence. The examiner must review the claims file in its entirety, to include a copy of this REMAND, and the review should be noted in the examination report. Thereafter, the examiner is asked to provide an opinion with respect to the following: (a) Is it at least as likely as not (50 percent or greater probability) that the Veteran's diabetes mellitus had its onset in service, within one year of separation, or is otherwise etiologically related to his active duty service? The requested medical opinion must include a discussion of the relevance, if any, of (i) a February 1987 treatment record documenting hospitalization for treatment for a stomach ulcer that states the Veteran's glucose reading was a 54 which the treating physician noted to be abnormal. If it is determined that there is another more likely etiology for the Veteran's diabetes mellitus, that should be stated. The examiner is reminded that the term "at least as likely as not" does not mean "within the realm of possibility." Rather, it means that the weight of the medical evidence both for and against the claim is so evenly divided that it is as medically sound to find in favor of the claim as it is to find against it. The examiner should set forth a complete rationale for the conclusion(s) reached. In providing the requested opinion, the examiner must adequately consider and address the relevant evidence of record, to include: the Veteran's service treatment records, lay statements, VA treatment records, the December 2020 VA examination report and medical opinion, and any other pertinent evidence of record. The examiner must provide a complete rationale for any opinion expressed, citing to the examiner's clinical experience, medical expertise, and established medical principles, as necessary. If the examiner is unable to provide an opinion without resorting to speculation, he or she should explain why this is so and what, if any, additional evidence would be necessary before an opinion could be rendered. Obstructive Sleep Apnea 1. Provide the Veteran proper VCAA notice with regard to his claim for service connection on a secondary basis. 2. Schedule the Veteran for a VA examination with a medical professional of appropriate expertise to determine the nature and etiology of the Veteran's sleep apnea. The entire claims file, to include a copy of this REMAND, must be provided to the examiner and reviewed in full. A complete history of symptoms should be elicited from the Veteran. Thereafter, the examiner is asked to provide an opinion with respect to the following: (a) Is it at least as likely as not (50 percent or greater probability) that the Veteran's obstructive sleep apnea was incurred in or caused by an in-service injury, illness, or event? (b) Is it at least as likely as not (50 percent or greater probability) that the Veteran's obstructive sleep apnea is caused by his insomnia? (c) Is it at least as likely as not (50 percent or greater probability) that the Veteran's obstructive sleep apnea is aggravated (permanently increased in severity beyond its natural progression) by his insomnia? In providing the above opinion, the examiner is to discuss the Veteran's report that during service he worked on the relief shift as a security technician that required a nontraditional sleep schedule. He had difficulty staying awake and would often catch himself dozing off during the day while driving or while at a stop light. He would wake up during the night and often felt fatigued and irritable. (d) If it is determined that there is another more likely etiology for the Veteran's sleep apnea, that should be stated. The term "at least as likely as not" does not mean "within the realm of possibility." Rather, it means that the weight of the medical evidence both for and against the claim is so evenly divided that it is as medically sound to find in favor of the claim as it is to find against it. The Veteran is considered competent to report his medical history, including when his symptoms began, and such reports must be acknowledged and considered in formulating any opinion. The Veteran's lay contentions must be considered and weighed in making the determination as to whether a nexus exists between the claimed disabilities and military service. The examiner should note that the absence of documented complaints or treatment for sleep apnea in the Veteran's service treatment records cannot serve as the sole basis for a negative finding. The examiner must provide a complete rationale for any opinion offered, citing to the examiner's own expertise, medical principals, and/or evidence in the Veteran's record, when necessary, to support the conclusion reached. If the requested opinion cannot be rendered without resorting to speculation, the examiner must state 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 the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). (Continued on the next page) The examiner is reminded that failure to comply with the examination directives outlined herein will render the opinion inadequate and will result in further remand of the Veteran's claims. LESLEY A. REIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Rosenthal, Ariana 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.