Citation Nr: 21030530 Decision Date: 05/19/21 Archive Date: 05/19/21 DOCKET NO. 17-40 461 DATE: May 19, 2021 REMANDED Entitlement to service connection for diabetes mellitus is remanded. Entitlement to service connection for hypertension is remanded. Entitlement to service connection for sleep apnea is remanded. REASONS FOR REMAND The Veteran served on active duty with the United States Navy from June 1955 to February 1978 with service in the Republic of Vietnam. In September 2019, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the claims file. In November 2019, the Board of Veterans' Appeal (Board) reopened the claims of service connection for diabetes mellitus and hypertension and thereafter denied the claims of service connection for diabetes mellitus, hypertension, and sleep apnea. The Veteran appealed the November 2019 Board decision to the United States Court of Appeals for Veterans Claims (Court). In a November 2020 order, which incorporated the parties October 2020 Joint Motion for Partial Remand (JMPR), the Court vacated and remanded the Board's denial of service connection for diabetes mellitus, hypertension, and sleep apnea. Entitlement to service connection for diabetes mellitus, hypertension, and sleep apnea are remanded. As to all the issues on appeal, the Court vacated and remanded the Board's denial of service connection for diabetes mellitus, hypertension, and sleep apnea for the following reasons: i. the Board when finding that the Veteran did not have a diagnosis of diabetes mellitus it did not address the September 2019 VA medical treatment note that stated that he had "... diabetes mellitus, a disease characterized by high blood sugar levels over a prolonged time...," ii. the May 2017 VA examination was not adequately because it did not address whether Veteran's hypertension was due to herbicide exposure and/or aggravated by his service-connected posttraumatic stress disorder (PTSD); and iii. the Board when finding the May 2017 VA examiner's opinion that the Veteran's sleep apnea was not due to military service and secondary to his service connected PTSD did not address the medical article filed by the claimant that noted how younger veterans suffer from sleep apnea. As to the claim of service connection for sleep apnea, the Board notes that in April 2021 it received a March 2021 report from David C. Brodner, M.D., an otolaryngologist, in which he linked the Veteran's sleep apnea to his already service-connected PTSD. However, the Board finds that this report, standing alone, is not adequate to adjudicate this claim. See Guerrieri v. Brown, 4 Vet. App. 467, 473 (1993) ("the probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion the physician reaches.... As is true with any piece of evidence, the credibility and weight to be attached to these opinions [are] within the province of the [Board as] adjudicators..."). Therefore, the Board finds that a remand is required to provide the Veteran with VA examinations to see if he has a diagnosis of diabetes mellitus, see if his hypertension is related to his presumptive herbicide exposure while in service and/or secondary to his PTSD, and to address the question of whether the Veteran's sleep apnea is due to his military service and/or secondary to PTSD taking into account the medical article filed by the claimant that noted how younger veterans suffer from sleep apnea and Dr. Brodner's report. See 38 U.S.C. § 5103A(d); Forcier v. Nicholson,19 Vet. App. 414, 425 (2006) (holding that the duty to ensure compliance with the Court's order extends to the terms of the agreement struck by the parties that forms the basis of the joint motion to remand); cf. McBurney v. Shinseki, 23 Vet. App. 136, 140 (2009) (Board has a duty on remand to ensure compliance with the favorable terms stated in the joint motion for remand or explain why the terms will not be fulfilled); 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); Also see 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); ElAmin v. Shinseki, 26 Vet. App. 136, 140-41 (2013) (holding that, when multiple theories of entitlement are at issue, the Board must ensure that the medical opinions of record directly address all theories reasonably raised by the record). In this regard, when providing the requested medical opinions and again adjudicating the claim the VA examiner and the RO must apply the Court's new definition of aggravation which now includes a temporary worsening of a disability. See Ward v. Wilkie, 31 Vet. App. 233 (2019). Also, when providing the requested medical opinions and again adjudicating the claim, the VA examiner and the RO must take into account the fact that the National Academy of Sciences 2014 Update concluded that there was limited or suggestive evidence of an association between herbicide exposure and hypertension. See National Academies of Sciences, Engineering, and Medicine, 766-767, 2016, Veterans and Agent Orange: Update 2014. Washington, DC: The National Academies Press (NAS 2014 Update). While the appeal is in Remand status any outstanding VA and private treatment records should also be obtained and associated with the record. See 38 U.S.C. § 5103A(b). The appeal is REMANDED for the following actions: 1. Obtain and associate with the claims file any outstanding VA treatment records. 2. After obtaining all needed authorizations from the Veteran, associate with the claims file any outstanding private treatment records. If possible, the Veteran himself should submit and new pertinent evidence the Board/VA does not have (if any). This would include any recent VA treatment. Any help with the above would be appreciated. 3. In order to comply with the JMPR, schedule the Veteran for a VA examination with a suitably-qualified medical professional to address the Veteran's claim of service connection for diabetes mellitus. The claims file should be made available and reviewed by the examiner in conjunction with conducting the examination. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. After a consideration of the evidence of record (both lay and medical) and the results of the examination, the examiner is asked to address the following: Provide an opinion as to whether the Veteran current has or even had a diagnosis of diabetes mellitus. In providing an answer to the above questions the examiner should consider and discuss, among other things, the September 2019 VA medical treatment note that stated that he had "... diabetes mellitus, a disease characterized by high blood sugar levels over a prolonged time..." In providing answers to the above questions the examiner should consider and discuss the Veteran's competent lay claims regarding observable symptomatology. 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 answering the question 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. If the examiner cannot respond to an inquiry without resort to speculation 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). 4. In order to comply with the JMPR, schedule the Veteran for a VA examination with a suitably-qualified medical professional to address the Veteran's claim of service connection for hypertension. The claims file should be made available and reviewed by the examiner in conjunction with conducting the examination. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. After a consideration of the evidence of record (both lay and medical) and the results of the examination, 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 hypertension was caused by the Veteran's military service to include his service in the Republic of Vietnam and his presumptive herbicide exposure. b. Provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that hypertension 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 hypertension was caused by his service-connected PTSD to include the medication he takes to treat his PTSD. d. Provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's hypertension was aggravated by his service-connected PTSD to include the medication he takes to treat his PTSD. 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 and discuss the NAS's 2018 Update in which it moved hypertension from the "limited or suggestive evidence" category to the "sufficient evidence of an association" category. 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 etiology opinion, the examiner should be aware of the facts that the Court held in Ward, supra, that a "permanent worsening" of a non-service-connected disability is not required to establish secondary service connection on the basis of aggravation (i.e., aggravation may include temporary worsening of a disability). In answering 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. If the examiner cannot respond to any inquiry without resort to speculation 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). 5. In order to comply with the JMPR, schedule the Veteran for a VA examination with a suitably-qualified medical professional to address the Veteran's claim of service connection for sleep apnea. The claims file should be made available and reviewed by the examiner in conjunction with conducting the examination. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. After a consideration of the evidence of record (both lay and medical) and the results of the examination, 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 sleep apnea was caused by the Veteran's military service b. Provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's sleep apnea was caused by his service-connected PTSD to include the medication he takes to treat his PTSD. c. Provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's sleep apnea was aggravated by his service-connected PTSD to include the medication he takes to treat his PTSD. 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 and discuss, among other things: i. the medical article filed by the claimant that noted how younger veterans suffer from sleep apnea and ii. the March 2021 report from Dr. Brodner, in which he linked the Veteran's sleep apnea to his already service-connected PTSD along to include a discussion of the medical literature cited to by Dr. Brodner. 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 answering 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 any inquiry without resort to speculation 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). John J. Crowley Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N.T. Werner, 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.