Citation Nr: 21030722 Decision Date: 05/19/21 Archive Date: 05/19/21 DOCKET NO. 16-03 474 DATE: May 19, 2021 REMANDED Entitlement to service connection for obstructive sleep apnea (OSA), to include as due to the service-connected diabetes mellitus, type II, is remanded. REASONS FOR REMAND The Veteran, who is the appellant in this case, served on active duty from January 1967 to October 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office, the agency of original jurisdiction (AOJ). In October 2019, the Board granted service connection for left ear hearing loss and remanded the Veteran's claim for service connection for OSA for further development, to include obtaining a VA medical opinion addressing the likely etiology of the disorder. VA medical opinions dated February 2021 are of record and have been reviewed. The Board finds there has not been substantial compliance with its October 2019 remand directives. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that there must be substantial compliance with the terms of a Court or Board remand); Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand confers on the claimant, as a matter of law, the right to compliance with the remand order). VA Medical Opinions Once VA undertakes the effort to provide an examination or medical opinion when developing a claim, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). In its October 2019 remand, the Board directed that the AOJ obtain medical opinions as to direct and secondary service connection of the Veteran's OSA, and to address certain evidence of record. However, the examiner provided no opinion addressing direct service connection. As to secondary service connection, the examiner declined to offer an opinion regarding the Veteran's nasal injury, concluding that it would be speculative, and regarding diabetes mellitus, the examiner addressed causation but not aggravation of the Veteran's OSA. See El-Amin v. Shinseki, 26 Vet. App. 136, 140 (2013) (holding that an opinion will be considered inadequate unless it addresses both the caused by and aggravation avenues for secondary service-connection under 38 C.F.R. § 3.310(b)). Despite being directed to address the Veteran's March 2019 statement the examiner failed to do so. Critically, the VA examiner's conclusions that there is "no definitive evidence" that diabetes mellitus type II causes sleep apnea, and that there is insufficient evidence to determine "the exact etiology" of the Veteran's OSA are fatally flawed because an absolutely accurate determination of etiology is not a condition precedent to granting service connection. The posited correlation or etiology need only be an "as likely as not" possibility. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996) (indicating "absolute" etiology is not a condition precedent to granting service connection, nor is "definite" or "obvious" etiology). For these reasons, the February 2021 opinions are inadequate. See Barr, supra. Accordingly, remand is necessary to obtain adequate opinions addressing the etiology of the Veteran's OSA. See Barr, supra; Stegall, supra. In the May 2021 Written Brief Presentation, the Veteran's representative has identified additional potentially relevant articles said to demonstrate a link between diabetes mellitus, type II, nasal disorders, and OSA. Therefore, on remand, the VA examiner should address these articles in providing the requested opinions. The matter is REMANDED for the following action: 1. Ensure that all outstanding VA treatment records are associated with the claims file. 2. Then, request another medical opinion from the same examiner who authored the February 2021 opinion, if available, to determine the nature and etiology of the Veteran's obstructive sleep apnea. The need for an examination is left to the discretion of the medical professional offering the addendum opinion. The claims file, including a copy of this Remand, must be made available to, and be reviewed by, the VA examiner. *The examiner's review of the body of this Remand is strongly recommended to assist in avoiding errors that rendered the previous VA opinions inadequate. The examiner is asked to respond, with complete rationale, to the following: (a) Provide an opinion as to whether it is at least as likely as not (50 percent or higher probability) that the currently diagnosed obstructive sleep apnea is etiologically related to service. *Address the Veteran's March 2019 statement that he is at his ideal weight but still has sleep apnea (see VBMS "VA 21-4138 Statement In Support of Claim," Receipt Date: March 14, 2019). (b) If the answer to question (a), above, is in the negative, provide an opinion as to whether the Veteran's obstructive sleep apnea was at least as likely as not (50 percent or higher degree of probability) CAUSED or AGGRAVATED by, the Veteran's service-connected nasal injury. *Address the following: Articles linking sleep apnea to nasal disorders, the Internet links for which are provided in the Veteran's May 4, 2021 Written Brief Presentation (see VBMS "Appellate Brief (VSO IHP; Post remand Brief; Attorney Brief)," Receipt Date: May 4, 2021). (c) If the answer to questions(a) and (b), above, are in the negative, provide an opinion as to whether the Veteran's obstructive sleep apnea was at least as likely as not (50 percent or higher degree of probability) CAUSED or AGGRAVATED by, the Veteran's service-connected diabetes mellitus, type II. *Address the following: (i) A WebMD article cited in the May 2016 VA medical opinion regarding sleep apnea, which states that "Researchers have found a possible link between sleep apnea and the development of diabetes and insulin resistance (the inability of the body to use insulin)." https://www.webmd.com/diabetes/type-2-diabetes-sleep; and (ii) Articles linking sleep apnea to diabetes mellitus, type II, the Internet links for which are provided in the Veteran's May 4, 2021 Written Brief Presentation (see VBMS "Appellate Brief (VSO IHP; Post remand Brief; Attorney Brief)," Receipt Date: May 4, 2021). *Any increase/aggravation is sufficient, permanent aggravation is NOT required. See Ward v. Wilkie, 31 Vet. App. 233, 239 (2019) (permanent worsening is not a requirement for secondary service connection of a non-service-connected injury or disease). *To ensure that the correct legal standard is applied, which is essential for adjudication of this claim, the opinions for (b) and (c) MUST BE STATED IN TERMS OF whether the disorder was CAUSED or AGGRAVATED by the service-connected disorder. 3. Thereafter, ensure that the examiner has substantially responded to the questions posed by the Board, and if not, take corrective action. Then, readjudicate the remanded claim. S. B. MAYS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Farrell, 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.