Citation Nr: 21031304 Decision Date: 05/21/21 Archive Date: 05/21/21 DOCKET NO. 15-28 386 DATE: May 21, 2021 ORDER Service connection for obstructive sleep apnea (OSA) secondary to the Veteran's service-connected diabetes mellitus type II (DM) is granted. REMANDED The issue of service connection for an acquired psychiatric disorder, including posttraumatic stress disorder (PTSD) is remanded. The issue of service connection for a bilateral leg disorder, including atherosclerosis and/or peripheral neuropathy secondary to DM, is remanded. FINDING OF FACT The probative medical evidence indicates the Veteran's current OSA was caused and/or aggravated by his service-connected DM. CONCLUSION OF LAW The criteria for service connection for OSA secondary to DM are met. 38 U.S.C. §§ 1101, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from December 1971 to December 1973. He served in territorial waters surrounding the Republic of Vietnam and his military decorations include the Combat Action Ribbon. In March 2021, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge (VLJ). During the hearing, the VLJ engaged in a discussion with the Veteran towards substantiating the claims. Bryant v. Shinseki, 23 Vet. App. 488, 496-97 (2010). A hearing transcript is in the record. Per current case law, the Board broadened the claims for service connection for PTSD and atherosclerosis to include claims for an acquired psychiatric disorder and a bilateral leg disorder. The Board will remand those two claims for additional development outlined below. The OSA claim is granted. Service connection for OSA, including as secondary to DM VA awards service connection for disabilities resulting from a disease or injury incurred in or aggravated by service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). "Direct" service connection requires: (1) a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus (a causal relationship) between the present disability and the disease or injury incurred or aggravated during service. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Disorders diagnosed after discharge may still be service-connected if the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d); see Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). A veteran may establish service connection on a "secondary" basis for a non- service-connected disability that was caused by a service-connected disease or injury. 38 C.F.R. § 3.310 (a). Additional disability resulting from the aggravation of a nonservice-connected condition by a service-connected condition is also compensable under 38 C.F.R. § 3.310 (b). See Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). The Veteran was diagnosed with OSA during a 2013 sleep study. He contends his OSA was caused by his service-connected DM and/or his presently non service-connected psychiatric disorder(s). Since the Veteran does not allege direct service connection for OSA, nor does the evidence support that theory, the Board will limit its analysis to secondary service connection only. In a November 2020 opinion, a non-VA physician opined the Veteran's current OSA was directly caused by his service-connected DM. The physician cited medical literature and studies that suggest the symptoms and progression of DM compromises upper airway reflexes and damages the nerves that control the muscles of the throat, resulting in sleep disorder breathing (SDB). The physician explained that medical literature shows a causal link between DM and OSA that is independent of the other traditional risk factors for OSA, including obesity. She also reviewed the Veteran's specific medical history and concluded the development of the Veteran's DM paralleled the medical literature. The physician noted the Veteran diagnoses of erectile dysfunction and diabetic neuropathy suggest neural and vascular damage, which is the mechanism shown to cause airway and breathing difficulties. Given the medical opinion that the Veteran's current OSA disability was caused by his service-connected DM, the criteria for secondary service connection are met and the claim is granted. REASONS FOR REMAND The Board has determined additional development is necessary and the matter is REMANDED for the following: 1. BACKGROUND FOR THE RO ADJUDICATOR: Remand is necessary to obtain outstanding medical records and to schedule VA examinations to clarify the Veteran's current diagnoses and determine if his psychiatric and leg disorders are related to service or his service-connected disabilities. 2. REMAND DIRECTIVES: a. OBTAIN OUTSTANDING MEDICAL RECORDS: BEFORE SCHEDULING ANY EXAMINATIONS, obtain all relevant, outstanding VA and non-VA records, including: *November 1, 2007 bilateral leg ultrasound (non-VA) referenced during the March 2021 Board hearing. See "Hearing Transcript," received March 3, 2021 at page 12 of 15. *The Veteran stated to a VA medical provider that he had additional bilateral leg ultrasound procedures at "Northeast Imaging" and would fax them to VA. It is unclear whether VA obtained all of these records. See "Medical Treatment Record Government Facility," received July 1, 2019, at page 11 of 11. After confirming with the Veteran and his representative that all outstanding, relevant medical records have been added to the claim file AND ARE AVAILABLE TO ANY VA EXAMINER, conduct the additional development below. b. ACQUIRED PSYCHIATRIC DISORDER: Schedule the Veteran for a psychiatric examination with a VA PYSCHOLOGIST or PSYCHIATRIST to respond to the questions below. The examiner should give a thorough explanation for all opinions and conclusions. The examiner is requested to give the following opinions: (i) Identify the Veteran's current psychiatric disorders, including but not limited to PTSD and/or a dysthymic disorder. (ii) State whether any diagnosed psychiatric disorder(s) began during service or are otherwise related to the Veteran's active service. (iii) State whether the Veteran's account of his psychiatric disorder(s) is consistent with the medical evidence and the examiner's own knowledge and practice experience. THE EXAMINER IS REQUESTED TO EVALUATE ALL PSYCHIATRIC DIAGNOSES UNDER THE CRITERIA IN THE DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS, FIFTH EDITION (DSM-V). In addition to the entire claim file, the examiner is requested to review: *June 2013 non-VA medical opinion diagnosing the Veteran with PTSD related to combat trauma during service and was likely exacerbated by the Veteran's post-service law enforcement career. The examiner did not indicate whether the PTSD diagnosis was based on DSM criteria. See "Medical Treatment Record Non-Government Facility," received July 23, 2013. *July 2013 VA examination report indicating the Veteran did not meet DSM-IV criteria for PTSD because his symptoms did not cause "clinically significant distress or impairment in social, occupational, or other important areas of functioning." During the examination, the Veteran reported sleep disturbances, avoidance, recurrent intrusive thoughts of combat-related trauma, hypervigilance, depressed mood, and irritability. The Veteran denied significant occupational or social impairment at that time. The examiner diagnosed the Veteran with a dysthymic disorder and noted the Veteran had no history of depression prior to service. See "VA Examination," received July 18, 2013. c. BILATERAL LEG DISORDER: Schedule the Veteran for a VA peripheral nerves and/or vascular examinations with an appropriately qualified clinician to respond to the questions below. The examiner should give a thorough explanation for all opinions and conclusions. The examiner is requested to give the following opinions: (i.) Identify all current vascular, neurological, or other disorders affecting the Veteran's lower extremities. (ii.) For each identified disorder, state whether it is related to the Veteran's military service and/or his service-connected disorders, including DM. (iii.) State whether the Veteran's account of his bilateral leg disorder(s) is consistent with the medical evidence and the examiner's own knowledge and practice experience. In addition to the entire claim file AND ANY ADDITIONAL RECORDS GENERATED AS A RESULT OF THIS REMAND, the examiner is requested to review: *November 2012 ultrasound report indicating an impression of "some technical artifact" or "atheromatous change bilaterally," with "no definite significant arterial pressure differentials" and "no definitive evidence for significant segmental arterial stenotic disease" of the lower extremities. The report noted the Veteran's history of lower extremity spasm, DM, and hypertension. See "Medical Treatment Record Non-Government Facility," received September 7, 2018, at pages 112-113 of 160. *May 2013 ultrasound report that found no evidence of arterial insufficiency in the lower extremities at rest. Id. at page 109 of 160. *January 2015 VA artery and vein conditions examination report where examiner indicated he could not locate a diagnosis of atherosclerosis of the legs in the Veteran's claim file. See "C&P Exam," received January 28, 2015. PLEASE NOTE THAT A NEGATIVE OPINION CANNOT BE BASED SOLELY ON THE ABSENCE OF TREATMENT FOR A CONDITION IN SERVICE MEDICAL RECORDS. *April 2016 non-VA medical record where Veteran reported a burning sensation in his feet. The attending physician indicated the Veteran may have early diabetic neuropathy and was at increased risk for developing the condition because of his Vietnam service. See "Medical Treatment Record Non-Government Facility," received June 14, 2018, at pages 7-8 of 20. *March 2021 hearing transcript where Veteran reported nightly leg cramps (in the calves and thighs) and frequently moving his legs in bed. He reported his leg cramps are sometimes excruciatingly painful. The Veteran's attorney referenced a November 1, 2007 ultrasound that resulted in a diagnosis of bilateral lower extremity insufficiency with moderate arteriosclerotic changes bilaterally. See "Hearing Transcript," received March 3, 2021, at pages 12-14. If the RO continues to deny the claims, it should issue a Supplemental Statement of the Case (SSOC) and give the Veteran and his representative a reasonable opportunity to respond to the SSOC before returning the appeal to the Board. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims remanded by the Board or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.§§ 5109B, 7112. Vito A. Clementi Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Hiaasen The Board's decision in this case is binding only with respect to the matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.