Citation Nr: 21031369 Decision Date: 05/21/21 Archive Date: 05/21/21 DOCKET NO. 15-15 715 DATE: May 21, 2021 ORDER Entitlement to service connection for sleep apnea, to include as secondary to service-connected major depressive disorder, is granted subject to controlling regulations governing the payment of monetary awards. REMANDED Entitlement to service connection for diabetes mellitus, also claimed as due to medications and shots administered during service, is remanded. FINDING OF FACT Giving him the benefit of the doubt, the Veteran has sleep apnea that that is etiologically related to his service-connected major depressive disorder. CONCLUSION OF LAW The criteria for service connection for sleep apnea, are met. 38 U.S.C. §§ 1110, 1131, 1507; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from December 1984 to March 1985 and from January 1987 to August 1991, with service in Southwest Asia. These matters are on appeal from July 2013 rating decision. In June 2018, the Veteran and his spouse testified at a Video Conference hearing before the undersigned Veterans Law Judge. In August 2018, these matters were remanded by the Board for further development. The claim of entitlement to service connection for sleep apnea is ready for adjudication. Service Connection Claim Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a). Service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection may also be established on a secondary basis for a disability which is aggravated by, proximately due to, or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. Any additional impairment of earning capacity resulting from an already service-connected condition, regardless of whether or not the additional impairment is itself a separate disease or injury caused by the service-connected condition, should also be compensated. Allen v. Brown, 7 Vet. App. 439 (1995); Ward v. Wilkie, 31 Vet. App. 233 (2019) (holding 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)). The Veteran seeks service connection for obstructive sleep apnea, including as secondary to his service-connected major depressive disorder. In response to the Board's August 2018 remand for an etiological opinion regarding the Veteran's sleep apnea, in June 2019 a VA examiner opined that the Veteran's sleep apnea is not proximately due to or the result of a psychiatric disorder, but failed to provide an opinion as to whether it was aggravated by a psychiatric disorder. In August 2019 another examiner opined that the sleep apnea is not related to service or proximately due to any psychiatric disorder. However, this examiner also failed to provide an opinion as to whether the Veteran's sleep apnea is aggravated by his service-connected psychiatric disorder. In a November 2020 addendum, a third VA examiner opined that the Veteran's sleep apnea is less likely than not related to his service. The examiner further opined that sleep apnea is not proximately due to or the result of his psychiatric disorder. However, the examiner also opined that sleep apnea and depression are associated conditions. The Board therefore finds that the evidence is at least in equipoise as to whether the Veteran's currently diagnosed sleep apnea was caused or aggravated by his service-connected major depressive disorder, and that affording the Veteran the benefit of all doubt, that service connection for sleep apnea, on a secondary basis, is warranted. The nature and extent of the Veteran's sleep apnea caused or aggravated by the service-connected major depressive disorder, is not currently before the Board. REASONS FOR REMAND Diabetes mellitus The Veteran contends that his diabetes mellitus is related to shots he received during service and medications prescribed for treatment of his service-connected psychiatric disorder. In response to the Board's August 2018 remand for an etiological opinion, in June 2019 a VA psychologist opined that he was not qualified to diagnose diabetes mellitus or determine its causation. The psychologist directed that the request for an etiological opinion be forwarded to an appropriate medical professional. In an August 2019 VA medical opinion a physician opined that diabetes is not a presumptive condition related to service in Southwest Asia, that immunizations do not cause diabetes mellitus, and that it is not related to the Veteran's service. However, the examiner failed to provide any opinion as to whether diabetes mellitus is related to medications prescribed for treatment of the Veteran's psychiatric disorder. To this point, as noted in the May 2021 Brief, the examiner stated that the Veteran was not service-connected for any mental health disability. However, since the record indicates that the Veteran is service-connected for major depressive disorder and insomnia, the examiner's statement is factually inaccurate. Therefore, the Board must again remand the claim for an addendum as to whether the Veteran's diabetes mellitus is related to medications prescribed for treatment of his service-connected psychiatric disorder. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); Stegall v. West, 11 Vet. App. 268 (1998). The matter is REMANDED for the following action: Provide the claims file to an appropriate VA medical professional, other than the August 2019 VA examiner, who should determine whether a new VA examination is warranted in order to provide the requested opinion. The claims folder should be made available to the examiner for review of pertinent documents. The report should reflect that such a review was conducted. The examiner should provide the following opinion: Is it at least as likely as not (50 percent or more probability) that diabetes mellitus had its onset in or is etiologically-related to the Veteran's active duty service, to include as a result of in-service "shots," and medications prescribed to treat the Veteran's service-connected psychiatric disorder? The examiner is asked to consider and discuss as necessary the pertinent evidence of record to include the lay statements and testimony from the Veteran and his spouse concerning the onset of his diabetes mellitus, including those made to medical providers; April 2015 VA Form 9; and 2014 Notice of Disagreement statements. The Board, by this remand, makes no determination, expressed or implied, concerning the credibility of any statements on file. The report(s) should include the complete rationale for all opinions expressed. The phrase "at least as likely as not" does not mean within the realm of medical possibility, but rather the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. If an opinion cannot be rendered without resorting to speculation, the examiner should explain why it would be speculative to respond. (Continued on the next page) KELLI A. KORDICH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Adams, 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.