Citation Nr: 21031893 Decision Date: 05/24/21 Archive Date: 05/24/21 DOCKET NO. 16-32 185 DATE: May 24, 2021 REMANDED Entitlement to service connection for diabetes, to include as secondary to service-connected obstructive sleep apnea (OSA), is remanded. REASONS FOR REMAND The Veteran served on active duty from January 1981 to August 2003. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2013 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO) which, in pertinent part, denied service connection for diabetes. The Veteran's timely Notice of Disagreement (NOD) was received by VA in November 2013. In June 2016, the RO issued a Statement of the Case (SOC). In July 2016, the Veteran perfected a timely appeal via his submission of a VA Form 9, on which he indicated he did not want a hearing. In October 2018, the Board remanded the matter for further evidentiary development. In July 2020, the RO issued a Supplemental Statement of the Case (SSOC) and the Veteran's appeal is now returned to the Board for further appellate proceedings. The Board notes in December 2020 a VA Form 21-22, Appointment of Veteran's Service Organization as Claimant's Representative was received, however it was not signed by the Veteran, and therefore is not in effect. In December 2020 the Veteran was notified by the VA that his VA Form 21-22 needed his signature in order to become valid. However, to date a completed VA Form 21-22, or VA Form 21-22a, has not been received. The Veteran asserted that his current diabetes originated on active duty and that his service-connected OSA caused or worsened his diabetes. The Veteran also asserted that during active duty he experienced episodes of hypercholesterolemia (high cholesterol) which were an indication of diabetes onset while he was on active duty. The Veteran has been granted service connection for obstructive sleep apnea, generalized anxiety with panic attacks and depressed mood, hypertension, gastroesophageal reflux disease (GERD), and allergic rhinitis. In November 2018, the Veteran completed a sleep study. Under the general recommendations the doctor reported that there was evidence to suggest that untreated OSA may have an adverse effect on hypertension and diabetes. According to the December 2018 remand instructions, a contract medical opinion was obtained in August 2019. Unfortunately, there appears to have been some confusion at the time of completion of both the opinion request and the opinions themselves. The Board requested opinions as to whether the Veteran's diabetes was at least as likely as not related to an in-service injury, event, or disease, including in-service high cholesterol, and as to whether the Veteran's diabetes was at least as likely as not (1) proximately due to service-connected disabilities, or (2) aggravated beyond its natural progression by service-connected disabilities, to include the Veteran's service-connected sleep apnea. The July 2019 opinion request from VA to the contract examiner requested opinions as to the following: "Does the Veteran have a diagnosis of (a) Diabetes, to include as secondary to service-connected disabilities, to include sleep apnea that is at least as likely as not (50 percent or greater probability) incurred in or caused by (the) in service high cholesterol during service" [sic] "Was the Veteran's Diabetes, to include as secondary to service-connected disabilities, to include sleep apnea at least as likely as not aggravated beyond its natural progression by his/her service-connected: obstructive sleep apnea, primary insomnia, gastroesophageal reflux disease status post Nissen Fundoplication, hypertension, allergic rhinitis." After reviewing the file, the August 2019 contract clinician opined the Veteran's diabetes was less likely than not incurred in or caused by the in-service hypercholesterolia. The contract clinician explained that diabetes and high cholesterol were medically unrelated and the medical literature showed no nexus between the two conditions. Regarding the Veteran's diabetes and his service-connected OSA, the contract clinician opined that the Veteran's diabetes was less likely than not proximately due to or the result of Veteran's service-connected OSA. The contract clinician explained that the two conditions were not medically related. The clinician stated that the claimed diabetes was a separate entity entirely from the service-connected OSA and unrelated to it. Additionally, the clinician reported that medical literature did not support a causal medical relationship between OSA and diabetes, therefore a nexus had not been established. The contract clinician concluded by opining the most likely cause of the Veteran's diabetes was family history and being overweight. The contract clinician also opined the Veteran's diabetes was not at least as likely as not aggravated beyond its natural progression by OSA, because there was no evidence diabetes had been aggravated by any cause, including sleep apnea. In response to whether "diabetes, to include as secondary to service-connected disabilities, to include sleep apnea" [sic] was at least as likely as not aggravated by primary insomnia, the clinician stated: "Nothing in the medical literature indicates has been aggravated by any cause including DM. No nexus" [sic]. In response to whether "diabetes, to include as secondary to service-connected disabilities, to include sleep apnea" [sic] was at least as likely as not aggravated by service-connected allergic rhinitis, the clinician stated that there was no evidence that diabetes had been aggravated by any cause including allergic rhinitis and that nothing in the medical literature supported allergic rhinitis aggravating diabetes. In response to whether "diabetes, to include as secondary to service-connected disabilities, to include sleep apnea" [sic] was at least as likely as not aggravated by service-connected GERD status post Nissen fundoplication, the clinician stated that there was no evidence to show that OSA had been aggravated by any condition including GERD with Nissen. The clinician noted that medical literature did support OSA worsening GERD by relaxing the lower esophageal sphincter, but also noted that that was not the question. Regarding whether "diabetes, to include as secondary to service-connected disabilities, to include sleep apnea" [sic] was at least as likely as not aggravated by service-connected hypertension, the examiner stated that there was no evidence to show that diabetes had been aggravated by any cause including hypertension. Further, medical literature did not support hypertension by itself aggravating diabetes. This medical opinion is unfortunately inadequate. The opinion that it was more likely that the Veteran's diabetes was the result of family history and being overweight is conclusory. It appears that at least some of the clinician's opinions were backwards discussing whether diabetes had aggravated a disability, rather than the issue at hand, namely whether diabetes had been caused or aggravated by a service-connected disability. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning). Further, the examiner does not appear to have considered the November 2017 sleep study doctor's statement that there was also evidence to suggest that untreated OSA may have an adverse effect on hypertension and diabetes, even though the Board's remand directive requested that the examiner "[p]lease address the evidence of record which indicates that sleep apnea may be related to diabetes." Compliance with remand directives by the originating agency is not optional or discretionary. The Board errs as a matter of law when it fails to ensure remand compliance. See Stegall v. West, 11 Vet. App. 268 (1998). The Board regrets further delay in this case, but finds that a remand is necessary in order to obtain an adequate medical opinion which addresses the questions at issue in this matter: whether the in-service episodes of hypercholesterolia were an indication of pre-diabetes or diabetes, and whether the Veteran's diabetes was caused or aggravated by service-connected OSA, hypertension, GERD with Nissen, allergic rhinitis, and/or insomnia. The Board notes in a January 2018 rating decision primary insomnia is listed as a service-connected disability under Diagnostic Code 9400. In a later December 2020 rating decision, the service-connected disability under Diagnostic Code 9400 is now characterized as generalized anxiety disorder with panic attacks and depressed mood. The matter is REMANDED for the following action: 1. Obtain a medical opinion from an appropriate clinician as to the nature and etiology of the Veteran's current diabetes. Access to the claims file should be made available to the examiner for review. After a review of the claims file, the examiner should opine as to the following: Is it at least as likely as not that the Veteran's diabetes began or is otherwise related to service, to include hypercholesterolemia which was present during active service? If not, is it at least as likely as that the Veteran's diabetes was proximately due to or the result of a service-connected disability, including OSA? If neither, is it at least as likely as not that diabetes was aggravated (made worse) by a service-connected disability, including OSA? If aggravation is found, the examiner must attempt to establish a baseline level of severity prior to aggravation. The examiner should comment on the significance, if any, of the Veteran's in-service hypercholesterolemia as to whether he was pre-diabetic or diabetic while on active duty. The examiner should also comment on the November 2017 sleep study doctor's statement that there was also evidence to suggest that untreated OSA may have an adverse effect on hypertension and diabetes. The Board is particularly interested in whether the presence of the Veteran's OSA prior to its formal diagnosis caused or aggravated his diabetes. The examiner is informed that service connection is in effect for: OSA, hypertension, GERD status post Nissen fundoplication, allergic rhinitis, and generalized anxiety disorder with panic attacks and depressed mood (previously noted as insomnia). A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. In providing the requested opinions, the examiner should consider the Veteran's reported symptoms in service and thereafter, including the nature, onset, progression and severity of the Veteran's reported symptoms. If there is any medical reason to accept or reject the proposition that the Veteran's in-service hypercholesterolemia was a sign of the Veteran being pre-diabetic or his current diabetes, this should be noted. Stated another way, do the Veteran's reports about his symptoms align with how diabetes known to manifest or are the Veteran's reports generally inconsistent with medical knowledge or implausible? If the clinician determines that an examination of the Veteran is necessary, one should be scheduled. Timothy Berryman Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Penn, 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.