Citation Nr: 21032110 Decision Date: 05/25/21 Archive Date: 05/25/21 DOCKET NO. 14-37 283 DATE: May 25, 2021 REMANDED Entitlement to service connection for diabetes mellitus, type II, (DM II) to include as secondary to a service-connected disability is remanded. Entitlement to service connection for chronic headaches, to include as secondary to a service-connected disability is remanded. Entitlement to service connection for an acquired psychiatric disorder, including posttraumatic stress disorder (PTSD), to include as secondary to a service-connected disability is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1986 to April 1994. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a March 2017 rating decision issued by a VA Regional Office (RO). By way of background, in a May 2018 decision, the Board denied service connection for DM II, an acquired psychiatric disorder including PTSD and chronic headaches. The Veteran appealed to the United States Court of Appeals for Veterans Claims (Court), and in a March 2019 order, the Court granted the parties' Joint Motion for Partial Remand (JMPR), vacated the Board's decision as to the appealed issues, and remanded the matter for further development and readjudication consistent with the JMPR. In May 2018, the Board also remanded for further development the issues of entitlement to service connection for allergies or breathing problems. Subsequently, the RO granted service connection for allergic rhinitis in a March 2020 rating decision. The claims for DM II, an acquired psychiatric disorder to include PTSD, and chronic headaches were once more before the Board in March 2020. These claims were again remanded pending RO development for a newly raised contention of obstructive sleep apnea based upon the development subsequent to the Board's May 2018 decision. The Board's March 2020 remand found the Veteran's claims were inextricably linked with the development of the claim for obstructive sleep apnea. Since this claim had not been previously adjudicated or developed by the AOJ, the Board remanded for such development and decision by an RO. Unfortunately, as will be discussed below, the resulting development was not responsive to the Board's directives therefore, a remand is required once more in this case. See Stegall v. West, 11 Vet. App. 268, 271(1998). Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration. further remand is required. Entitlement to service connection for DM II, chronic headaches, and an acquired psychiatric disorder including PTSD, to include as secondary to a service-connected disability are remanded. The Board previously noted, in its' March 2020 decision that the Veteran's claim for service connection for obstructive sleep apnea was newly raised as a result of the development by the RO from a prior Board decision. Subsequently, the Board in March 2020, ordered that development and consideration of this claim be conducted by the AOJ prior to recertifying these claims to the Board. Unfortunately, as of the time of this decision, no such development has taken place therefore, the Board finds a remand is warranted to rectify this duty to assist error. VA has a duty to make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A(a); 38 C.F.R. § 3.159(c), (d). Here, the AOJ issued a supplemental statement of the case in October 2020 continuing the denial of the Veteran's claims for service connection for DM II, chronic headaches, and an acquired psychiatric disorder. The AOJ based its' findings on a lack of medical evidence indicating a secondary connection to any currently service-connected condition. However, prior to this decision, the AOJ had not developed nor considered the claim of service connection for obstructive sleep apnea which is the linchpin of the Board's prior remand as well as additional argument made by the Veteran and his representative. Additionally, the medical evidence of record indicates there may be a relationship between the Veteran's claimed sleep apnea and the other claims on appeal. Namely, a private physician, Dr. A.A. has opined that "the Veteran's allergic rhinitis had more likely than not caused his obstructive sleep apnea". Also, the Veteran's medical records clearly establish that he has problems sleeping, which was focused on during a July 2014 neuropsychology evaluation. This evaluation noted that the Veteran suffered from untreated moderate sleep apnea which was one of the factors contributing to his demonstrated cognitive difficulties. The Board's March 2020 decision concluded "the Board reads this to suggest that the Veteran's chronic headaches may be proximately caused by or aggravated by his obstructive sleep apnea". Lastly, the Veteran's attorney contended, in her January 2020 appellate brief, that the Veteran's acquired psychiatric disorder was exacerbated by his obstructive sleep apnea and chronic headaches and, as such, service connection was warranted on a secondary basis. As such, the record contains ample evidence demonstrating the need to afford the Veteran a VA examination for his newly claimed obstructive sleep apnea which has not occurred. See McClendon v. Nicholson, 20 Vet. App. 79 (2006). Furthermore, since the Veteran's claims of service connection for DM II, an acquired psychiatric disorder, and chronic headaches are inextricably intertwined with the newly raised claim of service connection for obstructive sleep apnea, the Board will again remand these issues to include development of the claim for obstructive sleep apnea, and for an issuance of a supplemental statement of the case if the claims remain denied. See Harris v. Derwinski, 1Vet. App.180, 183 (1991); Disabled Am. Veterans v. Sec'y of Veterans Aff., 327 F.3d 1339 (Fed. Cir. 2003); Stegall, 11 Vet. App. at 271; 38C.F.R. §20.1304(c). The matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment records, to include VA treatment records from December 2020 to the present. 2. Schedule the Veteran for a VA examination by an appropriate physician for his obstructive sleep apnea. The necessity of an in-person examination is left to the discretion of the examiner. The examiner must review the claims file. The examination report should reflect that the claims file was reviewed, including any newly associated medical records. The examiner is asked to provide a response to the following: (a) Is obstructive sleep apnea at least as likely as not related to service, including to reported allergies and breathing problems during and since service. As part of his/her opinion, the examiner is asked to opine whether it is at least as likely as not that the Veteran's obstructive sleep apnea (1) began during active service, (2) manifested within 1 year after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service? (b) If so, is the Veteran's diabetes mellitus type II, an acquired physiatric disorder to include PTSD, and/or chronic headaches at least as likely as not proximately due to his obstructive sleep apnea? (c) If not, is the Veteran's diabetes mellitus type II, an acquired physiatric disorder to include PTSD, and/or chronic headaches at least as likely as not aggravated, i.e., worsened beyond its natural progression, by obstructive sleep apnea"? The examiner is cautioned that there is no temporal requirement inherent in 38 C.F.R. § 3.310, even when the Veteran claims that the primary condition (obstructive sleep apnea) caused the secondary condition (diabetes mellitus type II, an acquired physiatric disorder to include PTSD, and chronic headaches). Therefore, for a veteran to be service connected on a secondary basis under a causation theory, the primary disability (obstructive sleep apnea) need not be service connected, or even diagnosed, at the time the secondary condition is incurred. In other words, the examiner may not discount the possibility of causation merely because obstructive sleep apnea was diagnosed before diabetes, an acquired psychiatric disorder, to include PTSD, and chronic headaches. With regard to the term "aggravated," as used in 38 C.F.R. § 3.310 (b), the examiner is cautioned that this term does not require that there be "permanent worsening" of the nonservice-connected disability. Instead, secondary service connection is warranted for "any incremental increase in disability and any additional impairment of earning capacity in nonservice-connected disabilities resulting from service-connected conditions, above the degree of disability existing before the increase regardless of its permanence." See Ward v. Wilkie, 31 Vet. App. 233, 239 (2019). The examiner should consider all medical and lay evidence of record, including the opinions of private physician Dr. A.A. The examiner must provide a complete rationale for his or her opinion(s) in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. 3. After the above development, and any additionally indicated development, has been completed, readjudicate the issue on appeal. SHEREEN M. MARCUS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. F. Minnitte, Attorney Advisor 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.