Citation Nr: 21032844 Decision Date: 05/28/21 Archive Date: 05/28/21 DOCKET NO. 16-41 070 DATE: May 28, 2021 REMANDED Entitlement to service connection for obstructive sleep apnea is remanded. Entitlement to service connection for type II diabetes mellitus is remanded. REASONS FOR REMAND The Veteran served on active duty from May 1971 to June 1973 and from November 1982 to October 1983. These matters come before the Board of Veterans' Appeals (Board) on appeal from a Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ) rating decision dated in November 2014. In a June 2018 decision, the Board denied the Veteran's claim of entitlement to service connection for diabetes mellitus and obstructive sleep apnea. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court). In May 2019, pursuant to a Joint Motion for Remand, the Court vacated the June 2018 decision and remanded the matter to the Board for action consistent with the Joint Motion. These matters return to the Board following a December 2019 Board remand to the AOJ. 1. Entitlement to service connection for obstructive sleep apnea is remanded. The Veteran seeks service connection for obstructive sleep apnea, which he asserts is related to service. The Board finds that the evidence of record, including a private treatment providers statement in February 2014 and VA treatment records, raises the issue of entitlement to service connection for obstructive sleep apnea as secondary to his service-connected disabilities, to include his psychiatric disorder. In August 2019, the Veteran established service connection for major depressive disorder. The Board notes that VA psychiatric treatment records indicate that the Veteran had symptoms of difficulty sleeping and snoring. See August 2013 VA treatment record (complained of difficulty sleeping and showing characteristics of depression and seemed to have snoring problems). In February 2014, the private treatment provider noted that the Veteran had a current diagnosis of sleep apnea, with symptoms of headaches, excessive daytime somnolence, morning sluggishness, fatigue, loud snoring with breath cessation episodes, restlessness, and thrashing movements of the extremities during sleep. In addition, the treatment provider noted that the Veteran had a psychiatric disorder, which included symptoms of insomnia with nightmares. The treatment provider opined that the Veteran's severe neurological, musculoskeletal, endocrine, and psychiatric disorders were more probable than not secondary to his performance during military service. The Board notes that VA treatment records indicate that the Veteran's psychiatric disorder appear to have impacted his ability to take his medications as prescribed. See May 2014 VA treatment record (stopped taking psychiatric medication because he feared becoming an addict, and simply forgot to take his other medications); see also June 2014 and July 2014 VA treatment records (noncompliance with medication). The Veteran was afforded a VA examination in November 2020, pursuant to the prior Board remand, which requested that a VA examiner consider and address whether the Veteran's obstructive sleep apnea was at least as likely as not related to service. The examiner opined that it was less likely than not (less than 50 percent probability) that the Veteran's obstructive sleep apnea was incurred in or caused by the claimed in-service, injury, event, or illness. The VA examiner did not address the Veteran's statement that he had been feeling weak and sleepy for years and the examiner did not address the statement from the private treatment provider in February 2014. Thus, the Board finds that the examiner did not offer a sufficient etiological opinion as to whether the Veteran's obstructive sleep apnea was related to service or to his service-connected disabilities, which renders the opinion inadequate. The Board finds that a supplemental VA opinion is warranted to determine the etiology of the Veteran's obstructive sleep apnea. 2. Entitlement to service connection for diabetes mellitus is remanded. The Veteran seeks service connection for diabetes mellitus, which he asserts is related to service. The Board finds that the evidence of record, including a private treatment provider's statement in February 2014 and VA treatment records, raises the issue of entitlement to service connection for diabetes mellitus as secondary to his service-connected disabilities, to include his psychiatric disorder. As noted, the Veteran has established service connection for major depressive disorder. In February 2014, the private treatment provider noted that the Veteran had a current diagnosis of type II diabetes mellitus, with symptoms of polyuria, polydipsia, polyphagia, and episodes of dizziness for which he was in therapy with insulin with poor blood glucose control. In addition, the treatment provider noted that the Veteran had a psychiatric disorder, which included symptoms of depressed mood and motivation. The treatment provider opined that the Veteran's severe neurological, musculoskeletal, endocrine, and psychiatric disorders were more probable than not secondary to his performance during military service. The Board notes that VA treatment records indicate that the Veteran's psychiatric disorder impacted his ability to take his medications as prescribed. See May 2014 VA treatment record (Veteran stopped taking psychiatric medication because he feared becoming an addict, and simply forgot to take his other medications); see also June 2014 and July 2014 VA treatment records. In addition, VA treatment records indicate that the Veteran's psychiatric disorder impacted his ability to comply with his dietary restrictions for glucose control. See March 2014 VA treatment record (reported that he would eat more than usual when he felt anxious); September 2014 VA treatment record (symptoms of sadness, anxiousness, frustration, hopelessness, sleeping problems, and memory problems with increase in appetite); February 2018 VA treatment record (reported poor compliance with diet at home). In June 2014, a private treatment provider noted that the Veteran had received treatment for his diabetes mellitus from them since July 1999, and when he had begun treatment with them, he had reported that he had a diagnosis of diabetes mellitus since 1991. The Veteran was afforded a VA examination in November 2020, pursuant to the prior Board remand, which requested that a VA examiner consider and address whether the Veteran's diabetes mellitus was at least as likely as not related to service. The examiner opined that it was less likely than not (less than 50 percent probability) that the Veteran's diabetes mellitus was incurred in or caused by the claimed in-service, injury, event, or illness. The VA examiner did not address the June 2014 private treatment record, which indicated that the Veteran reported a diagnosis of diabetes mellitus from 1991; and the examiner did not discuss the statement from the private treatment provider in February 2014. Thus, the Board finds that the examiner did not offer a sufficient etiological opinion as to whether the Veteran's diabetes mellitus was related to service or to his service-connected disabilities, which renders the opinion inadequate. The Board finds that a supplemental VA opinion is warranted to determine the etiology of the Veteran's diabetes mellitus. The matters are REMANDED for the following action: 1. Obtain a VA addendum opinion to ascertain the etiology of the Veteran's obstructive sleep apnea. If a clinical evaluation is deemed necessary to answer the questions presented, one should be scheduled. The claims folder should be reviewed, including a copy of this Remand. Following a review of the Veteran's record, the examiner should address the following: (a.) whether it is at least as likely as not (50 percent or greater likelihood) that obstructive sleep apnea manifested during service, or that it is otherwise causally or etiologically related to a period of active duty service; (b.) whether it is at least as likely as not (50 percent or greater likelihood) that obstructive sleep apnea is proximately due to a service-connected disability to include but not limited to his psychiatric disorder; (c.) whether it is at least as likely as not (50 percent or greater likelihood) that obstructive sleep apnea is aggravated (increase in severity beyond the natural progression of the disorder) by a service-connected disability to include but not limited to his psychiatric disorder. The examiner should consider and discuss treatment records which reflect that the Veteran had symptoms of difficulty sleeping and snoring. See August 2013 VA treatment record (complained of difficulty sleeping and showing characteristics of depression and seemed to have snoring problems). The examiner should consider and discuss the February 2014 private treatment provider's statement (psychiatric disorder with symptoms of difficulty sleeping, severe memory loss, depressed mood and motivation, and insomnia with nightmares). The examiner should consider and discuss the VA treatment records which indicate that the Veteran's psychiatric disorder impacted his ability to take his medications as prescribed, including: (a.) May 2014 VA treatment record (Veteran stopped taking psychiatric medication because he feared becoming an addict, and simply forgot to take his other medications); (b.) June 2014 and July 2014 VA treatment records (not taking medications); and (c.) August 2013 VA treatment record (complained of difficulty sleeping and showing characteristics of depression and seemed to have snoring problems). In rendering the opinions, the examiner should consider the statements of the Veteran regarding the symptoms of his obstructive sleep apnea to be competent. The examiner should provide a complete rationale for all opinions expressed and conclusions reached. 2. Obtain a VA addendum opinion to ascertain the etiology of the Veteran's diabetes mellitus. If a clinical evaluation is deemed necessary to answer the questions presented, one should be scheduled. The claims folder should be reviewed, including a copy of this Remand. Following a review of the Veteran's record, the examiner should address the following: (a.) whether it is at least as likely as not (50 percent or greater likelihood) that diabetes mellitus manifested during service, or that it is otherwise causally or etiologically related to a period of active duty service; (b.) whether it is at least as likely as not (50 percent or greater likelihood) that diabetes mellitus is proximately due to a service-connected disability to include but not limited to his psychiatric disorder. (c.) whether it is at least as likely as not (50 percent or greater likelihood) that diabetes mellitus is aggravated (increase in severity beyond the natural progression of the disorder) by a service-connected disability to include but not limited to his psychiatric disorder. The examiner should consider and discuss the June 2014 private treatment record which reflects that the Veteran reported a diagnosis of diabetes mellitus since 1991. The examiner should consider and discuss the February 2014 private treatment provider's statement (psychiatric disorder with symptoms of difficulty sleeping, severe memory loss, depressed mood and motivation, and insomnia with nightmares and diabetes mellitus with poor glucose control). The examiner should consider and discuss the VA treatment records which indicate that the Veteran's psychiatric disorder impacted his ability to take his medications as prescribed, including: (a.) May 2014 VA treatment record (Veteran stopped taking psychiatric medication because he feared becoming an addict, and simply forgot to take his other medications); (b.) June 2014 and July 2014 VA treatment records (not taking medications). The examiner should consider and discuss the VA treatment records which indicate that the psychiatric disorder impacted his ability to comply with his dietary restrictions for glucose control, including: (a.) March 2014 VA treatment record (Veteran reported that he would eat more than usual when he felt anxious); (b.) September 2014 VA treatment record (symptoms of sadness, anxiousness, frustration, hopelessness, sleeping problems, and memory problems with increase in appetite); and (c.) February 2018 VA treatment record (Veteran reported poor compliance with diet at home). In rendering the opinions, the examiner should consider the statements of the Veteran regarding the symptoms of his diabetes mellitus to be competent. The examiner should provide a complete rationale for all opinions expressed and conclusions reached. S. L. Kennedy Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G. Johnson 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.