Citation Nr: 22014155 Decision Date: 03/11/22 Archive Date: 03/11/22 DOCKET NO. 17-31 727 DATE: March 11, 2022 REMANDED Entitlement to service connection for diabetes mellitus, to include as secondary to service-connected peripheral neuropathy, is remanded. Entitlement to service connection for sleep apnea, to include as secondary to service-connected peripheral neuropathy, is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. REASONS FOR REMAND The Veteran served active duty in the United States Army from June 1976 to November 1976. These matters come before the Board of Veterans Appeals (Board) on appeal from August 2016 and September 2017 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO). The claims were remanded in April 2019 and October 2021 for further development. They have since been returned to the Board for appellate review. While the Board regrets further delay, a review of the claims file reveals that remand of the matters is necessary once again due to insubstantial compliance with the prior remand directives. Entitlement to service connection for diabetes mellitus, to include as secondary to service-connected peripheral neuropathy, is remanded. In the October 2021 remand, the Board instructed the RO to obtain direct service connection and secondary service connection medical opinions that provide sufficient rationales and address the medical articles submitted by the Veteran. In an October 2021 VA medical opinion, the examiner opined that it is less likely than not the Veteran's diabetes mellitus was incurred in or caused by the claimed in service injury, event, or illness. The examiner supported this conclusion by merely indicating that there was no objective evidence of related complaints or treatment during service. However, service connection may also be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Moreover, the examiner was instructed to provide a secondary service connection opinion that addressed whether the Veteran's diabetes mellitus was caused by or proximately due to his service-connected disability. However, the examiner did not provide such an opinion. Furthermore, in his secondary service connection opinion that related to the aggravation prong, the examiner applied an incorrect standard, clearly and unmistakably. The Board notes the examiner should have addressed whether the Veteran's diabetes mellitus was aggravated beyond naturel progression by his service-connected disability. Thus, the opinions rendered by the VA examiner are inadequate and additional opinions are necessary. Entitlement to service connection for sleep apnea, to include as secondary to service-connected peripheral neuropathy, is remanded. As noted above, this claim was remanded in October 2021. The Board instructed the RO to obtain direct service connection and secondary service connection medical opinions that provide supporting rationales. In an October 2021 the examiner opined that it is less likely than not the Veteran's sleep apnea was incurred in or caused by the claimed in service injury, event, or illness. The examiner supported this decision by only indicating that there was no objective evidence of related complaints or treatment during service. Again, that finding does not preclude service connection per 38 C.F.R. § 3.303(d). With reference to the requested secondary service connection opinion, the examiner once again used an incorrect standard, clearly and unmistakably, when addressing whether the Veteran's sleep apnea was aggravated by his service-connected disability. Furthermore, in another opinion that addressed aggravation on a secondary basis, the VA examiner opined that it is not at least as likely as not the Veteran's sleep apnea was aggravated beyond its natural progression by the service-connected disability. However, in his rationale the examiner referenced a January 2020 examination that noted the Veteran's neuropathy was treated by medication and that upper and lower numbness does not cause a reduction in motor strength. The Board finds this rationale does not relate to the immediate question presented. Indeed, it does not mention sleep apnea or whether the condition was aggravated by the Veteran's service-connected disability. For this reason, an additional medical opinion is necessary. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. As the Veteran's claims for service connection for diabetes mellitus and sleep apnea may affect whether entitlement to a TDIU is warranted, the issue is inextricably intertwined with the service connection claims and remanded, as well. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The matters are REMANDED for the following action: 1. The Agency of Original Jurisdiction (AOJ) should obtain any outstanding records related to the Veteran's service connection claims for diabetes and sleep apnea. 2. After completing the foregoing development, the AOJ should obtain a VA medical opinion to determine the nature and etiology of the Veteran's diabetes mellitus, to include as secondary to the service-connected peripheral neuropathy, that may be present. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and assertions. The examiner should note that the Veteran is competent to attest to factual matters of which he has first-hand knowledge. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should state this with a fully reasoned explanation. In rendering his or her opinion, the examiner should address medical articles submitted by the Veteran suggesting that Guillain-Barre' syndrome affects the nerves that regulate the blood sugar. The examiner should opine as to whether it is at least as likely as not that the Veteran has diabetes mellitus that manifested in service or is otherwise causally or etiologically related to his military service. The examiner should also opine as to whether it is at least as likely as not that the Veteran's diabetes is either caused by or aggravated by his service-connected peripheral neuropathy. (The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of conclusion as it is to find against it.) Additionally, in rendering his or her opinion, the examiner should address both the causation and aggravation questions in his or her rationale. In other words, even if the Veteran's service-connected peripheral neuropathy did not cause the diabetes, the examiner should still address whether his service-connected disability could have worsened his claimed disorder. Also, if medical literature is relied upon in rendering this determination, the clinician should identify and specifically cite each reference material used. 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. The examiner should not solely rely on the absence of in service treatment, diagnosis, or treatment to form an opinion or rationale. Because it is important "that each disability be viewed in relation to its history [,]" 38 C.F.R. § 4.1, copies of all pertinent records in the appellant's claims file, or in the alternative, the claims file, must be made available to the examiner for review. 3. After completing the foregoing development, the AOJ should obtain a VA medical opinion to determine the nature and etiology of the Veteran's sleep apnea, to include as secondary to service-connected peripheral neuropathy, that may be present. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and assertions. The examiner should note that the Veteran is competent to attest to factual matters of which he has first-hand knowledge. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should state this with a fully reasoned explanation. The examiner should opine as to whether it is at least as likely as not that the Veteran has sleep apnea that manifested in service or is otherwise causally or etiologically related to his military service. The examiner should also opine as to whether it is at least as likely as not that the Veteran's sleep apnea is either caused by or aggravated by his service-connected peripheral neuropathy. (The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of conclusion as it is to find against it.) Additionally, in rendering his or her opinion, the examiner should address both the causation and aggravation questions in his or her rationale. In other words, even if the Veteran's service-connected peripheral neuropathy did not cause the diabetes, the examiner should still address whether his service-connected disability could have worsened his claimed disorder. Also, if medical literature is relied upon in rendering this determination, the clinician should identify and specifically cite each reference material used. 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. The examiner should not solely rely on the absence of in service treatment, diagnosis, or treatment to form an opinion or rationale. Because it is important "that each disability be viewed in relation to its history [,]" 38 C.F.R. § 4.1, copies of all pertinent records in the appellant's claims file, or in the alternative, the claims file, must be made available to the examiner for review. 4. Upon completion, the AOJ should ensure the opinions address are requested information. 5. After completing the above actions, the AOJ should conduct any other development as may be indicated. J. CONNOLLY Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K.M. Walker 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.