Citation Nr: 22017146 Decision Date: 03/24/22 Archive Date: 03/24/22 DOCKET NO. 17-17 526 DATE: March 24, 2022 REMANDED Entitlement to service connection for obstructive sleep apnea as secondary to service-connected diabetes mellitus type II is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Air Force from March 1970 to September 1991. This matter arises from a September 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) denying service connection for sleep apnea. This matter was previously before the Board of Veterans' Appeals (Board) in November 2020 and November 2021. In its November 2020 decision, the Board denied entitlement to service connection for sleep apnea, to include as secondary to a service-connected disability. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court), and in June 2021, the Veteran and the Acting Secretary of Veterans Affairs (collectively, the Parties) filed a Joint Motion for Partial Remand (JMPR). In that JMPR, the Parties moved the Court to vacate and remand the part of the Board's November 2020 decision that denied entitlement to service connection for sleep apnea on a secondary basis. The Court granted the JMPR in a July 2021 Order. In November 2021, the Board remanded these matters in accordance with the July 2021 Order. The Board finds the July 2021 Order and November 2021 Board remand directives were not substantially complied with. See Forcier v. Nicholson, 19 Vet. App. 414, 425 (2006) ("terms of the remand" include the terms of a joint motion that is granted by the Court but not specifically delineated in the Court's remand order); Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand gives the Veteran a right to compliance with the terms of the remand). Therefore, the Board finds a remand is required. In the July 2021 Order, the Parties agreed the Board failed to address whether a VA medical opinion was warranted regarding obesity as an intermediate step between his service-connected diabetes mellitus type II (DMII) and his obstructive sleep apnea (OSA). The Parties stated that June 2014 and May 2019 VA medical opinions mentioned obesity as a causal factor for developing OSA and medical articles submitted in June 2019 and April 2020 suggest causal connections between obesity, DMII, and OSA. As such, obesity as an intermediate step in the development of OSA was raised by the evidence of record. The Parties found no opinion addressing these facts or the medical articles submitted by the Veteran. This was found to be error requiring remand by the Court in its July 2021 order. Upon remand from the Court, the Board remanded for appropriate opinions. The matter returned to the Board after a November 2021 and December 2021 opinions. The Board finds these opinions inadequate and contradictory. In the November 2021 opinion the examiner states that DMII is not a known cause of OSA. The examiner also does not address the articles submitted by the Veteran and fails to address the apparent discrepancy between his opinion and those of the prior examiners. Such an explanation is necessary and a mere notation that "previous examiners opinion remains his own" is inadequate. The November 2021 opinion is inconsistent with the December 2021 opinion. In the November 2021 opinion, the examiner identifies obesity as a risk factor for sleep apnea and for diabetes mellitus through a mechanism called insulin resistance. However, in the December 2021 opinion, the examiner states that obesity is caused by the mismatch of calories consumed and calories burned. The examiner fails to identify or discuss what factor insulin resistance plays here. Further, it appears as if the examiner is stating that DMII plays no role in obesity, that it is solely a matter of diet without identifying support for this assertion. Further, the prevalence of obesity in the general population is not tied to facts specific to the Veteran's case. Additionally, the December 2021 opinion provides an opinion that the Veteran's obesity clearly and unmistakably existed prior to service, was not aggravated beyond its natural progression by an in-service event, injury, or illness. However, this is the incorrect standard based on the remand directives. Further, the examiner identifies the Veteran's current weight as 190 pounds with a BMI of 30, which identifies the Veteran as obese. The examiner identifies an approximate weight gain of 10 pounds and a BMI of 28 at the time of diagnosis in September 2011. The Board notes that the examiner's mention of the Veteran's status at the time of diagnosis is without an adequate explanation as to why such is significant. Moreover, the Veteran has contended this is increased weight is due to his DMII, which is not adequately considered. The examiner stated the Veteran has multiple co-morbidities but fails to address which if any of these caused the Veteran's weight gain or if a 5.5% change in weight is medically significant at all. As such, there is sufficient reasoning provided for the Board to understand how the examiner arrived as her conclusions. As such, the opinions are inconsistent, inadequate, and require a remand for correction. The Board also notes a November 2021 outstanding Privacy Act Request for the November 2021 and December 2021 examiner's resume/curriculum vitae (CV). This request is still outstanding and was not responded to by the RO prior to recertification to the Board. This is in error. As such, the RO should respond to this privacy act request. However, the Board notes that this request may be moot if the new addendum opinion is provided by a different examiner, resulting in the November 2021 and December 2021 opinions not being relied upon having been found as inadequate. The matters are REMANDED for the following action: 1. Obtain an addendum opinion from an appropriate clinician regarding the Veteran's obstructive sleep apnea, preferably other than the November 2021 and December 2021 clinician. The examiner must provide an opinion as to: (a.) Whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's service-connected diabetes mellitus type II caused him to become obese. The examiner should identify specific evidence of record relied on for this opinion. (b.) If the examiner determines the Veteran's obesity is at least as likely as not the result of his service-connected diabetes mellitus, he or she must provide an opinion as to whether or not the obesity was at least as likely as not a substantial factor in causing the Veteran's obstructive sleep apnea. (c.) If the examiner determines both that obesity was at least as likely as not caused by the service-connected diabetes mellitus type II and that sleep apnea was at least as likely as not caused by the obesity, he or she must provide an opinion as to whether it is at least as likely as not that obstructive sleep apnea was incurred or aggravated by the obesity caused by the service-connected diabetes mellitus. The examiner should consider address the medical literature submitted by the Veteran in June 2019 and April 2020 A complete and fully articulated rationale and explanation with citations to specific evidence should be provided for all opinions rendered. 2. Take appropriate action to respond to the November 2021 Privacy Act Request. 3. After the above development has been completed, readjudicate the issues on appeal. If any benefit sought remains denied, furnish the Veteran and his attorney a Supplemental Statement of the Case and the appropriate amount of time for response. Thereafter, return the case to the Board for review. The Veteran may submit additional evidence and argument. Kutscherousky v. West, 12 Vet. App. 369, 372 (1999) (per curium order). DELYVONNE M. WHITEHEAD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Boushehri, Darjush M. 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.