Citation Nr: 22017304 Decision Date: 03/24/22 Archive Date: 03/24/22 DOCKET NO. 16-36 003 DATE: March 24, 2022 REMANDED Entitlement to service connection for sleep apnea is remanded. Entitlement to service connection for a right knee disability (torn MCL; strain ACL) is remanded. Entitlement to service connection for diabetes is remanded. REASONS FOR REMAND The Veteran served on active duty from February 1987 to July 1987, March 2004 to May 2005, and October 2006 to June 2007. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2013 rating decision. The Veteran was afforded a hearing before the undersigned Veterans Law Judge in August 2018. A transcript of the hearing is associated with the electric claims file. In March 2019 and September 2021, the Board remanded the issues for further development. 1. Entitlement to service connection for sleep apnea is remanded. The Veteran contends that his sleep apnea has existed since active service. See Transcript of August 2018 Board Hearing at 13. In September 2021, the Board remanded the issue to obtain a VA addendum opinion as to whether the Veteran's sleep apnea is due to his active service, to include the Veteran's lay statements regarding sleep issues during service. In December 2021, the VA examiner opined the Veteran's sleep apnea was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner reasoned there is no Line of Duty investigation linking the Veteran's sleep apnea to his military service. The examiner stated that obstructive sleep apnea (OSA) is the result of an anatomical blockage of the upper airway such as large tonsils or a large neck due to a large body habitus. The Veteran's OSA is more likely than not due to his body habitus, age, and gender, not the one year or less of active service. The examiner stated there is no credible scientific or medical evidence that could support the Veteran's claim. The examiner does not appear to have considered and explained why the Veteran's lay statements would or would not support the onset of sleep apnea during an active-duty service period. Unfortunately, there has not been substantial compliance with the Board's previous remand directives regarding the issue of entitlement to service connection for sleep apnea. The examiner was asked to consider the lay statements and explain why they would or would not support the onset of sleep apnea during an active service period. Another remand is required. Stegall v. West, 11 Vet. App. 268, 271 (1998). Moreover, because the examiner does not appear to have considered this lay evidence and based the conclusion on the lack of documented treatment in service, his opinion is inadequate, and an addendum opinion is needed. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). 2. Entitlement to service connection for a right knee disability (torn MCL; strain ACL) is remanded. The Veteran contends that his right knee disability is due to twisting it while deployed in Afghanistan. See August 2018 Transcript of Board Hearing at 8. In September 2021, the Board remanded the issue to obtain a VA addendum opinion as to whether the Veteran's right knee disability is due to his active service. Upon VA examination December 2021, the examiner opined it was less likely than not the Veteran's right knee was incurred in or caused by the claimed in-service injury, event, or illness. There is no Line of Duty report linking the right knee condition to military service. The examiner reasoned that although the Veteran reported the condition during his service time, there is no evidence linking the condition to service. The examiner does not appear to have considered and explained why the Veteran's lay statements of twisting his knee during service would or would not support the onset of a right knee condition during an active-duty service period. Unfortunately, there has not been substantial compliance with the Board's previous remand directives regarding the issue of entitlement to service connection for a right knee condition. The examiner was asked to consider the lay statements and explain why they would or would not support the onset of a right knee condition during an active service period. Another remand is required. Stegall v. West, 11 Vet. App. 268, 271 (1998). Moreover, because the examiner does not appear to have considered this lay evidence and based the conclusion on the lack of documented treatment in service, his opinion is inadequate, and an addendum opinion is needed. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). 3. Entitlement to service connection for diabetes is remanded. The Veteran contends that his diabetes was first diagnosed, and he experienced diabetic symptoms, during active service. See July 2016 VA-Form 9. In September 2021, the Board remanded the issue to obtain a VA addendum opinion as to whether the Veteran's diabetes is due to his active service. Upon VA examination in December 2021, the examiner opined it is less likely than not that the Veteran's diabetes mellitus was incurred in or caused by a disease or injury that occurred during service. The examiner reasoned that although the Veteran had early signs of the condition during service time, there is no evidence linking the condition to service. There is no Line of Duty report linking the Veteran's diabetes mellitus to military service. The examiner stated diabetes is linked to genetics, diet, and lifestyle and without any further evidence, the Veteran's claim cannot be supported at this time. The examiner does not appear to have considered and explained why the Veteran's lay statements would or would not support the onset of diabetes mellitus during an active-duty service period. Unfortunately, there has not been substantial compliance with the Board's previous remand directives regarding the issue of entitlement to service connection for diabetes mellitus. The examiner was asked to consider the lay statements and explain why they would or would not support the onset of diabetes mellitus during an active service period. Another remand is required. Stegall v. West, 11 Vet. App. 268, 271 (1998). Moreover, because the examiner does not appear to have considered this lay evidence and based the conclusion on the lack of documented treatment in service, his opinion is inadequate, and an addendum opinion is needed. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The matters are REMANDED for the following action: 1. Obtain an addendum opinion to determine the nature and etiology of the Veteran's sleep apnea. The entire file must be made available to the examiner. The examiner must opine whether it is at least as likely as not the Veteran's sleep apnea is related to an in-service injury, event, or disease, to include the Veteran's report of snoring during active service. The examiner should consider the lay statements of record indicating sleep issues during service and explain why they would or would not support the onset of sleep apnea during an active-duty service period. Stated another way, do the Veteran's reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran's reports generally inconsistent with medical knowledge or implausible? The examiner is requested to provide a clear rationale and explain in detail the underlying reasoning for any opinions expressed. A discussion of the facts and medical principles involved would be of considerable assistance to the Board. If an examiner cannot provide the requested opinion without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to why an opinion cannot be made without resorting to speculation. 2. Obtain an addendum opinion to determine the nature and etiology of the Veteran's right knee condition. The entire file must be made available to the examiner. The examiner must opine whether it is at least as likely as not the Veteran's right knee condition is related to an in-service injury, event, or disease, to include the Veteran's report of twisting his right knee during active service. The examiner should consider the lay statements of record indicating a twisted knee during service and explain why they would or would not support the onset of a right knee condition during an active-duty service period. Stated another way, do the Veteran's reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran's reports generally inconsistent with medical knowledge or implausible? The examiner is requested to provide a clear rationale and explain in detail the underlying reasoning for any opinions expressed. A discussion of the facts and medical principles involved would be of considerable assistance to the Board. If an examiner cannot provide the requested opinion without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to why an opinion cannot be made without resorting to speculation. 3. Obtain an addendum opinion to determine the nature and etiology of the Veteran's diabetes. The entire file must be made available to the examiner. The examiner must opine whether it is at least as likely as not the Veteran's diabetes is related to an in-service injury, event, or disease, to include the Veteran's report of a diagnosis, signs, and symptoms of diabetes during active service. The examiner should consider the lay statements of record indicating labs which showed an elevated blood glucose and shakiness during service and explain why they would or would not support the onset of diabetes during an active-duty service period. Stated another way, do the Veteran's reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran's reports generally inconsistent with medical knowledge or implausible? The examiner is requested to provide a clear rationale and explain in detail the underlying reasoning for any opinions expressed. A discussion of the facts and medical principles involved would be of considerable assistance to the Board. If an examiner cannot provide the requested opinion without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to why an opinion cannot be made without resorting to speculation. TANYA SMITH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Alexia E. Palacios-Peters, 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.