Citation Nr: 1632724 Decision Date: 08/17/16 Archive Date: 08/24/16 DOCKET NO. 13-15 352 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Hartford, Connecticut THE ISSUE Entitlement to service connection for hypertension, to include as secondary to service-connected obstructive sleep apnea (OSA). REPRESENTATION Appellant represented by: Allen Gumpenberger, Agent WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. Peters, Counsel INTRODUCTION The Veteran had active duty service from November 1988 to February 1996. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The later Veteran testified at a Board hearing before a Veterans Law Judge in August 2013; a transcript of that hearing is associated with the claims file. The Veterans Law Judge who presided over that hearing is no longer at the Board; the Veteran was sent a February 2015 letter informing him of that fact and of his right to a hearing before another Veterans Law Judge. The Veteran did not respond to that letter and, as of this decision, has not requested a hearing before another Veterans Law Judge. The Board will therefore proceed with the case at this time. This case was before the Board in August 2013, at which time the Board remanded this case for additional development. The case was returned to the Board in May 2014, at which time the Board awarded service connection for OSA. The Board additionally remanded the hypertension claim for additional development in May 2014 and again in April 2015. The case has been returned to the Board at this time for further appellate review. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2015). 38 U.S.C.A. § 7107(a)(2) (West 2014). REMAND The Board remanded this case in April 2015 in order to obtain another VA examination; such was accomplished in December 2015. After examination, the examiner opined that the Veteran's hypertension was not due to military service; however, instead of opining as to whether the Veteran's OSA caused or aggravated his hypertension as requested, the examiner concluded that the evidence did not support a finding of equipoise that the Veteran's OSA was related to service and further concluded that the Veteran's OSA and hypertension were not related to military service. This is almost the same opinion that the September 2014 examiner gave that the Board found inadequate in its April 2015 remand; the Board does not find the December 2015 opinion to be in substantial compliance with the Board's most recent remand. Service connection for OSA was awarded in the May 2014 Board decision; that award of benefits was effectuated in a November 2014 rating decision. It is undisputed at this point that the Veteran's OSA has been service connected. Consequently, the Board finds that it has no alternative but to again remand this case in order for another VA examination to be scheduled for the Veteran with an examiner who has not previously examined him. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); Kowalski v. Nicholson, 19 Vet. App. 171, 179 (2005) (a VA examination must be based on an accurate factual premise); Stegall v. West, 11 Vet. App. 268 (1998) (A remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand order). Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Schedule the Veteran for a VA examination with a physician who has not previously examined him in order to determine whether the Veteran's hypertension is due to his military service or a service-connected disability. The claims folder must be made available to and be reviewed by the examiner in conjunction with the examination. All tests deemed necessary should be conducted. After review of the claims file and examination of the Veteran, the examiner should state whether the Veteran has hypertension. Then, the examiner must opine as to whether any hypertension more likely, less likely, or at least as likely as not (50 percent or greater probability) began in or is otherwise the result of his military service. Specifically, the examiner should consider and address the June 1990 and February 1995 service treatment records noting elevated blood pressure readings. The examiner should discuss whether those elevated readings are initial manifestations of the Veteran's hypertension which was later diagnosed after discharge from service. Next, the examiner should opine whether the Veteran's hypertension was more likely, less likely or at least as likely (a) caused by; or (b) aggravated (i.e., permanently worsened beyond the normal progression of that disease) by the Veteran's service-connected OSA. If aggravation of the Veteran's hypertension by his OSA is found, the examiner must attempt to establish a baseline level of severity of his hypertension prior to aggravation by the service-connected OSA. The examiner should also address of the Veteran's lay statements regarding onset of symptomatology and any continuity of symptomatology since onset and/or since discharge from service. The examiner should also specifically address the previous VA examination reports of record and those examiners' findings and conclusions, and any other pertinent evidence of record, as appropriate. However, the examiner is not permitted to discuss the propriety of whether VA appropriately service-connected the Veteran for sleep apnea; the Veteran has been service-connected for sleep apnea and that issue is considered final and resolved. The sole issue with respect to the Veteran's sleep apnea before the examiner is whether that disability caused or aggravated the Veteran's current hypertension; the entirety of the examiner's opinion should focus ONLY on this limited question without any further discussion regarding the etiological cause of the Veteran's sleep apnea. Moreover, given that the award of service connection for OSA was predicated on symptoms which occurred during service, the examiner should refrain from any rationale that is predicated upon the diagnosis date of the Veteran's OSA. All opinions must be accompanied by an explanation. If the examiner opines that any of the above questions cannot be resolved without resorting to speculation, then a detailed medical explanation as to why this is so must be provided. 2. Following any additional indicated development, the AOJ should review the claims file and readjudicate the Veteran's claim of service connection for hypertension, to include as secondary to service-connected OSA. If the benefits sought on appeal remain denied, the Veteran and his representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto before the case is returned to the Board. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). _________________________________________________ Michael J. Skaltsounis Acting Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2015).