Citation Nr: 18154353 Decision Date: 11/29/18 Archive Date: 11/29/18 DOCKET NO. 09-23 400A DATE: November 29, 2018 ORDER Service connection for sleep apnea is granted. REMANDED Service connection for hypertension is remanded. FINDING OF FACT 1. There is no question that the Veteran has a diagnosis of obstructive sleep apnea. 2. The Veteran has competently and credibly reported sleep problems in and since his service. See December 2006 statement (Veteran reported problems sleeping but did not think that there was a need to seek medical help since he had no idea this was a diagnosable condition). Statements submitted in support of the Veteran’s claim also show that he has experienced sleep disturbances in and since service. See November 2006 statement (sister-in-law reported Veteran’s terrible snoring problem in the early 1980s); December 2006 statement (Veteran’s wife reported out of control snoring in 1983; in 1985, it was affecting his sleep patterns and he was struggling for breath during his sleep); see also December 2006 statement (daughter reports that the Veteran has had a terrible snoring problem for years that grew worse as he got older; she found information about sleep apnea in 1994, including a checklist of symptoms; her dad answered “yes” to most of the symptoms listed but would not go to the doctor). The Board is aware of the negative March 2014, April 2016, and October 2017 VA opinions in this matter. However, these negative opinions are ultimately based on the lack of complaints, treatment, or diagnosis of sleep apnea during service. These examiners appear to assume that a diagnosis in service is necessary. It has long been held that service connection may 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. Likewise, the Board cannot assign probative weight to these opinions because the examiners failed to consider the Veteran’s statement (and the multiple statements submitted in support of his claim) that his sleep disturbances began in, and continued since, service, with reports struggling for breath during sleep. See Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007) (holding that an examination was inadequate when the examiner did not comment on the Veteran’s report of in-service injury but relied on the service medical records to provide a negative opinion). While the April 2016 VA examiner acknowledged the submitted lay statements concerning the Veteran’s years of snoring, he concluded that there was no medical evidence to confirm that such snoring in the 1980s was a symptom of his eventually diagnosed sleep apnea in 2001. Likewise, while the October 2017 VA opinion provider acknowledged the statements submitted in support of the Veteran’s claims, the examiner focused on the lack of reliability with past memory, presumably as a reason to disregard such statements. While it is true that memories can fade with the passage of time, the Board finds the consistency and the detail provided in the supporting statements show that the Veteran began having sleeping difficulties in the 1980s while in service and have continued since that time. 3. In light of the foregoing, and resolving reasonable doubt in the Veteran’s favor, and considering his competent and credible reports of sleep disturbances in and since service, the Board finds that the evidence is at least evenly balanced for and against (in “relative equipoise”) a finding that service connection is warranted for sleep apnea. CONCLUSION OF LAW Service connection for sleep apnea is warranted. 38 U.S.C. §§ 1110, 1131, 1153; 38 C.F.R. §§ 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSION The appellant is a Veteran who served on active duty from October 1966 to August 1968, November 1968 to May 1973, and March 1974 to August 1990. These matters are before the Board of Veterans’ Appeals (Board) on appeal from a June 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In January 2014 and February 2016, these issues were remanded for additional development (by a Veterans Law Judge (VLJ) other than the undersigned). In September 2017, these matters were remanded by the undersigned VLJ. The issue of service connection for a bilateral knee disability was also remanded; however, as a September 2018 rating decision granted service connection for that disability, that issue is no longer before the Board. For the reasons discussed above, service connection for sleep apnea is granted. REASONS FOR REMAND Service connection for hypertension is remanded. It is not in dispute that the Veteran has hypertension. He seeks service connection for such based on a theory that it is due to his service or is secondarily due to his service-connected diabetes mellitus. After reviewing the Veteran’s claims file, the Board finds that he may also establish service connection by showing that his hypertension may be related to exposure to herbicide agents in service and/or secondarily due to his service-connected ischemic heart disease with left ventricular hypertrophy (IHD). See Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009) (Board is required to consider all theories of entitlement, raised either by the claimant or by the evidence, as part of the non-adversarial adjudication process). As he served in Vietnam, he is presumed to have been exposed to herbicide agents in service. Under current VA regulations, hypertension is not a presumptive disability associated with exposure to herbicides. However, in a 2010 update, the National Academy of Sciences (NAS) concluded that there was “limited or suggestive evidence of an association” between hypertension and herbicide agent exposure. See 75 Fed. Reg. 32,540, 32,549 (June 8, 2010); 75 Fed. Reg. 81,332, 81,333 (December 27, 2010). In this case, neither the April 2014 VA examination nor the October 2017 medical opinions have adequately addressed the medical questions presented. In light of the foregoing, the Board finds that the Veteran should be afforded a VA examination to determine the nature and cause of his hypertension and its relationship, if any, to his period of service, to include his presumed herbicide agent exposure, and/or his service-connected diabetes mellitus. See McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that another opinion is also warranted as to whether the Veteran’s hypertension is due to his service-connected diabetes. The matter is REMANDED for the following action: 1. The Agency of Original Jurisdiction (AOJ) should ask the Veteran to identify the provider(s) of all evaluations and treatment he has received for his hypertension since his discharge from service (records of which are not already associated with the claims file or established to be unavailable), and to provide all releases necessary for VA to obtain the complete clinical records of all such treatment or evaluation. He should also be requested to specifically identify when his hypertension was first diagnosed and the diagnosing physician and/or facility, as well as the identity of his primary care physician. With his cooperation (by providing releases), the AOJ should obtain for the record complete clinical records of all such evaluations and treatment. If any private records identified are not received pursuant to the AOJ’s request, the Veteran should be so notified and advised that ultimately it is his responsibility to ensure that private records are received. 2. The AOJ should secure for the record copies of the complete clinical records of all VA treatment the Veteran has received for hypertension (i.e., update to the present the records of his VA treatment for such condition). 3. The AOJ should arrange for a medical opinion addressing the likely cause of the Veteran’s hypertension. The opinion provider should be one that has NOT PREVIOUSLY EXAMINED the Veteran nor provided an opinion in this matter. The opinion provider must review the record, including this remand, and provide opinions that respond to the following (a) Is it at least as likely as not (a 50 percent or better probability) that the Veteran’s hypertension either began during or was otherwise caused by his military service, to include as due to exposure to herbicide agents in service? In reaching this conclusion, the examiner should review the National Academy of Sciences Report: Veterans and Agent Orange: Update 2012, which lists hypertension in the “Limited or Suggestive Evidence of Association” category of association to exposure to herbicide agents. It has been established that the Veteran was presumptively exposed to herbicide agents during active service. HOWEVER, the fact that hypertension is not a presumptive disability is NOT, by itself, an adequate explanation for a negative opinion. Instead, the examiner MUST base the opinion on the medical evidence and risk factors as applied to THIS Veteran’s individual situation. The examiner is asked to consider and address the following: • A May 1987 echocardiogram report (included in the Veteran’s service treatment records (STRs)) that noted a history of hypertension; • An April 1990 STR that noted a referral for cholesterol lowering regimen; and • An August 2006 medical report which states that there was a strong likelihood that the Veteran’s onset of hyperlipidemia in 1990 was just the beginning of the onset of the Veteran’s metabolic syndrome, which fit with diabetes mellitus, hypertension, and hyperlipidemia, suggesting that his hypertension is caused by the hyperlipidemia diagnosed in service. (b) If no, is it at least as likely as not (a 50 percent or better probability) that the Veteran’s hypertension was either caused OR aggravated (the opinion MUST specifically discuss the concept of aggravation, and “aggravation” means the disability increased in severity beyond its natural progression) by his service-connected IHD and/or his service-connected diabetes mellitus? If aggravation is found, the opinion provider should indicate, to the extent possible, the approximate baseline level of disability before the onset of aggravation. The examiner is asked to consider and address an August 2006 medical report which states that there was a strong likelihood that the Veteran’s onset of hyperlipidemia in 1990 was just the beginning of the onset of the Veteran’s metabolic syndrome, which fit with diabetes mellitus, hypertension, and hyperlipidemia, suggesting that the diabetes predated or had the same onset as his hypertension. Additionally, while the Board notes that a March 2014 hypertension disability benefits questionnaire (DBQ) recounted that the Veteran’s treatment records showed treatment for hypertension on January 29, 1968 (erroneously transcribed as 1698), VA’s review of the file is negative for the cited STR. Accordingly, an opinion based on the medical evidence in the file regarding whether the Veteran’s service-connected diabetes mellitus predated his hypertension is necessary. (Continued on the next page)   A detailed explanation (rationale) is requested for all opinions provided, citing to supporting clinical data and/or medical literature, as appropriate. (By law, the Board is not permitted to rely on any conclusion that is not supported by a thorough explanation. Providing an opinion or conclusion without a thorough explanation will delay processing of the claim and may also result in a clarification being requested.) L. BARSTOW Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. Matta, Counsel