Citation Nr: 18118331 Decision Date: 07/13/18 Archive Date: 07/12/18 DOCKET NO. 17-03 174 DATE: July 13, 2018 REMANDED Entitlement to service connection for hypertension is remanded. Entitlement to service connection for sleep apnea is remanded. REASONS FOR REMAND By way of history, the claims for service connection for hypertension and sleep apnea were filed on or around September 2014. A November 2015 rating decision denied the claims on the merits. In January 2016 and March 2016, the Veteran filed a request to reopen his previously denied claims. See Voracek v. Nicholson, 421 F.3d 1299, 1304-05 (Fed. Cir. 2005) (if the claimant states that he wishes to reopen his claim before the appeal period ends, but does not submit new and material evidence, his statement is accepted as a new claim and not as new and material evidence relating to the original claim.) After finding new and material evidence had been submitted to reopen the claims, an April 2016 rating decision made a merits determination that denied service connection for sleep apnea. That decision found, however, that new and material had not been submitted to reopen of the previously denied claim for service connection for hypertension. The Veteran filed notice of disagreement (NOD) in July 2016. The RO applied the NOD to the April 2016 decision. However, the NOD was also timely respect to the November 2015 decision. It is in the Veteran’s best interest to apply the NOD to the earlier decision. Such could potentially preserve an earlier effective date. De novo review would result in a slightly more enhanced duty to assist. Accordingly, the issues have been recharacterized. 1. Entitlement to service connection for hypertension is remanded. The Veteran asserts that his diagnosed hypertension is secondary to his service-connected posttraumatic stress disorder (PTSD). See July 2015 VA 21-526EZ. He underwent a VA examination in August 2015, and an opinion addressing the causation prong of secondary service connection was obtained. However, the opinion does not address aggravation of the Veteran’s hypertension by his PTSD. As such, a new opinion is required. See El Amin v. Shinseki, 26 Vet. App. 136, 140 (2013) (indicating that findings of “not due to,” “not caused by,” and “not related to” a service-connected disability are insufficient to address the question of aggravation under § 3.310(b)). 2. Entitlement to service connection for sleep apnea is remanded. The Veteran underwent a VA sleep apnea examination in February 2016. The examiner addressed direct service connection for sleep apnea, but did not address service connection secondary to PTSD. Therefore, an opinion should be obtained addressing all theories of entitlement to service connection for sleep apnea. The Board acknowledges the private medical opinion from Dr. H.S. received in July 2017, but finds that it is inadequate for adjudicative purposes. With respect to the direct service connection opinion, Dr. H.S. states that he agrees with the “[April 2015] VA examiner’s note stating the veteran’s sleep apnea symptoms began in service . . .” However, this is a misreading of the examination report: the examiner did not conclude that sleep apnea had its onset in service, but merely noted the Veteran’s self-reported in-service sleep problems. As such, Dr. H.S.’s opinion appears to be based on a misreading of the VA examination report and; moreover, the opinion fails to offer any reasoning justifying the positive findings. With respect to secondary service connection, Dr. H.S. opines that the Veteran’s PTSD medication would cause and aggravate his sleep apnea, but does not reference any evidence in the record to support such a finding. Dr. H.S. also opines that PTSD caused and aggravated the Veteran’s sleep apnea due to past instances in which the Veteran pulled and broke his CPAP mask from anxiety. Yet the record shows that the Veteran completed a CPAP desensitization course in March 2015 and reported decreasing anxiety. See January 2016 CAPRI Records. Moreover, he did not report anxiety symptoms interfering with his CPAP use a few months later at the February 2016 VA examination. Therefore, the factual basis for Dr. H.S.’s opinion is unclear. The Board also notes that the Disability Benefits Questionnaire completed by Dr. H.S. repeatedly references an incorrect sleep apnea diagnosis date, reflecting an inaccurate understanding of the Veteran’s medical history. See March 2015 Medical Treatment Record, Government Facility; July 2017 VA Examination. For these reasons, the Board finds that the opinion is inadequate to establish service connection on a direct or secondary basis. The matter is REMANDED for the following action: 1. Identify and obtain any outstanding VA treatment records. Any additional treatment records identified by the Veteran should be obtained and associated with his claims file. If such efforts yield negative results, a notation to that effect should be inserted in the file. 2. Return the file to the examiners who completed the August 2015 and February 2016 VA examinations. If either examiner is not available, return the file to another examiner with the appropriate knowledge and expertise. The examiner must acknowledge review of the pertinent evidence of record, including the Veteran’s reports of symptom manifestation. All necessary examinations, tests, and studies should be conducted. The examiners should address the following: a. Is it at least as likely as not (50 percent probability or greater) that the Veteran’s hypertension was caused or aggravated (worsened) by his service-connected PTSD? b. Is it at least as likely as not (50 percent probability or greater) that the Veteran’s sleep apnea had its onset in service or is otherwise etiologically related to service? c. Is it at least as likely as not (50 percent probability or greater) that the Veteran’s sleep apnea was caused or aggravated (worsened) by his service-connected PTSD, including the Veteran’s PTSD symptomology and medication use? With respect to sleep apnea, the examiner should address medical literature submitted by the Veteran in March 2015 and January 2016, and the June 2017 opinion from Dr. H.S. with accompanying medical literature. Rationale for the requested opinion shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, provide an explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or the limits of current medical knowledge with respect to the question. MICHAEL A. HERMAN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Alhinnawi, Associate Counsel