Citation Nr: 21001396 Decision Date: 01/07/21 Archive Date: 01/07/21 DOCKET NO. 10-02 261 DATE: January 7, 2021 REMANDED Entitlement to service connection for obstructive sleep apnea (OSA), to include as secondary to service-connected posttraumatic stress disorder (PTSD) is remanded Entitlement to service connection for hypertension (HTN), to include as due to Agent Orange (AO) exposure and as secondary to service-connected posttraumatic stress disorder is remanded. Entitlement to service connection for degenerative disc disease (DDD) of the lumbar spine (back condition) is remanded. Entitlement to service connection for bilateral upper extremity neuropathy is remanded. Entitlement to service connection for bilateral lower extremity neuropathy is remanded. REASONS FOR REMAND The Veteran had active duty service with the U.S. Navy from March 1969 to December 1970. This case comes before the Board of Veteran’s Appeals (Board) on appeal from an October 2006, June 2009, and August 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In June 2015, the Veteran testified at a Board hearing before a Veterans Law Judge (VLJ). A transcript of that hearing is of record. In February 2018, the Veteran was notified that the VLJ who conducted the June 2015 hearing was no longer with the Board and informed him that he could request a new hearing. He did not respond to the letter and the Board will proceed accordingly. Low Back Disability In August 2018 and May 2016, the Board remanded the claim of service connection for a low back disability for provision of an adequate examination and opinion. Prior examiners had failed to address the Veteran’s competent and credible statements regarding his in-service injury and subsequent problems. Unfortunately, the recent March 2019 examiner repeated this error, and opined that service connection was not warranted because there was no documentation of injury or treatment in service. A remand by the Board confers on an appellant the right to VA compliance with the terms of the remand order and imposes on the Secretary a concomitant duty to ensure compliance with those terms. See Stegall v. West, 11 Vet. App. 268, 271 (1998). As the remand directives were not complied with, further remand is required. The additional delay is regrettable, but as the record reflects post-service injuries involved with the Veteran’s heavy labor with appliances and in a steel mill, an opinion addressing all relevant evidence is a necessity. Peripheral Neuropathies Service connection for neuropathy of each extremity was remanded in March 2018 for a medical opinion as to whether such conditions were caused or aggravated by herbicide exposure. A resulting March 2019 addendum opinion addressed this question, but did not offer a clear rationale for the negative opinion offered. Additionally, the opiner indicated that EMG/NCS testing to determine the nature of any neurological problems would have been helpful; no such had been performed. Additionally, other examiners indicated neurological complaints may be related to the low back disability or to alcohol abuse. These conditions may be related to service; the low back is on appeal, and the alcohol abuse may be related to service-connected PTSD, as self-medication. As the March 2019 opinion is not adequate, and the claims are intertwined with service-connected or potentially service-connected conditions, further remand is required. Hypertension Examiners have indicated that weight gain due to a low back disability may have contributed to the development or severity of hypertension. Such is therefore intertwined with the low back claim, and also requires further development for an adequate rationale and application of the correct legal standard. The Board notes as well that recent studies have indicated strengthening of a potential link between hypertension and herbicide exposure. Such must be addressed on remand. OSA Examiners have stressed that weight gain is a major factor in the development of OSA, and as is noted above, there are indications that the low back disability has contributed to weight gain in the Veteran, as have medications taken for service-connected PTSD. This theory of secondary service connection must be developed. Additionally, recent studies have indicated that the biochemical changes caused by PTSD can in fact have some impact on the tone and rigidity of the throat during sleep. Such must be addressed on remand. The matters are REMANDED for the following action: 1. Associate with the claims file updated VA treatment records. 2. Schedule the Veteran for a VA spine examination; the claims folder must be reviewed in conjunction with the examination. The examiner must identify all currently diagnosed disabilities of the low back, and for each must opine as to whether such is at least as likely as not caused or aggravated by service. The examiner MUST acknowledge and discuss the Veteran’s in-service injury when blown off the flight deck, as well as his reports of post-service problems, injuries, and labor history. The examiner should comment on to what extent the low back condition caused or contributed to the Veteran’s weight gain. A full and complete rationale for any opinion expressed is required. If the examiner feels that the requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). Jones v. Shinseki, 23 Vet. App. 382 (2010). 3. Schedule the Veteran for a VA peripheral nerves examination; the claims folder must be reviewed in conjunction with the examination. EMG/NCV testing must be performed, as well as any other testing needed at the discretion of the examiner. The examiner must identify all currently diagnosed neurological disabilities, and for each must opine as to whether such is at least as likely as not caused or aggravated by service, to include established herbicide exposure, or a service-connected disability. For purposes of examination, a low back disability should be considered established. A full and complete rationale for any opinion expressed is required. If the examiner feels that the requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). Jones v. Shinseki, 23 Vet. App. 382 (2010). 4. Schedule the Veteran for a VA hypertension examination; the claims folder must be reviewed in conjunction with the examination. The examiner must opine as to whether currently diagnosed hypertension is at least as likely as not caused or aggravated by service, to include established herbicide exposure, or a service-connected disability. For purposes of examination, a low back disability should be considered established; did such cause or contribute to weight gain, and to what extent? Additionally, recent National Academy of Sciences Updates indicating a closer link between hypertension and herbicide exposure must be discussed. A full and complete rationale for any opinion expressed is required. If the examiner feels that the requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). Jones v. Shinseki, 23 Vet. App. 382 (2010). 5. Schedule the Veteran for a VA sleep apnea examination; the claims folder must be reviewed in conjunction with the examination. The examiner must opine as to whether currently diagnosed OSA is at least as likely as not caused or aggravated by service, to include established herbicide exposure, or a service-connected disability. For purposes of examination, a low back disability should be considered established; did such cause or contribute to weight gain, and to what extent? The role of biochemical changes and neurologi9cal triggers due to PTSD must also be discussed. A full and complete rationale for any opinion expressed is required. If the examiner feels that the requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). Jones v. Shinseki, 23 Vet. App. 382 (2010). 6. Then, readjudicate the claims on appeal. If any benefit sought remains denied, issue an appropriate supplemental statement of the case and, after necessary time for response, return the matter to the Board if otherwise in order. WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Baxter 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.