Citation Nr: 21063801 Decision Date: 10/18/21 Archive Date: 10/18/21 DOCKET NO. 17-35 795 DATE: October 18, 2021 ORDER Entitlement to service connection for hypertension is denied. REMANDED Entitlement to service connection for sleep apnea, to include as secondary to a lumbar spine condition, is remanded. Entitlement to service connection for headaches, to include as secondary to a lumbar spine condition and sleep apnea, is denied. FINDINGS OF FACT The evidence of record does not demonstrate that the Veteran has a current hypertensive disability. CONCLUSION OF LAW The criteria have not been met for service connection for hypertension. 38 U.S.C. §§ 1101, 5107; 38 C.F.R. § §§ 3.102, 3.303, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from May 1999 to May 2001. These matters are before the Board of Veterans' Appeals (Board) on appeal from an August 2015 rating decision by the Department of Veteran Affairs (VA) Regional Office (RO). In September 2015, the Veteran disagreed with this rating decision. This case was previously before the Board in August 2019 when it was remanded for additional development. Concerning the issue of service connection for hypertension, the Board finds that there has been substantial compliance with its prior remand directives. See Stegall v. West, 11. Vet. App. 268 (1998). Unfortunately, concerning the other issues on appeal, another remand is required. Id. In the August 2019 decision, the Board remanded the issue of entitlement to an effective date earlier than May 19, 2019 for a 40 percent rating for a low back disability because a Statement of the Case (SOC) had never been issued. Manlincon v. West, 12 Vet. App. 238 (1999); 38 C.F.R. §§ 20.201, 20.300 (2016). In November 2020, the RO complied with the Board's remand directive and readjudicated this issue in an SOC. Contained within the SOC was notice instructing the Veteran how to perfect his appeal to the Board, by submitting a VA Form 9, Substantive Appeal, within 60 days. The RO may close an appeal without notice to an appellant or his or her representative for failure to respond to a SOC within the period allowed. 38 C.F.R. § 19.32. In this case, the Veteran and his attorney did not submit a VA Form 9 to the November 2020 SOC. Because of this, the appeal for an effective date earlier than May 19, 2019 for a 40 percent rating for a low back disability was never perfected and the claim became final. An appeal that is not perfected cannot be adjudicated by the Board. Service connection may be granted for a disability resulting from disease or injury incurred or aggravated during active military service. 38 U.S.C. § 1110. Generally, service connection requires (1) the existence of a present disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Consistent with this framework, service connection is warranted for a disease first diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. § 3.303(d). Certain disabilities, including arthritis, are presumed to be serviced connected if they manifest to a compensable degree within one year following service. 38 C.F.R. §§ 3.303, 3.307, 3.309. In an October 2020 VA examination report, the Veteran was not diagnosed with hypertension or isolated systolic hypertension. The VA examiner noted that they were unable to confirm a diagnosis of hypertension because there was insufficient evidence of record to diagnose the Veteran. The Veteran reported that his blood pressure was elevated when he injured his back during service. He noted that at the time, he was told that his blood pressure was elevated due to pain medication that he was taking for his back. He was later monitored initially until 2001, when he reported that he was diagnosed with hypertension and started on medication. The VA examiner opined that it was less likely than not that the Veteran's hypertension was incurred in or caused by the claimed in-service injury, event, or illness. The rationale was that the Veteran's service treatment records (STRs) were reviewed, and the examiner found no diagnosis or treatment of hypertension during service. On the Veteran's entrance examination, his blood pressure was reported as 140/90. Post service, the Veteran had episodes of elevated blood pressures while he was noted to have an acute illness/injury such as lower back condition and upper respiratory viral illness in 2000 and 2001. According to the VA examiner, there were no records that showed consistently elevated blood pressure readings during or after service. From 2001 to 2016, there were no records that showed continued elevated blood pressure or a diagnosis of or treatment for hypertension. VA treatment records from September 2016 noted elevated blood pressure of 159/94, but the examiner pointed out that this was during an acute complaint of right toe pain. As the examiner explained, acute pain can influence vital sign levels including blood pressure. The Veteran's post-service records lacked evidence that a diagnosis of hypertension had been made or that he was receiving treatment for hypertension. The VA examiner noted that they were unable to be certain that the Veteran had hypertension or whether his current blood pressure levels were due to his elevated blood pressure in service, without resorting to mere speculation. Because of this, a nexus was not possible. The examiner explained that hypertension was common in most adults. There is no identifiable cause of high blood pressure. This type of high blood pressure, called primary (essential) hypertension, tended to develop gradually over many years. High blood pressure has many risk factors. The risk of high blood pressure increases with age and was particularly common among people of African heritage, often developing at an earlier age than it did in among people of other heritage. Family history, stress, and not being active were all factors in developing high blood pressure. In a subsequent October 2020 VA opinion, the examiner opined that it was less likely than not that the Veteran's hypertension was incurred in or caused by the claimed in-service injury, event, or illness. The rationale was that a review of the Veteran's STRs found no diagnosis of hypertension. On his entrance examination into service, the Veteran had a blood pressure reading of 140/90. A review of his STRs found that the Veteran had episodes of elevated blood pressure when he was seen for lower back complaints and a viral illness. The examiner noted that vital signs, including blood pressure, can be influenced by acute illness and pain. Additionally, there was no mention of hypertension or treatment during the Veteran's service or within one year after his discharge. There are no records of continuously monitored manifestations of consistently elevated blood pressure. In September 2016, post-discharge records showed that the Veteran had elevated blood pressure when he was seen for right toe pain. June 2017 VA treatment records recorded that his blood pressure was 136/88. There was no mention of a diagnosis of hypertension or treatment for this condition. The VA examiner reported that there was insufficient evidence to support that a hypertension condition was related to or caused by service when there were no records to support consistent continuously elevated blood pressure readings or treatment within one year of discharge from service. Because of this, no nexus was established. In an October 2020 addendum opinion, the VA examiner opined that it was less likely than not that the Veteran's hypertension was incurred in or caused by the claimed in-service injury, event, or illness. The rationale was that the Veteran's STRs as well as post-service treatment records showed no diagnosis of hypertension or any kind of treatment for the condition. The Veteran had isolated episodes of elevated blood pressure during service, where his diastolic was greater than 90, but at those times he was being seen for back pain and a viral illness. The examiner noted that the Veteran reported that he was taking anti-hypertensive medication and was diagnosed with hypertension in 2001. However, according to the VA examiner, there were no records to support a diagnosis or treatment for hypertension. The examiner concluded by noting that there was insufficient evidence to support a diagnosis of hypertension. The Board has not overlooked the Veteran's statements concerning his claimed hypertension symptoms. While the Veteran is competent to observe his symptoms, he does not have the training or credentials to provide a competent opinion as to the cause of his blood pressure symptoms or whether they were related to his active service. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Board finds that the October 2020 VA opinions, finding that the Veteran did not have a diagnosis of hypertension, to be the most probative evidence of record, as the examiner reviewed the claims file and provided a detailed rationale. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). The Board further acknowledges that the Veteran indicated that he was diagnosed with hypertension and that he was given medication to treat that condition. However, the Veteran's post-service treatment records, from both VA and private providers, do not document any such diagnosis or prescription for hypertensive medications. In short, the Board does not find the Veteran's statements credible that he has been diagnosed with hypertension and treated with medications for that diagnosed condition. According, the evidence of record does not document that the Veteran has a current hypertensive disability. The Board therefore does not need to reach any further discussion of the elements of service connection in this case and denies solely on this basis at this time. See McClain v. Nicholson, 21 Vet. App. 319 (2007) (the requirement that a current disability be present is satisfied "when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim... even though the disability resolves prior to the Secretary's adjudication of the claim."); Brammer v. Derwinski, 3 Vet. App. 223 (1995) (Congress specifically limited entitlement for service-connected disease or injury to cases where such incidents had resulted in a disability). In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claims, that doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. REASONS FOR REMAND Regarding the Veteran's sleep apnea claim, in a December 2016 private sleep study, the examiner noted that research had shown that sleep apnea was prevalent in patients who chronically used opioids. The private examiner opined that it was likely that the Veteran's chronic opioid use, because of the pain caused by his service-connected lumbar spine condition, aided in the development of his sleep apnea and permanently aggravated it. In an October 2020 VA examination report, the Veteran was diagnosed with obstructive sleep apnea. The Board notes that there are three VA opinions in October 2020 concerning the etiology of the Veteran's sleep apnea. However, none of them contain an opinion as to whether the Veteran's service-connected lumbar spine condition, and the medication he took because of the pain this condition either caused his sleep apnea or aggravated it beyond the natural progression of the condition. Because of this, a new VA opinion is necessary to determine whether the Veteran's sleep apnea was caused or aggravated by his service-connected lumbar spine condition, to include the medication he took for this condition. 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). Turning to the headache claim, in a December 2016 private Disability and Benefits Questionnaire (DBQ), the examiner opined that it was at least as likely as not that the Veteran's headaches were caused by a combination of his sleep apnea, anxiety, and chronic back pain. Thus, the Veteran's headache claim is intertwined with his sleep apnea claim, which is being remanded as discussed above, and therefore must also be remanded at this time. See Henderson v. West, 12 Vet. App. 11, 20 (1998); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The matters are REMANDED for the following actions: Arrange for the Veteran's file to be forwarded to a VA examiner for a clarifying addendum opinion regarding the likely cause of the Veteran's sleep apnea, to include as due to his service-connected lumbar spine condition, and the use of opioids to treat the pain of this disability. The examiner or consulting physician must review the entire record (including all updated records obtained pursuant to the above development order). Based on his or her review, the examiner or consulting physician should provide an opinion as to whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran's sleep apnea was proximately due to or aggravated by his service-connected lumbar spine condition, to include the use of opioids to treat the pain caused by this disability. If and only if the VA examiner determines that the Veteran's sleep apnea was proximately due to or aggravated by his service-connected lumbar spine condition, to include the use of opioids to treat the pain caused by this disability, the examiner should additionally opine whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran's headaches were proximately due to or aggravated by his sleep apnea and service-connected lumbar spine condition, to include the use of opioids to treat the pain caused by this disability. The examiner must discuss the December 2016 private DBQ where the examiner found that the Veteran's headaches were caused by a combination of his sleep apnea and chronic lumbar pain. A detailed explanation (rationale) is requested for all opinions provided. (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). MARTIN B. PETERS Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Abrams, 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.