Citation Nr: 21064120 Decision Date: 10/19/21 Archive Date: 10/19/21 DOCKET NO. 13-09 639 DATE: October 19, 2021 ORDER Entitlement to service connection for hypertension, to include as secondary to service-connected sleep apnea and diabetes mellitus, is granted. REMANDED Entitlement to service connection for skin cancer is remanded. FINDING OF FACT The Veteran's hypertension is associated with his service-connected sleep apnea and diabetes mellitus. CONCLUSION OF LAW The criteria for entitlement to service connection for hypertension, to include as secondary to service-connected sleep apnea and diabetes mellitus, have been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Air Force from July 1967 to September 1993, to include service in Vietnam. In August 2020 and September 2020, the Board of Veterans' Appeals (Board), in pertinent part, remanded the issues of entitlement to service connection for skin cancer and service connection for hypertension for further development, respectively. Specifically, the Board instructed the regional office (RO) to schedule the Veteran for VA examinations pertaining to his claims. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.902(c). 38 U.S.C. § 7107(a)(2). 1. Entitlement to service connection for hypertension, to include as secondary to service-connected sleep apnea and diabetes mellitus, is granted. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Service connection may also be established on a secondary basis for a disability which is proximately due to, or the result of, a service-connected disability. 38 C.F.R. § 3.310(a). Secondary service connection may also be established for a disorder which is aggravated by a service-connected disability; compensation may be provided for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. 38 C.F.R. § 3.310(b); Allen v. Brown, 8 Vet. App. 374 (1995). In order to prevail on the issue of secondary service connection, the record must show: (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998); see also Allen, supra. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). As will be addressed below, the Board finds that service connection for hypertension is warranted on a secondary basis so the Board will not address direct service connection further herein. First, the record shows that the Veteran has been diagnosed with hypertension. See February 2021 C&P Exam. Thus, the first element of secondary service connection has been met. Wallin, 11 Vet. App. at 512. Second, the Board notes that the Veteran is service connected for sleep apnea and diabetes mellitus; thus, the second element of secondary service connection is met. Wallin, 11 Vet. App. at 512. The remaining question is whether there is a medical nexus between the Veteran's currently diagnosed hypertension and his service-connected sleep apnea and diabetes mellitus. As to this matter, the evidence conflicts. A January 2021 office visit note reflects that the Veteran has hypertension "associated with type 2 diabetes mellitus." The Veteran underwent a VA examination February 2021, in which the examiner opined that the Veteran's hypertension was less likely than not proximately due to his service-connection conditions. However, he went to note that that diabetes mellitus would lead to hypertension, that sleep apnea was likewise known to cause hypertension, and that both would have cumulative effect that would result in hypertension. He concluded that it was not possible to determine what primarily caused the Veteran's hypertension without resorting to speculation with two different plausible causes. A private May 2021 disability benefits questionnaire (DBQ) was associated with the Veteran's claims file in June 2021. The examiner opined that the Veteran's hypertension was at least as likely as not related to/due to his underlying condition of service-connected sleep apnea. He explained that sleep apnea aggravates hypertension due to sympathetic activation at night, which ultimately leads to hypertension. After careful consideration, the Board finds that the evidence regarding nexus is at least in equipoise, particularly when considering the private May 2021 opinion and the January 2021 office visit note. The Board has previously found that the February 2016 and August 2019 VA examination and opinions are inadequate. When the evidence for and against a claim is in relative equipoise, the Board has an obligation to resolve all reasonable doubt in favor of the Veteran. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Resolving all reasonable doubt in the Veteran's favor, the Board finds that the third element of secondary service connection is established. See Wallin v. West, 11 Vet. App. 509, 512 (1998). Thus, service connection for hypertension is warranted. REASONS FOR REMAND 2. Entitlement to service connection for skin cancer is remanded. Upon review of the record, the Board finds that the claim must be remanded for a new VA examination and etiological opinion. The Board sincerely regrets the additional delay caused by this remand but wishes to assure the Veteran that it is necessary for a full and fair adjudication of his claim. The Veteran underwent a VA examination in February 2021, in which the examiner noted diagnoses of status post squamous cell carcinoma, actinic keratosis, and seborrheic keratosis. However, he only opined that the Veteran's status post squamous cell carcinoma was less likely than not related to his service. He explained that records did not confirm the Veteran's duty required excessive exposure to the sun during service so stating such would be mere speculation. As the examiner did not provide an etiological opinion for all of the Veteran's skin cancer, including actinic keratosis and seborrheic keratosis, remand for a new examination is warranted. The matters are REMANDED for the following action: 1. Assist the Veteran in associating with the claims file updated treatment records. 2. Schedule the Veteran for VA examinations with appropriate examiners to determine the nature and etiology of his skin cancer, to include status post squamous cell carcinoma, actinic keratosis, and seborrheic keratosis. The entire claims file should be provided to, and reviewed by, the examiner, and any indicated tests, studies, or evaluations should be conducted. Based on review of the record and examination of the Veteran, the examiner should respond to the following: (a.) Determine whether it is at least as likely as not (i.e., at least a 50 percent probability) that the Veteran's skin cancer, to include status post squamous cell carcinoma, actinic keratosis, and seborrheic keratosis, had its onset in or is related to service, to include sun exposure from July 1967 to September 1993? The examiner is advised that the Veteran is competent to report symptoms, treatment, and injuries, and that his reports must be taken into account in formulating the requested opinions. The examiner must provide the rationale for all proffered opinions. If the examiner is unable to provide any required opinion, he or she should explain why. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed. A. S. CARACCIOLO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. L. Park, Associate 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.