Citation Nr: 21064791 Decision Date: 10/21/21 Archive Date: 10/21/21 DOCKET NO. 15-46 615 DATE: October 21, 2021 REMANDED Entitlement to service connection for an acquired psychiatric disorder to include anxiety and depression is remanded. Entitlement to service connection for obstructive sleep apnea, to include as due to service-connected disease or injury, or as due to exposure to herbicides is remanded. Entitlement to service connection for hypertension, to include as due to exposure to herbicides is remanded. Entitlement to service connection for erectile dysfunction, to include as due to service-connected disease or injury is remanded. REASONS FOR REMAND The Veteran served on active duty as a U.S. Air Force military policeman from October 1967 to September 1971 to include service in the Republic of Vietnam. The Veteran testified before the undersigned Veterans Law Judge by videoconference in October 2018; a transcript has been associated with the claims file. In May 2019, the Board remanded these issues to the RO for additional development. Unfortunately, additional development is necessary prior to adjudication. As an initial matter, the RO attempted to obtain private treatment records from Dr. J.P. at the Center for Advanced Medicine. In December 2019 correspondence, a representative from the provider's office explained that they could not send records because the dates listed in the medical release form were incorrect. The Veteran was not notified of this issue or given the opportunity to make any corrections. Another attempt to obtain these outstanding records should be completed on remand. 1. Entitlement to service connection for an acquired psychiatric disorder to include anxiety and depression During July 2010 private treatment for his mental health, the Veteran reported that he had previously experienced depression and anxiety and reported a hospital admission two years prior. During his October 2018 Board hearing, the Veteran testified that he began to experience excessive worry and anxiety during routine military activities. He reported experiencing panic attacks in service, describing increased heart rate, sweating and restlessness. He also reported that he would get an upset stomach or decreased appetite during periods of anxiousness. In October 2018 correspondence, the Veteran's spouse reported witnessing the Veteran experience panic attacks, anxiety, and irritableness during active duty. A January 2020 VA examiner determined that the Veteran's mental health conditions were less likely than not related to his service. The examiner appeared to rely heavily on the absence of evidence of a mental health condition in service. See Fountain v. McDonald, 27 Vet. App. 258, 272-75 (2015) (indicating that a VA examiner may not generally rely on the absence of evidence as negative evidence). The examiner determined that the onset of the Veteran's mental health symptoms followed a 2010 stroke and that she was not an appropriate examiner to address a neurocognitive disorder. The examiner did not comment on the conflicting private health record mentioned above or the Veteran's lay statements regarding in-service symptoms. Accordingly, an additional opinion is warranted. 2. Entitlement to service connection for obstructive sleep apnea, to include as due to service-connected disease or injury, or as due to exposure to herbicides During the October 2018 Board hearing, the Veteran's representative raised the possibility that the Veteran's in-service allergic rhinitis symptoms may have caused his sleep apnea. She stated that there was a known link between nasal allergies and obstructive sleep apnea. In October 2018 correspondence, the Veteran's spouse reported witnessing the Veteran snort, choke, and snore in his sleep. A January 2020 VA examiner determined that the Veteran's sleep apnea was less likely than not caused by exposure to Agent Orange or caused or aggravated by service-connected diabetes. The examiner did not provide an opinion regarding direct service connection and did not appear to consider the lay statements regarding in-service symptoms. Accordingly, an additional opinion is necessary prior to adjudication. 3. Entitlement to service connection for hypertension, to include as due to exposure to herbicides A study by National Academy of Sciences (NAS) released on November 15, 2018, indicates that "[t]he latest in a series of congressionally mandated biennial reviews of the evidence of health problems that may be linked to exposure to Agent Orange and other herbicides used during the Vietnam War found sufficient evidence of an association for hypertension." NAS, Hypertension Upgraded in Latest Biennial Review of Research on Health Problems in Veterans That May Be Linked to Agent Orange Exposure During Vietnam War (Nov. 15, 2018). In a January 2020 VA medical opinion, the examiner concluded that the Veteran's hypertension was less likely than not incurred in or caused by exposure to herbicides during service. The examiner reasoned that the Veteran's treatment records revealed a diagnosis of hypertension around 1975. The examiner discussed that risk factors for hypertension are male gender, family history, smoking, and questionable body habitus. The examiner discussed a recent journal review regarding a study of Army Chemical Corps veterans, Agent Orange exposure, and hypertension, but distinguished the study from the Veteran's case. In April 2021, the Veteran submitted the NAS 2018 Veterans and Agent Orange Update, which stated that there was sufficient evidence of an association between at least one of the chemicals of interest and hypertension. Because the January 2020 examiner did not address the above-mentioned report that finds "sufficient evidence" of an association for hypertension, an addendum opinion is warranted. 4. Entitlement to service connection for erectile dysfunction, to include as secondary to service-connected disease or injury A June 2013 VA examination report reflects that the Veteran's erectile dysfunction may be due to his hypertension. Because a decision on the remanded issue of entitlement to service connection for hyperternsion could significantly impact a decision on the issue of entitlement to service connection for erectile dysfunction, the issues are inextricably intertwined, and a remand is required. The matters are REMANDED for the following action: 1. Ask the Veteran to complete a new VA Form 21-4142 for any relevant outstanding private treatment records, to include treatment from the Center for Advanced Medicine. Explain to the Veteran why the previous attempt to obtain these records was unsuccessful. 2. Obtain an addendum VA medical opinion regarding the etiology of the Veteran's acquired psychiatric disorder from an appropriate medical professional. The claims file must be reviewed, and a notation must be made on the examination report that the claims file was reviewed. Based on a review of the record, and the examination results if necessary, the examiner is asked to answer whether is it at least as likely as not that any currently diagnosed acquired psychiatric disorder or neurocognitive disorder onset during or was caused by military service. In answering this question, the examiner must address the Veteran's reports of in-service mental health symptoms. Attention is also called to the records of private care in 2010-2011 for symptoms of anxiety and depression. In rendering this opinion, the examiner is advised that the Veteran is competent to report his symptoms and history. Such reports must be acknowledged and considered in formulating any opinion. If the medical professional rejects the Veteran's reports, he or she must provide an explanation for such rejection. The examiner should not improperly discount the Veteran's lay statements or rely solely on an absence of medical evidence in the record to support his or her conclusions. 3. Obtain an addendum VA medical opinion regarding the etiology of the Veteran's sleep apnea from an appropriate medical professional. The claims file must be reviewed, and a notation must be made on the examination report that the claims file was reviewed. Based on a review of the record, and the examination results if necessary, the examiner is asked to answer whether is it at least as likely as not that sleep apnea onset during or is caused by military service. In answering this question, the examiner must address the October 2018 spouse statement. In rendering this opinion, the examiner is advised that the Veteran and spouse are competent to report his symptoms and history. Such reports must be acknowledged and considered in formulating any opinion. If the medical professional rejects the Veteran's reports, he or she must provide an explanation for such rejection. The examiner should not improperly discount the Veteran's lay statements or rely solely on an absence of medical evidence in the record to support his or her conclusions. 4. Obtain an addendum VA medical opinion regarding the etiology of the Veteran's hypertension from an appropriate medical professional. If any examiner determines that additional physical examination of the Veteran is required, so schedule the Veteran. The examiner must review the claims file. The examiner is asked to provide a response, with a complete rationale, to the following: (a.) Is the Veteran's hypertension at least as likely as not (at least 50 percent probability) related to service, specifically, his conceded in-service exposure to herbicides? The examiner is advised that a negative opinion cannot be based solely on the fact that the Veteran's hypertension is not on the list of diseases that are presumptively associated with exposure to herbicide agents. The examiner must consider and discuss the above-mentioned November 15, 2018, NAS Update 2018 report that finds "sufficient evidence" of an association for hypertension. The examiner must consider and discuss the Veteran's lay report that he was diagnosed with hypertension around 1975 when he was in his 20s. (b.) Is it at least as likely as not that the Veteran's hypertension: (1) manifested within one year of his discharge from service; or (2) has existed continuously since separation from service, specifically considering that the Veteran has reported that he was diagnosed with hypertension around 1975 when he was in his 20s? 5. After completing the development requested above, and any other development deemed necessary, readjudicate the Veteran's claim, to include entitlement to service connection for erectile dysfunction. If any of the benefits sought are not granted in full, the AOJ should furnish the Veteran and his representative with an SSOC and afford an opportunity to respond. The claims file should then be returned to the Board for further appellate review. J.W. FRANCIS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Fitzgerald, 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.