Citation Nr: 21065091 Decision Date: 10/25/21 Archive Date: 10/25/21 DOCKET NO. 17-09 477 DATE: October 25, 2021 REMANDED Entitlement to a compensable rating prior to May 14, 2021 and a rating in excess of 30 percent therefrom for service-connected acquired psychiatric disorder is remanded. Entitlement to service connection for headaches is remanded. Entitlement to service connection for sleep apnea is remanded. Entitlement to service connection for hypertension is remanded. Entitlement to a total disability based on individual unemployability (TDIU) due to service-connected disabilities is remanded. REASONS FOR REMAND The Veteran served on active duty from February 1968 to February 1970. In January 2021, the Veteran testified at a virtual hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing is associated with the record. In March 2021, the Board remanded the current claims for additional development. As an initial matter, the Board is broadening the Veteran's claim for an increased rating for PTSD to an increased rating for an acquired psychiatric disorder. In pursuing his claim, the Veteran has faced competing diagnoses of PTSD and adjustment disorder. In view of this information, it is appropriate to broaden his claim to adequately adjudicate this issue. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). The Board notes that the Veteran has a representative for the issues addressed in this decision. However, he has another issue on appeal for which he is unrepresented (service connection for chronic obstructive pulmonary disorder (COPD)). Therefore, the claim for service connection for COPD will be addressed in a separate decision. 1. Entitlement to an increased rating for service-connected acquired psychiatric disorder is remanded. In a statement submitted in June 2021, the Veteran's attorney, by and on his behalf, appears to be challenging the competency of the May 2021 VA examiner, who evaluated the Veteran's psychiatric disorders. In that regard, the Veteran's attorney indicated that a "Francway Challenge" was being made as to the May 2021 VA examination and VA's duty to assist requires that, upon request, all available qualifications for the examiner must be provided. The attorney then cited to Francway v. Wilkie, 940 F.3d 1304 (Fed. Cir. 2019) noting, in pertinent part, that "the Veteran must have the ability to secure from the VA the information necessary to raise the competency challenge." Based on the foregoing, the Board finds that the Veteran has raised a challenge to the competency of June 2021 VA examiner in this matter and, pursuant to Francway, once the request is made for information as to the competency of the examiner, the Veteran has the right, absent unusual circumstances, to the curriculum vitae and other information about qualifications of a medical examiner. Francway, 940 F.3d at 1304. Accordingly, in order to satisfy VA's duty to assist, a remand is required for the Regional Office (RO) to attempt to obtain the curriculum vitae and other information about the qualifications of the May 2021 VA examiner. 2. Entitlement to service connection for headaches, sleep apnea, and hypertension is remanded. In the March 2021 remand, the Board requested that the RO procure VA examinations and medical opinions regarding the Veteran's headaches, sleep apnea, and hypertension. More specifically, the Board instructed that the VA examiner should provide opinions as to whether these disorders were related to or aggravated by PTSD and rationales must be provided for the requested opinions. The Board also instructed that, with regard to hypertension, the examiner must indicate whether this disorder was related to the Veteran's presumed exposure to herbicide agents. In June 2021, the same VA examiner evaluated the Veteran's headaches, sleep apnea, and high blood pressure. The examiner opined that the Veteran's claimed conditions were less likely than not aggravated by or proximately due to PTSD. The examiner indicated that the literature did not support PTSD causing sleep apnea and PTSD did not cause pathological blood pressure elevations. The examiner indicated that, although stress may transiently elevate blood pressure, this is psychological only. The examiner also stated that there was no treatment or mention of headaches found except as noted for examination, for the purpose of filing a claim. In spite of the June 2021 VA medical opinions provided above, the Board finds that that this evidence does not comply with the Board's March 2021 remand directives for a number of reasons. In pertinent part, while the examiner suggested that the Veteran's psychiatric disorder only transiently elevated blood pressure, the examiner did not provide a specific rationale/explanation to support such conclusion. Moreover, aside from only generally stating that "literature" did not support causation, the examiner failed to provide specific rationales to support the conclusions that sleep apnea and headaches were not caused or aggravated by PTSD. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The examiner also did not provide the requested opinion as to whether the Veteran's high blood pressure was related to the Veteran's presumed exposure to herbicide agents. Accordingly, the June 2021 VA medical opinions are insufficient for adjudication purposes and remand is warranted for new VA medical opinions consistent with the directives herein. The Board also emphasizes that, while the June 2021 VA examiner found no diagnosis for sleep apnea, this conclusion is not supported by the VA treatment records that show a diagnosis for sleep apnea. See April 2015 VA Treatment records. Therefore, any subsequent VA medical opinion should appropriately consider the Veteran's previous diagnosis for sleep apnea. 3. Entitlement to a TDIU is remanded. Consideration of entitlement to a TDIU is dependent upon the impact of the Veteran's service-connected disabilities on his ability to obtain or retain substantially gainful employment. Accordingly, the matter of a TDIU is inextricably intertwined with the Veteran's claims remanded herein. Harris v. Derwinski, 1 Vet. App. 180 (1991). Remand of the inextricably intertwined TDIU claim is, thus, also required. The matters are REMANDED for the following actions: 1. Obtain a copy of the curriculum vitae, and any other available information regarding their qualifications, for the VA examiner who performed the May 2021 VA examination regarding the Veteran's psychiatric disorder. If the requested information is not obtainable, the Veteran and his attorney should be notified, and the reasons for such should be documented in the record. 2. Obtain a VA medical opinion from an appropriate examiner to determine the nature and etiology of the Veteran's headaches. The Veteran's claims file (to include this decision) must be reviewed by the examiner. If is determined that a physical examination is necessary to provide the requested medical opinions, such should be arranged. The examiner should opine as to whether it is at least as likely as not (i.e., 50 percent probability or greater) that the Veteran's sleep apnea was caused or aggravated by his service-connected acquired psychiatric disorder, to include his symptom of stress. Aggravation in the secondary service connection context is defined as any increase in disability. It is advised that the Veteran is competent to report his symptoms/history and that such reports must be acknowledged and considered in formulating any opinion. If his reports are discounted, a reason should be provided for doing so. A rationale for all requested opinions shall be provided. The rationale must include a discussion of the underlying medical principles specific to the facts of this case and not simply reference generic medical literature. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete 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 that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. 3. Obtain a VA medical opinion from an appropriate examiner to determine the nature and etiology of the Veteran's sleep apnea. The Veteran's claims file (to include this decision) must be reviewed by the examiner. If is determined that a physical examination is necessary to provide the requested medical opinions, such should be arranged. The examiner should opine as to whether it is at least as likely as not (i.e., 50 percent probability or greater) that the Veteran's sleep apnea was caused or aggravated by his service-connected acquired psychiatric disorder, to include the medication used to treat his psychiatric disorder. Aggravation in the secondary service connection context is defined as any increase in disability. In rendering the above opinion, the examiner must consider and discuss the article submitted by the Veteran that suggests that the hyperarousal and sympathetic activation from PTSD predisposes upper airway collapse. It is advised that the Veteran is competent to report his symptoms/history and that such reports must be acknowledged and considered in formulating any opinion. If his reports are discounted, a reason should be provided for doing so. A rationale for all requested opinions shall be provided. The rationale must include a discussion of the underlying medical principles specific to the facts of this case and not simply reference generic medical literature. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete 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 that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. 4. Obtain a VA medical opinion from an appropriate examiner to determine the nature and etiology of the Veteran's hypertension. The Veteran's claims file (to include this decision) must be reviewed by the examiner. If is determined that a physical examination is necessary to provide the requested medical opinions, such should be arranged. a) The examiner should provide an opinion as to whether it is at least as likely as not (i.e., 50 percent probability or greater) that the Veteran's hypertension is related to his active duty service, to include presumed exposure to herbicide agents. In rendering the above opinion, the examiner must specifically consider and discuss the National Academies of Sciences Institute of Medicine Consensus Study Report that suggests an association between hypertension and exposure to herbicide agents. b) The examiner should also opine as to whether it is at least as likely as not (i.e., 50 percent probability or greater) that the Veteran's hypertension was caused or aggravated by his service-connected acquired psychiatric disorder, to include his symptom of stress. Aggravation in the secondary service connection context is defined as any increase in disability. In rendering the above opinion, the examiner must consider and discuss the article submitted by the Veteran that suggests that there is a greater risk for incident hypertension associated with untreated PTSD. It is advised that the Veteran is competent to report his symptoms/history and that such reports must be acknowledged and considered in formulating any opinion. If his reports are discounted, a reason should be provided for doing so. A rationale for all requested opinions shall be provided. The rationale must include a discussion of the underlying medical principles specific to the facts of this case and not simply reference generic medical literature. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete 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 that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. A. ISHIZAWAR Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Metzner, Paul 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.