Citation Nr: 21066867 Decision Date: 11/02/21 Archive Date: 11/02/21 DOCKET NO. 18-42 781 DATE: November 2, 2021 REMANDED Entitlement to service connection for obstructive sleep apnea (OSA) is remanded. Entitlement to service connection for hypertension, to include as secondary to OSA, is remanded. REASONS FOR REMAND The Veteran served on active duty from April 1987 to October 1996. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), which denied entitlement to service connection for hypertension and OSA. The Veteran filed a notice of disagreement (NOD) in September 2015 and a statement of the case (SOC) was issued in July 2018. He perfected a timely appeal in August 2018. In July 2020, the Veteran presented sworn testimony during a virtual hearing, which was chaired by the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the Veteran's VA claims file. In an April 2021 Board decision, the claim was remanded for further evidentiary development. A supplemental statement of the case (SSOC) was issued in August 2021. The Veteran's VA claims file has been returned to the Board for further appellate proceedings. 1. Entitlement to service connection for OSA is remanded. 2. Entitlement to service connection for hypertension to include as secondary to OSA is remanded. The Veteran asserts that he has hypertension and OSA, which were incurred in his active military service. See the Board hearing transcript dated July 2020. He has alternatively contended that his hypertension is secondary to OSA. Id. at pgs. 5-6. In April 2021, these matters were remanded by the Board to obtain VA medical opinions as to the etiology of the OSA and hypertension disabilities. The Board Remand noted that the evidence of record documents current diagnoses of hypertension and OSA. See the December 2007 and January 2008. The Board additionally recognized that the Veteran reported that he had high blood pressure readings during his active duty service and experienced dizziness with episodes of elevated blood pressure. See the July 2020 Board hearing transcript, pg. 8. He additionally testified that he experienced snoring during his military service, as well as awakenings with gasping for air. Id. at pg. 11. To this end, the Board indicated that the Veteran is competent to testify as to lay observable symptoms such as snoring and nocturnal gasping for air. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F .3d 1331 (Fed. Cir. 2006). The April 2021 Board remand instructed VA to obtain a VA medical opinion to address whether it is at least as likely as not that a diagnosed OSA and/or hypertension began during active service or is related to an in-service injury, event, or disease? If not, the examiner was to address is it at least as likely as not that a diagnosed hypertension was caused by OSA? If not, the examiner was then to address the question of whether it is at least as likely as not that the Veteran's diagnosed hypertension is aggravated (made worse as shown by comparing the current disability to medical evidence created prior to any aggravation) by OSA? In addressing the question of direct service connection, the examiner was instructed to consider the Veteran's description of his in-service symptoms as well as his post-service symptoms. If there is any medical reason to accept or reject the proposition that the Veteran's reported symptoms in service and thereafter represented the onset of his current disabilities, this was to be noted. Pursuant to the Board Remand, multiple VA medical opinions were obtained in June 2021 and August 2021 with respect to the pending claims. In a June 2021 medical opinion, the VA examiner determined that the claimed OSA and hypertension disabilities were not less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner additionally determined that the claimed hypertension is less likely than not proximately due to or the result of the Veteran's OSA. The examiner provided identical rationale to address both conclusions: DD214 shows active military service from 1987-1996. Sleep study test on 1/29/2008 demonstrates mild obstructive sleep apnea. Medical note on 12/16/2007 documents diagnosis and treatment of hypertension condition that is well controlled with oral medication. Remand letter dated 4/26/2021 was reviewed. Report of medical history and exam on 1/12/1987, 8/25/1992, and 1/18/1996 for separation did not reveal history or physical exam findings for ongoing acute or chronic treatment of hypertension or sleep apnea condition. Compensation and pension exam on 5/10/2018 documents diagnosis of hypertension associated with headaches. Medical record review did not reveal continuous ongoing medical treatment or aggravation of acute or chronic hypertension condition during time of discharge from active military service to present day. Although hypertension can be associated with sleep apnea condition, medical record review did not reveal consistent clinical evidence for sleep apnea condition to negatively impact and proximately cause hypertension condition. Similar rationale was provided in another June 2021 VA medical opinion, which only addressed the etiology of the claimed hypertension. In an August 2021 VA medical opinion, a VA examiner determined that it was less likely than not that the diagnosed OSA began during active service or is related to an in-service injury, event, or disease. The examiner explained, "[a]ccording to his records, he was diagnosed with mild OSA via sleep study on 1/29/08 which 12 years after he was discharged from service. His service records are silent for evidence of OSA or a diagnosis of OSA." The examiner continued, "[t]here is no evidence of OSA noted within a year of discharge from service. Considering the evidence, his current OSA is less likely than not related to service." In a separate August 2021 VA medical opinion, the examiner indicated that the Veteran's "hypertension is less likely than not (less than 50% or greater probability) incurred in service or related to an in-service injury, event, or disease." The examiner explained that the Veteran's STRs "are silent for evidence of hypertension, and there is no evidence of a diagnosis of hypertension within a year of discharge from service. His Kaiser records indicate he was diagnosed with uncontrolled hypertension December 2007, which is more than 10 years after discharge from active duty service." The examiner continued, "[a]ccording to Mayo Clinic (2021), the exact cause of hypertension is unknown though it tends to develop gradually over time. Risk factors include advanced age, obesity, increased dietary sodium, decreased dietary potassium, sedentary lifestyle, smoking, etc. Considering the evidence, his current hypertension is less likely than not (less than 50% or greater probability) incurred in service or related to an in-service injury, event or disease." Notably, the questions concerning whether the Veteran's claimed hypertension was caused or aggravated by his diagnosed OSA were addressed in additional VA medical opinions dated June 2021 and August 2021. Critically, the June 2021 and August 2021 VA medical opinions concerning direct service connection failed to address the Veteran's lay statements regarding onset and continuity of symptoms, as directed by the April 2021 Board Remand. See Miller v. Wilkie, 32 Vet. App. 249, 260 (2020) (stating that "[t]he examiner must address the veteran's lay statements to provide the Board with an adequate medical opinion"). In particular, the VA examiners did not provide any explanation for rejecting the proposition that the Veteran's reported symptoms in service and thereafter represented the onset of his current disabilities. The Board further notes that the VA medical opinions also did not address the elevated blood pressure readings documented in the Veteran's STRs including the November 1989 blood pressure reading of 150/94, the undated STR indicated blood pressure of 145/77, and the September 1995 blood pressure of 140/66. The Board therefore finds that the June 2021 and August 2021 VA examiners' opinions did not fully comply with the April 2021 Board Remand. The medical evidence currently of record is therefore inadequate to resolve the claims of entitlement to service connection for OSA and hypertension. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c)(4); see also Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (once VA undertakes the effort to provide an examination when developing a service connection claim, even if not statutorily obligated to do so, it must provide one that is adequate for purposes of the determination being made). The matters are REMANDED for the following action: The AOJ shall refer the VA claims file to a clinician with appropriate expertise to provide an opinion as to the claimed hypertension and OSA disabilities. The clinician is requested to review the claims file in its entirety including all service treatment records, VA, and private treatment records. If the clinician determines that an examination is necessary, one should be scheduled. The clinician should then respond to the following: (a). Whether it is at least as likely as not that a diagnosed OSA and/or hypertension began during active service or is related to an in-service injury, event, or disease? (b). If not, is it at least as likely as not that a diagnosed hypertension was caused by OSA? (c) If not, is it at least as likely as not that the Veteran's diagnosed hypertension is aggravated (made worse as shown by comparing the current disability to medical evidence created prior to any aggravation) by OSA? If the Veteran's claimed hypertension is aggravated by OSA, the examiner should also indicate the extent of such aggravation by identifying the baseline level of disability. This may be ascertained by the medical evidence of record and also by the Veteran's statements as to the nature, severity, and frequency of his observable symptoms over time. In providing the requested opinion and rationale, the examiner MUST ADDRESS the relevant evidence of record, to include: (a) the Veteran's service treatment records, to include the November 1989 blood pressure reading of 150/94, the undated STR indicated blood pressure of 145/77, and the September 1995 blood pressure of 140/66; (b) the Veteran's description of his in-service dizziness with episodes of elevated blood pressure, snoring, and nocturnal gasping for air; and (c) the Veteran's lay statements concerning continuing symptoms of dizziness with episodes of elevated blood pressure, snoring, and nocturnal gasping for air dating from his military service. In addressing the above, the examiner must consider the Veteran's description of his in-service symptoms as well as his post-service symptoms. If there is any medical reason to accept or reject the proposition that the Veteran's reported symptoms in service and thereafter represented the onset of his current disabilities, this should be noted. Stated another way, do the Veteran's reports about his symptoms such as dizziness and snoring align with how OSA and hypertension are known to develop or are the Veteran's reports generally inconsistent with medical knowledge or implausible? In this regard, the examiner should note that the absence of evidence of treatment for claimed disabilities in the Veteran's service treatment records should not serve as the sole basis for a negative opinion. All examination findings/testing results (if any), along with complete, clearly-stated rationale for the conclusions reached, must be provided. K. Conner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. K. Buckley, 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.