Citation Nr: 21067147 Decision Date: 11/03/21 Archive Date: 11/03/21 DOCKET NO. 15-31 179A DATE: November 3, 2021 ORDER Entitlement to service connection for hypertension, to include as secondary to service-connected obstructive sleep apnea (OSA) or depression, is denied. FINDING OF FACT The Veteran's hypertension is not secondary to the Veteran's service-connected OSA and/or depression, and is not otherwise related to an in-service injury or disease. CONCLUSION OF LAW The criteria for entitlement to service connection for hypertension, to include as secondary to service-connected OSA or depression, have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1977 to June 1981 and from November 1985 to August 1988. He had additional service in the United States Army Reserves. In February 2021, the Board remanded the Veteran's service connection issues for right lower extremity sciatica/radiculopathy and hypertension for additional development. In an April 2021 rating decision, the VA Regional Office (RO) granted the Veteran's service connection claim for right lower extremity sciatica/radiculopathy. As this represents a full grant of the benefits sought, this issue is no longer on appeal. See Grantham v. Brown, 114 F.3d. 1156 (Fed. Cir. 1997). Therefore, the only remaining issue before the Board is the Veteran's service connection claim for hypertension. With respect to the hypertension claim, another VA opinion was obtained concerning the etiology of the Veteran's hypertension in February 2021. The issue has since returned to the Board for appellate review. The Board finds that there was substantial compliance with its remand orders. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999); Stegall v. West, 11 Vet. App. 268, 271 (1998). Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. To establish entitlement to service-connected compensation benefits, a veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; 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, 1166-67 (Fed. Cir. 2004). Service connection may be granted for any disease initially diagnosed after service when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). For veterans with 90 days or more of active service during a war period or after December 31, 1946, certain chronic diseases, including organic diseases of the nervous system such as sensorineural hearing loss, are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Pursuant to 38 C.F.R. § 3.303(b), where a chronic disease such as sensorineural hearing loss is shown as such in service, subsequent manifestations of the same chronic disease are generally service connected. If a chronic disease is noted in service but chronicity in service is not adequately supported, a showing of continuity of symptomatology after separation is required. Entitlement to service connection based on chronicity or continuity of symptomatology pursuant to 38 C.F.R. § 3.303(b) applies only when the disability for which the Veteran is claiming compensation is due to a disease enumerated on the list of chronic diseases in 38 U.S.C. § 1101(3) or 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also be granted for a disability that is proximately due to, or aggravated by, a service-connected disease or injury. 38 C.F.R. § 3.310. 1. Entitlement to service connection for hypertension, to include as secondary to service-connected OSA or depression, is denied. The Veteran contends that his hypertension is causally related to his service-connected sleep apnea or depression. Because the Veteran has not raised entitlement to direct service connection, the Board's adjudication will primarily consider entitlement to secondary service connection. To the extent that the RO and the examiners addressed direct service connection, the Board finds that entitlement to service connection on a direct basis is not warranted, the Veteran's STRs fail to show any diagnosis or treatment for hypertension, and the VA opinions of record found no nexus between his current diagnosis of hypertension and his active service. Thus, the Board finds that, to the extent this theory of entitlement was raised by the record, entitlement to service connection for hypertension on a direct basis is denied. 38 C.F.R. § 3.303. At the outset, the Board notes that VA medical records document that the Veteran suffers from hypertension. Therefore, the first element of service connection, a diagnosis, has been met. Additionally, the Veteran is service connected for OSA and depression. Thus, the presence of a service connected condition requirement has been met. Therefore, the only remaining issue is whether a nexus may be established between the Veteran's hypertension and his service-connected OSA and/or depression. In an informal hearing presentation, the Veteran's representative argued that hypertension is causally related to sleep apnea and, in support, he referenced medical literature located on the internet at http://www.ncbi.nlm.nih.gov/pubmed/18367017 and http://www.mayoclinic.org/diseases-conditions/sleep-apnea/basic/complications/con-20020286. See June 2018 Appellate Brief. In addition to his treatise evidence, several opinions have been obtained concerning the etiology of the Veteran's hypertension. Two opinions were rendered concerning the etiology of the Veteran's hypertension in August 2015. In the first August 2015 opinion, the examiner addressed the Veteran's claim that his hypertension was causally related to sleep apnea. The examiner opined that hypertension is not causally linked to sleep apnea. In the second August 2015 medical opinion, the examiner concluded there was no link between hypertension and the Veteran's depression. The examiner specifically noted that depression is a risk factor for hypertension but indicated this does not indicate a causal relationship. An October 2019 VA examiner subsequently opined that the Veteran's hypertension was less likely than not a result of service-connected sleep apnea and depression. The examiner reasoned that the Veteran's hypertension was related to multiple factors, including age, race, obesity, history of alcohol and drug abuse, and lifestyle. The examiner further concluded that the Veteran's hypertension was not aggravated beyond its natural progression as a result of the Veteran's service-connected sleep apnea or depression but provided no additional rationale. The VA examiner also relied on the fact that the Veteran was diagnosed with hypertension prior to his diagnosis of sleep apnea to support a lack of causality. In February 2021, the VA examiner opined that the Veteran's hypertension, diagnosed in September 2007, is less likely than not caused by OSA and depression. The examiner noted that hypertension was first diagnosed in 2007, prior to the Veteran's 2008 diagnosis of depression and 2012 diagnosis of OSA. Moreover, the examiner noted that the Veteran was diagnosed with essential hypertension, a primary type of hypertension that tends to develop gradually over many years with risk factors such as a history of alcohol and tobacco use, life stressors, genetic predisposition because of skin color, obesity, aging, and lifestyle/dietary intake, which is distinct from the secondary type of hypertension that may be caused by other underlying conditions such as OSA. The examiner also opined that the Veteran's hypertension is not aggravated by OSA and depression. The examiner reasoned that medical records are silent for aggravation of hypertension by OSA and depression. The medical evidence indicates that several consults mentioned noncompliance to medication, including consults dated in October 2017 and June 2020 that caused uncontrolled hypertension as well as a recurrence of depression. The Board find's the February 2021 VA examiner's reasoning that his hypertension diagnosis predates his depression and OSA diagnoses inadequate. The Board notes that, in Frost v. Shulkin, the Court of Appeals for Veterans Claims (Court) held that there is not a temporal requirement inherent in 38 C.F.R. § 3.310(a) for claims for service connection on a secondary basis. 29 Vet. App. 131, 134 (2017). The Court explained that "for a veteran to be service-connected on a secondary basis under a causation theory, the primary disability need not be service-connected, or even diagnosed, at the time the secondary condition is incurred." Id. However, the Board finds the remainder of the February 2021 opinion adequate, particularly the discussion of the difference between essential and secondary hypertension, as this discussion is not based on the temporal nature of the Veteran's diagnosis of hypertension and his diagnoses of depression and OSA. The Board also finds that the adequate portion of the February 2021 opinion, as well as the August 2015 opinions and October 2019 VA opinions, taken together, probative, because they are based on an accurate medical history and provide an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Board acknowledges the medical literature submitted by the Veteran's representative suggesting a relationship between hypertension and sleep apnea. However, the Board finds the VA opinions more probative, as they take into account the specifics of the Veteran's case and type of hypertension. Moreover, the Board notes that the articles do not explicitly contradict the February 2021 VA examiner's rationale in concluding that the Veteran's hypertension is less likely than not caused by OSA. The Veteran believes his hypertension is related to his service-connected disabilities. The Veteran in this case is not competent to provide a nexus opinion regarding this issue. The issue is medically complex. Therefore, it is outside the competence of the Veteran in this case because the record does not show that he has the medical training or credentials to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Consequently, the Board gives more probative weight to the February 2021 VA opinion. Lacking a nexus on either a direct or secondary basis, service connection for hypertension is not warranted, and the claim is denied. GAYLE STROMMEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. E. Grossman, 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.