Citation Nr: 21067486 Decision Date: 11/04/21 Archive Date: 11/04/21 DOCKET NO. 08-26 275 DATE: November 4, 2021 REMANDED 1. Entitlement to service connection for a bilateral knee disability is remanded. 2. Entitlement to service connection for hypertension is remanded. 3. Entitlement to service connection for sleep apnea is remanded. REASONS FOR REMAND The appellant is a Veteran who served on active duty from July 1979 to July 1982, and had additional Reserve service until 2006. These matters are before the Board of Veterans' Appeals (Board) on appeal from February 2008 and June 2014 Department of Veterans Affairs (VA) rating decisions. The case was remanded in December 2011, June 2013, January 2014, November 2014, March 2017, and May 2018 for additional development. In December 2019, the Board denied appeals seeking service connection for a bilateral knee disability, hypertension, sleep apnea, and residuals of an inguinal hernia. The Veteran appealed that decision to the U.S. Court of Appeal for Veterans Claims (CAVC), resulting in an October 2020 Joint Motion for Partial Remand (JMPR) by the parties. [The Veteran did not appeal the denial of service connection for residuals of an inguinal hernia. Accordingly, that matter is no longer before the Board.] An October 2020 CAVC Order remanded the matters for compliance with the JMPR instructions. In March 2021, the case was remanded for additional development. The Veteran was previously represented by an attorney. An August 30, 2021 RO letter notified the Veteran that his attorney had withdrawn representation. On August 31, 2021, the Board sent the Veteran a letter seeking to clarify his representation before proceeding with appellate review; he was advised that if the Board did not hear from him within 30 days, the Board will assume he wishes to represent himself. Although a September 2021 Report of General Information notes that his former attorney called VA and requested to remain the power of attorney, the Veteran did not reply, and a new VA Form 21-22a was not received. Accordingly, the Board will proceed with the understanding that he is pursuing this appeal pro se. The Board is aware that the claim was remanded before (and regrets the delay inherent with another remand); but because there was not substantial compliance with previous remand instructions, another remand is necessary. See Stegall v. West, 11 Vet. App. 268, 271 (1998). 1. Entitlement to service connection for a bilateral knee disability In the October 2020 JMPR, the parties agreed that prior (July 2017 and January 2019) VA medical opinions of record failed to address whether it was at least as likely as not that the Veteran's bilateral knee disability was aggravated by his service in the Reserves, including during periods of active duty training (ACDUTRA) and/or inactive duty for training (INACDUTRA). The parties specifically noted that the CAVC has held that "aggravation" as used in 38 U.S.C. § 101(24)(B), i.e., in a case where the service at issue is ACDUTRA, means that in order for a claimant to have active service that conveys Veteran-status, the evidence must establish that during his period of ACDUTRA, he experienced a permanent increase in disability beyond the natural progress of the disease or injury. See Donnellan v. Shinseki, 24 Vet. App. 167, 171 (2010). In April 2021 (pursuant to the Board's March 2021 remand), a VA nurse practitioner reviewed the record and opined that the Veteran's bilateral knee disability was less likely than not caused or aggravated by service, including periods of ACDUTRA and INACDUTRA. The rationale provided notes the Veteran's prior report relating his bilateral knee disability to youth basketball, and that Dr. B's private opinion in support of the claim does not address other possible (lifestyle) causes. The opinion is inadequate for rating purposes as it fails to address the medical question agreed to by the parties to the JMPR, namely whether his bilateral knee disability was aggravated during periods of ACDUTRA and/or INACDUTRA. Stegall v. West, 11 Vet. App at 271; See also Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007) (finding a medical examination inadequate where the examiner impermissibly ignored the appellant's lay assertions regarding onset of symptoms or injury during service). Remand is required for an adequate advisory medical opinion that is fully responsive to the medical question raised by the parties to the JMPR. 2. Entitlement to service connection for hypertension In the October 2020 JMPR, the parties agreed that although a July 2017 examiner found that the Veteran had a diagnosis of hypertension during his reserve period, neither the July 2017 nor January 2019 examiners addressed whether the hypertension was aggravated by ACDUTRA or INACDUTRA service periods. In April 2021, A VA nurse practitioner reviewed the record and opined that the Veteran's hypertension was less likely as not caused or aggravated by service, including periods of ACDUTRA and INACDUTRA. The rationale for her opinion was limited to a finding that the Veteran is an African American with a family history of hypertension, noting that "African American males have the highest prevalence for hypertension in the United States." The Board finds the opinion inadequate for rating purposes as it fails to address the medical question agreed to by the parties to the JMPR. [The Board further acknowledges the Veteran's former representative's June 2021 argument, with citation to (non-precedential) caselaw, that it was improper for the examiner to justify her negative opinion upon the Veteran's general risk factor of being African American to explain why the Veteran's hypertension was not related to service.] Accordingly, remand is required for an adequate advisory medical opinion that is fully responsive to the medical question raised by the parties to the JMPR. 3. Entitlement to service connection for sleep apnea. In the October 2020 JMPR, the parties agreed that the July 2017 VA medical opinion failed to address whether the Veteran's sleep apnea "was incrementally increased by his hypertension" (citing Ward v. Wilkie, 31 Vet. App. 233, 239 (2019)). In April 2021, a VA nurse practitioner reviewed the record and opined that the Veteran's sleep apnea was less likely as not caused or aggravated by service, including periods of ACDUTRA and INACDUTRA, or aggravated by his hypertension. The rationale for the opinion expresses disagreement with Dr. B's opinion and lists two risk factors, gender and diabetes mellitus type 2, but again fails to address the medical question agreed to by the parties to the JMPR. Stegall v. West, 11 Vet. App at 271; See also Dalton v. Nicholson, 21 Vet. App. at 39-40. Accordingly, remand is required for an adequate advisory medical opinion that is fully responsive to the medical question raised by the parties to the JMPR. [The Board notes that this claim is also intertwined with the claim seeking service connection for hypertension, which is also being remanded.] The matters are REMANDED for the following: 1. Secure for the record updated (to the present, all not already associated with the record) complete clinical records of VA evaluations and treatment the Veteran has received for his bilateral knee disability, hypertension, and sleep apnea. 2. Thereafter, arrange for the Veteran's claims file to be forwarded to an appropriate clinician (other than the April 2021 provider) for an advisory medical opinion to ascertain the likely etiology of the Veteran's bilateral knee disability, hypertension, and sleep apnea. Based on review of the record (including this remand and any records obtained pursuant to the development above) the clinician should provide opinions that respond to the following: (a) Is it at least as likely as not (a 50% or greater probability) that the Veteran's bilateral knee disability was caused or aggravated by his active service, to include any periods of ACDUTRA and/or INACDUTRA? The rationale for this opinion must: - Address (per JMPR instructions) whether the Veteran experienced an increase in disability beyond the natural progress of the disease or injury during a period of ACDUTRA; and, - Express, with rationale, agreement or disagreement with Dr. B's December 2020 opinion. (b) If the answer to (a) is No, identify the etiology for the bilateral knee disability that is considered to be more likely, and explain why that is so. (c) Is it at least as likely as not that the Veteran's hypertension was caused or aggravated by his active service, to include any periods of ACDUTRA and/or INACDUTRA? The rationale for this opinion must: - Address (per the JMPR) whether the Veteran experienced a permanent increase in disability beyond the natural progress of the disease during a period of ACDUTRA; and, - Express, with rationale, agreement or disagreement with Dr. B's December 2020 opinion. (d) If the answer to (c) is No, identify the etiology for hypertension considered to be more likely, and explain why that is so. (e) Is it at least as likely as not that the Veteran's sleep apnea was caused or aggravated by his active service, to include any periods of ACDUTRA and/or INACDUTRA? The rationale for this opinion must: - Address (per the JMPR) whether the Veteran experienced a permanent increase in disability beyond the natural progress of the disease during a period of ACDUTRA; and, - Express, with rationale, agreement or disagreement with Dr. B's December 2020 opinion. (f) If the answer to (e) is No, is it at least as likely as not that the Veteran's sleep apnea was aggravated (incrementally increased) by his hypertension? (g) If the answer to (e) is No, and the Veteran's sleep apnea is determined to not have been aggravated by his hypertension, identify the etiology considered to be more likely, and explain why that is so. All opinions must include a complete rationale that cites to supporting factual data and medical principles. If an opinion sought cannot be given without resort to mere speculation, (to satisfy legal requirements) state whether the need to speculate is due to a deficiency in the state of medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner lacks the necessary knowledge or training. If so, identify the further testing/specialist's opinion/other information needed to enable providing the opinion sought. GEORGE R. SENYK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Dupont, 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.