Citation Nr: 21074582 Decision Date: 12/15/21 Archive Date: 12/15/21 DOCKET NO. 15-26 334 DATE: December 15, 2021 REMANDED Entitlement to service connection for hypertension, to include as secondary to a service-connected disability, is remanded. Entitlement to service connection for obstructive sleep apnea, to include as secondary to a service-connected disability, is remanded. REASONS FOR REMAND The Veteran served on active duty from October 1981 to September 1992. This matter is before the Board of Veterans' Appeals (Board) on appeal from a rating decision of the Department of Veterans Affairs (VA), Regional Office (RO), in Nashville, Tennessee. In February 2019, the Veteran testified at a Board hearing over which the undersigned Veterans Law Judge presided while at the RO. A transcript of that hearing is of record. This matter was previously before the Board in July 2019, November 2020, and June 2021 at which time it was remanded for additional development. It is now returned to the Board. Most of the Veteran's service treatment records apparently are unavailable. In July 2020, the RO notified that Veteran and his representative that it was determined that complete service treatment records dated from October 1981 to January 1991 could not be located and, therefore, were unavailable for review. All efforts to obtain the needed information was exhausted, and based on these facts, the RO determined that further attempts to obtain the records would be futile. As a result, there is a heightened obligation to explain findings and conclusions and to consider carefully the benefit of the doubt rule this matter. See O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). VA has a duty to make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159 (c), (d). 1. Entitlement to service connection for hypertension, to include as secondary to a service-connected disability. The Veteran asserts that he has developed hypertension that is manifested as a result of his period of active service. During the February 2019 Board hearing, he described that he was first diagnosed with hypertension during active service for which he was prescribed medication. Over the course of the period on appeal, he has also suggested that his service-connected posttraumatic stress disorder (PTSD) either caused or aggravates his hypertension. In its July 2019 Remand, the Board, in pertinent part, directed that an opinion be obtained as to whether it is at least as likely as not that the Veteran's diagnosed hypertension is aggravated by a service-connected disability, to specifically include PTSD. In this regard, the Veteran had provided medical treatise evidence to suggest that reducing anxiety could reduce essential hypertension. A VA examination report dated in February 2020 shows, in pertinent part, that the VA examiner opined that regardless of an established baseline, the Veteran's hypertension was not at least as likely aggravated beyond its natural progression by a service-connected disability. The examiner explained that based on a review of the claims file, there was no evidence of hypertension aggravated by PTSD. The examiner explained that the claims file indicated an admission in December 2005 for orthostatic hypertension secondary to taking Prazosin, which resulted in blood pressure medication adjustment; and that there was also a notation of an episode of elevated blood pressure that was believed to be secondary to alcohol withdrawal. In its November 2020 Remand, the Board determined that the opinion of the VA examiner was merely a recitation of evidence available in the claims file, rather an opinion as to whether the Veteran's PTSD could be aggravating his hypertension. The Board also found that examiner failed to address the treatise evidence of record suggesting a relationship between anxiety and hypertension. The Board further pointed out that while the examiner referenced an episode of elevated blood pressure due to alcohol withdrawal, the examiner had not elaborated as to any significance the service-connected PTSD had on the Veteran's alcohol abuse. As such, the Board directed that the Veteran be afforded an examination by an examiner that had not previously examined the Veteran to determine the nature and etiology of the asserted hypertension. The examiner was directed to provide an opinion regarding direct service connection. The examiner was also directed to provide an opine as to whether (a) it is at least as likely as not that the Veteran's diagnosed hypertension was caused (in whole or in part) by a service-connected disability, to specifically include PTSD; and (b) 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 a service-connected disability, to specifically include PTSD. The examiner was instructed to address the treatise evidence of record suggesting a relationship between anxiety and hypertension; and to consider the reference to an episode of elevated blood pressure due to alcohol withdrawal, and the significance, if any, that the service-connected PTSD had on the Veteran's alcohol abuse. A VA medical opinion questionnaire dated in January 2021 shows that an opinion was provided based on records review without examination of the Veteran as directed by the Board in its November 2020 Remand. The examiner's opinion was deemed to be contradictory as the examiner conceded that the service-connected PTSD causes temporary elevations in blood pressure, but also suggested that there was no aggravation. The Board noted that the Veteran's PTSD is an ongoing disability; thus, it would stand to reason that the temporary increases in severity of the hypertension would also be ongoing in determining that it was unclear as to why the ongoing increases in severity would not amount to aggravation of the disability. Additionally, despite the November 2020 Remand instructions, the VA examiner failed to address the treatise evidence of record suggesting a relationship between anxiety and hypertension; and to consider the reference to an episode of elevated blood pressure due to alcohol withdrawal, and the significance, if any, that the service-connected PTSD had on the Veteran's alcohol abuse. As such, the issue was once again remanded. A VA examination report dated in July 2021 shows that following examination of the Veteran, the examiner opined that hypertension was neither caused nor aggravated beyond natural progression by service or PTSD and was less likely than not from service or PTSD. The examiner stated that there was no anatomical/ pathophysiological/neuronal/hormonal or pharmacological correlation to causation. The two conditions were said not to be medically related. The claimed disorder was a separate entity entirely from the service-connected condition and unrelated to it. The examiner added that the medical literature does not support a medical relationship, and a nexus had not been established. Once again, while the examiner specifically opined that there was no physiological relationship between PTSD and hypertension, the examiner did not adequately address whether the Veteran's PTSD makes his hypertension worse. A remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). As such, the medical opinion obtained was not in compliance with the instructions of the Board. VA has a duty to make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C. § 5103A(a); 38 C.F.R. § 3.159(c), (d). 2. Entitlement to service connection for obstructive sleep apnea, to include as secondary to a service-connected disability. The Veteran asserts that he has obstructive sleep apnea that was first manifested during his period of active service. A May 1987 service dental record shows that the Veteran reported experiencing shortness of breath. This was also noted on the August 1991 separation report of medical history. Following service, private medical records dated in August 2006 show that the Veteran was diagnosed with obstructive sleep apnea. It was noted that the Veteran might benefit from the correction of upper airway abnormalities. During the February 2019 Board hearing, the Veteran testified that he began having symptoms associated with obstructive sleep apnea during service, and that he sought treatment for related symptoms shortly after separation from service. Various lay statements of record support that the Veteran has had a history of difficulty with his breathing. Additionally, his spouse reported witnessing the Veteran experience symptoms associated with obstructive sleep apnea, to include loud snoring and sleep disturbance. In its November 2020 Remand, the Board determined that in light of the medical evidence suggesting that the Veteran might benefit from the correction of upper airway abnormalities, an opinion was necessary to determine whether the obstructive sleep apnea was secondary to the service-connected residuals of a broken nose. A VA medical opinion questionnaire dated in January 2021 shows that an opinion was provided based on records review without examination of the Veteran as directed by the Board in its November 2020 Remand. As such, the medical opinion obtained was not in compliance with the instructions of the Board. Additionally, the VA examiner opined that the obstructive sleep apnea was less likely than not incurred in or caused by active service; or caused or aggravated by the service-connected residuals of a broken nose. The examiner explained that the Veteran was on active duty from October 1981 to September 1982, but had a sleep study completed in August 2006 at which time he was diagnosed with obstructive sleep apnea (14 years after separation from service). The examiner indicated that obstructive sleep apnea was an anatomical condition in which the structures of the upper airway relax/prolapse during sleep, resulting in the complete temporary occlusion of the airway. While a deviated nasal septum/nasal fracture/or nasal surgery, may cause partial occlusion of the nasopharynx, which may lead to snoring, it does not result in occlusion of the entire oropharynx and, therefore, no total occlusion of the airway. The examiner concluded that the Veteran's deviated nasal fracture status post nasal surgery did not cause or aggravate of the obstructive sleep apnea. The examiner added that while the Veteran reported onset of snoring during active duty service, and there are lay statements regarding snoring and shortness of breath, the Veteran and laypeople are not qualified to ascribe those complaints to a diagnosis. The examiner stated that snoring, gasping for breath, shortness of breath, and/or shallow breathing were not pathognomonic of obstructive sleep apnea. The gold standard for diagnosis of the condition, and the only method of diagnosis, was said to be polysomnography, which was completed in 2006. Thus, the examiner concluded that obstructive sleep apnea did not have onset during active service. In June 2021, the Board found the opinion of this VA examiner to be of limited probative value. In concluding that the obstructive sleep apnea had not manifested during active service, the examiner considered the evidence that snoring, gasping for breath, shortness of breath, and/or shallow breathing provided by lay witnesses, but concluded that they were not competent to render a diagnosis. The Board explained that the lay evidence in this case was not intended to render a diagnosis, but to rather demonstrate a cluster of symptoms manifested at that time, to be considered in conjunction with the ultimate diagnosis obstructive sleep apnea. The examiner was directed to opine as to whether the demonstrated symptoms were either an early manifestation or prodromal to the ultimate diagnosis of obstructive sleep apnea. Additionally, the VA examiner opined that while a deviated nasal septum/nasal fracture/or nasal surgery, may cause partial occlusion of the nasopharynx, which may lead to snoring, it does not result in occlusion of the entire oropharynx and, therefore, no total occlusion of the airway. The Board further indicated that in considering secondary service connection, it was unclear as to why the partial occlusion of the nasopharynx caused by the service-connected residuals of a broken nose did not amount to an aggravation of the Veteran's obstructive sleep apnea. A VA examination report dated in July 2021 shows that following examination of the Veteran, the examiner responded to the Board's inquiry by simply stating that there was no evidence of any signs or symptoms of obstructive sleep apnea during service. Unfortunately, once again, the examiner failed to address the specific questions posed by the Board in its June 2021 Remand. A remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. See Stegall, 11 Vet. App. at 271. VA has a duty to make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C. § 5103A(a); 38 C.F.R. § 3.159(c), (d). The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination by an examiner that has not previously examined the Veteran to determine the current nature and likely etiology of the asserted hypertension. The examiner is specifically directed to opine as to whether (a) it is at least as likely as not that the Veteran's diagnosed hypertension was caused (in whole or in part) by a service-connected disability, to specifically include PTSD; and (b) 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 a service-connected disability, to specifically include PTSD. In doing so, the examiner MUST elaborate on the January 2021 VA medical opinion that concedes the service-connected PTSD causes temporary elevations in blood pressure, and address why the ongoing increases in severity would not amount to aggravation of the disability. The examiner MUST also address the treatise evidence of record suggesting a relationship between anxiety and hypertension. The examiner MUST also consider the reference to an episode of elevated blood pressure due to alcohol withdrawal, and the significance, if any, that the service-connected PTSD had on the Veteran's alcohol abuse. If the diagnosed hypertension is aggravated by a service-connected disability, the examiner should also indicate, to the extent possible, the degree of such aggravation by identifying a baseline level of disability. The examiner is asked to review the Veteran's Board hearing testimony in conjunction with preparing the requested opinion. In providing the requested opinion, the clinician MUST consider the Veteran's reported injury and symptoms in service and thereafter, including the nature of his reported injury and the onset, progression and severity of his reported symptoms. If there is any medical reason to accept or reject the proposition that the Veteran's reported injury and 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 align with how the currently diagnosed disability is known to develop or are the Veteran's reports generally inconsistent with medical knowledge or implausible? If the examiner concludes that certain medical literature does not support a medical relationship, the examiner must specifically identify the referenced medical literature. If the examiner is unable to provide an opinion without resort to speculation, he or she should explain why this is so and what if any additional evidence would be necessary before an opinion could be rendered. 2. Schedule the Veteran for an examination by an examiner that has not previously examined the Veteran to determine the nature and etiology of the asserted obstructive sleep apnea. The examiner must opine whether the obstructive sleep apnea is at least as likely as not related to an in-service injury, event, or disease. In this regard, the examiner MUST consider the lay evidence of record supporting the Veteran's contentions that he had been snoring, gasping for breath, was short of breath, and exhibited shallow breathing during active service. The lay evidence in this case is not intended to render a diagnosis, but to rather demonstrate a cluster of symptoms manifested at that time, to be considered in conjunction with the ultimate diagnosis obstructive sleep apnea. The examiner MUST opine as to whether it is at least as likely as not that the demonstrated symptoms were either an early manifestation or prodromal to the ultimate diagnosis of obstructive sleep apnea. The examiner must also opine as to whether (a) it is at least as likely as not that the Veteran's diagnosed obstructive sleep apnea was caused (in whole or in part) by a service-connected disability, to specifically include the residuals of a broken nose; and (b) whether it is at least as likely as not that the Veteran's diagnosed obstructive sleep apnea is aggravated (made worse as shown by comparing the current disability to medical evidence created prior to any aggravation) by a service-connected disability, to specifically include the residuals of a broken nose. In doing so, the examiner MUST clarify why the partial occlusion of the nasopharynx caused by the service-connected residuals of a broken nose does not amount to an aggravation of the Veteran's obstructive sleep apnea. If the diagnosed obstructive sleep apnea is aggravated by a service-connected disability, the examiner should also indicate, to the extent possible, the degree of such aggravation by identifying a baseline level of disability. The examiner is directed to review the Veteran's Board hearing testimony in conjunction with preparing the requested opinion. In providing the requested opinion, the clinician MUST consider the Veteran's reported injury and symptoms in service and thereafter, including the nature of his reported injury and the onset, progression and severity of his reported symptoms. If there is any medical reason to accept or reject the proposition that the Veteran's reported injury and 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 align with how the currently diagnosed disability is known to develop or are the Veteran's reports generally inconsistent with medical knowledge or implausible? If the examiner concludes that certain medical literature does not support a medical relationship, the examiner must specifically identify the referenced medical literature. If the examiner is unable to provide an opinion without resort to speculation, he or she should explain why this is so and what if any additional evidence would be necessary before an opinion could be rendered. L. B. CRYAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Orfanoudis, 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.