Citation Nr: 21074823 Decision Date: 12/16/21 Archive Date: 12/16/21 DOCKET NO. 17-45 546 DATE: December 16, 2021 REMANDED Entitlement to service connection for hypertension is remanded. Entitlement to service connection for a heart condition is remanded. Entitlement to service connection for obstructive sleep apnea, to include as secondary to service-connected Posttraumatic Stress Disorder (PTSD) is remanded. REASONS FOR REMAND The Veteran served on active duty with the United States Navy from June 1987 to June 1991. He was then a member of the Air National Guard from February 1994 to January 2014. This service included numerous periods of active duty, including from September 2001 to December 2002; December 2004 to March 2005; January 2006 to April 2006; January 2008 to September 2008; and March 2012 to December 2012. This matter comes to the Board of Veterans' Appeals (Board) on appeal from November 2014 and December 2014 rating decisions by the Regional Office (RO) of the United States Department of Veterans Affairs (VA). The Veteran testified at a March 2020 hearing held before the undersigned Veterans Law Judge (VLJ) via videoconference. A transcript of the hearing is associated with the claims file. In April 2021, the Board remanded the issues for additional development and the matter is again before the Board. See Stegall v. West, 11 Vet. App. 268, 271 (1998). This matter originally included a claim for service connection for ischemic colitis and duodenal ulcer. In a July 2021 rating decision, the agency of original jurisdiction (AOJ) granted service connection for ischemic colitis with duodenitis and hiatal hernia. This represents a full grant of benefits as to these issues and as such they are no longer on appeal. A remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with 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). Where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. The Board finds that the Agency of Original Jurisdiction (AOJ) did not substantially comply with the April 2021 remand directives. As such, another remand is warranted. Hypertension The Veteran contends that he is entitled to service connection for hypertension due to Gulf War service in the Southwest Asia theater. The Veteran was afforded a VA hypertension examination in July 2021. The examiner noted that the Veteran's hypertension began while he was in service per the Veteran's report. She provided two different positive nexus opinions in July 2021, both of which were based on an understanding that the Veteran was on active duty in 2014. In the first opinion, she found that there was no evidence of hypertension prior to service and that both chronicity and a nexus had been established. She supported this by stating that the Veteran had retired from the Air National Guard in 2014, the service treatment records (STRs) showed high blood pressure in 2014, and the blood pressure continued to be high. The second opinion had the same language and rationale but included a statement that the hypertension was related to Southwest Asia service. In September 2021, the RO requested that the examiner address the deficiencies in the opinion, explaining that the Veteran was not on active duty in 2014 and that for service connection based on reserve or National Guard service, the disability must be the result of an injury during inactive duty for training or the result of a disease or injury during a period of active duty for training. In response to this, a different examiner stated that the previous response had been entered in error, finding that even though the Veteran had a current diagnosis of hypertension and treatment for the condition, there was no evidence or documentation to support a hypertension condition during service. This examiner concluded that the Veteran's record notes documentation of hypertension found in 2014 while he was not in service, and therefore, a nexus could not be established. The same rationale was provided regarding Southwest Asia Service. The examiner based her positive nexus opinions on an incorrect understanding of the Veteran's active-duty status. The examiner who provided the negative nexus opinion failed to provide an adequate rationale and did not consider that the Veteran was afforded a diagnosis for hypertension in 2010, in between periods of active-duty service. As such, remand is warranted to obtain an adequate medical opinion considering whether the Veteran's hypertension is related to active duty or a period of active duty for training, to include any Southwest Asia service. Additionally, although the Veteran's claims file includes numerous personnel documents, it does not appear that there is documentation of periods of inactive duty for training or active duty for training. Attempts should be made to obtain these records. Heart Condition The Veteran contends that he is entitled to service connection for a heart condition due to Gulf War service in the Southwest Asia theater. The Veteran was afforded a VA heart conditions examination in July 2021 and was afforded a diagnosis of hypertensive heart disease. She provided a positive nexus opinion, citing that the Veteran did not have issues related to the heart condition prior to service, the current diagnosis of hypertensive heart disease was related to the heart condition during service, that there was evidence of chronicity and that a nexus to service had been established. In support of this, she copied verbatim the evidence provided in the April 2021 Board remand summarizing the history of the Veteran's heart condition, while also including a final sentence about the current findings. The RO provided the same clarifying information mentioned above regarding the Veteran's active-duty service. The examiner gave the same response that was provided for the hypertension issue, noting that while the Veteran has a current heart condition, there is no evidence/documentation to support a heart condition during time of service. The Veteran's records note documentation of the heart condition found while not in service, therefore, a nexus cannot be established. The same rationale was provided regarding a connection to Southwest Asia service. Again, the examiner failed to provide an appropriate rationale, giving conclusory statements, and restating the evidence rather than providing an explanation. Remand is warranted to obtain an adequate medical opinion considering whether the Veteran's heart condition is related to active duty, or a period of active duty for training, to include any Southwest Asia service. As noted in the prior Board remand, the Veteran has a history of various medical findings concerning his heart. December 2003 private treatment records reveal a heart murmur and March 2004 National Guard records show abnormal electrocardiogram results. March 2010 private records report electrocardiogram results showing changes consistent with ischemia and/or left ventricular hypertrophy, believed to be secondary to hypertensive heart disease. Left ventricular hypertrophy was also identified in an electrocardiogram performed in January 2012. Accordingly, the examiner must consider these prior findings in providing a rationale. Sleep Apnea The Veteran contends that he is entitled to service connection for sleep apnea, to include as secondary to his service-connected PTSD. During the March 2020 Board hearing, the Veteran recalled that while he was training in Texas, his bunkmates teased him about his snoring. The Veteran was afforded a VA sleep apnea examination in July 2021. The examiner provided a positive opinion for direct service connection, noting that the Veteran had no issues related to obstructive sleep apnea prior to service, the current diagnosis was related to in-service events, and that the lay statements regarding in-service symptoms of snoring had been considered. She stated that there was evidence of chronicity and that a nexus had been established. She supported these conclusions by indicating that the Veteran had been tested for sleep apnea while in service prior to retirement in 2014 and that he currently receives treatment for sleep apnea. She found that it was less likely than not that the Veteran's service-connected PTSD caused his sleep apnea, noting that there was no evidence to support the relationship. She provided the same conclusion regarding aggravation related to PTSD. In another opinion from July 2021, the examiner provided a similar rationale regarding direct service connection for sleep apnea but clarified that the Veteran underwent a sleep study showing obstructive sleep apnea while in service on October 23, 2014. She acknowledged that the Veteran retired from the Air National Guard in 2014, and that his last active-duty period was in 2012. She concluded that obstructive sleep apnea was directly related to service as its onset was in service. Just as with the other two issues, after receiving the RO's statement clarifying the nature of the Veteran's active-duty status during 2014, the new examiner provided an opposing opinion. She opined that, while there was a current diagnosis for sleep apnea, there was no evidence/documentation to support a sleep apnea condition during time of service. The Veteran's records note documentation of sleep apnea found while not in service in 2014, therefore, a nexus could not be established. Accordingly, a new nexus opinion must be obtained considering whether the Veteran's sleep apnea is related to active-duty service, active duty for training, and/or inactive duty for training. The matters are REMANDED for the following action: 1. Request all service personnel records from the Mississippi Air National Guard and verify any periods of active duty for training and inactive duty for training. 2. Schedule the Veteran for a VA hypertension examination; the claims folder must be reviewed in conjunction with such. The examiner must opine as to whether the Veteran's hypertension is at least as likely as not related to active service, including active duty for training and annual training, and/or injury during inactive duty training, as well as Southwest Asia service. A full and complete rationale is required for all opinions expressed. 3. Schedule the Veteran for a VA heart conditions examination; the claims folder must be reviewed in conjunction with such. The examiner must opine as to whether the Veteran's hypertensive heart disease, and any other identified heart condition, is at least as likely as not related to active service, including active duty for training and annual training, and/or injury during inactive duty training, as well as Southwest Asia service. The examiner must consider the prior findings, including the December 2003 heart murmur, the March 2004, March 2010, and January 2012 electrocardiogram results in rendering an opinion. A full and complete rationale is required for all opinions expressed. 4. Schedule the Veteran for a VA sleep apnea examination; the claims folder must be reviewed in conjunction with such. The examiner must opine as to whether the Veteran's sleep apnea is at least as likely as not related to active service, including active duty for training and annual training, and/or injury during inactive duty training, or alternatively, to any service-connected disability, including PTSD. The Veteran's lay statements regarding snoring during a period of training must be considered. A full and complete rationale is required for all opinions expressed. 5. Then, readjudicate the claims on appeal. If the benefits sought remain denied, issue a supplemental statement of the case, and then return the matter to the Board, if otherwise in order. WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S.P. Faris 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.