Citation Nr: 21076785 Decision Date: 12/27/21 Archive Date: 12/27/21 DOCKET NO. 16-36 441 DATE: December 27, 2021 REMANDED Entitlement to service connection for obstructive sleep apnea (OSA) is remanded. Entitlement to service connection for hypertension is remanded. REASONS FOR REMAND The Veteran served on active duty from October 1990 to October 1993. This case comes before the Board of Veterans' Appeals (Board) on appeal from December 2014 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In August 2021, the Board remanded the appeal. 1. Entitlement to service connection for OSA 2. Entitlement to service connection for hypertension The Board regrets additional delay. However, to ensure that the VA has met its duty to assist, an additional remand is necessary. In remanding these matters, the Board makes no finding, implicit or otherwise, as to the credibility of the Veteran's assertions. Neither the Veteran's credibility nor any lack thereof should be presumed in this remand. In August 2021, the Board remanded the issues of entitlement to service connection for OSA and service connection for hypertension for, in part, addendum opinions on the etiology of the Veteran's claimed conditions. The Board finds the September 2021 VA medical opinion (VAMO) is inadequate for adjudicative purposes. First, the C&P Exam instructions provide an improper basis upon which to base an opinion regarding whether OSA is incurred in service (direct service connection). The August 2021 Board remand requested an opinion as to "whether OSA is at least as likely as not related to an in-service injury, event, or disease, including the in-service head injury." The September 2021 VAMO requested an opinion as to whether the claimed OSA is "at least as likely as not (50 percent or greater probability) incurred in or caused by the obstructive sleep apnea during service." See C&P Exam (September 2021). As the opinion is unresponsive to the Board request, it is inadequate. Second, the Board notes that the September 2021 VAMO does not provide separate opinions regarding secondary service connection for the Veteran's OSA and hypertension were not provided. The VAMO is inadequate because the negative conclusion is entirely predicated on a lack of medical literature in support of the Veteran's claim. The clinician does not discuss the literature in relation to any facts specific to this Veteran. See Bailey v. O'Rourke, 30 Vet. App.54, 60 (2018) (a medical rationale based solely on general medical literature without discussing the specific facts pertaining to a veteran's condition or individual circumstances is inadequate); Polovick v. Shinseki,23Vet. App.48, 54 (2009) (although general medical research may be considered, it cannot be the sole basis for examiner's conclusion). Additionally, the opinion is inadequate as it is entirely unresponsive to the questions of whether the Veteran's OSA and hypertension are aggravated beyond the natural progression by service-connected seizure disorder but instead reiterates the causation opinion. See El-Amin v. Shinseki,26 Vet. App. 136, 140-41(2013) (a medical opinion addressing secondary service connection must assess not only if the claimed disability was caused by the service-connected disability, but also if it was aggravated by that service-connected disability); see also Atencio v. O'Rourke,30 Vet. App. 74(2018). The opinion reflects that "OSA/HTN are not known to be aggravated by seizure," but again does not explain why this Veteran's claimed disorder, OSA and hypertension, are not aggravated by his service-connected seizures. Accordingly, addendum opinions are necessary to determine whether OSA is at least as likely as not caused by the Veteran's service to include his in-service head injury and whether OSA and hypertension are (i) proximately due to service-connected seizure disorder or (ii) aggravated beyond the natural progression by service-connected seizure disorder. The matters are REMANDED for the following action: 1. Obtain an addendum medical opinion to determine the nature and etiology of the Veteran's hypertension. The entire claims file, to include a copy of this REMAND, should be made available to and reviewed by the clinician. Based on review of the record, detail the Veteran's reported symptoms, including the nature, onset, progression, and severity of any symptom consistent with diagnosed hypertension. The clinician must directly respond to each of the requests below and opine on: (a.) Whether the Veteran's hypertension is at least as likely as not proximately due to or the result of service-connected seizure disorder; and (b.) Whether the Veteran's hypertension is at least as likely as not aggravated beyond the natural progression by service-connected seizure disorder. Aggravation need not be permanent in nature; it can be temporary or intermittent. If aggravation is found, the clinician should address the baseline manifestations of the disability found prior to aggravation and identify the specific increased manifestations found after aggravation. The opinion should identify and explain the relevance or significance, as appropriate, of any history, clinical findings, medical knowledge or literature, etc., relied upon in reaching the conclusion(s). NOTE (1): An adequate medical opinion may not be predicated solely on medical literature without discussing it in relation to facts specific to the Veteran. NOTE (2): Aggravation means any increase in severity beyond the natural progression; the worsening need not be permanent but must include some change in severity that is at least intermittent or recurring that is proximately due to or the result of the Veteran's service-connected disability. 2. Obtain a separate addendum medical opinion to determine the nature and etiology of the Veteran's OSA. The entire claims file, to include a copy of this REMAND, should be made available to and reviewed by the clinician. Based on review of the record, detail the Veteran's reported symptoms, including the nature, onset, progression, and severity of any symptom consistent with OSA. The clinician must directly respond to each of the requests below and opine on: Direct Service Connection: (a.) Whether OSA is at least as likely as not related to an in-service injury, event, or disease, including the in-service head injury. Secondary Service Connection: (b.) Whether OSA is at least as likely as not proximately due to or the result of service-connected seizure disorder. (c.) Whether OSA is at least as likely as not aggravated beyond its natural progression by service-connected seizure disorder. Aggravation need not be permanent in nature; it can be temporary or intermittent. If aggravation is found, the clinician should address the baseline manifestations of the disability found prior to aggravation and identify the specific increased manifestations found after aggravation. The opinions should also identify and explain the relevance or significance, as appropriate, of any history, clinical findings, medical knowledge or literature, etc., relied upon in reaching the conclusion(s). NOTE (1): A negative medical opinion may not be predicated solely on the absence of documented in-service complaints or findings. NOTE (2): If the clinician rejects any history (e.g., injury, symptoms in or since service, treatment, etc.), s/he must provide a full explanation. NOTE (3): An adequate medical opinion may not be predicated solely on medical literature without discussing it in relation to facts specific to the Veteran. 3. Ensure that the VA medical opinions obtained include a complete rationale for the conclusions reached. The medical opinions must support the conclusions reached with an analysis that is adequate for the Board to consider and weigh against other evidence of record; medical opinions must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. If an opinion cannot be expressed without resort to speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general 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 (does not have the knowledge or training). C.A. SKOW Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Edwards 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.