Citation Nr: 21006724 Decision Date: 02/05/21 Archive Date: 02/05/21 DOCKET NO. 14-21 614 DATE: February 5, 2021 REMANDED Entitlement to service connection for sleep apnea is remanded. Entitlement to service connection for hypertension is remanded. REASONS FOR REMAND The Veteran served on active duty from September 1966 to September 1968. The Veteran’s claims were remanded by the Board in September 2016 and January 2020. The issues have been returned to the Board for review. Concerning entitlement to service connection for sleep apnea, the Veteran was provided a VA examination in September 2020. The examiner opined that the Veteran’s sleep apnea was less likely than not cause by the claimed in-service injury, event, or illness; however, the rationale provided for this opinion is inadequate. The examiner noted the date that the Veteran separated from active service and the date that he was diagnosed with sleep apnea. Then, the examiner stated, therefore, his OSA obstructive sleep apnea is less likely as not caused by in service event. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (the probative value of a medical opinion comes from when there is factually accurate, fully articulated, and sound reasoning for the conclusion). The examiner did not report consideration of the Veteran’s reports that he has experienced symptoms of sleep apnea since the late 1960s or the Veteran’s statement in September 2012 that his wife had complained about his snoring immediately. The claims file reflects that the Veteran was married in February 1970. As such, the Board finds that a new medical opinion should be obtained that addresses the Veteran’s lay assertions. Regarding service connection for hypertension, the Board’s January 2020 remand requested that the VA examiner should consider that, while the Veteran’s diagnosis of hypertension predated his diagnosis of diabetes mellitus, that the Veteran made competent lay statements that he experienced diabetic symptoms since service and that medical records note the Veteran as having non-insulin-dependent diabetes mellitus since 2001. On remand, the Veteran was provided a VA examination in September 2020. The examiner provided a negative opinion regarding whether the Veteran’s hypertension was proximately due to or aggravated by his service-connected coronary artery disease. However, the examiner did not discuss any of the Veteran’s lay statements concerning his onset of diabetic symptoms. The examiner’s opinion does not comply with the January 2020 remand and a new opinion is required. See Stegall v. West, 11 Vet. App. 268 (1998). In addition, the Board notes that an April 2017 VA examiner provided an opinion concerning whether the Veteran’s hypertension as related to service. However, the examiner only noted that Veteran was exposed to Agent Orange, but stated “increased rates of cardiovascular risk factors such as obesity, dyslipidemia, tobacco use, and hypertension.” The Board find the reasoning inadequate and finds that a new opinion is required. The Board also takes judicial notice of the update in Veterans and Agent Orange: Update 11 (2018). The NAS found sufficient evidence of an association for hypertension and exposure to Agent Orange and other herbicides used during the Vietnam War. Hypertension was upgraded from its previous classification in the category of “limited or suggestive” evidence of an association to the category of “sufficient” evidence of an association. Thus, this evidence must be considered in the new VA opinion. Finally, the Board notes that the Veteran was never provided notice concerning the evidence required to substantiate a claim for secondary service connection. On remand, the Veteran should be provided the requisite notice. The matters are REMANDED for the following action: 1. Provide the Veteran appropriate notice concerning the evidence required to substantiate a claim for secondary service connection. 2. Schedule a VA examination with an appropriate clinician to determine the nature and etiology of the Veteran’s sleep apnea. The claims file must be provided to the examiner for review. All indicated tests and studies should be performed. Based on the examination and review of the record, the examiner should opine whether it is as least as likely as not (50 percent probability or more) that the Veteran’s sleep apnea had its onset during service is otherwise causally or etiologically related to service. The examiner is advised that the Veteran is competent to report symptoms and treatment, and that his reports must be taken into account in formulating the requested opinion. In doing so, the examiner must address the Veteran’s and his wife’s reports of longstanding snoring. Any opinions expressed must be accompanied by a complete rationale. 3. Schedule a VA examination with an appropriate clinician to determine the nature and etiology of the Veteran’s hypertension. The claims file must be provided to the examiner for review. All indicated tests and studies should be performed. Based on the examination and review of the record, the examiner should opine whether it is as least as likely as not (50 percent probability or more) that the Veteran’s hypertension had its onset during service is otherwise causally or etiologically related to service, including conceded exposure to herbicide agents. In doing so, the examiner must address the NAS 2018 Update wherein hypertension was moved from the “limited or suggestive evidence” category to the “sufficient evidence of an association” category. It is not sufficient to conclude that the Veteran's hypertension is not directly caused by herbicide exposure by stating that hypertension is not listed in VA regulations as presumptively service-connected. The examiner should also opine whether it is at least as likely as not that the Veteran’s hypertension was proximately due to or aggravated by service-connected diabetes mellitus. The examiner must address that, while the Veteran’s diagnosis of hypertension predates his diagnosis of diabetes mellitus, the Veteran has made competent lay statements that he experienced diabetic symptoms since service and that medical records note the Veteran as having non-insulin-dependent diabetes mellitus since 2001. (Continued on the next page)   The examiner is advised that the Veteran is competent to report symptoms and treatment, and that his reports must be taken into account in formulating the requested opinion. In doing so, the examiner must address the Veteran’s and his wife’s reports of longstanding snoring. Any opinions expressed must be accompanied by a complete rationale. Patrick M. Johnson Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Seay, 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.