Citation Nr: 21008547 Decision Date: 02/17/21 Archive Date: 02/17/21 DOCKET NO. 15-31 179A DATE: February 17, 2021 REMANDED Entitlement to right lower extremity sciatica/radiculopathy, to include as secondary to the service-connected low back disability, is remanded. Entitlement to service connection for hypertension, to include as secondary to obstructive sleep apnea (OSA) or depression, is remanded. REASONS FOR REMAND The Veteran served on active duty from June 1977 to June 1981 and from November 1985 to August 1988. He had additional service in the United States Army Reserves. This matter comes on appeal before the Board of Veterans’ Appeals (Board) from a March 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). 1. Entitlement to right lower extremity sciatica/radiculopathy, to include as secondary to the service-connected low back disability, is remanded. Per the Board’s March 2020 remand, the Veteran was afforded another VA examination and an addendum medical opinion was provided in July 2020. Nevertheless, despite the Board’s clear directive that the addendum medical opinion be obtained from an orthopedist that had not yet rendered a medical opinion in the claim, the Veteran was again afforded an examination and medical opinion from a nurse practitioner. The nurse practitioner found that the Veteran did not meet the diagnostic criteria for right lower extremity radiculopathy during this examination, and because he did not have a current disability, found that it could not have onset or be otherwise related to service and could not be caused by or aggravated by the service-connected low back disability. However, the examiner failed to address the currently diagnosed right lower extremity radiculopathy/sciatica that was diagnosed during the appellate period. See, e.g., September 2012, December 2012, May 2013, July 2013, and October 2013 VA treatment records; see also Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). A Board remand confers on the claimant, as a matter of law, a right to compliance with the remand orders. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Thus, on remand, an addendum opinion must be obtained by a medical doctor to address the nature and etiology of the right lower extremity radiculopathy/sciatica, which has been diagnosed during the appellate period. 2. Entitlement to service connection for hypertension, to include as secondary to obstructive OSA or depression, is remanded. Per the Board’s March 2020 remand, the Veteran was afforded another VA examination and an addendum medical opinion was provided in July 2020. Nevertheless, despite the Board’s clear directive that the addendum medical opinion be obtained from an internist who had not yet rendered a medical opinion in the claim, the Veteran was again afforded an examination and medical opinion from a nurse practitioner. A Board remand confers on the claimant, as a matter of law, a right to compliance with the remand orders. See Stegall, 11 Vet. App. at 271. Thus, on remand, an addendum opinion should be obtained by an internist (internal medicine doctor) to address the nature and etiology of the hypertension, to include whether it is secondary to the service-connected OSA or depression. Additionally, the direct service connection medical opinion provided by the July 2020 VA examiner is inadequate in its current form. The examiner concluded it was less likely than not that the hypertension had onset during or was otherwise related to service because the Veteran was not diagnosed with or treated for hypertension during service. This opinion is inadequate because service connection is not precluded solely because the disability is not diagnosed during service. See Hensley v. Brown, 5 Vet. App. 15, 159 (1993); 38 C.F.R. § 3.303(d). Additionally, the Veteran contends that the hypertension disability was caused by or is aggravated by the service-connected OSA or depression. The July 2020 examiner concluded that the increase in the Veteran’s blood pressure was more likely due to his noncompliance with the prescribed blood pressure medications. Nevertheless, the examiner failed to fully explain why it was more likely that an increase in his blood pressure was more likely due to the medications and less likely due to the OSA. Finally, the examiner also concluded that the hypertension was not caused by the service-connected depression. However, as part of the rationale for why depression did not cause hypertension, the examiner cited two medical articles that seem to support that depression aggravates hypertension. See July 2020 VA examination (see, e.g., “Depression is common in patients with uncontrolled blood pressure and may interfere with blood pressure control;” and “Found that use of certain antidepressants is associate with both high and low diastolic and systolic blood pressures and hypertension.”) Both cited medical articles appear to support that depression aggravates hypertension. The examiner failed to explain a negative conclusion that hypertension is not aggravated by the service-connected depression. The July 2020 VA examiner also failed to discuss the medical articles of record submitted by the Veteran in support of his hypertension claim. On remand, additional VA medical opinions should be obtained to address these deficiencies. The matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment records and associate them with the claims file. 2. Obtain an addendum medical opinion from an orthopedist who has not previously rendered a medical opinion on this claim as to the nature and etiology of the right lower extremity sciatica/radiculopathy. Whether an additional physical examination is necessary is left to the examiner’s discretion. *A copy of the prior remands and this remand should be provided to the examiner, who must review them in their entirety. After a complete review of the claims file, the examiner should provide an opinion as to whether the previously diagnosed right lower extremity radiculopathy/sciatica was caused by or aggravated by the service-connected lumbar spine disability. See, e.g., September 2012, December 2012, May 2013, July 2013, and October 2013 VA treatment records. *The examiner is reminded that even if the Veteran did not show radicular/sciatica symptoms in the right lower extremity at the most recent VA examination, an etiology opinion must still be provided as the Veteran has been diagnosed with right lower extremity radiculopathy/sciatica during the appellate period. See Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). *The examination report must include a complete rationale for each conclusion. 3. Obtain an addendum medical opinion from an internal medicine doctor who has not previously rendered a medical opinion on this claim as to the nature and etiology of the hypertension disability, to include whether it is secondary to the service-connected OSA or depression. Whether an additional physical examination is necessary is left to the examiner’s discretion. *A copy of the prior remands and this one should be provided to the examiner, who must review them in their entirety. After a complete review of the claims file, the examiner should address the following: a) Provide an opinion as to whether the currently diagnosed hypertension had its onset during or is otherwise related to active service. *The examiner is reminded that service connection is not precluded solely because the currently diagnosed hypertension was not diagnosed or treated during service. b) Provide an opinion as to whether the currently diagnosed hypertension was caused by the service connected OSA and/or depression. c) Provide an opinion as to whether the currently diagnosed hypertension is aggravated by the OSA and/or depression. **The examiner must address the medical literature submitted by the Veteran in support of his claim and discuss the two cited studies in the March 2020 medical opinion (See, e.g., (i) https://www.ncbi.nlm.nih.gov/pmc/articles/PMC371649/ Depression is common in patients with uncontrolled hypertension and may interfere with blood pressure control; and (ii) https://www.ahajournals.org/doi/full/10.1161/hypertensionaha.108.126698 found that use of certain antidepressants is associated with both high diastolic and systolic blood pressures and hypertension.) d) If aggravation is found, the examiner must note the baseline level of severity of the hypertension prior to aggravation by the service-connected OSA or depression. *The examination report must include a complete rationale for each conclusion. 4. Readjudicate the claims on appeal. S. B. MAYS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Harper, 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.