Citation Nr: 21010919 Decision Date: 02/26/21 Archive Date: 02/26/21 DOCKET NO. 15-36 863 DATE: February 26, 2021 ORDER Entitlement to service connection for sleep apnea is granted. REMANDED Entitlement to service connection for a thyroid disability, to include as due to exposure to herbicide agents, is remanded. Entitlement to service connection for hypertension, to include as due to exposure to herbicide agents, is remanded. FINDING OF FACT Affording the Veteran the benefit of the doubt, he has a current diagnosis of sleep apnea that has been caused or permanently aggravated by his service-connected major depressive disorder with anxious distress. CONCLUSION OF LAW The criteria for entitlement to service connection for sleep apnea have been met.  38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1966 to July 1969. This case comes to the Board of Veterans’ Appeals (Board) from July 2014 and May 2015 rating decisions of the Department of Veterans Affairs (VA) Regional Office. In August 2018 and April 2020, the Board remanded the case for further development. Sleep Apnea The Veteran contends that he has sleep apnea that has been caused or aggravated by his service-connected major depressive disorder with anxious distress. Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service.  38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may also be granted for a disability that is proximately due to or the result of a service-connected disease or injury.  38 C.F.R. § 3.310(a).  This permits service connection not only for a disability caused by a service-connected disability, but also for the degree of disability resulting from aggravation of a disability by a service-connected disability.  See 38 C.F.R. § 3.310(b); Allen v. Brown, 7 Vet. App. 439, 448 (1995). The Board has reviewed all of the evidence of record and, affording the Veteran the benefit of the doubt, finds that there is probative medical evidence that indicates the Veteran has a current diagnosis of sleep apnea that has been aggravated by his service-connected major depressive disorder and anxious distress. The Veteran has submitted a September 2016 Disability Benefits Questionnaire from private physician H.S. He wrote that the Veteran had obstructive sleep apnea, and that his psychiatric symptoms caused him to be unable to wear a CPAP mask, and this aggravated the effects of his sleep apnea. The physician wrote that research has shown that psychiatric disorders are commonly associated with sleep apnea, and that it was his opinion that the Veteran’s depressive disorder aided in the development of, and permanently aggravated, his sleep apnea. The Veteran has also submitted a December 2020 medical evaluation opinion from private physician M.B. She wrote that it was her opinion that it was at least as likely as not that the Veteran’s major depressive disorder with anxious distress, as well as the medications used to treat this condition, had caused and continued to permanently aggravate his obstructive sleep apnea. She discussed the Veteran’s medical history in detail, and then explained that while obstructive sleep apnea is caused by narrowing of the respiratory passages, medical literature links depression as a cause of sleep apnea, and his medications could also cause and aggravate the sleep apnea. She wrote that he was unable to use a CPAP due to his mental symptoms, which prevented him from treating the sleep apnea as he should. The Board accepts that these medical opinions were written by competent medical professionals, and they are based on a reasonably accurate understanding of the facts and the Veteran’s history. The physicians provided adequate explanation for their findings, and the Board finds no reason to discount these opinions as not probative evidence. While the September 2020 VA opinion found that the Veteran’s sleep apnea was not at least as likely as not caused or aggravated by a service-connected disability, the Board accepts that the evidence is at least in equipoise regarding the etiology and aggravations of the Veteran’s sleep apnea. The Board therefore finds that there is reasonably adequate probative medical evidence indicating that the Veteran has sleep apnea which was permanently aggravated by his service-connected major depressive disorder and anxious distress, and the claim is granted. See 38 U.S.C. § 5107(b); Wise v. Shinseki, 26 Vet. App. 517, 531 (2014) (“By requiring only an ‘approximate balance of positive and negative evidence’ the Nation, ‘in recognition of our debt to our veterans,’ has ‘taken upon itself the risk of error’ in awarding... benefits.”). REASONS FOR REMAND Thyroid Disorder The Board also remanded this issue in April 2020 to obtain an addendum examination and opinion. The Board asked the examiner to opine whether it was as likely as not that a thyroid disorder was related to service, including due to exposure to herbicide agents. The Board noted that the rationale could not be solely based on the fact that hypertension was not listed as a presumptive disability for herbicide agent exposure, and then specifically stated that the “examiner should consider whether any diagnosed thyroid disability could be related to herbicide agent exposure.” The Veteran attended a VA examination in September 2020. He was diagnosed with hypothyroidism, which began in 2010. The examiner wrote that hypothyroidism was less likely than not incurred in or caused by service. As rationale, he wrote that the service treatment records did not contain any complaints or treatment of hypothyroidism. Unfortunately, the VA examiner did not follow the Board’s instruction, as his opinion did not address herbicide agents at all. A remand by the Board 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). This medical opinion did not address the Board’s question, which is necessary in order to properly adjudicate the claim, and it is again remanded in order to obtain an adequate opinion. See Barr v. Nicholson, 21 Vet. App. 303 (2007). Hypertension In April 2020, the Board remanded this issue in order to obtain a new VA medical examination and opinion on the etiology of the Veteran’s hypertension. The examiner was asked to discuss whether hypertension had its onset during or was caused by any incident in service, including exposure to herbicide agents. The Veteran attended a VA examination in September 2020. The examiner wrote that the Veteran had hypertension in service, but that it was not diagnosed until 2010. He wrote that it was less likely than not that any current hypertension had its onset during service or was related to service, to include exposure to herbicide agents. He wrote that the medical literature did not support that exposure to herbicide agents could cause hypertension, and the service treatment records did not contain any complaints or treatment for hypertension. While the examiner did at least acknowledge the Veteran’s assertions of exposure to herbicide agents in this opinion, the Board does not find that the rationale is adequate. First, the examiner appears to note that the Veteran had some hypertension in service, but he does not discuss where this finding came from or whether it could indicate that hypertension first manifested in service. Secondly, his rationale relies almost entirely on the statement that medical literature does not support that exposure to herbicide agents can cause hypertension as his rationale, but does not support this finding with any references to particular medical literature. The Board also finds this assertion puzzling, as there have been greatly publicized studies recently, including one conducted by VA, that indicate a possible correlation between herbicide agents and hypertension. The Board remands this issue so that a new medical opinion can be obtained. The matters are REMANDED for the following action: 1. Obtain an addendum medical opinion on the nature and etiology of the Veteran’s thyroid disorder from an examiner other than the examiner who performed the September 2020 VA examination. If the examiner finds that a new VA examination should be scheduled prior to providing such an opinion, schedule the Veteran for an examination.  The examination may be held via telehealth during social distancing restrictions and an opinion can be provided based on other medical evidence of record.  The examiner must be provided access to the Veteran’s entire claims file and must specify in the report that the claims file has been reviewed.    The examiner should then address:   For any thyroid disorder found, including hypothyroidism, is it as likely as not that the disorder either had its onset during service or is related to any event or injury in service, including due to the Veteran’s presumed exposure to herbicide agents? The examiner must discuss whether the Veteran’s thyroid disorder could have been caused or aggravated by exposure to herbicide agents, such as Agent Orange, and the rationale cannot be solely based on the absence of hypothyroidism on the list of diseases presumed to be related to herbicide agents. A complete and fully explanatory rationale must be provided for any opinion offered.  If any opinion cannot be rendered without resorting to speculation, the examiner must explain why.    2. Obtain an addendum medical opinion on the nature and etiology of the Veteran’s hypertension from an examiner other than the examiner who performed the September 2020 VA examination. If the examiner finds that a new VA examination should be scheduled prior to providing such an opinion, schedule the Veteran for an examination.  The examination may be held via telehealth during social distancing restrictions and an opinion can be provided based on other medical evidence of record.  The examiner must be provided access to the Veteran’s entire claims file and must specify in the report that the claims file has been reviewed.    The examiner should then address:   Is it as likely as not that the Veteran’s hypertension either had its onset during service or is related to any event or injury in service, including due to the Veteran’s presumed exposure to herbicide agents? The examiner must discuss whether the Veteran’s hypertension could have been caused or aggravated by exposure to herbicide agents, such as Agent Orange, and the rationale cannot be solely based on the absence of hypothyroidism on the list of diseases presumed to be related to herbicide agents. If medical literature is used as a basis for the opinion, please discuss what literature exactly is being used as a reference. A complete and fully explanatory rationale must be provided for any opinion offered.  If any opinion cannot be rendered without resorting to speculation, the examiner must explain why.    DELYVONNE M. WHITEHEAD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Mary E. Rude, 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.