Citation Nr: 21012878 Decision Date: 03/05/21 Archive Date: 03/05/21 DOCKET NO. 15-04 059A DATE: March 5, 2021 ORDER Service connection for hypertension (to include as secondary to service-connected tinnitus) is denied. REMANDED Service connection for obstructive sleep apnea (OSA) as secondary to service-connected tinnitus is remanded. Service connection for a sinus condition (to include allergic rhinitis) is remanded. Service connection for a dental condition for treatment purposes is remanded. FINDING OF FACT The preponderance of the competent medical evidence of record weighs against finding that the Veteran’s hypertension is causally related to his service or a service-connected disability. CONCLUSION OF LAW The criteria for service connection for hypertension have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.103, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Army from September 1977 to September 1980. This matter is before the Board of Veterans Appeals (Board) on appeal from an August 2013 rating decision. The Board previously considered and remanded these issues in May 2018 and April 2020. With respect to Board’s April 2020 remand directives regarding the Veteran’s service connection for hypertension claim only, the Board finds that there has been substantial compliance with those remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with its remand instructions, and imposes upon VA a concomitant duty to insure compliance with the terms of the remand); see also D’Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only substantial rather than strict compliance with the Board’s remand directives is required under Stegall). Service Connection Legal Criteria Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. To establish service connection for a disability, the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). The absence of any one element will result in denial of service connection. Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Finally, a disability which is proximately due to or the result of a service-connected disease, or is aggravated by a service-connected disability, shall be service connected. When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. 38 C.F.R. § 3.310. In Ward v. Wilkie, the U.S. Court of Veterans Appeals for Veterans Claims (the Court) held that “aggravation” with respect to secondary service connection is warranted for “any incremental increase in disability any additional impairment of earning capacity in non-service-connected disabilities resulting from service-connected conditions... regardless of its permanence.” 31 Vet. App. 233 (2019). Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159 (a)(1). Competent lay evidence is any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159 (a)(2). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). A layperson is generally not capable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183, 186 (1997). See also Bostain v. West, 11 Vet. App. 124, 127 (1998). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. 1. Service connection for hypertension (to include as secondary to service-connected tinnitus) Factual Background & Analysis The Veteran claims that his hypertension had its onset in November 2009 and is causally related to his OSA due to an inability to sleep properly. Medical treatment records document ongoing treatment for hypertension. Particularly, recent October 2018 progress notes from Sunflower Clinic show elevated blood pressure readings and a diagnosis for hypertension. The July 2019 VA examiner explained that the Veteran’s hypertension was more likely related to his family history of hypertension and personal history of obesity and less likely due to tinnitus or OSA. However, the examiner did not provide a rationale explaining why the Veteran’s hypertension was less likely than not aggravated by his service-connected tinnitus, particularly in light of the Veteran’s report that his blood pressure fluctuates with his tinnitus symptoms. The matter was remanded by the Board in April 2020 for an addendum VA medical opinion. The May 2020 VA medical addendum opinion states that it is less likely than not that the Veteran’s hypertension was aggravated by service-connected tinnitus. The examiner explained that there is pathophysiological link between tinnitus and the development of hypertension; therefore, hypertension was not aggravated by service-connected tinnitus. The Board first finds that service connection for hypertension on a direct service connection basis is not warranted. There is no evidence of hypertensive blood pressure readings during the Veteran’s period of active service and the Veteran has not contended that this disability or its symptoms had their onset during his service. Regarding aggravation of the Veteran’s hypertension by his service-connected tinnitus, the May 2020 VA medical examiner explained that, based on his medical expertise and training, that there exists no pathophysiological link between tinnitus and the development of hypertension. There have been no medical opinions or otherwise competent medical evidence submitted by the Veteran which suggest a causal relationship between hypertension and his service or service-connected tinnitus. Consequently, while the Veteran’s lay statements posit an etiological connection between his hypertension and his service or his service-connected tinnitus, his lay statements alone are not adequate to meet the nexus requirement (a causal link) to substantiate a finding of service connection. This determination is medically complex and requires specialized medical training and expertise which the Veteran has not demonstrated he possesses. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). The Board therefore gives more probative weight to the July 2019 and May 2020 VA examiners’ opinions which were authored by medical professionals who are competent to provide such opinions based on their education, training, or experience. In sum, the preponderance of the competent medical evidence weighs against finding that the elements of service connection for hypertension have been met. Consequently, as the preponderance of the evidence weighs against the claim, the benefit of the doubt rule is inapplicable, and the claim must be denied. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102, 3.309, 3.310; Gilbert, 1 Vet. App. at 55-57. REASONS FOR REMAND 2. Service connection for OSA as secondary to service-connected tinnitus The Veteran contends that he has OSA that began in January 2010 and is causally related to his tinnitus. Following a July 2012 VA examination, the examiner opined that the Veteran’s OSA is less likely than not proximately due to or the result of tinnitus. The examiner explained that OSA is a common disorder caused by anatomical variations in the craniofacial features and/or neck, obesity, alcohol use, and supine sleeping position (among other things) that can exacerbate OSA. Moreover, tinnitus does not cause OSA. The examiner did not address the “aggravation” prong regarding a secondary service connection theory of entitlement. A May 2018 Board remand mandated an addendum VA medical opinion addressing the aggravation prong of the Veteran’s claim for secondary service connection. A July 2019 VA medical opinion was obtained but the examiner failed to provide a rationale for their conclusion that OSA was less likely than not aggravated by service-connected tinnitus. This matter was again remanded by the Board in April 2020 for an addendum VA medical opinion addressing the aggravation prong of the Veteran’s claim for secondary service connection. The May 2020 VA medical opinion merely contains a rationale explaining why direct service connection is not warranted, noting that the Veteran’s symptoms of snoring and sleepiness during service are insufficient to establish direct service connection. Because the issue of aggravation was not addressed, the Board’s April 2020 remand directives were not substantially complied with and this matter must again be remanded for an addendum VA medical opinion. Stegall v. West, 11 Vet. App. 268 (1998). 3. Service connection for a sinus condition (to include allergic rhinitis) A July 2019 VA medical opinion contained a negative nexus finding stating that the evidence did not show that the Veteran suffered from chronic rather than acute sinusitis. The Board determined in its April 2020 remand that the record also shows a current diagnosis of allergic rhinitis which may correlated with the Veteran’s lay reports of problems breathing and a runny nose during service and treatment with Zyrtec and Singulair shortly after service. The Board remanded this claim for a VA medical opinion addressing whether allergic rhinitis had its onset during service or was otherwise related to service, to include consideration of the Veteran’s lay reports of symptoms during service and post-service treatment and a detailed rationale for all conclusions. The subsequent May 2020 VA medical opinion offered a negative nexus finding (less likely than not that disability was related to service) and merely stated as a rationale that the Veteran’s STRs don’t contain a diagnosis for allergic rhinitis during service. Lack of evidence cannot be treated as substantive negative evidence. In other words, reliance on the lack of medical evidence, especially without consideration of lay statements, is an inadequate rationale. The Court has held that the mere absence of evidence does not equate to unfavorable evidence. See Forshey v. Principi, 284 F.3d 1335, 1358 (Fed. Cir. 2002) (en banc) (cautioning that negative evidence, meaning actual evidence weighing against a party, must not be equated with the absence of substantive evidence); see also Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007) (holding that an examination must consider lay evidence of in-service incurrence or continuity of symptomatology since service). Consequently, the Board finds that its April 2020 remand directives were not substantially complied with and this matter must be remanded for an addendum VA medical opinion that addresses all the evidence of record, including the Veteran’s lay statements. Stegall v. West, 11 Vet. App. 268 (1998). 4. Service connection for a dental condition for treatment purposes is remanded The Board regrets the additional delay in properly adjudicating the Veteran’s claim for a dental condition for treatment purposes, but this matter must again be remanded. In the April 2020 Board remand, the Board directed the Agency of Original Jurisdiction (AOJ) to refer the dental treatment claim for adjudication at the appropriate VA medical center pursuant to 38 C.F.R. § 17.161. The record does not appear to contain an indication of a decision from the VA medical center on the issue of entitlement to dental treatment. As the AOJ failed to obtain a decision on dental treatment, remand is required to ensure compliance with the Board’s prior remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). The matters are REMANDED for the following action: 1. Obtain updated VA and/or private treatment records to the extent possible. If such records are unavailable, the Veteran’s claims file must be clearly documented to that effect and the Veteran notified in accordance with 38 C.F.R. § 3.159 (e). 2. Once the above has been completed to the extent possible, obtain addendum medical opinions regarding the etiology of the Veteran’s OSA and any sinus conditions. The claims file must be reviewed, and a notation made on the examination report that the claims file was reviewed. Only schedule examinations (or telehealth interviews, if in-person examinations are not feasible) if they are necessary for rendering the requested opinions. Based on a review of the evidence of record, and new examinations if necessary, the examiner is to address the following: (a.) Whether it is at least likely as not (a 50 percent or greater probability) that the Veteran’s OSA was aggravated (any incremental increase in disability any additional impairment of earning capacity beyond its normal progression, regardless of permanence) by his service-connected tinnitus. The opinion MUST include a discussion of the Veteran’s lay reports that his sleep is interrupted by his tinnitus. (b.) Whether it is at least likely as not (a 50 percent or greater probability) that the Veteran’s allergic rhinitis had its onset in service or is otherwise related to service. The expert MUST consider all relevant medical and lay evidence, including the Veteran’s reports of problems breathing and runny nose in service and treatment with Zyrtec and Singulair shortly after service. All opinions MUST BE SUPPORTED BY DETAILED RATIONALE. If the opinion cannot be provided without resort to speculation, the expert should explain why, and state whether the inability is due to the absence of evidence or limits of scientific/medical knowledge. 3. The Veteran’s dental claim MUST be referred to the appropriate VA medical center for consideration of service connection for treatment purposes, to include promulgation of a Form 10-7131 if applicable. An indication of such must be associated with the record. Jennifer White Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Kyle McKone 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.