Citation Nr: 21015420 Decision Date: 03/17/21 Archive Date: 03/17/21 DOCKET NO. 09-32 593 DATE: March 17, 2021 REMANDED Entitlement to service connection for hypertension, to include as secondary to sinusitis and/or service-connected sleep apnea, is remanded. Entitlement to service connection for sinusitis, to include as secondary to hypertension and/or service-connected sleep apnea, is remanded. Entitlement to service connection for bilateral hearing loss. REASONS FOR REMAND The Veteran served on active duty from September 1978 to December 1982, with subsequent service with the National Guard and Reserves. This case comes before the Board of Veterans’ Appeals (Board) on appeal from rating decisions of the Department of Veteran Affairs (VA) Regional Office (RO). The Veteran testified regarding these issues on appeal at two separate hearings before two different Veterans Law Judges (VLJs) in August 2017 and November 2020. When an appellant has had a personal hearing before two separate VLJs and these hearings cover one or more common issues, a third VLJ is assigned to the panel after the second board hearing has been held and the appeal is then ready for appellate review. As there have been two hearings by two separate VLJs on the issues on appeal, a panel decision is normally necessary for final adjudication of the claim. See Arneson v. Shinseki, 24 Vet. App. 379 (2011). Here, at the November 2020 hearing, the Veteran waived his right to a third hearing. These claims were previously before the Board in July 2014, when they were denied. The Veteran appealed that determination to the United States Court of Appeals for Veterans Claims (Court). In a November 2016 Order, the Court granted a joint motion for partial remand, vacated the Board’s July 2014 decision, and remanded the issues to the Board. In June 2017, the Board remanded these issues to afford the Veteran a hearing. In April 2018, the Board granted service connection for sleep apnea, and remanded the present claims for further development. That development was completed, and the case has since been returned to the Board for appellate review. Remand is required for substantial compliance with the April 2018 remand directives. The Board is obligated by law to ensure that the RO complies with its directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). RO compliance with remand directives is not optional or discretionary and the Board errs as a matter of law when it fails to ensure remand compliance. Stegall, 11 Vet. App. at 271. The April 2018 remand instructed the RO to obtain all outstanding VA treatment records, to ask the Veteran to identify and authorize to release outstanding private treatment records (PTRs), and to provide the Veteran with VA examinations for the claims herein. Additional VA treatment records were successfully added to the claims file in April 2018 and May 2019. Although some PTRs were successfully added to the claims file in July 2019, others remain to be yet obtained. Next, remand is required for addendum VA medical opinions. Where VA provides the Veteran with an examination in a service connection claim, the examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). When a Veteran has provided competent lay statements of an in-service injury, the examiner must consider and address them when developing his rationale. Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007). A medical opinion based upon an inaccurate factual premise has no probative value. Reonal v. Brown, 5 Vet. App. 458, 461 (1993). A medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). Generally, a medical opinion should address the appropriate theories of entitlement. Stefl v. Nicholson, 21 Vet. App. 120, 123-24 (2007). The requirement for service connection that there be a current disability is satisfied when the disability is shown at the time of the claim or during the pendency of the claim, even though the disability subsequently resolves. McClain v. Nicholson, 21 Vet. App. 319 (2007). Hypertension Regarding the claim for service connection for hypertension, the Veteran underwent a VA examination in July 2019 where the examiner provided a negative nexus opinion, namely that hypertension was not related to the Veteran’s active military service. The examiner explained that isolated blood pressure readings approximately one year apart during service do not warrant a diagnosis of hypertension, and that private records from October 1998 indicate no history of hypertension. However, the examiner failed to address an August 1988 note indicating a long history of elevated blood pressure, and September 2008 VA treatment records indicating hypertension since he was 19 years old. In terms of whether the Veteran had a “current disability” for VA disability compensation purposes, the examiner stated that the Veteran’s current blood pressure readings were within normal range; however, that does not necessarily preclude the Veteran from service connection for hypertension. September 2019 PTRs demonstrate systolic pressure at 160 for example. As such, the examiner should make a medical finding as to whether any evidence of elevated blood pressure during the course of the appeal is sufficient for purposes of diagnosing hypertension. The examiner also stated that there is no evidence that the hypertension is aggravated by sinusitis or service-connected sleep apnea; however, the examiner failed to address causation, or provide any supporting rationale. Secondary service connection under 38 C.F.R. § 3.310 contemplates but causation and aggravation by a service-connected disability. The examiner also failed to address the 2012 medical opinions, and the lay statements, as directed in the April 2018 remand. In July 2012, MT, a certified nurse practitioner, submitted a letter indicating a link between OSA, cardiovascular disease, and hypertension. The nurse practitioner also cited medical literature indicating that sleep apnea is a contributing factor to high blood pressure. The record also contains a June 2012 letter from a VA physician, Dr. ABT, stating that it is his medical opinion that the Veteran had hypertension while in service based on the Veteran’s reserves blood pressure readings. Here, the examiner issued an addendum opinion in March 2020, merely duplicating their July 2019 opinion, and stating that their opinion remained unchanged. Also, the Board notes that in September 2019 and August 2020 statements, and at the November 2020 Board hearing, the Veteran’s representative cited several additional studies linking sleep apnea and hypertension. None of these studies are included in the claims file, and therefore VA does not have constructive possession of them. While on remand, the RO should attempt to retrieve them. Accordingly, remand is required for an addendum VA medical opinion for hypertension. Sinusitis Regarding the claim for sinusitis, the Veteran underwent a VA examination in December 2019 where the examiner provided a negative nexus opinion. The examiner explained that although service records show multiple instances of allergic rhinitis, there is no evidence of chronic sinusitis; however, they did not provide any other supporting rationale. The examiner also failed to provide an opinion on a secondary basis, or address the Board hearing testimony, any of the lay statements, or the July 2012 medical opinion, as directed in the April 2018 remand The Veteran underwent a new VA medical examination in March 2020 where the examiner provided a negative nexus opinion. The examiner explained that the Veteran reported having symptoms as a child and that he was not diagnosed with sinusitis until he was an adult. However, given the absence of the Veteran’s complete service records and after considering the lay history as described by the Veteran, the Board finds that the Veteran entered active duty service without a sinus disability and is presumed sound. The examiner also stated that sinusitis and rhinitis are more likely than not due to atopy, which is largely a result of one’s genetic makeup. Although this opinion addressed causation, the examiner did not address any in-service aggravation. The examiner also failed to address service connection secondary to hypertension, the Board hearing testimony, the lay statements, or the July 2012 medical opinion. In an April 2020 addendum medical opinion, the examiner provided a negative nexus opinion on a secondary basis because sleep apnea and hypertension are not well-established risk factors for the aggravation of sinusitis, but failed to provide any other supporting rationale. The examiner again did not address the Board hearing testimony, the lay statements, or the July 2012 medical opinion. Finally, in a May 2020 addendum medical opinion, the examiner stated that they reviewed the Board hearing testimony, the lay statements, and the July 2012 medical opinion, but that they do not change their prior medical opinions. The Board finds that merely noting that they reviewed these records does not adequately address them. Accordingly, remand is required for an addendum VA medical opinion for sinusitis. Hearing Loss Regarding the claim for bilateral hearing loss, the Veteran underwent a VA examination in October 2019 where the examiner provided a negative nexus opinion. The examiner explained that despite lay statements regarding noise exposure to loud noise in service, there was no significant decrease in hearing acuity or in subsequent tests in 1985 and 1988. The examiner stated that they largely based their opinion on the 2005 IOM report “Noise and Military Service: Implications for Hearing Loss and Tinnitus.” Where an examiner relies upon this report in providing a negative nexus opinion, they must address the qualifying or contradictory findings regarding delayed-onset hearing loss in that report. McCray v. Wilkie, 31 Vet. App. 243, 249 (2019). The examiner did not do that here. The examiner also failed to address the August 2017 Board hearing testimony from the Veteran’s wife, as directed by the April 2018 Board remand. Finally, remand is required to obtain missing private treatment records. VA’s duty to assist claimants to obtain evidence needed to substantiate a claim includes making reasonable efforts to obtain relevant private medical records. 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159(c). In June 2019, the Veteran submitted VA Form 21-4142a identifying and authorizing for release medical records from Franciscan Medical Clinic, Kaiser San Diego Medical Center, Scripps Clinic Medical Group, and UW Medical Center. Records from all but UW Medical Center were added to the claims file in June and July 2019. A careful review of the claims file reveals that the RO made no attempts to retrieve these records. Accordingly, remand is required to attempt to obtain these records. The matters are REMANDED for the following action: 1. Contact the Veteran and his representative and ask them to submit the relevant studies referenced in the July 2012 private medical opinion, the July 2019 and August 2020 statements, and November 2020 Board hearing. All information obtained must be made part of the file. All attempts to secure this evidence must be documented in the claims file, and if, after making reasonable efforts to obtain named records, they are not able to be secured, provide the required notice and opportunity to respond to the Veteran and his representative. 2. Using the existing June 2019 VA Form 21-4142a General Release for Medical Provider Information identifying and authorizing for release records from UW Medical Center, obtain and associate with the claims file all outstanding records from UW Medical Center. Contact the Veteran and afford him the opportunity to identify by name, address and dates of treatment or examination any relevant medical records. Subsequently, and after securing the proper authorizations where necessary, make arrangements to obtain all the records of treatment or examination from all the sources listed by the Veteran which are not already on file. All information obtained must be made part of the file. All attempts to secure this evidence must be documented in the claims file, and if, after making reasonable efforts to obtain named records, they are not able to be secured, provide the required notice and opportunity to respond to the Veteran and his representative. 3. After any additional records are associated with the claims file, obtain an addendum opinion regarding the etiology of the hypertension from a VA examiner. The entire claims file must be made available to and be reviewed by the examiner. If an examination is deemed necessary, it shall be provided. An explanation for all opinions expressed must be provided. The examiner is reminded that the bulk of the Veteran’s active duty service treatment records have been determined to be unavailable due to no fault of his own. Therefore, the examiner must carefully consider the Veteran’s credibly reported medical history in rendering the requested opinions. The examiner is reminded that service connection may be possible even if the condition has resolved itself, provided that the Veteran had a diagnosis for hypertension at any point during the appeal period. (a) The examiner must provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that the hypertension had onset in, or is otherwise related to, active service. (b) The examiner must also provide an opinion whether it is at least as likely as not (50 percent or greater probability) that the hypertension is caused by the service-connected sleep apnea. (c) The examiner must also provide an opinion whether it is at least as likely as not (50 percent or greater probability) that the hypertension is aggravated by the service-connected sleep apnea. (d) The examiner must also provide an opinion whether it is at least as likely as not (50 percent or greater probability) that the hypertension is caused by the sinusitis. (e) The examiner must also provide an opinion whether it is at least as likely as not (50 percent or greater probability) that the hypertension is aggravated by the sinusitis. The examiner must consider the following: 1) the June 2012 letter by Dr. ABT; 2) the July 2012 letter by MT; 3) August 2017 Board hearing transcript; 4) the Veteran’s wife’s lay statements; 5) the fellow-service-member’s lay statement; 6) the August 1988 service treatment records indicating a long history of elevated blood pressure; 7) any research articles submitted by the Veteran or his representative; and 8) the November 2020 Board hearing testimony. 4. After any additional records are associated with the claims file, obtain an addendum opinion regarding the etiology of the sinusitis from a VA examiner. The entire claims file must be made available to and be reviewed by the examiner. If an examination is deemed necessary, it shall be provided. An explanation for all opinions expressed must be provided. The examiner is reminded that the bulk of the Veteran’s active duty service treatment records have been determined to be unavailable due to no fault of his own and as such, he is presumed to have not entered active service with a then-current sinusitis disability. Therefore, the examiner must carefully consider the Veteran’s credibly reported medical history in rendering the requested opinions. (a) The examiner must provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that the sinusitis had onset in, or is otherwise related to, active service. (b) The examiner must also provide an opinion whether it is at least as likely as not (50 percent or greater probability) that the sinusitis is caused by the service-connected sleep apnea. (c) The examiner must also provide an opinion whether it is at least as likely as not (50 percent or greater probability) that the sinusitis is aggravated by the service-connected sleep apnea. (d) The examiner must also provide an opinion whether it is at least as likely as not (50 percent or greater probability) that the sinusitis is caused by the hypertension. (e) The examiner must also provide an opinion whether it is at least as likely as not (50 percent or greater probability) that the sinusitis is aggravated by the hypertension. The examiner must consider the following: 1) a January 2007 private treatment record noting allergic rhinitis and chronic sinusitis; 2) the August 2017 Board hearing transcript; 3) STRs dated in 1985 and 1986; 4) the November 2011 and July 2012 Veteran’s wife’s lay statements; 5) an August 2017 fellow service-member’s lay statement; 6) the July 2012 letter by MT; and 7) the November 2020 Board hearing testimony. 5. After any additional records are associated with the claims file, obtain an addendum opinion regarding the etiology of the bilateral hearing loss from a VA examiner. The entire claims file must be made available to and be reviewed by the examiner. If an examination is deemed necessary, it shall be provided. An explanation for all opinions expressed must be provided. The examiner is reminded that the bulk of the Veteran’s active duty service treatment records have been determined to be unavailable due to no fault of his own. Therefore, the examiner must carefully consider the Veteran’s credibly reported medical history in rendering the requested opinions. (a) The examiner must provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that the bilateral hearing loss had onset in, or is otherwise related to, active service. (b) The examiner must also provide an opinion whether it is at least as likely as not (50 percent or greater probability) that the bilateral hearing loss is caused by the service-connected sleep apnea. (c) The examiner must also provide an opinion whether it is at least as likely as not (50 percent or greater probability) that the bilateral hearing loss is aggravated by the service-connected sleep apnea. The examiner must consider the following: 1) the Veteran’s lay statements particularly his August 2017 Board testimony where he reported being exposed to firearms and grenades, and worked with high frequency equipment and generators for 12 hour shifts and did not use ear protection; 2) the 2007 VA examination report; 3) the post-active duty STRs dated in November 1985 and August 1988; 4) a 2009 private audiology opinion that the hearing loss was possibly due to service; and 5) the November 2020 Board hearing testimony. The examiner is advised that the absence of in-service evidence of a hearing disability is not always fatal to a service connection claim. Evidence of a current hearing loss disability and a medically sound basis for attributing that disability to service may serve as a basis for a grant of service connection for hearing loss where there is credible evidence of acoustic trauma due to significant noise exposure in service, post-service audiometric findings meeting the regulatory requirements for hearing loss disability for VA purposes, and a medically sound basis upon which to attribute the post-service findings to the injury in service. Noting that hearing loss did not manifest in service as the sole basis for forming a negative nexus opinion, without additional explanation, is not adequate. In formulating a negative medical opinion, if relying to any extent upon the IOM study, the examiner must (a) identify the medical text’s qualifying or contradictory aspects (i.e. there is not sufficient evidence from longitudinal studies in laboratory animals or humans to determine whether permanent noise-induced hearing loss can develop much later in one’s lifetime, long after the cessation of that noise exposure); and (b) explain why the examiner found the contradictory aspects or conclusions in the IOM study to be less persuasive in this Veteran’s case as to the question of whether delayed onset hearing loss is as likely as not etiologically related to conceded in-service noise exposure, acoustic trauma. K. MILLIKAN Veterans Law Judge Board of Veterans’ Appeals KRISTI L. GUNN Veterans Law Judge Board of Veterans’ Appeals TBD To Be Determined Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Rogos 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.