Citation Nr: 21022424 Decision Date: 04/15/21 Archive Date: 04/15/21 DOCKET NO. 17-39 748A DATE: April 15, 2021 REMANDED Entitlement to service connection for hypertension, to include as secondary to service-connected obstructive sleep apnea with reactive airway disease (sleep apnea), type II diabetes mellitus (diabetes), and nephropathy, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Navy from July 1980 to July 2004. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2015 rating decision issued by a Department of Veterans Affairs (VA) regional office. In a May 2019 decision, the Board denied the Veteran’s appeal of the denial of entitlement to service connection for hypertension, to include as secondary to service-connected sleep apnea, and entitlement to an earlier effective date for the assignment of a 50 percent rating for sleep apnea. The Veteran appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (Court). In an April 2020 decision, the Court granted a Joint Motion for Partial Remand (JMPR) and remanded the issue of entitlement to service connection for hypertension secondary to service-connected obstructive sleep apnea (OSA) for further proceedings. Specifically, the parties of the JMPR agreed that the April 2017 VA medical opinion was based on an inaccurate factual premise and, therefore, a new opinion was required. Additionally, the Veteran agreed to abandon his claim of entitlement to an earlier effective date for the assignment of a 50 percent rating for sleep apnea, as well as his claim of entitlement to service connection for hypertension on a direct basis. In October 2020, the Board remanded the matter for additional development. As an initial matter, the Board notes that VA is required to consider all theories of entitlement to VA benefits that are either raised by the claimant or raised by the record. See Schroder v. West, 212 F.3d 1265, 1271 (Fed. Cir. 2000); Robinson v. Mansfield, 21 Vet. App. 545, 553 (2008). Here, the Veteran, through his representative, has argued that his hypertension is secondary to his service-connected sleep apnea, diabetes, and nephropathy; the representative cited several articles indicating such a relationship. See March 2021 Appellate Brief. Additionally, the October 2020 VA examiner noted that renal disease is known to aggravate existing hypertension. See October 2020 VA Medical Opinion Disability Benefits Questionnaire (DBQ). Accordingly, the Board finds it appropriate to recharacterize the Veteran’s claim as one of entitlement to service connection for hypertension, to include as secondary to service-connected sleep apnea, diabetes, and nephropathy. Entitlement to service connection for hypertension, to include as secondary to service-connected sleep apnea, diabetes, and nephropathy, is remanded. The Board regrets the delay associated with this remand. However, based on a review of the evidence of record, the Board finds that a remand is necessary to allow the Agency of Original Jurisdiction (AOJ) to conduct additional development. First, a remand is warranted as the evidence indicates that there may be relevant private medical records, of which VA is aware, that are not associated with the electronic claims file. Specifically, the claims file indicates that the Veteran has received treatment from Kaiser Permanente. See Kaiser Permanente records, received May 2015. However, aside from personal health summary, which identified current medications and lab results from March 2007 through April 2015, no records relating to such treatment have been associated with the claims file, nor is there any indication that such records have been requested. As such, a remand is necessary to allow the AOJ to obtain pertinent private medical records. See 38 U.S.C. § 5103(a)(1), (b)(1); Ivey v. Derwinski, 2 Vet. App. 320, 323 (1992). Second, a remand is necessary to obtain an adequate opinion regarding the etiology of the Veteran’s hypertension. In October 2020, a VA medical opinion was obtained, without an examination, in which the examiner opined that the Veteran’s hypertension was less likely than not aggravated beyond its natural progression by a service-connected condition. In support of this opinion, the examiner stated that the Veteran is only on one medicine with good control and an aggravated hypertensive condition would be manifest by a need for additional medicine or worsening control, neither of which were present. See October 2020 VA Medical Opinion DBQ. However, the question is not whether the Veteran’s hypertension was aggravated beyond its natural progression by a service-connected condition, but whether his hypertension underwent an incremental increase, regardless of permanence, due to a service-connected condition. See Ward v. Wilkie, 31 Vet. App. 233, 240-41 (2019). As the examiner applied the wrong standard, the Board finds the October 2020 opinion to be inadequate for adjudication purposes. Additionally, as discussed above, potentially pertinent private medical records have not been associated with the claims file. As such, the October 2020 opinion is inadequate to the extent the examiner was unable to consider the Veteran’s prior medical history. See Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). For these reasons, the Board finds the October 2020 opinion to be inadequate for adjudication purposes and, therefore, a remand is necessary to obtain an adequate opinion regarding the etiology of the Veteran’s hypertension. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Accordingly, the matter is REMANDED for the following action: 1. With the Veteran’s assistance as appropriate, obtain and associate with the electronic claims file any pertinent medical records, whether VA or private, including records relating to treatment from Kaiser Permanente, as well as the entirety of records relating to treatment at San Diego VA Medical Center (VAMC). Pursuant to 38 C.F.R. § 3.159(e), any efforts to secure these records MUST be documented in the electronic claims file, and the Veteran MUST be informed if any of these records are unable to be secured. 2. The Board recognizes the potential practical difficulties in scheduling an examination in light of the COVID-19 pandemic and requests flexibility and understanding in affording the Veteran any warranted examination. 3. After completing the development above, and any additional development warranted by the record, return this matter to the October 2020 examiner and obtain an addendum opinion regarding aggravation of the Veteran’s hypertension. The entire claims file must be provided to, and reviewed by, the examiner. If the examiner determines it to be necessary, or if the October 2020 examiner is unavailable, an examination should be scheduled and any indicated tests, studies, or evaluations should be performed. The examiner is asked to: (a.) If an examination is conducted, obtain the Veteran’s detailed lay history, including onset and progression of symptomatology. (b.) Provide the following opinions: i. Whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran’s hypertension is caused by a service-connected condition, to include sleep apnea, diabetes, and nephropathy. ii. Whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran’s hypertension UNDERWENT AN INCREMENTAL INCREASE (AGGRAVATED), REGARDLESS OF PERMANENCE, due to a service-connected condition, to include sleep apnea, diabetes, and nephropathy. (c.) In formulating the requested opinions, the examiner is instructed to explicitly consider and address the articles cited in the March 2021 Appellate Brief. • The term incremental increase in disability means additional impairment of earning capacity. Objective measurement, or numerical quantification, is not required to ascertain an increase in disability. Moreover, any incremental increase in disability need not be permanent. • The term at least as likely as not does not mean within the realm of medical possibility. Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of the conclusion (e.g., etiology) as it is to find against the conclusion. • Any opinion expressed by the examiner should be accompanied by a complete rationale. If medical literature is relied upon in rendering a determination, the examiner should identify and specifically cite each reference material utilized. If the examiner is unable to offer an opinion without resort to speculation, a thorough explanation as to why an opinion cannot be rendered should be provided. 4. The AOJ must review the claims file and ensure that the foregoing development action has been completed in full. If any development action is incomplete, the appropriate corrective action must be implemented. If any report or opinion does not include adequate responses to specific opinions requested, it must be returned to the providing examiner for corrective action. YVETTE R. WHITE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. T. Martin III, Associate 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.