Citation Nr: 21022433 Decision Date: 04/15/21 Archive Date: 04/15/21 DOCKET NO. 18-55 290 DATE: April 15, 2021 REMANDED Entitlement to service connection for residuals of stroke, secondary to service-connected hypertension, is remanded. Entitlement to service connection for obstructive sleep apnea (OSA), to include as secondary to residuals of stroke or service-connected hypertension, is remanded. REASONS FOR REMAND The Veteran served on active duty from September 1979 to June 2003. This appeal comes to the Board of Veterans’ Appeals (Board) from a Department of Veterans Affairs (VA) July 2016 rating decision of the Agency of Original Jurisdiction (AOJ). In an August 2019 decision, the Board denied the instant claims. The Veteran appealed the Board’s decision to the U.S. Court of Appeals for Veterans Claims (Court). In July 2020 the Court pursuant to a Joint Motion for Remand (JMR), remanded the case for further action consistent with the JMR. In December 2020, pursuant to the JMR, the Board remanded the Veteran’s claims for additional development. A Board remand confers upon the appellant the right to compliance with that order. Stegall v. West, 11 Vet. App. 268, 271 (1998). Substantial compliance, rather than strict compliance, is required. D’Aries v. Peake, 22 Vet. App. 97, 105 (2008). After a review of the evidence added to the record in the time since the December 2020 remand, the Board finds that, for the reasons discussed below, there has not been substantial compliance with the Board’s remand. While the Board regrets the additional delay, a further remand is required for the AOJ to properly develop the Veteran’s claims as directed. Entitlement to service connection for residuals of stroke, secondary to service-connected hypertension is remanded. The Veteran asserts that his 2015 stroke, and the residuals he experiences from the stroke, are secondary to his service-connected hypertension. However, the etiology of a condition such as a stroke is a complex determination that can only be made by medical professional. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In June 2016 a VA examiner found that the Veteran’s stroke was less likely than not caused by, or due to, the Veteran’s hypertension. Rather, the examiner found that hypertension is “not an accepted cause” for the development of the type of stroke the Veteran experienced. In July 2017 the Veteran submitted a statement from Dr. T., a non-VA physician treating the Veteran. Dr. T. stated that the Veteran’s stroke “was caused by his history of hypertension.” However, as has been discussed in prior Board decisions, Dr. T.’s statement is conclusory and is insufficient for adjudication purposes. In July 2020 the Court found that the Board erred by not obtaining a VA examination to address the Veteran’s private medical records. In the agreed upon JMR, the Court ordered that the Board “must obtain a new opinion, in which the examiner addresses [the Veteran’s] private medical records.” Shortly after the Court remand, the Veteran submitted a statement from Dr. D., another non-VA physician treating the Veteran. Dr. D. noted that while the VA examiner’s rationale has merit, “it is equally possible” that the Veteran’s stroke “could have been caused” by conditions “brought on by long-standing uncontrolled hypertension.” Despite this equivocal language, Dr. D. concluded that “it is more likely than not that [the Veteran’s] stroke was due to an acute atherosclerotic plaque rupture that was caused by his service-connected uncontrolled hypertension and that [the Veteran’s] service-connected hypertension was caused by underlying OSA which directly led to his stroke. In turn, the stroke worsened his OSA.” In the December 2020 Board remand, the directives stated that the examiner is to “specifically consider and reconcile” the Veteran’s private treatment records, including but not limited to: treatment records from Santa Rosa Hospital from April 2015; the June 2016 VA examiner’s opinion; the June 2017 medical opinion from Dr. T., M.D.; and an October 2020 opinion from Dr. D., M.D. In January 2021, pursuant to the Board’s December 2020 remand, an addendum opinion regarding the Veteran’s stroke was obtained. The examiner initially did not address the private medical records, and found that while “no etiology for the stroke has been determined,” it was “less likely than not” that the Veteran’s stroke was due to his hypertension. The reason given by the January 2021 examiner is the same as the reason given in the June 2016 VA examination. In another addendum opinion from February 2021, the same examiner stated that the private medical records were “ALL reviewed in the efolder before the opinion was made. The opinion stands” (emphasis in original). However, the Board finds that the January/February 2021 examiner failed to “specifically consider and reconcile” the Veteran’s private medical records. A one-sentence acknowledgement of their existence does not equate to adequately explaining their findings in light of the fact Drs. T. and D. came to different conclusions. The Board notes that while Dr. T.’s opinion was, admittedly, conclusory, Dr. D. provided a detailed rationale explaining why “it is equally possible” the Veteran’s hypertension caused his stroke instead of the rationale put forward by the June 2016 (and by extension the January 2021) VA examination. As the January 2021 examiner noted, “no etiology for the stroke has been determined,” and to dismiss an etiological opinion such as Dr. D.’s without detailed discussion is a failure of VA’s duty to assist. As the AOJ failed to procure a VA examination that complies with the July 2020 JMR and the December 2020 Board remand directives, the Board finds that there has not been substantial compliance with the December 2020 remand. Stegall v. West, 11 Vet. App. 268, 271 (1998); D’Aries v. Peake, 22 Vet. App. 97, 105 (2008). While the Board regrets the additional delay, further remand is necessary to allow the Veteran to fully develop his claim. 1. Entitlement to service connection for obstructive sleep apnea, to include as secondary to residuals of stroke or secondary to service-connected hypertension is remanded. The Veteran claims that his OSA is secondary to his stroke and the residuals of the stroke, and alternatively, has claimed that it is secondary to his service-connected hypertension. In his December 2018 VA Form 9, the Veteran stated that since his stroke he has experienced trouble sleeping. The Veteran further reported that his non-VA physician told him OSA can be caused by strokes and the residuals thereof. However, at present, the residuals of the Veteran’s stroke have not yet been found to be service connected. The Board has remanded the Veteran’s claim of entitlement to service connection for the residuals of his stroke, and as such it is possible that the Veteran’s condition will be found to be service connected. Therefore, the Board finds that the issue of the Veteran’s claim for entitlement to service connection for his OSA is inextricably intertwined with the adjudication of his claim for service connection for his residuals of his stroke. Harris v. Derwinski, 1 Vet. App. 180 (1991) (holding two issues are “inextricably intertwined” when they are so closely tied together that a final decision on one issue cannot be rendered until a decision on the other issue has been rendered). The matters are REMANDED for the following action: 1. The AOJ shall obtain an addendum opinion from a qualified clinician (preferably a clinician with expertise in cerebrovascular disease) to determine the nature and etiology of the Veteran’s 2015 stroke. The examiner shall be provided with a copy of the Veteran’s claims file, as well as a copy of these remand directives. The examiner must provide the following medical opinion: (a.) Whether it is as least as likely as not (50 percent chance or greater) that the Veteran’s 2015 stroke was proximately due to or aggravated by his service-connected hypertension. The examiner must specifically address and reconcile the opinions of Drs. T. and D., with particular emphasis on Dr. D.’s rationale that it is “equally possible” that the Veteran’s stroke was due to hypertension. A full rationale for the requested opinions must be provided. If the examiner cannot provide the required opinions without resorting to mere speculation, they must explain why that is the case. 2. Only once the above development has been completed shall the AOJ readjudicate the Veteran’s claim for entitlement to service connection for obstructive sleep apnea. S. L. Kennedy Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Neville, 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.