Citation Nr: 21022684 Decision Date: 04/19/21 Archive Date: 04/19/21 DOCKET NO. 14-41 197 DATE: April 19, 2021 REMANDED An initial compensable rating for hypertension is remanded. Service connection for sleep apnea is remanded. REASONS FOR REMAND The Veteran had active service in the U.S. Army from July 1989 to July 1993, July 2004 to October 2005, January 2010 to January 2011, and January 2014 to September 2015. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2012 rating decision. In March 2019, the Board denied the claim for a compensable rating for hypertension and remanded the claim for service connection for sleep apnea. The Veteran appealed the denial of his hypertension claim to the U.S. Court of Appeals for Veterans Claims (Court). Pursuant to a Joint Motion for Remand (JMR) filed by the parties, the Court remanded that issue back to the Board in June 2020.   Hypertension The June 2020 JMR directed the Board to consider whether staged ratings were appropriate for the Veteran’s hypertension. However, additional evidence related to this claim was received after the Board’s March 2019 decision. This evidence was generated by VA, and therefore it must be reviewed by the Agency of Original Jurisdiction (AOJ) in the first instance, absent any waiver of such review by the Veteran. As the claim is being remanded, the Veteran’s updated VA treatment records should be obtained. Sleep apnea The Veteran had a current diagnosis of sleep apnea, and submitted credible evidence establishing the presence of snoring, pauses in breathing, and daytime drowsiness during deployments in 2004 and 2010. The Board previously remanded the issue to obtain a VA opinion regarding the relationship, if any, between the Veteran’s current diagnosis and these symptoms in service. That opinion was obtained in October 2019. The examiner concluded that sleep apnea was not related to service. He explained that while it was not possible to determine the exact onset of sleep apnea, it generally developed slowly over time as a result of genetic propensity, age, and obesity. Because active duty improved health and reduced weight, it most likely developed during the Veteran’s non-active duty time. The Veteran’s first period of service ended in July 1993. At the time of his separation, he weighed 143 pounds. By the start of his second period of service in July 2004, when snoring and other symptoms in service were reported, he weighed 177 pounds. To the extent that the VA examiner indicated that obesity is a factor in the development of sleep apnea, this weight gain during the interval between service periods generally supports the examiner’s conclusion that sleep apnea developed during non-active duty prior to July 2004. However, every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C. § 1111. Because sleep apnea was not noted in 2004 at the start of his second period of service, the Veteran is presumed to have been in sound condition at that time. In such instances, the burden falls to the government to demonstrate by clear and unmistakable evidence that (a) the condition preexisted service and (b) the preexisting condition was not aggravated by service. Horn v. Shinseki, 25 Vet. App. 231, 234 (2012). “Clear and unmistakable evidence” is an “onerous” evidentiary standard, requiring that the preexistence of a condition and the no-aggravation result be “undebatable.” Cotant v. Principi, 17 Vet. App. 116, 131 (2003). In this case, while the VA examiner opined that the Veteran’s sleep apnea “most likely” developed during his non-active duty time, a supplemental opinion is necessary to address whether it is “undebatable” that sleep apnea preexisted service in July 2004 and was not aggravated by service. The matters are REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records for the period from December 2020 through the present. 2. Obtain an addendum opinion from an appropriate clinician regarding whether it is “undebatable” that the Veteran’s sleep apnea existed prior to his period of active service beginning in July 2004. If it is undebatable that sleep apnea existed prior to service in July 2004, the clinician should also provide an opinion whether it is undebatable that sleep apnea was not aggravated by periods of active service of July 2004 to October 2005; January 2010 to January 2011; or January 2014 to September 2015. JOHN Z. JONES Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Shamil Patel, 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.