Citation Nr: 21022865 Decision Date: 04/19/21 Archive Date: 04/19/21 DOCKET NO. 16-56 276 DATE: April 19, 2021 REMANDED Entitlement to service connection for hypertension (HTN), to include as secondary to service-connected obstructive sleep apnea (OSA) is remanded. REASONS FOR REMAND The Veteran served on active duty from July 1956 to July 1960. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2016 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned at a hearing in May 2018. The Board remanded this matter in August 2018, August 2020, and January 2021. The matter is now returned to the Board for further appellate review. In the February 2021 rating decision, the Agency of Original Jurisdiction (AOJ) granted service connection for coronary artery disease, claimed as heart problems, rated under Diagnostic Code 7005. The AOJ assigned a noncompensable rating effective June 09, 2015 and 60 percent from July 09, 2019. The Veteran has not submitted a notice of disagreement for these determinations. Therefore, the issue is not on appeal to the Board. See Grantham v. Brown, 114 F. 3d 1156, 1158 (Fed. Cir. 1997) (holding that a separate notice of disagreement must be filed to initiate appellate review of "downstream" elements such as the disability rating or effective date assigned). The Veteran’s service treatment records and most of his service personnel records are unavailable, as they were stored in the area of the National Personnel Records Center (NPRC) storage facility that was destroyed by fire in 1973. The United States Court of Appeals for Veterans Claims (Court) has held that when service treatment records are unavailable, the Board’s obligation to explain its findings and conclusions and to consider the benefit-of-the-doubt rule is heightened. See Cromer v. Nicholson, 19 Vet. App. 215, 217 (2005) (quoting O’Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). A remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand order. Stegall v. West, 11 Vet. App. 268, 271 (1998). In January 2021, the Board remanded the Veteran’s claim of service connection for HTN, to include as secondary to service-connected OSA, finding the October 2020 medical opinion of record to be inadequate. In the January 2021 decision, the Board, in part, requested the examiner address an August 2018 private medical opinion the Veteran submitted, which states his OSA is a potential source and clear contributor to his HTN. Although the January 2021 examiner listed the August 2018 private medical opinion as evidence considered, the examiner did not discuss the private medical opinion when formulating the January 2021 negative nexus opinion. Accordingly, a remand is necessary so that the Board may make a fully informed decision on the Veteran’s claim. The matter is REMANDED for the following action: Request an addendum to the January 2021 VA opinion addressing the etiology of the Veteran’s hypertension. The clinician is asked to opine if it is at least as likely as not (a degree of probability of 50 percent or higher) the Veteran’s hypertension is caused or aggravated by his service-connected OSA. In responding to this inquiry, the examiner must explicitly address the significance of the August 2018 private medical opinion that indicates the Veteran’s OSA is a potential source and clear contributor to his HTN. The clinician must provide a rationale for the proffered etiology opinion. The clinician should be advised that VA regulations do not require that the primary disability be diagnosed prior to the claimed secondary disability in order to establish entitlement to service connection on a secondary basis. Therefore, the rationale offered for any negative etiology opinion must go beyond simply noting that hypertension was diagnosed prior to OSA. If the author of the January 2021 opinion is unavailable, the addendum may be obtained from another clinician. M. HYLAND Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Zachery S.C. Luce, 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.