Citation Nr: 21023175 Decision Date: 04/20/21 Archive Date: 04/20/21 DOCKET NO. 19-00 423 DATE: April 20, 2021 ORDER Entitlement to service connection for obstructive sleep apnea as secondary to an acquired psychiatric disorder is granted. Entitlement to service connection for hypertension as secondary to an acquired psychiatric disorder is granted. Entitlement to service connection for a kidney disorder as secondary to an acquired psychiatric disorder is granted. REMANDED Entitlement to service connection for coronary artery disease (CAD) is remanded. Entitlement to service connection for Type II diabetes mellitus is remanded. Entitlement to service connection for a liver disorder is remanded. Entitlement to service connection for erectile dysfunction is remanded. FINDINGS OF FACT 1. The Veteran’s diagnosed obstructive sleep apnea was aggravated by his service-connected acquired psychiatric disorder. 2. The Veteran’s diagnosed hypertension was aggravated by his service-connected acquired psychiatric disorder. 3. The Veteran’s diagnosed chronic kidney disease was aggravated by his service-connected acquired psychiatric disorder. CONCLUSIONS OF LAW 1. The criteria for service connection for obstructive sleep apnea as secondary to a service-connected acquired psychiatric disorder are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. 2. The criteria for service connection for hypertension as secondary to a service-connected acquired psychiatric disorder are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. 3. The criteria for service connection for a kidney disorder as secondary to a service-connected acquired psychiatric disorder are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1961 to October 1965. In a July 2019 decision, the Board denied the claim of service connection for obstructive sleep apnea. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court). In a December 2020 Order, the Court vacated and remanded that portion of the Board decision that denied service connection for obstructive sleep apnea. The claims of service connection for coronary artery disease, Type II diabetes mellitus, erectile dysfunction and a kidney disorder were also previously before the Board in July 2019, at which time the issues were remanded to conduct additional evidentiary development. For the reasons stated below, there has not been substantial compliance with the remand directives, and another remand is required. Stegall v. West, 11 Vet. App. 268 (1998). SERVICE CONNECTION Service connection may be granted for a disability resulting from disease or injury incurred or aggravated during active military service. 38 U.S.C. § 1131. Generally, service connection requires (1) the existence of a present disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Service connection may also be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310 (a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists, and (2) that the current disability was either (a) proximately caused or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439 (1995). 1. Entitlement to service connection for obstructive sleep apnea The Veteran asserts that his obstructive sleep apnea has been aggravated by his now service-connected acquired psychiatric disorder. The Board finds that the Veteran’s claim is warranted. Service connection is granted. VA treatment records show that he has been diagnosed with sleep apnea. In March 2019, the Veteran submitted a private examination report which noted a diagnosis of obstructive sleep apnea. The private examiner stated that based on a review of the record and interview with the Veteran, it was more likely than not that the Veteran’s major depressive disorder “caused and continues to permanently aggravate” his obstructive sleep apnea. In support of this conclusion, the examiner stated that research has shown that psychiatric disorders are commonly associated with obstructive sleep apnea, and a recent study found that subjects with depressions had a higher prevalence of sleep apnea. The examiner further stated that the Veteran reported he frequently could not use his CPAP machine because it made him feel claustrophobic. The examiner stated that the Veteran’s reports were a common problem for patients who had both psychiatric issues and sleep apnea. Upon review of the record, the Board finds the evidence to at least be in equipoise as to whether the Veteran’s obstructive sleep apnea is aggravated by his service-connected acquired psychiatric disorder. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection is warranted. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 3.310. 2. Entitlement to service connection for hypertension. 3. Entitlement to service connection for a kidney disorder. The Veteran asserts that his hypertension and chronic kidney disease have each been aggravated by his service-connected acquired psychiatric disorder. The Board finds that the Veteran’s claims are warranted. Service connection is granted. VA treatment records show that he has been diagnosed with both hypertension and chronic kidney disease. In March 2019, the Veteran submitted an opinion from a private examiner who concluded based on a review of the record and interview with the Veteran that it was more likely than not that the Veteran’s hypertension and major depressive disorder aided in the development and permanently aggravated his hypertension and chronic kidney disease. In support of this conclusion, the examiner stated that anxiety and depression can cause overactive nerve activity, dysfunctional immune response, and activation of the hormone system that controls blood pressure. The constant long-term stress from symptoms such as depression increases blood pressure by increasing the heart rate, constricting blood vessels, and damaging the heart. The examiner further stated that the high blood pressure damages the circulatory system, notably the smaller vessels which are present in high concentrations in the kidneys. The circulatory damage leads to blockage in parts of the kidney which, over time, deprive oxygen rich blood and cause kidney tissue to die. The tissue loss decreases the kidneys’ ability to process and excrete waste products from the body, leading to chronic kidney disease or renal insufficiency. Once the kidneys are damaged, their ability to control the production and discharge of an enzyme that regulates blood pressure is reduced. At that point, both hypertension and renal disease comorbidly aggravate each other leading to a more severe decline in health. Upon review of the record, the Board finds the evidence to at least be in equipoise as to whether the Veteran’s hypertension and chronic kidney disease is aggravated by his service-connected acquired psychiatric disorder. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection is warranted. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 3.310. REASONS FOR REMAND 1. Entitlement to service connection for CAD is remanded. 2. Entitlement to service connection for Type II diabetes mellitus is remanded. The Board previously remanded these issues to undertake development necessary to verify the Veteran’s reports of traveling to Vietnam while stationed in Korea in 1965. This development was not accomplished. Remand is again needed to attempt to verify the Veteran’s described exposure to herbicide agents while stationed at Osan Air Base in Korea from October 1964 to October 1965. Remand is also needed to obtain VA opinions addressing the Veteran’s contention that his CAD and diabetes were aggravated by his now service-connected hypertension. The Veteran submitted a February 2019 letter from a private examiner which opined that it was more likely than not that the Veteran’s hypertension permanently aggravated his CAD and diabetes. However, the examiner provided an inadequate rationale to support his opinion, referring to medical research showing a relationship between diabetes and hypertension without explaining how he believed the Veteran’s hypertension caused or aggravated his diabetes. The examiner similarly failed to explain how he believed hypertension aggravated the Veteran’s CAD. 3. Entitlement to service connection for a liver disorder is remanded. 4. Entitlement to service connection for erectile dysfunction is remanded. As noted in the July 2019 Board remand, there is medical evidence in the Veteran’s claims folder which suggests a relationship between the above two conditions and his service connection claim for Type II diabetes mellitus. As such, these issues are intertwined with the diabetes claim currently on appeal. Harris v. Derwinski, 1 Vet. App. 180 (1991). Therefore, further consideration of these issues must be deferred. The matters are REMANDED for the following action: 1. Take any appropriate steps to attempt to verify the Veteran’s described exposure to herbicide agents while he was stationed at Osan Air Base in Korea from October 1964 to October 1965. The Veteran reported during the December 2011 VA examination that while he was stationed in Korea in 1965, he went to Da Nang in Vietnam approximately 12 to 14 times to deliver supplies and soldiers. The Veteran recalled being on the ground for 6 to 8 hours. 2. Obtain addendum opinions from an appropriate clinician on the likely etiology of the Veteran’s diagnosed coronary artery disease and Type II diabetes mellitus. Copies of all pertinent records must be made available to the examiner for review. The examiner must answer the following questions: 3. Is it at least as likely as not that the Veteran’s diagnosed coronary artery disease is (i) caused or (ii) aggravated by (defined as any increase in disability) any service-connected disabilities, to include hypertension? 4. Is it at least as likely as not that the Veteran’s Type II diabetes mellitus is (i) caused or (ii) aggravated by (defined as any increase in disability) any service-connected disabilities, to include hypertension? 5. Confirm that the VA medical opinions provided comport with this remand, specifically that the standard for the secondary aggravation opinion is any increase in disability, not the standard of beyond the natural progression as noted on the examination form itself. If not, get an addendum. (Continued on the next page) 6. After the above development, and any additionally indicated development, has been completed, readjudicate the issues on appeal, including the inextricably intertwined issues of entitlement to service connection for a liver disorder and erectile dysfunction. M. E. Larkin Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Jack S. Komperda, 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.