Citation Nr: 21024922 Decision Date: 04/26/21 Archive Date: 04/26/21 DOCKET NO. 14-21 554 DATE: April 26, 2021 REMANDED Entitlement to service connection for cardiac arrhythmia, to include as secondary to service-connected obstructive sleep apnea, is remanded. Entitlement to service connection for hypertension, to include as secondary to service-connected obstructive sleep apnea, is remanded. REASONS FOR REMAND The Veteran served on active duty in the U.S. Navy from May 1977 to May 1983. This case came before the Board of Veterans’ Appeals (Board) on appeal of an October 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. In March 2018, the Board reopened the Veteran’s claims for service connection for cardiac arrhythmia and hypertension and remanded the Veteran’s case to the Agency of Original Jurisdiction (AOJ) for additional development and due process considerations. The Board remanded the Veteran’s claims for additional development in April 2020. A supplemental statement of the case was most recently issued in August 2020. The case has since been returned to the Board for appellate review. The Board finds that a remand is necessary to obtain compliance with the April 2020 Board remand. Stegall v. West, 11 Vet. App. 268, 271 (1998). In the April 2020 remand, the Board noted that the October 2019 VA examiner opined that neither condition herein on appeal was directly related to service, or caused by his service-connected obstructive sleep apnea, but failed to adequately explain whether either condition was aggravated beyond its normal course of progression by obstructive sleep apnea. To the contrary, the VA examiner identified obstructive sleep apnea as a risk factor in the development of both conditions, and then failed to address adequately why that particular identified risk factor was being dismissed as a causative or aggravating factor in the Veteran’s particular case. The April 2020 Board remand the Board directed that the Veteran should be provided an additional VA examination, and that a new medical opinion should be obtained. Specifically, the Board noted that the new VA examinations must include an adequate medical opinion obtained as to etiology, to include a thorough and coherent discussion of whether obstructive sleep apnea constitutes a causative or aggravating factor with respect to the Veteran’s hypertension and/or cardiac arrhythmia. Pursuant to the April 2020 remand, the Veteran was afforded new VA examinations in July 2020. The contemporaneous medical opinions found that the Veteran’s cardiac arrhythmia and hypertension were not causally or etiologically related to the Veteran’s service, including any of the Veteran’s service-connected disabilities. Nevertheless, the July 2020 VA examiner failed to provide any rationale for his findings that the Veteran’s cardiac arrhythmia and hypertension were not attributable to his obstructive sleep apnea, nor aggravated by his obstructive sleep apnea; to the extent that the VA examiner relied on medical literature, he did not provide an explanation as to the discrepancies between the medical literature he relied on and the medical literature provided by the Veteran, which supports the existence of a nexus between his obstructive sleep apnea and his cardiac arrhythmia and hypertension. Likewise, the July 2020 VA examiner did not discuss the treatment records from Mid-Atlantic Cardiovascular Associates, which indicated that obstructive sleep apnea “ha[d] been identified as a potential marker combined with atrial fibrillation with the association identified in some research” or the October 2019 VA examiner’s acknowledgement that obstructive sleep apnea is a risk factor in the development of cardiac arrhythmia and hypertension. Moreover, the Board observes that, to the extent that the October 2019 VA examiner’s opinion that the Veteran’s obstructive sleep apnea was not a risk factor in the Veteran’s development of cardiac arrhythmia and hypertension, the VA examiner relied solely on an inaccurate chronology of diagnoses. In this regard, the Board observes that the October 2019 VA examiner found that the Veteran’s cardiac arrhythmia and hypertension are unrelated to his service, including as secondary to his service-connected obstructive sleep apnea, because there was no post-service diagnosis or treatment for the Veteran’s now service-connected obstructive sleep apnea until 2007, following the diagnoses of hypertension and cardiac arrhythmia in 2005. However, the Board observes that the Veteran was granted service connection for his obstructive sleep apnea on the basis that the Veteran’s insomnia and episodes of sleepiness in service were manifestations of his obstructive sleep apnea. As such, the date of onset of the Veteran’s obstructive sleep apnea was prior to the Veteran’s diagnoses of cardiac arrhythmia and hypertension. As such, on remand, the AOJ should obtain new VA medical opinions as to whether the Veteran’s cardiac arrhythmia and hypertension were caused or aggravated by the Veteran’s service-connected obstructive sleep apnea. These opinions must address the deficiencies of the October 2019 and July 2020 VA medical opinions. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (noting that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). See also McLendon v. Nicholson, 20 Vet. App. 79 (2006); 38 U.S.C. § 5103A(d)(1); 38 C.F.R. § 3.159(c)(4). VA adjudicators may consider only independent medical evidence to support their findings; they may not rely on their own unsubstantiated medical conclusions. If the medical evidence of record is insufficient, VA is always free to supplement the record by seeking an advisory opinion, or ordering a medical examination to support its ultimate conclusions. See Colvin v. Derwinski, 1 Vet. App. 171 (1991). The matters are REMANDED for the following action: 1. Contact the Veteran and request that he identify the names, addresses, and approximate dates of treatment for all VA and non-VA health care providers who have treated him for his claimed disabilities on appeal. The Veteran should be requested to sign any necessary authorization for release of medical records to VA, and appropriate steps should be made to obtain any identified records. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. If the records are unavailable, notify the Veteran in accordance with 38 C.F.R. § 3.159. 2. Then, obtain a VA medical opinion in order to determine the etiologies of his hypertension and cardiac arrhythmia. The claims file should be made available to the examiner for review in connection with the examination, and the VA examiner is requested to review all pertinent records associated with the claims file, and include discussion of the Veteran’s documented medical history and assertions, as well as the medical literature provided by the Veteran. For purposes of the medical opinion, the VA examiner must assume that the Veteran’s obstructive sleep apnea had onset prior to the Veteran’s cardiac arrhythmia and hypertension. For both diagnosed disorders, the examiner should state whether it is at least as likely as not (e.g. at least a 50 percent probability or greater) that the Veteran’s cardiac arrhythmia and/or hypertension began in service or is otherwise related to service. If it is determined that Veteran’s cardiac arrhythmia and/or hypertension is not directly related to service, the examiner must state whether it is at least as likely as not that the condition has been (a) caused by, or (b) aggravated (i.e., worsened) by the Veteran’s service-connected obstructive sleep apnea. If the examiner determines there has been aggravation, he or she should try and quantify the amount of additional disability the Veteran had, above and beyond that he had prior to the aggravation. A complete rationale, with specific reference to the relevant evidence of record, must accompany each opinion provided. The VA examiner must discuss with specificity the significance, if any, of the deficiencies discussed above, to include: the discrepancies between the medical literature relied on by the July 2020 VA examiner and the medical literature provided by the Veteran; the treatment records from Mid-Atlantic Cardiovascular Associates; and the October 2019 VA examiner’s acknowledgement that obstructive sleep apnea is a risk factor in the development of cardiac arrhythmia and hypertension. MARTIN B. PETERS Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Hallie E. Brokowsky, 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.