Citation Nr: 21040063 Decision Date: 07/02/21 Archive Date: 07/02/21 DOCKET NO. 15-37 508 DATE: July 2, 2021 REMANDED Entitlement to service connection for hypertension is remanded. Entitlement to service connection for obstructive sleep apnea is remanded. REASONS FOR REMAND The Veteran served on active duty from January 1977 to July 1990 and from October 1990 to May 1997. These matters come before the Board of Veterans' Appeals (Board) on appeal from an April 2014 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). These issues were previously before the Board in September 2018 and July 2020 when they were remanded for further development. These issues were again remanded by the Board in March 2021 for further development. The Board found that addendum opinions were necessary regarding both the Veteran's hypertension and sleep apnea. As will be discussed below, there was not substantial compliance with the March 2021 remand directives and although the Board regrets the additional delay, another remand is necessary. See Stegall v. West, 11 Vet. App. 268 (1998). 1. Hypertension The March 2021 remand directives instructed that the Veteran be provided an addendum opinion to determine the etiology of the Veteran's hypertension. The examiner was instructed to provide an opinion as to whether it is at least as likely as not that the current hypertension had its clinical onset during active service or is related to any in service disease, event, or injury. The examiner was asked to reconcile the reported date of onset for the diagnosis of hypertension, which was listed as 1993 in the July 2019 VA examination. The examiner was also instructed to provide an opinion as to whether it is at least as likely as not that the current hypertension was proximately caused by a service-connected condition and whether it is at least as likely as not that the current hypertension was aggravated by a service-connected condition. The examiner was directed to give a rationale for all opinions. The Veteran was subsequently afforded a new VA medical opinion for his hypertension in May 2021. The examiner opined that the Veteran's poor lifestyle management, diet and family genetics caused his hypertension. However, just as in the July 2019 VA examination, the May 2021 VA medical opinion lists the date of diagnosis of hypertension as 1993. This would be during the Veteran's active duty service. However, the examiner opined that the Veteran's medical records do not support that any currently diagnosed conditions related to the Veteran's claimed hypertension is at least as likely as not (50 percent probability) incurred in or caused by high blood pressure during service. The examiner specifically stated that the Veteran's blood pressures pulled from reports of medical examinations from 1976 to 1993 were within normal limits by American Cardiac Association Standards. Despite the March 2021 remand directives, the examiner did not clarify whether there is any indication on review of the service treatment records that hypertension had its onset in service. Specifically, while the examiner states that the Veteran's hypertension did not begin in service, the date of diagnosis is still listed as 1993. Therefore, an addendum opinion is necessary in order to reconcile the date of onset of the Veteran's hypertension. Regarding secondary service connection, the examiner opined that the Veteran's medical records do not support that the Veteran's hypertension is at least as likely as not (50 percent or greater probability) proximately due to or the result of the Veteran's service-connected allergic rhinitis, adjustment disorder with mixed anxiety and depressed mood, rotator cuff tendinopathy with degenerative joint disease, or sinusitis. The examiner's rationale was that normal blood pressure readings were documented, and that lifestyle, diet, and family genetics are all causes of hypertension. The examiner also opined that the Veteran's hypertension was not at least as likely as not aggravated beyond its natural progression by the above-noted service-connected conditions. The examiner noted that there was no found hypertensive episodes during service to establish a baseline of severity. Again, the examiner stated that normal blood pressure readings were documented, and that lifestyle, diet, and family genetics are all causes of hypertension. Once VA undertakes the effort to provide an examination when developing a service connection claim, even if not statutorily obligated to do so, it must provide one that is adequate for the purposes of the determination being made. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The March 2021 directed that a rationale be provided for all opinions. While the examiner provided an etiology opinion regarding direct service connection for the Veteran's hypertension, specifically opining that hypertension is caused by poor lifestyle management, diet, and family genetics, the examiner did not provide adequate opinions regarding the causation or aggravation prongs of secondary service connection. Therefore, an addendum opinion is necessary. 2. Obstructive Sleep Apnea The March 2021 remand directed that the Veteran be afforded an addendum opinion to determine the etiology of the Veteran's sleep apnea. The examiner was specifically instructed to provide an opinion as to whether it is at least as likely as not any current sleep apnea had its clinical onset during active service or is related to any in-service disease, event, or injury. In providing this opinion, the examiner was instructed to consider the Veteran's description of his in-service symptoms as well as his post-service symptoms. The remand directives acknowledged that the Veteran and his wife have reported that the Veteran snored and had difficulty breathing in service. The examiner was directed to answer the question of whether the lay reports about the Veteran's symptoms align with how sleep apnea is known to develop or if the lay statements are generally inconsistent with medical knowledge. The examiner was also instructed to provide an opinion as to whether it is at least as likely as not that the Veteran's current sleep apnea was proximately caused by a service-connected condition. The examiner also had to opine as to whether it is at least as likely as not that any current sleep apnea was aggravated by a service-connected condition. The examiner was instructed to provide a rationale for all opinions. The Veteran was subsequently afforded a new VA medical opinion for his sleep apnea in May 2021. The examiner noted that the Veteran stated that his sleep apnea began in 1979, while in service. At this time, the Veteran reported that while in service, others would complain about his snoring and one even recorded the Veteran's snoring. The Veteran stated that his sleep apnea progressed and worsened since its onset. The Veteran reported feeling sleepy during the day, and sleeps with a CPAP machine but cannot use it all of the time as it causes sinus infections. The Veteran was noted to have persistent daytime hypersomnolence. The examiner specifically noted that the Veteran falls asleep easily during the day when in front of a computer and he fatigues easily due to loss of sleep. In the May 2021 opinion, the examiner opined that the Veteran's medical records do not support that any currently diagnosed conditions related to the Veteran's claimed sleep apnea is at least as likely as not (50 percent or greater probability) incurred in or caused by snoring during service. The examiner stated that after a thorough review of the Veteran's claims file, a nexus could not be established for sleep apnea/snoring during service. The examiner noted that the Veteran's blood pressure readings show low response to stress. Further, the examiner acknowledged that stress, gasping, and snoring are known to be strong factors for sleep apnea, and these symptoms are not found in the Veteran's claims file. The examiner opined that the Veteran's sleep apnea was caused by his body habitus, jaw structure, as well as a "large list of medical diagnos[es] and the circumstances at what might have led to their diagnoses." When asked to address direct service connection for sleep apnea, the examiner wrote "it is opined that it is not at least as likely as not any current sleep apnea had its clinical onset during active service or [is] related to any in service disease, event or injury. The blood pressure readings show low response to stress during these times as documented throughout the evidence." While the May 2021 VA medical opinion acknowledges some of the Veteran's lay statements, the examiner did not consider these statements in making their opinion. Therefore, there was not substantial compliance with the remand directives and another VA opinion is necessary. Regarding secondary service connection, the examiner concluded that the Veteran's medical records do not support that the Veteran's sleep apnea is at least as likely as not (50 percent or greater probability) proximately due to or the result of the Veteran's service-connected disabilities, to include allergic rhinitis, adjustment disorder with mixed anxiety and depressed mood, rotator cuff tendinopathy with degenerative joint disease, left shoulder, and sinusitis. Specifically, the examiner opined that there is no nexus to support a diagnosis of sleep apnea secondary to these service-connected disabilities. The examiner also opined that the Veteran's sleep apnea was not at least as likely as not aggravated beyond its natural progression by the above-noted service-connected disabilities. In coming to this conclusion, the examiner stated that there was no mention of snoring found. Throughout the appeal period, the Veteran has submitted various statements on his sleep apnea. In October 2013, the Veteran submitted a statement from his wife in which she stated that she has always known him to snore. The Veteran's wife stated that in 1987 she began to notice hesitation in his breathing while he slept. Further, she stated that in November 2012, VA conducted a sleep study in which the Veteran was diagnosed with sleep apnea. In his October 2014 Notice of Disagreement (NOD), the Veteran stated that his wife could attest to the fact that he has been snoring and having difficulty breathing during his sleep for as long as she can remember. Further, in August 2015, the Veteran stated that he became aware he had a snoring problem while in service when other men started complaining about it. In his October 2015 Form 9, the Veteran stated that even though he was not tested for sleep apnea while in service, his snoring during service was an indicator of his current diagnosis of sleep apnea. In May 2021, the Veteran stated that his wife had observed him snoring and struggling to breathe in his sleep for 40 years. Once VA undertakes the effort to provide an examination when developing a service connection claim, even if not statutorily obligated to do so, it must provide one that is adequate for the purposes of the determination being made. Barr, 21 Vet. App. at 311. The March 2021 directed that a rationale be provided for all opinions. Regarding both the causation and aggravation prongs of secondary service-connection, the examiner merely opined that the Veteran's sleep apnea was less likely than not proximately due to or the result of the Veteran's service-connected conditions and that it was less likely than not that the Veteran's sleep apnea was aggravated by his service-connected conditions. A rationale for these opinions were not provided. Therefore, a remand is necessary to obtain a new medical opinion. The matters are REMANDED for the following action: 1. Arrange for an addendum opinion by an appropriate clinician who has not previously examined the Veteran for the purpose of determining the etiology of the Veteran's hypertension. The entire claims file and a copy of this remand must be made available to the clinician for review. A new examination is only required if deemed necessary by the clinician. a. The clinician must provide an opinion as to whether it is at least as likely as not (a probability of 50 percent or greater) that the Veteran's hypertension began in service, was caused by service, or is otherwise related to active service. In offering the opinion, the examiner is asked to reconcile, if at all possible, the reported date of onset for the diagnosis of hypertension, which was listed as 1993 in both the July 2019 and May 2021 VA medical opinions. In other words, is there any plausible basis for finding that hypertension manifested in service, and specifically in 1993? b. The clinician must provide an opinion as to whether it is at least as likely as not (a probability of 50 percent or greater) that the current hypertension was proximately caused by any of the Veteran's service connected conditions. c. The clinician must provide an opinion as to whether it is at least as likely as not (a probability of 50 percent or greater) that the current hypertension was aggravated (i.e., worsened beyond its natural progression) by any of the Veteran's service-connected conditions. The rationale for any opinion expressed should be provided. Note that the fact that a disability is not mentioned in treatment records cannot serve as the sole basis for a negative finding. If an opinion cannot be made without resort to speculation, the clinician should so state and provide reasoning as to why a conclusion would be so outside the norm that such an opinion is not possible. 2. Arrange for an addendum opinion by an appropriate clinician who has not previously examined the Veteran for the purpose of determining the etiology of his obstructive sleep apnea. The entire claims file and a copy of this remand must be made available to the clinician for review. A new examination is only required if deemed necessary by the clinician. a. The clinician must provide an opinion as to whether it is at least as likely as not (a probability of 50 percent or greater) that the Veteran's obstructive sleep apnea began in service, was caused by service, or is otherwise related to the Veteran's active service. Although an independent review of the claims file is required, the Board calls the clinician's attention to the following: i. The Veteran's wife's October 2013 statement that in 1987 she noticed hesitation in the Veteran's breathing when he slept, and that the Veteran has always been known to snore, ii. The Veteran's October 2014 Notice of Disagreement in which he stated that he has a history of snoring and difficulty breathing while sleeping, iii. The Veteran's August 2015 statement that while in service others would complain about his snoring, iv. The Veteran's May 2021 statement that his snoring during service indicated a diagnosis of sleep apnea, even though he was not tested during service. b. The clinician must provide an opinion as to whether it is at least as likely as not (a probability of 50 percent or greater) that the Veteran's sleep apnea was proximately caused by any of the Veteran's service-connected conditions. c. The clinician must provide an opinion as to whether it is at least as likely as not (a probability of 50 percent or greater) that the Veteran's sleep apnea was aggravated (i.e., worsened beyond its natural progression) by any of the Veteran's service-connected conditions. The rationale for any opinion expressed should be provided. Note that the fact that a disability is not mentioned in treatment records cannot serve as the sole basis for a negative finding. If an opinion cannot be made without resort to speculation, the clinician should so state and provide reasoning as to why a conclusion would be so outside the norm that such an opinion is not possible. 3. Ensure that the directives of this remand have been implemented. If they have not, appropriate corrective actions must be undertaken before readjudication. Stegall v. West, 11 Vet. App. 268 (1998). (Continued on the next page) 4. Then, readjudicate the claims. If any decision is unfavorable to the Veteran, issue a Supplemental Statement of the Case and allow the applicable time for response. Then, return the case to the Board. D. Martz Ames Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. DeVerter, 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.